Agreement For Project And Construction Management Services

AGREEMENT


FOR


PROJECT AND CONSTRUCTION
MANAGEMENT SERVICES


BETWEEN


TRITEL COMMUNICATIONS, INC. AND TRITEL FINANCE, INC.


AND


BECHTEL CORPORATION


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TABLE OF CONTENTS ARTICLE PAGE NO.


1.0 Project............................................................1 2.0 Contractor's Services..............................................1 3.0 Information and Items to be Furnished by Owner.....................3 4.0 Notice to Proceed and Time of Performance..........................4 5.0 Compensation and Payment...........................................4 6.0 Accounting of Costs................................................5 7.0 Changes and Extra Work.............................................5 8.0 Notice and Acceptance of Completion................................5 9.0 Responsibility of Contractor.......................................6 10.0 Insurance..........................................................8 11.0 Ownership of Plans and Title to Work...............................9 12.0 Force Majeure.....................................................12 13.0 Termination.......................................................12 14.0 Suspension of Services............................................13 15.0 Notices...........................................................13 16.0 Representative of the Parties.....................................14 17.0 Transfer of Ownership.............................................14 18.0 Assignment and Subcontracts.......................................15 19.0 Fair Operation of Agreement.......................................15 20.0 Dispute Resolution................................................15 21.0 Applicable Law....................................................16 22.0 Successors and Assigns............................................16 23.0 Severability......................................................16 24.0 Entire Agreement..................................................16 25.0 Disclosure........................................................17


ATTACHMENT A Scope of Services A-1
ATTACHMENT B Compensation B-1
ATTACHMENT C Description of Contractor Positions C-1
ATTACHMENT D Staffing Plan and Estimated ODCs D-1


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AGREEMENT
FOR
PROJECT AND CONSTRUCTION
MANAGEMENT SERVICES


THIS AGREEMENT ("Agreement") is entered into this 24th day of November, 1998, by and between TRITEL COMMUNICATIONS, INC. and TRITEL FINANCE, INC. (jointly, "Owner"), and BECHTEL CORPORATION ("Contractor") but shall be effective as of the date final approval by Owner's board(s) of directors is obtained. Owner shall notify Contractor in writing promptly of the date that such final approval is obtained and confirming the effective date of this Agreement. Contractor agrees to furnish the skill and judgment specified in Paragraph 9.1 in furthering the interests of Owner. Contractor agrees to furnish efficient administration and management services as described in this Agreement and to perform such services in an expeditious and economical manner consistent with this Agreement and the best interests of Owner.


1.0 THE PROJECT


1.1 The project consists of the build-out of a Personal Communications System incorporating PCS-sites and mobile switching centers (individually, an "MSC") located in the States of Alabama, Georgia, Indiana, Kentucky, Louisiana, Mississippi and Tennessee, in the United States of America. As used herein, the term "Project" or PCS System" shall mean only those areas of the project described above that are assigned to Contractor by Owner.


1.2 The Project will be described more particularly in the drawings, plans and specifications to be prepared by Contractor or by other retained design professionals (whose services will be procured as provided in this Agreement) and approved by Owner under this Agreement.


2.0 CONTRACTOR'S SERVICES


2.1 Contractor will perform, or cause to be performed, the services (hereinafter referred to as the "Services") generally described below which are more fully described in Attachment A ("Scope of Services"), attached hereto and made a part hereof, and the Services shall be performed by Contractor with respect to such PCS-sites and MSC locations as are assigned by Owner to Contractor. Contractor shall perform the Services in accordance with the standard set forth in Paragraph 9.1, in compliance with all local, city, county, state and federal laws, rules, regulations, statutes and ordinances now in effect or hereafter enacted, and in compliance with Owner's instructions issued from time to time (to the extent not inconsistent with the preceding standards). Contractor shall use reasonable good faith efforts to minimize turnover of Project personnel.


2.2 Contractor will provide the overall coordination and administration for the Project as described in the Scope of Services, including, but not limited to:


2.2.1 providing a preliminary assessment of the Project budget taking into account the activities contemplated for the Project;


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2.2.2 consulting with any design professionals and Owner concerning the Project and development of Project plans, drawings and specifications;


2.2.3 providing recommendations on construction feasibility, actions designed to minimize adverse effects of labor or material shortages, time requirements for procurement, installation and construction completion, and factors related to construction costs including estimates of alternate designs or materials; and providing preliminary budgets and possible economies and budgets detailing Contractor's anticipated man hours and expenses for the Project on a per PCS-site and MSC basis;


2.2.4 preparing and periodically updating Project schedules for Owner's approval, such schedules coordinated and integrated with all equipment, services and activities provided by others in connection with the Project;


2.2.5 developing and recommending milestone completion dates for the Project;


2.2.6 recommending to Owner phases and timing of issuance of drawings and specifications to facilitate phased construction of the work taking into consideration such factors as economies, time of performance, availability of labor and materials and provisions for temporary facilities;


2.2.7 providing contract administration services, including preparing Owner's construction documents (such as bid packages and contracts) for the Project for Owner's approval;


2.2.8 identifying and recommending possible contractors, including suppliers of materials and equipment for approval and signing by Owner;


2.2.9 recommending to Owner a schedule of procurement for long-lead time items which constitute part of the work as required to meet the Project schedules;


2.2.10 providing monthly (or such other interval as may be approved by Owner) written reports to Owner on the progress of the Project to include problems encountered or other similar relevant data as to all sites for the Project as Owner may reasonably require;


2.2.11 developing systems of cost control for the Project, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes;and


2.2.12 administering and coordinating Owner's design professionals, contractors and suppliers and any other persons performing any work or supplying any materials for the Project.


2.3 Contractor shall perform the Services as an agent of Owner. Regarding such capacity as an agent of Owner, upon request Owner shall confirm to third parties Contractor's authorization to so act for and on behalf of Owner.


2.4 Nothing in this Agreement is intended or shall be construed to constitute Owner, or any of its employees, agents or contractors, as an employee, agent or partner of Contractor, nor shall Owner, or any of its employees, agents or contractors have, authority to bind Contractor in any respect except as may be provided by written agreement.


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2.5 Contractor's employees, agents and subcontractors shall not be treated as employees of Owner for any purpose including, but not limited to, federal or state tax purposes. Contractor shall be solely responsible for the filing of all tax returns required by law to be filed by Contractor relating to its performance of the Services, and the payment of all contributions, payments and taxes, required by law to be filed or paid by Contractor relating to the performance of the Services by Contractor and its employees, agents and subcontractors.


3.0 INFORMATION AND ITEMS TO BE FURNISHED BY OWNER


3.1 Owner shall furnish to Contractor in a timely manner available data and other information to provide the basis upon which Contractor shall perform the Services. Contractor warrants that it has sufficient data and other information to commence performance of the Services on the effective date of this Agreement.


3.2 Upon receipt of documents, reports, plans or data from Contractor for approval, Owner will promptly (and in any event within fifteen (15) days of their receipt) either approve or disapprove, or furnish other written instructions to Contractor with respect to said documents, reports, plans or data. If Owner's written approval or disapproval or other written instruction is not furnished to Contractor within such fifteen (15) day period, such documents, reports, plans or data will be deemed to be approved.


3.3 Owner shall furnish sites for the Project and, subject to applicable advance notice requirements existing in favor of any third parties, shall furnish to Contractor and Owner's contractors unobstructed access to the sites and all other locations involved in the performance of the Services.


3.4 Solely with respect to Owner's main Project office in Jackson and regional Project offices covering areas assigned to Contractor, Owner shall furnish as reasonably necessary for Contractor's performance of Services the following items which shall be of substantially comparable kind and quality to those furnished by Owner to its employees: office space; office equipment; computers; phone systems; communications networks and connectivity to Contractor's support offices; and office supplies. Upon the termination or expiration of this Agreement, Contractor shall return such items to Owner undamaged (taking into account normal wear and tear).


3.5 Owner and Contractor will establish the general terms and conditions, including warranties, to be incorporated into all bid packages, contracts, and purchase orders entered into by Owner for the Project. With respect to any contracts with others relating to the Project and entered into after the execution of this Agreement, Owner agrees that Contractor shall be designated as Owner's agent and that all indemnity, all release and all hold harmless agreements contained in such contracts and purchase orders whereby the contractor or supplier agrees to indemnify, release or hold Owner harmless shall be extended to protect Contractor.


3.6 Owner shall make direct commitments for all services, machinery, equipment, materials and supplies required for incorporation into the Project or for use in construction thereof and for the performance of all construction and other work, and shall make payments directly for such


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commitments; provided that Contractor shall provide the accounting and controller management services set forth in Attachment A.


3.7 Owner shall furnish or secure the information, items and approvals required to be furnished or secured by it at such times and in such manner as may be reasonably required for the expeditious and orderly performance of the Services by Contractor.


4.0 NOTICE TO PROCEED AND TIME OF PERFORMANCE


4.1 Contractor shall commence the performance of its Services upon the effective date of this Agreement, which date shall be deemed the date of Notice to Proceed.


4.2 Subject to the termination provisions of Article 13.0 (Termination), the term of this Agreement is two (2) years from the effective date of this Agreement but may, subject to Article 7.0 (Changes and Extra Work), be extended by mutual agreement of the parties.


5.0 COMPENSATION AND PAYMENT


5.1 For the performance of the Services, Owner agrees to pay Contractor, in the manner and at the times specified, the Compensation consisting of Hourly Unit Rate Payments and Other Direct Costs (jointly, "Compensation"), and make available the amounts needed for Owner to pay the Owner Costs, as such terms are defined in Attachment B, attached hereto and by this reference made a part hereof


5.2 In addition, promptly after the effective date of this Agreement, Contractor shall invoice Owner for any remaining amounts due for work performed by Contractor under the Letter of Intent between Owner and Contractor dated August 10, 1998, as amended. Owner shall pay Contractor such invoiced amounts within thirty (30) days after receipt of the invoice.


5.3 Any amounts due and remaining unpaid after the due date shall accrue interest, commencing on the day after the due date and compounded for each day thereafter until the date paid, at the rate equal to [CONFIDENTIAL TREATMENT REQUESTED] above the prime lending rate quoted to substantial and responsible commercial borrowers on ninety-day loans by the Morgan Guarantee Trust Company, New York, on each day such interest accrues.


5.4 Any terms or conditions set forth on any invoice which are inconsistent with or in addition to the terms and conditions set forth in this Agreement shall be of no effect. Each invoice for Compensation shall include the following information: first, in support of the Hourly Unit Rate Payments, the name and position of Contractor's employees that have performed Services during the period covered by the invoice, the number of hours worked by each such employee during that same period, the Hourly Unit Rate applicable to each such employee and the total amount payable to Contractor for Hourly Unit Rate Payments; second, in support of the Other Direct Costs, the total amount owed for the Other Direct Costs during the period covered by the invoice, a description of the type of Other Direct Costs included in the invoice, a breakdown on a market-by-market basis of where the Other Direct Costs were incurred, and receipts to support any Other Direct Costs in excess of twenty-five dollars; and third, in support of the Owner Costs, the relevant invoices of Owner's contractors and suppliers.
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6.0 ACCOUNTING OF COSTS


6.1 Contractor shall maintain books and accounts of the time expended by its personnel and of the Other Direct Costs in accordance with generally accepted accounting principles and practices consistently applied. Owner, during Contractor's normal business hours for the duration of this Agreement and for a period of three (3) years after the completion of the Services, shall have access to these books and accounts to the extent required to verify the hours charged for which Hourly Unit Rate Payments were received and the Other Direct Costs (excluding the development of established or standard allowances and rates) incurred hereunder. A copy of all records relating to the payments made out of the Owner's Zero Balance Operating Account shall be turned over to Owner at the conclusion of the Project.


7.0 CHANGES AND EXTRA WORK


7.1 Owner may require or approve changes within the general scope of Contractor's Services hereunder by a written Change Order, or may request extra work to be mutually agreed upon.


7.2 In the event any such change causes an increase or decrease in the time for performing Contractor's Services, the parties shall agree upon an equitable adjustment of the schedule obligations to the extent they are affected by such change. Contractor's staffing plan that is mutually agreed upon in accordance with and for the purposes described in Paragraph I a of Attachment B and the determination of the applicable Hourly Unit Rate Payments under that Paragraph shall also be subject to an equitable adjustment to the extent affected by any such scope change or by any changed circumstances outside of Contractor's control, including Force Majeure events, changes in law, and Owner's delay in performing its obligations hereunder.


7.3 Owner reserves the right to direct Contractor to reduce the number of Contractor's personnel assigned to the Project at any time upon thirty (30) days prior written notice to Contractor of such reduction. Further, Owner reserves the right to reduce the number of PCS-sites and/or MSCs assigned to Contractor at any time. Any such reductions shall be without penalty to Owner.


8.0 NOTICE AND ACCEPTANCE OF COMPLETION


8.1 Upon completion of Services in connection with a particular PCS-site or MSC, Contractor may, and upon completion of the Services for the Project, Contractor shall, notify Owner in writing of the date of said completion and request confirmation thereof by Owner. Upon receipt of such notice, Owner shall confirm to Contractor in writing that the Services referred to in such notice were completed on the date indicated in such notice, or provide Contractor with a written listing of the Services not completed.


8.2 If Owner does not respond to Contractor's initial notice of completion within thirty (30) days, Contractor shall provide Owner with a second notice of completion. Any Services included in Contractor's second notice to Owner and not listed by Owner as incomplete in a listing delivered to Contractor within fifteen (15) days of receipt of said second notice, shall be deemed complete and accepted by Owner.
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8.3 With respect to Services listed by Owner as incomplete, Contractor shall complete such Services and the above acceptance procedure shall be repeated.


8.4 In the event Owner does not respond to Contractor's second notice within fifteen (15) days after receipt of any such second notice, the Services included in such second notice shall be deemed complete and accepted by Owner.


9.0 RESPONSIBILITY OF CONTRACTOR


9.1 Contractor will perform its Services, with that degree of skill and judgment that is normally exercised by recognized international professional engineering, construction and construction management firms with respect to services of a similar nature. Contractor shall reperform at its expense any professional services which are (a) deficient because of Contractor's failure to perform any such Services in accordance with the above standard, and (b) reported in writing to Contractor within a reasonable time, not to exceed thirty (30) days, after the discovery thereof, but in no event later than the first to occur of (i) twenty-four (24) months after the completion and acceptance of the applicable Services, and (ii) one (1) year after the assigned PCS-site or MSC location to which the Services apply has been placed in commercial service. Except as set forth above in this Paragraph 9.1, Contractor's responsibility hereunder with respect to each individual PCS-site and MSC location shall terminate upon the completion and acceptance of Services with respect to such PCS-site or MSC location. The warranty set forth in this Paragraph 9.1 is the sole and exclusive warranty of Contractor in connection with the Services and Contractor hereby disclaims and Owner waives any other express, implied or statutory warranties, including warranties of merchantability or fitness for a particular purpose.


9.2 Owner acknowledges that the work required to complete the Project shall require the involvement and assistance of other professionals and service companies ("Independent Contractors") which shall include but not be limited to architects, RF and civil engineers, site acquisition consultants, environmental consultants, geotechnical firms, surveyors, graphic artists, and construction crews. Contractor shall make reasonable efforts to locate and interview Independent Contractors as agent for Owner. Privity of contract shall exist only between Owner and the Independent Contractors with respect to the services to be performed by the Independent Contractors pursuant to express written agreements that are executed by Owner and such Independent Contractors. Owner shall grant or deny approval of any Independent Contractor recommended by Contractor and may terminate the services of an Independent Contractor for good cause or otherwise upon appropriate notice to the Independent Contractor. Contractor shall coordinate and manage the services of the Independent Contractors as agent for Owner, subject to any limitations on Contractor's authority mutually agreed by the parties . Owner shall be solely responsible for the payment of invoices submitted by the Independent Contractors; provided that Contractor shall provide the accounting and controller management services set forth in Attachment A. Owner shall indemnify Contractor from any and all claims, losses, costs or expenses associated with the services provided by the Independent Contractors, except to the extent that the same arise from the failure of Contractor to coordinate, monitor and manage the services of the Independent Contractors or otherwise perform the Services as required by this Agreement.


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9.3 In conjunction with meeting Contractor's obligations as set forth in Attachment A hereto, Contractor shall be responsible for inspecting the work of Independent Contractors and/or their subcontractors on the construction sites from time to time or as directed by Owner to monitor compliance by such Independent Contractors with their contractual responsibilities to Owner. With regard to work quality and safety, Contractor's obligations are to report any deficiencies or instances of noncompliance by such Independent Contractors to Owner and to make recommendations on how to remedy such deficiencies or such noncompliance, recognizing that Contractor is providing project management services and that Owner will look to the Independent Contractors to remedy any deficiencies in their work quality and for implementation of the safety programs. With respect thereto, Contractor shall be responsible for inspecting from time to time construction means, methods, techniques, sequences, procedures, or safety precautions and programs implemented by such Independent Contractors in connection with the Project in order to monitor compliance by such Independent Contractors and/or their subcontractors with all construction specifications and their related contractual obligations to Owner, including compliance with federal, state, or local laws, regulations and codes as they pertain to the actual construction work.


9.4 Except for any liabilities arising under the third-party indemnity set forth in Paragraph 9.7, in no event shall Contractor's liability to Owner, however caused, exceed in the cumulative aggregate an amount equal to $ 10,000,000 (Ten Million Dollars), and Owner hereby releases Contractor from any liability in excess thereof.


9.5 Owner's and Contractor's remedies specified in this Agreement are the sole and exclusive remedies of either party for liabilities arising out of or in connection with this Agreement.


9.6 Except for Contractor's obligations set forth in Paragraph 3.4, Contractor's liability for loss of or damage to the Project or other property of Owner or in the custody of Owner (including any leased property) shall be limited to those payments made on Contractor's behalf by the insurers affording the insurance described in Paragraph 10.2, and Owner hereby releases and agrees to indemnify Contractor from any loss, damage or expense in excess of those payments.


9.7 Contractor agrees to indemnify, defend and hold harmless Owner and its directors, officers, partners, agents and employees from and against any third-party claims for personal injury to or death of persons and for loss of or damage to third-party property (including reasonable attorneys' fees and expenses) to the extent resulting from or arising out of the negligence or willful misconduct of Contractor. Contractor shall not be required to indemnify Owner for any act or omission of Contractor which is done at the express direction of Owner, except to the extent that Contractor acts (or fails to act) in a negligent manner in carrying out Owner's instructions.


9.8 In no event shall either party, it officers, agents or employees or its subcontractors, or contractors or suppliers of any tier providing equipment, materials or services for the Project be liable to the other party for consequential loss or damage, including, but not limited to, loss of use, loss of profit or loss of revenue, and each party hereby releases the other party, its respective
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officers, agents, employees, subcontractors, contractors and suppliers from and against such liability.


9.9 The releases from liability and limitations on liability expressed in this Agreement shall apply even in the event of the fault, negligence in whole or in part, strict liability, breach of contract or otherwise, of the party released or whose liability is limited and shall extend to the subcontractors and related entities of such party and its and their directors, officers and employees.


10.0 INSURANCE


10.1 Contractor Insurance


Contractor has in force and will maintain during the performance of the Services, the following insurance:


10.1.1 Workers' Compensation covering Contractor's employees, and Employers' Liability Insurance as required by applicable law but in no event with a limit of less than $ 1,000,000 per occurrence and in the aggregate .


10.1.2 Automobile Bodily Injury and Property Damage Liability Insurance covering all owned, non-owned or hired by Contractor automobiles or automotive equipment, with limits as follows:


Bodily Injury and Property Damage: $2,000,000 combined single limit each
occurrence


10.1.3 Comprehensive Crime coverage with limits of $10,000,000 per occurrence.


10.1.4 Owner, Airwave Communications, LLC and Digital PCS, LLC shall be named as an additional insureds under the insurance required by Paragraph 10.1.2, and Contractor shall furnish Owner a certificate evidencing each such policy of insurance in Paragraph 10.1 which shall also include a waiver of subrogation in favor of Owner, Airwave Communications, LLC and Digital PCS, LLC. Such policie ...