Looking for a specific Project Construction Agreement?
Below is a list of Project Construction Agreements signed by actual companies.
Click a link below to preview an agreement.
Project Construction Agreements
Biotechnology / Pharmaceuticals (5)
Computer Software and Services (3)
Electronics and Miscellaneous Technology (1)
Health Products and Services (1)
Leisure and Entertainment (4)
Preview of our top selling Project Construction Agreement
Alcatel / Mid-Atlantic Crossing - Project Development & Construction
d {
EXECUTION COPY
PROJECT DEVELOPMENT
CONSTRUCTION CONTRACT
ALCATEL SUBMARINE NETWORKS
ALCATEL SUBMARINE NETWORKS, INC.
MID-ATLANTIC CROSSING LTD.
_____________________________________
DATED AS OF JUNE 2, 1998
_____________________________________
TABLE OF CONTENTS
GENERAL TERMS AND CONDITIONS
Article PAGE
- ------- ----
1 Provision of System............................................... 1
2 Documents Forming the Entire Contract............................. 2
3 Definitions....................................................... 2
4 Contract Price.................................................... 13
5 Terms of Payment by Purchaser..................................... 17
6 Contract Variations............................................... 20
6A Optional Upgrades................................................. 20
6B *................................................................. 24
7 Responsibilities for Permits; Compliance with Laws................ 24
8 Route Survey...................................................... 26
9 Acceptance........................................................ 27
10 Warranty.......................................................... 31
11 Contractor Support................................................ 35
12 Purchaser's Obligations........................................... 35
13 Termination for Default........................................... 36
14 Termination for Convenience....................................... 38
15 Suspension........................................................ 40
16 Title and Risk of Loss............................................ 41
17 Force Majeure..................................................... 41
18 Intellectual Property............................................. 42
19 Infringement...................................................... 47
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
Article PAGE
- ------- ----
20 Safeguarding of Information and Technology....................... 48
21 Export Control................................................... 49
22 Liquidated Damages............................................... 50
23 Limitation of Liability/Indemnification.......................... 50
24 Counterparts..................................................... 51
25 Design and Performance Responsibility............................ 52
26 Product Changes.................................................. 52
27 Risk and Insurance............................................... 52
28 Plant and Work Rules............................................. 55
29 Right of Access.................................................. 56
30 Quality Assurance................................................ 57
31 Documentation.................................................... 57
32 Training......................................................... 57
33 Settlement of Disputes/Arbitration............................... 57
34 Applicable Law................................................... 59
35 Notices.......................................................... 60
36 Publicity and Confidentiality.................................... 61
37 Assignment; Subcontractors....................................... 61
38 Relationship of the Parties...................................... 63
39 Successors Bound................................................. 63
40 Article Captions................................................. 63
41 Severability..................................................... 63
42 * ............................................................... 63
43 Survival of Obligations.......................................... 64
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
Article PAGE
- ------- ----
44 Non-Waiver....................................................... 64
45 Language......................................................... 64
46 Entire Agreement................................................. 64
Exhibit A Form of * Exhibit B Form of Consent and Agreement Exhibit C-1 Form of Opinion for Contractor Exhibit C-2 Form of Opinion for Guarantor Exhibit D Form of Payment
Escrow Agreement Exhibit E Form of Supplement No. 1 Exhibit F Form of Contractor's Invoice Certificate Exhibit G Examples of Contractor Permits Exhibit H Examples of Owner Permits Exhibit I Subcontractors Exhibit J Optional L
ong Lead Items
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
PROJECT DEVELOPMENT AND
CONSTRUCTION CONTRACT
This Project Development and Construction Contract ("Contract") is made as of this 2nd day of June, 1998 between (i) ALCATEL SUBMARINE NETWORKS (together with its permitted successors and assigns, "ASN"), a societe anonyme
--- organized and existing under the laws of France, and having its principal office in Paris, France, and ALCATEL SUBMARINE NETWORKS, INC. (together with its permitted successors and assigns, "ASNI"), a corporation organize
d and existing
---- under the laws of the State of Delaware, United States, and having its principal office in Portland, Oregon, United States (ASN and ASNI are hereinafter collective
ly referred to as "Contractor" and are jointly and severally liable
---------- for all obligations and liabilities of Contractor hereunder as more fully set forth in Article 42 hereof) and (
ii) MID-ATLANTIC CROSSING LTD., a corporation organized and existing under the laws of Bermuda, and having its principal office in Hamilton, Bermuda (hereinafter "Purchaser").
---------
WHEREAS, Purch
aser desires to establish a fiber optic submarine cable system, to be known as the Mid-Atlantic Crossing Submarine Cable System (hereinafter, and as more fully defined herein, the "System"), which will be used to provide service between and among the Unit
ed States mainland, Bermuda and St. Croix; and
WHEREAS, subject to the provisions of Article 6B hereof, the System will consist of the following Segments:
Segment 1: From Brookhaven, New York to Hollywood, Florida;
Segment 2: From Hollywood, Florida to St. Croix;
Segment 3: From St. Croix to Bermuda.
WHEREAS, Contractor is in the business of designing, constructing, installing, supplying, delivering and manufacturing fiber optic su
bmarine cable systems and is familiar with the general business of the fiber optic submarine cable system industry;
WHEREAS, Purchaser seeks to purchase and own the System and wishes to engage Contractor to perform the Work and Upgrade Work; and
WHEREAS, Contractor is willing to perform the Work and Upgrade Work on a turn-key, fixed-price basis in accordance with and subject to the terms hereof.
NOW THEREFORE, IT HAS BEEN AGREED AS FOLLOWS
ARTICLE 1 PROVISION OF SYSTEM - ------------------------------
In consideration of the Contract Price and the Upgrade Prices, the Contractor agrees to undertake the Work and the Upgrade Work and to provide the Purchaser with the System meeting the System Performance Requirement
s on or before the Scheduled RFS Date
and the System Upgrades meeting the requirements of Article 6A, all in accordance with the terms hereof.
ARTICLE 2 DOCUMENTS FORMING THE ENTIRE CONTRACT - ------------------------------------------------
This Contract consists of these commercial Terms and Conditions and the following documents (in the form of attachments, including appendices, attached hereto), which shall be read and construed as part of the Contract:
. Provisioning Schedule, Appendix 1, Upgrade Provisioning Schedule,
Appendix 1A
. Billing Schedule, Appendix 2, Upgrade Billing Schedule, Appendix 2A
. Plan of Work, Appendix 3, Upgrade Plan of Work, Appendix 3A
. Invoice Format, Appendix 4
. Technical Volume (includes Route Information), Appendix 5
In the event of any inconsistency between the Terms and Conditions and the above listed documents, the Terms and Conditions shall prevail. The Appendices listed above have no order of precedence.
ARTICLE 3 DEFINITIONS - ----------------------
Definitions are as described in the specific Articles. Except as otherwise defined the following definitions shall apply throughout the Contract:
AAA has the meaning set forth in Sub-Article 33(B).
ACCEPTANCE TESTING means (i) with respect to a Segment or the System,
the tests described in the System Commissioning and Acceptance section of
the Technical Volume or developed pursuant to such section by mutual
agreement of the Parties (with 15 days prior notice to the Independent
Engineer) and designed to verify that such Segment or the System meets the
applicable Performance Requirements and (ii) with respect to any System
Upgrade, the tests described in the System Commissioning and Acceptance
section of the Technical Volume or developed pursuant to such section by
mutual agreement of the Parties (with 15 days prior notice to the
Independent Engineer) and designed to verify that the System Upgrade meets
the applicable Performance Requirements.
ACCESS RIGHTS means all ownership, easement, wayleaves and/or other
property rights, from both private and governmental entities, both on land
and below the surface of the water (including, without limitation,
agreements to use conduits and ducts, install manholes and to lease space
in cable stations) necessary to access, use and occupy cable stations and
the sites for cable stations (including, without limitation, to land and
install the submarine cable and related equipment and to bring such cable
from the ocean to the cable stations) in order for the Purchaser to own,
operate and maintain the System.
ACTUAL KNOWLEDGE means the actual knowledge of any executives with
management responsibility for the Contract.
ASSIGNMENT has the meaning set forth in Sub-Article 37(A).
BANK ESCROW AGENT means Citibank, N.A., in its capacity as escrow
agent under the Payment Escrow Agreement, and its successors in such
BANKRUPTCY EVENT means an event specified in Sub-Article 13(A)(3) or
13(A)(4) with Contractor as the "other Party".
BASE SYSTEM means the two fiber pair submarine cable system consisting
of Segments 1, 2 and 3, as described in the second WHEREAS clause of this
Agreement, (at a per fiber pair capacity of 10 Gb/s at the Date of
Commercial Acceptance or the Date of Provisional Acceptance, as the case
may be, of the System, with each fiber pair upgradeable to 80 Gb/s per
fiber pair at the Date of Provisional Acceptance) as more fully described
in the System Description section of the Technical Volume.
BILLING MILESTONES means the billing milestones set forth in Appendix
BILLING SCHEDULE means a billing schedule attached hereto as Appendix
BUS-1 means the fiber optic cable system known as "BUS-1" connecting
Bermuda and Tuckerton, New Jersey.
CABLE STATION AND BEACH ACCESS RIGHTS means, with respect to each of
the cable stations in the System (i) a right to use space in such cable
station sufficient for the Supplies to be installed therein; (ii) the right
of access to such space so that the Contractor may install such Supplies;
(iii) duct space or other right so that Contractor may install the cable
from the beach manhole to such cable station; (iv) access to the beach
manhole(s); and (v) except with respect to the Bermuda cable station, the
right to use any directionally drilled conduit space seaward from the beach
manhole so that the Contractor may install the cable from the sea to such
beach manhole without undertaking directional drilling or other separate
shore-end marine operations.
CERTIFICATE OF COMMERCIAL ACCEPTANCE means a certificate issued by
Purchaser in accordance with Sub-Article 9(D) to Contractor certifying that
a Segment, the System or a System Upgrade is Ready for Commercial
CERTIFICATE OF FINAL ACCEPTANCE means a certificate issued by
Purchaser in accordance with Sub-Article 9(E) to Contractor certifying that
the System or a System Upgrade is Ready for Final Acceptance.
CERTIFICATE OF PROVISIONAL ACCEPTANCE means a certificate issued by
Purchaser in accordance with Sub-Article 9(C) to Contractor certifying that
a Segment, the System or a System Upgrade is Ready for Provisional
CIF means cost, insurance and freight, as defined in Incoterms.
COMMISSIONING REPORT has the meaning set forth in the System
Commissioning and Acceptance section of the Technical Volume.
CONFIDENTIAL INFORMATION has the meaning set forth in Sub-Article
36(B).
CONSENT means a Consent and Agreement to be entered into among
Contractor, Purchaser and the financing parties described in Sub-Article
37(C) and substantially in the form of Exhibit B hereto, with such changes
therein as made pursuant to Sub-Article 37(C) hereto.
CONTRACT means this agreement, specifically consisting of the
documents described in Article 2, and shall be deemed to include any
amendments thereto or Contract Variations pursuant to Article 6 (Contract
Variations).
CONTRACT PRICE means the Initial Contract Price, plus any variations
pursuant to Article 6 (Contract Variations), Article 6B (Optional Systems;
BUS-1 Option) or Article 8 (Route Survey), Taxes as set forth in Sub-
Article 4(B) and other adjustments to the Contract Price provided for in
this Contract.
CONTRACT TAXES has the meaning set forth in Sub-Article 4(B)(1).
CONTRACT VARIATION has the meaning set forth in Sub-Article 6(A).
CONTRACTOR means the entities that have collectively executed this
Contract as the Contractor, jointly and severally, and that will be
responsible for the performance of the Work (and if applicable, Upgrade
Work) under this Contract and shall include their permitted successors
and/or assigns.
CONTRACTOR PERMITS means all Permits that the Contractor needs to
conduct its business and all Permits which the Contractor must acquire in
order to carry out its operations to perform the work. Exhibit G hereto
contains a list of sample Contractor Permits; provided that such list is
not meant to be complete or exclusive.
DATE OF COMMERCIAL ACCEPTANCE, PROVISIONAL ACCEPTANCE OR FINAL
ACCEPTANCE means the date that Purchaser receives a Commissioning Report or
an Upgrade Commissioning Report, as the case may be, demonstrating that a
Segment or the System or a System Upgrade, as the case may be, is Ready for
Commercial Acceptance, Ready for Provisional Acceptance or Ready for Final
Acceptance in accordance with Article 9 (Acceptance).
DEFAULT means an Event of Default or any event, condition or
occurrence which with the giving of notice or passage of time or both would
be an Event of Default.
DELIVERABLE SOFTWARE has the meaning set forth in Sub-Article 18(C).
DELIVERABLE SOFTWARE ESCROW has the meaning set forth in Sub-Article
18(H).
DELIVERABLE TECHNICAL MATERIAL has the meaning set forth in Sub-
Article 18(B).
DISPUTE ACCOUNT means the Dispute Account to be created under the
Payment Escrow Agreement.
EVENT OF DEFAULT has the meaning set forth in Sub-Article 13(A).
EXCLUDED TAX means:
(i) any franchise, excess profits, net worth, capital or capital
gains Tax, as well as any Tax on doing business or imposed on net or gross
income or receipts (including minimum and alternative minimum Taxes
measured by any items of Tax preference), but in each case excluding Taxes
that are or are in the nature of sales, use, excise, license, stamp,
rental, ad valorem, value added or property Taxes (other than property
taxes on property owned by the Contractor and not intended to be
incorporated into the System);
(ii) any Taxes imposed by a jurisdiction other than one in which (a)
the Contractor is or is treated as engaged in activities contemplated by or
in fulfillment of the Contract or (b) the Purchaser or its affiliates has a
nexus to such jurisdiction and the Tax imposed is attributable to that
nexus;
(iii) Taxes imposed on the Contractor as a result of Contractor's
gross negligence or willful misconduct; and
(iv) any import duty, other import related charges, sales or use
tax, VAT or property tax imposed by the United States or any political
subdivision thereof or Taxing authority therein in respect of Supplies
brought into the United States for testing, modification or other similar
purposes prior to being installed or used outside the United States.
FINAL COMMISSIONING REPORT has the meaning set forth in the System
Commissioning and Acceptance section of the Technical Volume.
FINAL SURVEY REPORT means the final survey report described in the
Route Survey, Cable Loading and Marine Operations section of the Technical
FORCE MAJEURE has the meaning set forth in Sub-Article 17(A).
*
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
*
INCOTERMS means the International Chamber of Commerce, Guide to
Incoterms (1990).
INDEPENDENT ENGINEER means Conexart Technologies, Inc. or a similarly
qualified successor in the capacity as the engineer to the financing
sources specified in Sub-Article 37(C) who has agreed to be bound by the
confidentiality provisions of this Contract and who is not affiliated with
a competitor of Contractor.
INFORMATION has the meaning set forth in Sub-Article 20(A).
INITIAL CONTRACT PRICE has the meaning set forth in Sub-Article
4(A)(1).
INITIAL UPGRADE PRICE has the meaning set forth in Sub-Article
4(A)(2).
INTELLECTUAL PROPERTY has the meaning set forth in Sub-Article 18(A).
LANDING LICENSES means, in the United States, a License to Land and
Operate a Submarine Cable System pursuant to the Submarine Cable Landing
Act, 47 U.S.C. 34-39 and, in Bermuda, the comparable license which is
required under Bermuda law.
LAWS means any laws, ordinances, regulations, rules, orders,
proclamations, requirements of governmental authorities or treaties.
MANUFACTURING MATERIALS has the meaning set forth in Sub-Article
13(B).
NEXUS TAX means any Tax imposed by way of withholding in respect of or
in lieu of an Excluded Tax, but only to the extent such Tax would not have
been imposed but for the nexus (other than as a consequence of the
activities of the Contractor) of the Purchaser or its affiliate to the
jurisdiction imposing the Tax.
NON-SHIP COSTS has the meaning set forth in Sub-Article 10(A)(2).
NOTICE OF TERMINATION has the meaning set forth in Sub-Article 14(A).
OPTION PERIOD has the meaning set forth in Sub-Article 6A(B).
OPTIONAL LONG LEAD ITEMS means those items of the Supplies, set forth
in Exhibit J, that would be used in the Optional System but not the Base
System and which the Contractor must irrevocably commit to pay for in order
to maintain the Scheduled RFS Date if Purchaser shall elect the Optional
System on or prior to the Optional System Date.
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
OPTIONAL LONG LEAD ITEMS PRICE means the amount up to * of which * is
payable on the date which is three business days after this Contract is
executed and delivered by all Parties and * is payable on June 30, 1998,
unless prior to such date Purchaser shall notify Contractor that it will
not elect the Optional System.
OPTIONAL ROUTE SURVEY means a marine route survey of the portion of
the Optional System from St. Croix to Brookhaven, New York.
OPTIONAL ROUTE SURVEY PRICE has the meaning set forth in Article 8C.
OPTIONAL SYSTEM means the System; provided that Segment 3 of the Base
System shall be replaced by a Segment 3 which bypasses Bermuda and directly
connects St. Croix with Brookhaven, New York.
OPTIONAL SYSTEM PRICE has the meaning set forth in Article 6B.
OWNER PERMITS means all Permits that the Owner needs to own and
operate the System. Exhibit H hereto contains a sample list of Owner
Permits; provided that such list is not meant to be complete or exclusive.
PARTY(IES) means either of the Purchaser and/or the Contractor, as
PAYMENT ESCROW AGREEMENT means that Escrow Agreement to be entered
into among the Prime Contractor, Purchaser, and the Bank Escrow Agent,
substantially in the form of Exhibit D hereto, with such changes therein as
are reasonably requested by the Bank Escrow Agent, as amended modified or
supplemented from time to time.
PERFORMANCE REQUIREMENTS means (i) with respect to a Segment or the
System, the applicable System Performance Requirements set forth or to be
developed by mutual agreement pursuant to the Transmission Performance
section of the System Description section of the Technical Volume, (ii)
with respect to any System Upgrade, the System Performance Requirements set
forth in or to be developed by mutual agreement pursuant to the Technical
Volume or (iii) in each case, such other Segment, System or System Upgrade
performance levels as mutually agreed by the Parties, including impairment
PERMITS means all Access Rights, permits, pipeline and cable crossing
agreements, approvals, "no objections", permissions-in-principle,
authorizations, consents, customs clearances, registrations, certificates,
rights-of-way, certificates of occupancy, licenses, including without
limitation, landing licenses, orders, vessel and crew authorizations/visas,
permission for the operation of navigational aids and radio systems and
similar authorizations necessary to complete the Work and operate and
maintain the System (other than any of the foregoing (i) relating to the
ownership, operation and maintenance of the System and not necessary until
after the System is Ready for Final Acceptance, (ii) which is or would be
needed by Purchaser to engage
* MATERIAL OMITTED AND SEPARATELY FILED WITH THE COMMISSION UNDER AN
APPLICATION FOR CONFIDENTIAL TREATMENT.
in any business outside the business of developing, owning and operating a
submarine cable system or (iii) which is or would be needed at any time by
any purchaser or lessee of capacity on the System).
PRIME CONTRACTOR has the meaning set forth in Article 42 hereof.
PROVISIONING SCHEDULE means the price schedule attached hereto in
Appendix 1.
PURCHASER means Mid-Atlantic Crossing Ltd. and shall include its
permitted successors and assigns.
READY FOR COMMERCIAL ACCEPTANCE means
(i) for any Segment, that
(a) if the System is not at the same time also Ready for
Commercial Acceptance, the Purchaser has consented, in its
sole discretion, to accept such Segment as Ready for
Commercial Acceptance,
(b) such Segment has the ability to carry commercial traffic
between the two landing points of such Segment meeting
performance criteria of ITU-T G.826 as defined in the
System Performance section of the Technical Volume and has
line monitoring and protection switching capability,
(c) Contractor has tested and provided for STM-1
interconnectivity capability to the Segment terminal
equipment according to ITU-T G.826,
(d) Contractor has substantially performed its obligations
under Article 18 (Intellectual Property) then required to
be performed by it, and
(e) all Permits are obtained for such Segment, and
(ii) for the System, that
(a) the System has the ability to carry commercial traffic
throughout the System (operating at 10 Gb/s per fiber
pair) meeting performance criteria of ITU-T G.826 as
defined in the System Performance section of the Technical
Volume, has line monitoring and per Segment protection
switching capability and has network management
capability,
(b) Contractor has tested and provided for STM-1
interconnectivity capability to the System terminal
equipment according to ITU-T G.826,
(c) Contractor has substantially performed its obligations
under Article 18 (Intellectual Property) then required
to be performed by it,
(d) if the Optional System is chosen, the System has self-
healing ring protection capability, and
(e) all Permits are obtained for the System and
(iii) for any System Upgrade, the System is Ready for Commercial
Acceptance at the capacity specified for such System Upgrade.
READY FOR FINAL ACCEPTANCE means
(i) for the System, that
(a)(I) the System has successfully and continuously (other than
by reason of Force Majeure in which case the test period
shall be extended for a time period agreed between the
Parties) functioned in compliance with the System
Performance Requirements during the period of ninety
(90) consecutive days after the Date of Provisional
Acceptance or
(II) if the System shall have failed to meet the System
Performance Requirements at any time during such period
(other than by reason of Force Majeure), the Contractor
has corrected such failure and the System has
successfully and continuously (other than by reason of
Force Majeure in which case the test period shall be
extended for a time period agreed between the Parties)
functioned in compliance with the System Performance
Requirements for such additional period of time not to
exceed ninety (90) days (and not to end prior to the
date 90 days after the Date of Provisional Acceptance)
as reasonably determined by the Independent Engineer as
being sufficient to confirm that such failure has been
corrected and that no other failures are likely to
appear and
(b) all deficiencies noted in the Certificate of Provisional
Acceptance have been corrected (other than minor
deficiencies which will not affect the operation of the
System, in respect of which an equitable adjustment to
the Contract Price will be made) and
(c) Contractor has complied in all material respects with
Article 18 (Intellectual Property) and
(ii) for any System Upgrade, that
(a)(I) the System Upgrade has successfully functioned in
compliance with the System Performance Requirements
during the period of ninety (90) days after the Date of
Provisional Acceptance of the System Upgrade or
(II) if the System Upgrade shall have failed to meet the
System Performance Requirements during such period, the
Contractor has corrected such failure and the System
Upgrade has successfully functioned in compliance with
the System Performance Requirements for such additional
period of time not to exceed ninety (90) days as
reasonably determined by the Independent Engineer as
sufficient to confirm that such failure has been
corrected and
(b) all deficiencies noted in the Certificate of Provisional
Acceptance have been corrected (other than minor
deficiencies which will not affect the operation of the
System, in respect of which an equitable adjustment of
the Contract Price will be made) and
(c) Contractor has complied in all material respects with
Article 18 (Intellectual Property).
READY FOR PROVISIONAL ACCEPTANCE means
(i) with respect to any Segment,
(a) if the System is not, at the same time, also Ready for
...
View agreement details