SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of the 28th day of
July, 1998, is made by and between TRITEL COMMUNICATIONS, INC., a Delaware
corporation ("Tritel"), and SPECTRASITE COMMUNICATIONS, INC., a Delaware
corporation ("SpectraSite").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. THE SERVICES
1.1. SERVICES.
SpectraSite will perform the services described on Exhibit A (the
"Services") for Tritel (or subsidiaries or entities under common control with
Tritel, as directed by Tritel) regarding the project described therein (the
"Project") in accordance with the terms and conditions of this Agreement.
SpectraSite will perform the Services in a professional, workmanlike manner,
will exercise reasonable skill, care and diligence in the performance of the
Services and will carry out its responsibilities in accordance with industry
accepted good professional engineering practices and in compliance with all
standards and rules reasonably established by Tritel from time to time;
provided, however, that any timetables agreed to by SpectraSite shall be subject
to appropriate adjustment in the event Tritel materially changes its established
standards and rules. Unless otherwise agreed by Tritel in writing, SpectraSite
will provide all personnel, equipment and supplies necessary or appropriate to
perform the Services.
1.2. EXAMINATION OF THE SERVICES.
SpectraSite has examined the applicable ordinances, rules and
regulations, and has examined the markets where the Services will be provided
and satisfied itself as to all conditions to be encountered in the performance
of the Services; provided, however, Tritel acknowledges that such ordinances,
rules and regulations may change from time to time and that such ordinances,
rules and regulations may be subject to conflicting interpretations. SpectraSite
shall not be liable to Tritel for any damages or delays which may be caused by
changes in or ambiguities associated with such ordinances, rules and
regulations. In any event, SpectraSite shall be entitled to rely upon the advice
and opinions of counsel engaged by Tritel.
1.3. TIME IS OF THE ESSENCE.
Upon execution of this Agreement, the parties shall promptly negotiate
and establish a general overall progress schedule for the performance of the
Services in all markets subject to this Agreement and completion of the Project,
which schedule shall be supplemented (prior to commencing individual site
Services in any market) with more detailed and mutually established market by
market progress schedules (the general and more detailed progress schedules may
be hereafter referred to collectively as the "Progress Schedule") which shall
include a description of milestones marking the completion of certain successive
phases of the Services (the
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"Milestones"). The Progress Schedule, when executed by Tritel and SpectraSite,
shall be deemed an addendum to this Agreement and become an integral part of
this Agreement. The Progress Schedule may be amended by mutual agreement of
Tritel and SpectraSite in writing.
In the performance of SpectraSite's obligations under this Agreement,
time is of the essence. SpectraSite agrees to see to the timely performance of
the Services in accordance with the Progress Schedule and will not delay (beyond
deadlines established in the Progress Schedule) or interfere with other portions
of work on the Project. SpectraSite recognizes that Tritel will incur severe
economic loss if the Project is not timely completed, and that SpectraSite will
be responsible to compensate Tritel for such loss in accordance with Section 1.9
if SpectraSite does not comply with the Progress Schedule.
1.4. COMMENCEMENT AND PROGRESS.
Upon execution of this Agreement, SpectraSite will commence providing
preliminary Services to Tritel prior to the establishment of the Progress
Schedule. Tritel shall compensate SpectraSite for such preliminary Services in
accordance with Exhibit B.
Upon Tritel and SpectraSite's mutual execution of the Progress
Schedule, SpectraSite will commence providing Services within a market specified
by Tritel within three (3) weeks after written notice from Tritel to
SpectraSite, and shall provide the Services diligently and in accordance with
the Progress Schedule.
1.5. PRIORITY OF SERVICES.
Within the parameters of the Progress Schedule, Tritel shall have the
right to decide the time, order and priority in which the various portions of
the Services shall be performed and all other matters relevant to the timely and
orderly conduct of SpectraSite's Services.
1.6. COORDINATION.
SpectraSite shall cooperate with Tritel and all other contractors
involved in the Project in the provision of the Services. Tritel shall cooperate
with SpectraSite in connection with its provision of the Services, and shall
instruct its contractors and agents involved in the Project to do likewise.
1.7. AUTHORIZED REPRESENTATIVE; PERSONNEL.
SpectraSite shall designate one or more persons who shall be
SpectraSite's authorized representative(s) on-site and off-site. Tritel shall
have the right to approve any personnel (whether employees, contractors or
otherwise) assigned by SpectraSite to perform any Services, which approval shall
not be unreasonably withheld or delayed.
1.8. ASSIGNMENT AND SUBCONTRACTING.
SpectraSite will not assign the work under this Agreement, or
subcontract any portion of it, without the written consent of Tritel.
Notwithstanding the foregoing, SpectraSite shall be entitled to enter into
independent contractor relationships with agents to perform site acquisition
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services. SpectraSite will not make any assignment of payments to be earned by
SpectraSite under this Agreement without the prior written approval of Tritel.
1.9 CONSEQUENCES FOR DELAY.
Except as noted below, in the event of a delay of SpectraSite referred
to in Section 1.3, there shall be deducted from the Compensation payable to
SpectraSite the following amounts: (a) a charge equal to [CONFIDENTIAL TREATMENT
REQUESTED] per day per search ring for each day of delay in the Progress
Schedule solely attributable to SpectraSite, subject to a maximum delay charge
of [CONFIDENTIAL TREATMENT REQUESTED] per search ring. References to "search
ring" shall mean any search rings as is issued by Tritel or its RF engineering
contractor(s) or as such may be modified pursuant to mutual agreement of Tritel
and SpectraSite.
SpectraSite will be excused for any delay caused by acts of God, war
(including civil war), civil unrest, acts of government (including moratoriums,
changes in statutes, rules, ordinances or regulations, or changes in the
interpretation or application of statutes, rules, ordinances or regulations),
fire, floods, explosions, inclement weather, epidemics, quarantine restrictions,
delays caused by Tritel or its vendors or other contractors, extraordinary
delays caused by the review, negotiation and execution of leases by prospective
lessors or other events beyond the control of SpectraSite. SpectraSite will be
entitled to extensions of time for such delay only upon written notice to Tritel
within ten (10) days after SpectraSite discovers that an event has occurred
which will cause such delay. The foregoing sums represent the amount of
liquidated damages which the parties have agreed upon as compensation to Tritel
for any delay in placing Tritel's systems in commercial service in accordance
with the Progress Schedule as a result of SpectraSite's delay or interference.
The parties acknowledge that such sums represent a fair and equitable amount of
compensation for delay in view of the impossibility of ascertaining actual
damages.
SECTION 2. COMPENSATION.
2.1. COMPENSATION.
Tritel will pay SpectraSite for Services rendered and reimburse
SpectraSite for expenses in accordance with Exhibit B (the "Compensation"). Any
state and local sales or use taxes arising from Tritel's payment of the
Compensation are not included and, if applicable, shall be payable by Tritel.
2.2. PAYMENT TERMS.
SpectraSite will submit invoices to Tritel monthly. Tritel will remit
all properly payable amounts within thirty (30) days of Tritel receipt of any
such invoice unless Tritel elects the financing option set forth below. Tritel
may elect to finance the payment of any service fees on a given invoice for a
period of up to nine months, but Tritel shall not be allowed to finance any
Reimbursable Expenses or Direct Expenses and those sums shall continue to be due
and payable within thirty (30) days of the date of Tritel's receipt of
SpectraSite's invoice. If Tritel so elects, it shall provide written notice to
SpectraSite not later than thirty (30) days after receipt of the
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invoice that Tritel wishes to finance and interest will begin to accrue on all
charges set forth in any deferred invoice at a floating per annum rate equal to
the prime rate of interest published in The Wall Street Journal plus three
percent beginning on the thirty-first day following Tritel's receipt of any such
invoice. Tritel agrees to execute a promissory note evidencing said indebtedness
if such a request is made by SpectraSite. Tritel agrees that SpectraSite may
accelerate the outstanding balance of any outstanding indebtedness together with
accrued interest in the event of a breach or other default by Tritel under the
terms of this Agreement or in the event that Tritel elects to terminate this
Agreement pursuant to section 11 of this Agreement. Each invoice will describe
in reasonable detail and with respect to the relevant invoice period a
description of the Services provided. The Compensation shall not be altered
except as specifically provided for in this Agreement.
2.3. INVOICE REPRESENTATION.
All invoices must be accompanied by a representation and warranty of
SpectraSite that all laborers, subcontractors, suppliers and others who might
claim lien rights on the Project have been or will be timely paid in full.
2.4. PAYMENT NOT ACCEPTANCE.
Payment to SpectraSite alone does not constitute or imply acceptance by
Tritel of any portion of SpectraSite's Services.
2.5. SPECTRASITE PAYMENT FAILURE.
If it appears to Tritel that the labor, material and other bills
incurred in the performance of SpectraSite's Services (which if unpaid may give
rise to lien rights or claims on the Project) are not being currently paid,
Tritel may take such steps as it deems necessary to insure that the money paid
to SpectraSite will be utilized to pay such bills.
2.6. BACK CHARGES AND WITHHOLDS.
Tritel may withhold payments from SpectraSite in amounts that are
sufficient to protect Tritel in the event of any of the following:
(a) Any claims Tritel may have against SpectraSite arising out of
other projects;
(b) Reasonable evidence brought to Tritel's attention that any claims,
demands, suits, attachments and/or liens are to be filed against
SpectraSite which could potentially affect the Project;
(c) Any bona fide claim or lien against Tritel or the premises upon
which the Services were performed which arises out of
SpectraSite's default in its performance of this Agreement.
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2.7. FINAL PAYMENT.
The final payment for any portion of the Project will be due when
SpectraSite's Services relating to such portion of the Project have been
completed and accepted by Tritel, which acceptance shall not be unreasonably
withheld. For purposes of this Section 2.7, final payment shall be deemed to
have been made upon Tritel's election to finance the charges subject to the
final payment, effective upon Tritel's provision of notice of such election to
SpectraSite. Prior to final payment SpectraSite shall submit to Tritel:
(a) SpectraSite's affidavit that all payrolls, bills for materials and
equipment, and other indebtedness connected with SpectraSite's
Services regarding such portion of the Project for which Tritel or
its property might in any way be liable, have been paid, or
otherwise satisfied; and
(b) Other data as reasonably required by Tritel, such as receipts,
releases, and waivers of liens.
SECTION 3. TERM.
The term of this Agreement will commence on the date hereof and, unless
otherwise earlier terminated pursuant to Section 11 or extended upon mutual
agreement of the parties, will end upon the earlier of:(i) SpectraSite's
completion and Tritel's acceptance of the Services; or (ii) three (3) years from
the date of SpectraSite's commencement of Services in the last market of Tritel
in the Project covered by this Agreement.
SECTION 4. INDEPENDENT CONTRACTOR.
SpectraSite will perform the Services as an independent contractor of
Tritel, and this Agreement will not be construed to create a partnership, joint
venture or employment relationship between SpectraSite and Tritel. SpectraSite
will not represent itself to be an employee or agent of Tritel or enter into any
agreement on Tritel's behalf or in Tritel's name, unless SpectraSite is
specifically authorized in writing by Tritel to do so.
SECTION 5. COMPLIANCE WITH LAWS.
SpectraSite will at its own cost (a) comply with all federal, state and
local laws, ordinances, regulations and orders with respect to its performance
of the Services (collectively, the "laws", (b) file all reports relating to the
Services (including, without limitation, tax returns), (c) pay all filing fees
and federal, state and local taxes applicable to SpectraSite's business as the
same shall become due, and (d) pay all amounts required under local, state and
federal workers' compensation acts, disability benefit acts, unemployment
insurance acts and other employee benefit acts when due, SpectraSite will
provide Tritel with such documents and other supporting materials as Tritel may
reasonably request to evidence SpectraSite's continuing compliance with this
Section 5. SpectraSite is liable to Tritel for all fines and penalties
attributable to any acts of commission or omission by SpectraSite, its employees
and agents resulting from the failure to comply with laws.
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SECTION 6. INSURANCE. SpectraSite will procure and maintain, during the term of
this Agreement, insurance of the following types and coverage amounts:
(a) Workers compensation insurance in accordance with the provisions
of the applicable workers compensation or similar law of the state
applicable to Contractor's personnel;
(b) Comprehensive general liability insurance with minimum coverage of
$1,000,000 combined single limit per occurrence for bodily injury
or property damage;
(c) Automobile liability insurance insuring all owned, non-owned and
hired automotive equipment in minimum combined single limit
amounts of $1,000,000;
(d) Umbrella coverage of not less than $4,000,000 combined single
limit in excess of the coverage required in subsections (b) and
(c) above;
(e) Errors and omissions coverage of not less than $1,000,000 per
occurrence.
Tritel shall be named as additional insured under the insurance
required under subsections (b), (c), (d), and (e). SpectraSite shall
provide Tritel with certificates of insurance evidencing the coverage
required above. Such insurance will provide for 30 days prior written
notice to Tritel in event of cancellation, non-renewal, or material
changes in coverage.
SECTION 7. CONFIDENTIAL INFORMATION.
SpectraSite acknowledges that all documents and records containing
Confidential Information, whether prepared by SpectraSite, Tritel or others, are
the property of and belong to Tritel and shall be returned to Tritel upon
request. No Confidential Information shall be used by SpectraSite for any
purpose other than rendering the Services hereunder, and SpectraSite shall not
disclose Confidential Information to others except as may be necessary to render
the Services hereunder. This term shall survive the termination of this
Agreement. This term "Confidential information" means information, except as may
be properly in the public domain, about Tritel's projects, processes,
management, operations, services, manufacturing, purchasing, accounting,
marketing, merchandising, selling, research and development, any other
information of a proprietary or competitively sensitive nature or such other
information designated by Tritel in writing to be Confidential Information.
Further, Tritel is a party to certain confidentiality and non-isclosure
agreements with other vendors/service providers and, as a contractor of Tritel,
SpectraSite may be granted access to certain confidential and proprietary
information of such third parties. As to any such information provided to
SpectraSite, it shall fully comply with all requirements of any confidentiality
or non-disclosure agreements applicable to such information.
SECTION 8. NO CONFLICTING OBLIGATIONS.
8.1. OTHER AGREEMENTS.
SpectraSite's execution, delivery and performance of this Agreement
will not violate any other employment, nondisclosure, confidentiality,
consulting or other agreement to which SpectraSite is a party or by which it may
be bound.
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8.2. THIRD-PARTY CONFIDENTIAL INFORMATION.
SpectraSite will not use, in the performance of the Services or the
creation of any Proprietary Materials, or disclose to Tritel any confidential or
proprietary information to any other person if such use or disclosure would
violate any obligation or duty that SpectraSite owes to such other person.
SpectraSite's compliance with this Section 8.2 will not prohibit, restrict or
impair SpectraSite's performance of the Services and it's other obligations and
duties to Tritel.
SECTION 9. INDEMNIFICATION.
SpectraSite shall indemnify, defend and hold Tritel (and Tritel's
agents, legal representatives, officers, directors, shareholders and employees)
harmless from all claims, damages, losses, costs, expenses (including attorneys'
fees) and liabilities, including any amounts paid in satisfaction of judgments,
in compromise or as fines and penalties, arising out of or resulting from any
claim, action, investigation or other proceeding (including any proceeding by
any of SpectraSite's employees, agents or subcontractors), actual or threatened,
that is based upon (a) a default by SpectraSite in the performance of its
obligations under this Agreement, (b) any representation or warranty of
SpectraSite being untrue in any material respect, (c) the conduct of
SpectraSite's business, (d) any negligent act or omission of SpectraSite, or (e)
the infringement or misappropriation of any foreign or United States patent,
copyright, trade secret or other proprietary right by the Proprietary Materials
originating from SpectraSite.
Tritel shall indemnify, defend and hold Tritel (and Tritel's agents,
legal representatives, officers, directors, shareholders and employees) harmless
from all claims, damages, losses, costs, expenses (including attorneys' fees)
and liabilities, including any amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, arising out of or resulting from any
claim, action, investigation or other proceeding (including any proceeding by
any of Tritel's employees, agents or subcontractors), actual or threatened, that
is based upon (a) a default by Tritel in the performance of its obligations
under this Agreement or (b) any representation or warranty of Tritel being
untrue in any material respect.
SECTION 10. NONDISCLOSURE AGREEMENT.
As a condition to Tritel's obligations under this Agreement,
SpectraSite agrees to abide by all the terms and conditions of that certain
Non-disclosure Agreement dated as of July 28, 1998 executed by and between
Tritel and SpectraSite (the "Non-disclosure Agreement").
SECTION 11. TERMINATION.
11.1. TERMINATION FOR CAUSE.
Tritel may terminate this Agreement upon an Event of Default (defined
below), provided, however, that as to any of the matters set forth in
subparagraphs (iii) through (vii) of Section 13: (a) Tritel sends written notice
to SpectraSite describing the breach in reasonable detail, (b) SpectraSite does
not cure the breach within thirty (30) days following its receipt of such
notice, and (c) following the expiration of the thirty-day cure period, Tritel
sends a second written notice to SpectraSite indicating Tritel's desire to
terminate this Agreement. If an Event of Default results from any of the matters
set forth in subparagraphs (i) and (ii) of Section 13, Tritel's
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termination of this Agreement shall be effective upon giving notice of
termination to SpectraSite. SpectraSite may terminate this Agreement upon
Tritel's material breach of this Agreement, provided that (a) SpectraSite sends
written notice to Tritel describing the breach in reasonable detail, (b) Tritel
does not cure the breach within thirty (30) days following its receipt of such
notice, and (c) following the expiration of the thirty-day cure period,
SpectraSite sends a second written notice to Tritel indicating SpectraSite's
desire to terminate this Agreement.
11.2. TERMINATION FOR CONVENIENCE.
Either Tritel or SpectraSite may terminate this Agreement at any time
upon thirty (30) days' written notice to the other (a "Termination for
Convenience"). Upon a Termination for Convenience, SpectraSite shall be
compensated for any Services rendered but which have not been paid ("Unpaid
Services") on a time and materials basis as set forth in Exhibit B.
11.3. SURVIVAL.
Sections 5 and 7 and Sections 9 through 24 (together with all other
provisions of this Agreement that may reasonably be interpreted or construed as
surviving termination of the Term) will survive the termination of the Term.
SECTION 12. NOTICES.
All notices given hereunder will be given (and shall be deemed to have
been given upon receipt) in writing, will refer to this Agreement and will be
personally delivered or by registered or certified mail (return receipt
requested) to the address set forth below the parties' signatures at the end of
this Agreement. Any party may from time to time change such address by giving
the other party notice of such change in accordance with this Section 12.
SECTION 13. EVENT OF DEFAULT.
For the purposes of this Agreement, an "Event of Default" shall be if:
(i) At any time there shall be filed by or against SpectraSite in
any court a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee
of all or a portion of the property of SpectraSite, and within
twenty (20) days from the filing date SpectraSite fails to
secure a discharge; or
(ii) SpectraSite makes an assignment for the benefit of creditors or
petitions for or enters into an agreement or arrangement with
its creditors; or
(iii) SpectraSite materially fails to prosecute the Services in
accordance with the Acceptance Criteria, and therefore, fails to
complete the Services entirely on or before any date established
in the Process Schedule for partial, substantial or final
completion (except for delays for which SpectraSite is entitled
to additional time); or
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(iv) There is a breach of any of SpectraSite's representation or
warranties contained in this Agreement or required to accompany
any invoice rendered under this Agreement; or
(v) SpectraSite fails to supply sufficient labor, material and/or
equipment so as to complete the Services in accordance with the
Progress Schedule, unless such delay is excused in accordance
with Section 1.9; or
(vi) SpectraSite performs defective work and fails to correct
promptly and properly such defective work; or
(vii) Without limitation, SpectraSite fails to perform any material
provision of this Agreement.
SECTION 14. ASSIGNMENT.
SpectraSite may not assign this Agreement, in whole or in part, without
Tritel's prior written consent. Tritel may assigns its rights hereunder to 9(a)
any corporation or other entity resulting from any merger, consolidation or
other reorganization to which Tritel is a party, (b) any corporation,
partnership, association or other entity or person to which Tritel may transfer
all or substantially all of the assets and business of Tritel existing at such
time, or (c) any subsidiary of or entity under common control with Tritel.
Notwithstanding any such assignment, Tritel shall remain fully liable for the
performance of its duties hereunder. All the terms and provisions of this
Agreement will be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors and permitted assigns.
SECTION 15. PERSONNEL.
The terms and conditions of this Agreement will be binding upon
SpectraSite's employees, agents, subcontractors and affiliates.
SECTION 16. WAIVERS.
No delay or failure by any party hereto in exercising or enforcing any
of its rights or remedies hereunder, and no course of dealing or performance
with respect thereto, will constitute a waiver thereof. The express waiver by a
party hereto of any right or remedy in a particular instance or will not
constitute a waiver thereof in any other instance. All rights and remedies will
be cumulative and not exclusive of any other rights or remedies.
SECTION 17. AMENDMENTS.
No amendment, waiver or discharge of any provision of this Agreement
will be effective unless made in writing that specifically identifies this
Agreement and the provision intended to be amended, waived or discharged and
signed by Tritel and SpectraSite. Each such amendment, waiver or discharge will
be effective only in the specific instance and for the specific purpose for
which given.
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SECTION 18. APPLICABLE LAW.
This Agreement and each of the documents referred to herein shall be
interpreted, construed, applied and enforced in accordance with the laws of the
State of Mississippi, without regarding to any rules governing conflicts of
laws. Any action to enforce arising out of, or relating in any way to, any of
the provisions of this Agreement may be brought and prosecuted only within such
court or courts located in the State of Mississippi as is provided by law; and
the parties consent to the jurisdiction of said court or courts located in the
State of Mississippi and the service of process by registered mail, return
receipt requested, or by any other manner provided by law.
SECTION 19. SEVERABILITY.
If any provision of this Agreement is held invalid, illegal or
unenforceable in any jurisdiction, for any reason, then, to the full extent
permitted by law (a) all other provisions hereof will remain in full force and
effect in such jurisdiction and will be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
invalidity, illegality or unenforceability will not affect the jurisdiction
therefor will have the power to reform such provision to the extent necessary
for such provision to be enforceable under applicable law.
SECTION 20. ENTIRE AGREEMENT.
This Agreement and the Non-disclosure Agreement, including the exhibits
and schedules hereto and thereof, constitute the entire agreement between the
parties with respect to their subject matters, and all prior or contemporaneous
oral or written communications, understandings or agreements between the parties
with respect to such subject matters are hereby superseded in their entireties.
SECTION 21. DISPUTES.
21.1. AGREEMENT TO ARBITRATE.
All claims, disputes and matters in question arising out of, or
relating to, this Agreement or any claimed breach of this Agreement, except for
claims of SpectraSite which have been waived by its acceptance of final payment,
shall be decided by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect unless the parties
mutually agree otherwise. This agreement to arbitrate shall be specifically
enforceable.
21.2. DEMAND FOR ARBITRATION.
Notice of demand for arbitration shall be filed in writing with the
other party to this Agreement and with American Arbitration Association. The
demand for arbitration shall be made within thirty (30) days after written
notice of the claim, dispute or other matter in question has been given, and in
no event shall it be made after the time when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred
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by the applicable statute of limitations, whichever occurs first. The location
of the arbitration proceeding shall be Jackson, Mississippi.
21.3. AWARD.
The award rendered by the arbitrator(s) shall be final and judgment may
be entered upon it in accordance with applicable law in any court having
jurisdiction.
21.4. SAME ARBITRATORS.
At the election of Tritel, any arbitration proceeding instituted by
either party under this Agreement may be consolidated with any other arbitration
proceeding then or thereafter pending between either party and any other person
or entity if the respective arbitrations involve similar questions of fact or
law or arise out of any work done or services supplied for the design or
construction of the Project.
21.5. EXCEPTIONS.
This agreement to arbitrate shall not apply to any claim of
contribution or indemnity asserted by one party of this Agreement against the
other party and arising out of an action brought in a state or federal court or
in arbitration by a person who is under no obligation to arbitrate the subject
matter of such action with either of the parties to this Agreement, or who does
not consent to such arbitration.
SECTION 22. COUNTERPARTS.
This Agreement may be executed in two or more counterparts that
together shall constitute a single agreement.
SECTION 23. HEADINGS.
The headings contained in this Agreement are for ease of reference and
shall not affect the interpretation or meaning of this Agreement.
SECTION 24. PUBLICITY.
So long as this Agreement is in effect, neither SpectraSite, nor any of
its affiliates, officers, directors, employees or agents shall issue any press
release or otherwise make any public statement with respect to the existence of
this Agreement or the subject matter of this Agreement without the prior written
consent of Tritel.
SECTION 25. LIMITATION OF LIABILITY.
Except for the liquidated damages and other payment undertakings of
SpectraSite as set forth in Section 1.9, expenses of arbitration and awards of
attorneys fees and expenses, in no event shall SpectraSite be liable under this
Agreement for: (i) special incidental or consequential damages (including loss
of profits) regardless of legal theory advanced, whether foreseen or
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unforeseen; or (ii) an amount exceeding the price of Services rendered through
the date of any termination or expiration of this Agreement.
SECTION 26. FORCE MAJEURE.
In the event a party's performance of an obligation hereunder is
rendered impossible or commercially impractical (rather than simply delayed) due
to causes beyond its control and without its fault or negligence, including, but
not limited to, acts of God, war (including civil war), civil unrest, acts of
government (including moratoriums, changes in statutes, rules, ordinances or
regulations, or changes in the interpretation or application of statutes, rules,
ordinances or regulations), fire, floods, explosions, inclement weather,
epidemics, quarantine restrictions, strikes or labor unrest (of third parties
but not of such party), material shortage, or delays in transportation, such
party's performance of such obligation shall be excused.
The parties have executed this Agreement as of the date first set forth
above.
TRITEL COMMUNICATIONS, INC.
By:_________________________________
Xxxxx X. Xxxxxxxx, Xx.
Executive Vice President
Chief Operating Officer
ADDRESS:
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attn.: Xxxxx X. Xxxxxxxx, Xx.
SPECTRASITE COMMUNICATIONS, INC.
By:
--------------------------------
Name: Xxxxx X. Xxxx
------------------------------
Its: Vice President
------------------------------
ADDRESS:
SpectraSite Communications, Inc.
00 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
EXHIBIT A
SCOPE OF WORK
Following is the Scope of Services for the Tritel PCS system build-out. These
outlined procedures are designed to reflect site acquisition from pre-deployment
through delivery by SpectraSite of an approved site to the construction group.
It is understood that this work shall be reimbursed on a time and materials
basis pursuant to the fee schedule and expense responsibility set out in Exhibit
B. It is further understood that this Scope of Work may be modified by mutual
written agreement of the parties as the scope of services required expands.
Services under this Agreement shall be rendered as, when and where requested by
Tritel subject to required advance notice provisions set forth in the Agreement
to which this Exhibit is attached.
I. PRE-DEPLOYMENT
SpectraSite shall coordinate strategic planning and procedure development for
infrastructure development and coordination of Tritel, RF, site acquisition and
construction as requested by Tritel. SpectraSite shall undertake any research
and preparation of analysis of real estate, zoning, community issues, existing
structures, municipal sites, etc. that Tritel shall request in the BTAs prior to
actual site acquisition. Prior to commencing this work, SpectraSite shall
prepare and Tritel shall acknowledge the scope of the work and the nature and
format of the deliverables to Tritel or its designee. The priority and timing of
this work shall be at Tritel's direction. SpectraSite shall provide suggested
format for communication of all deliverable information. Tritel shall approve
such format prior to the delivery. This work shall be performed on a time and
materials basis pursuant to Exhibit B.
II. INITIAL SEARCH
Receive search area from Project Director or equivalent. Review with RF engineer
if appropriate.
Review and identify zoning categories and boundaries within the search area.
Identify critical dates for zoning application filings and hearing dates.
Drive search area. Look for existing towers or other structures of appropriate
height in or around search area limits.
Identify appropriate property owners within the search area through research of
tax maps.
Contact any appropriate existing tower owners, or building top owners first.
Then contact remaining property owners.
Investigate all appropriate lease or purchase options. Provide copies of sample
lease or purchase documents where appropriate.
1
EXHIBIT A
III. SITE OPTION REPORT
Provide a Site Option Report to Tritel Director or equivalent. This memo should
include the following information on a minimum of two sites;
Regarding Zoning
Identify potential opposition issues.
Identify required approvals and associated application and hearing dates, etc.
Establish potential lease/purchase price and terms.
Contact name, phone number.
Topographic maps representing each potential site, preliminary GPS coordinates
and approximate elevation.
Proposed tower height and recommended type.
Site address and directions to site.
Property size.
Photographs of site and easements.
Utility location information.
Signed Option if possible at this time [ assuming Tritel is using the
Option/Lease or Purchase method of securing prospective properties]
Arrange site visits as necessary for team decision making.
IV. SITE SELECTION
Project Director will select a primary and an alternate site to be purchased (or
leased).
Proceed with negotiations for first and second site choices. Consult with
approved attorneys regarding any legal changes to document. Consult with Project
Director regarding significant deviations from approved business terms.
Request preliminary title review for primary site.
Coordinate with construction group to confirm necessary access easements for
primary site.
2
EXHIBIT A
Submit lease/purchase contract package to Project Director for review and
signature. This package should include the following:
Lease/purchase contracts, and access.
Obtain final copy of title report and insurance for primary site. Coordinate any
curative measures as needed.
Environmental Phase I
FAA consultant study and FAA application (if necessary)
FCC tower registration (if necessary)
V. ZONING
Coordinate the completion and submission of appropriate applications for zoning,
special use permits, etc. for primary site.
Coordinate the organization of neighborhood meetings for addressing public
opposition as needed.
Coordinate preparation of appropriate presentation materials.
Coordinate other professional presentations as needed.
Coordinate attendance of necessary individuals at all zoning meetings.
VI. MONITORING TIMELINE
At least one weekly contact should be made with RF engineer to discuss site
options until site is approved. SpectraSite designed timeline will be used to
establish coordinated flow of project progress.
Close purchase or lease as necessary.
Notify Project Director (in written and in verbal form) when project is complete
and construction may begin.
VII. SITE INFORMATION PACKAGE
Prior to construction, provide Tritel with one copy of a Project Completion File
including:
Original lease/purchase agreement
Original easement agreements
3
All correspondence
Site Option Report/photos, etc.
Survey
Geotechnical report
Environmental report
Title report and insurance policy
FAA consultant study
FAA approval
4
EXHIBIT B
----------------------------------------------------------------------------------------------------------------------------
TRITEL COMMUNICATIONS, INC.
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
DAY RATES FOR SPECTRASITE PERSONNEL
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
REGIONAL MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT PROJECT DESIGN [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
PROJECT MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
AGENT MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
FIELD AGENT [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
ZONING COORDINATOR [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
LEASE COORDINATOR [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
OPERATIONS ASSISTANT [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
FIELD IMPLEMENTATION MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
FIELD IMPLEMENTATION COORD [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
FIELD SPECIALIST [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
TITLE/CLOSING MANAGER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
PRECONSTRUCTION RPTS MGR [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
OPERATIONS CLERK [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
DATABASE PROGRAMMER [CONFIDENTIAL TREATMENT REQUESTED]
----------------------------------------------------------------------------------------------------------------------------
Tritel Communications, Inc.
----------------------------------------------------------------------------------------------------------------------------
SpectraSite Services
----------------------------------------------------------------------------------------------------------------------------
Expense Reimbursement (at actual cost)
----------------------------------------------------------------------------------------------------------------------------
Expense Direct
----------------------------------------------------------------------------------------------------------------------------
Reimbursement Expense
----------------------------------------------------------------------------------------------------------------------------
Cellular Phone and Pagers X
----------------------------------------------------------------------------------------------------------------------------
Cellular Phone and Pagers Service X
----------------------------------------------------------------------------------------------------------------------------
Expert Testimony (if necessary) X
----------------------------------------------------------------------------------------------------------------------------
Field Exps: maps, deeds, films/processing, etc. X
----------------------------------------------------------------------------------------------------------------------------
Lease Option Fees X
----------------------------------------------------------------------------------------------------------------------------
Mileage - Project Related X
----------------------------------------------------------------------------------------------------------------------------
Noise Assessment Studies X
----------------------------------------------------------------------------------------------------------------------------
Office Equipment X
----------------------------------------------------------------------------------------------------------------------------
Office Rent X
----------------------------------------------------------------------------------------------------------------------------
Office Supplies X
----------------------------------------------------------------------------------------------------------------------------
Overnight Mail Fees X
----------------------------------------------------------------------------------------------------------------------------
Photo Simulation Fees X
----------------------------------------------------------------------------------------------------------------------------
Recording Fees X
----------------------------------------------------------------------------------------------------------------------------
Telephone Service Cost X
----------------------------------------------------------------------------------------------------------------------------
Title Report Expenses X
----------------------------------------------------------------------------------------------------------------------------
Tower Stress and Foundation Analysis X
----------------------------------------------------------------------------------------------------------------------------
Travel & Living Costs for Infrastructure Psn. X
----------------------------------------------------------------------------------------------------------------------------
Zoning Filing Fees
----------------------------------------------------------------------------------------------------------------------------
Zoning Permit Fees X
----------------------------------------------------------------------------------------------------------------------------
6
