Exhibit 10.26
License Agreement 00TX-30407
LICENSE AGREEMENT
between
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
acting by and through the
BONNEVILLE POWER ADMINISTRATION
and
ELECTRIC LIGHTWAVE, INC.
Index to Sections
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Section Page
1 Definitions..............................................................2
2 Termination and Replacement of Existing Agreements.......................3
3 Term.....................................................................4
4 Exhibits.................................................................4
5 Amendment of Agreement...................................................4
6 Ownership................................................................4
7 License..................................................................5
8 License Fee and Payments for Maintenance and Restoration of XXX Fiber....5
9 Maintenance, Repair, and Restoration of the Cable........................6
10 Regeneration Huts........................................................9
11 Rights and Obligations Concerning the Cable.............................10
12 Modification of the Cable...............................................11
13 Representations and Warranties..........................................12
14 Audit Procedures........................................................14
15 Insurance...............................................................15
16 Default.................................................................17
17 Indemnification; Waiver of Damages......................................19
18 Dispute Resolution......................................................21
19 General.................................................................23
Exhibit A (Route Description)
Exhibit B (Fiber Specifications)
Exhibit C (Detailed Restoration Plan)
Exhibit D (Regeneration Site Lease Agreements)
Exhibit E (Acceptance Testing Standards)
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This LICENSE AGREEMENT ("Agreement") is executed on May 15, 2000, by
and between the UNITED STATES OF AMERICA , Department of Energy, acting by and
through the BONNEVILLE POWER ADMINISTRATION ("Bonneville"), and Electric
Lightwave, Inc. ("XXX"), a corporation organized and existing under the laws of
the State of Delaware. Both Bonneville and XXX may be referred to herein
individually as "Party" and collectively as "Parties."
1. Definitions
The following terms, when used in this Agreement, shall have the
meanings set forth in this section:
(a) "Bonneville Facilities" means all Bonneville-owned and/or
leased structures, rights-of-way, buildings, land, access
roads, and equipment along each Route, including improvements
made thereto by Bonneville during the term of this Agreement.
(b) "Bonneville Fiber" means all optical fibers within the Cables
except the Dark Fibers licensed to XXX by this Agreement and
defined below as "XXX Fiber".
(c) "Cable" means Bonneville owned fiber optic cable installed by
Bonneville along each Route with the fiber count and of the
type specified in Exhibit A.
(d) "Cable Accessories" means the equipment necessary to support
the attachment of the Cable to the Bonneville Facilities.
(e) "Cable Restoration" means repairing and returning a damaged
Cable back to service following an unscheduled outage.
(f) "Cable Specifications" means the drawings and specifications
regarding the hardware and materials incorporated into the
project.
(g) "Dark Fiber" means optical fiber, provided without electronic
and/or optronic equipment, which is not "lit" or activated.
(h) "Detailed Restoration Plan" means the specification of
guidelines and procedures for notification regarding, and
restoration of, damaged Cable along each Route as quickly and
safely as possible. The Detailed Restoration Plan shall be a
living document and changes/updates may occur in accordance
with section 5 as deemed necessary.
(i) "Effective Date" means the date this Agreement is executed by
the Parties.
(j) "XXX Fiber" means 1,646 route miles of Dark Fibers within the
Cables located on the Routes owned by Bonneville and
designated to be licensed to XXX pursuant to the terms and
conditions of, and for the term of this Agreement and more
particularly described as follows and in Exhibit A:
Route Cable Miles Fiber Count Fiber Miles
----- ----------- ----------- -----------
Xxxxxx-Xxxxxxxxx (Portland-Seattle) 192 56 10,752
Xxxx-Xxxx (Portland-Spokane) 548 8 4,384
Xxxx-Xxxxxxxxx (Spokane-Seattle) 268 14 3,752
Xxxxxx-Xxxxx (Portland-Xxxxxx) 140 10 1,400
Xxxx-Xxxxx (Portland-Malin) 384 56 21,504
Xxxxx-Bandon (Xxxxxx-Bandon) 114 6 684
----- --- ------
Totals 1,646 N/A 42,476
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(k) "Fiber Specifications" means the performance attributes of the
fiber within the Cable as described in Exhibit B.
(l) "Guaranteed Payments" shall have the meaning set forth in
section 2 of the Guaranty.
(m) "Guaranty" means the Guaranty by Citizens Utilities Company
for the benefit of Bonneville dated as of May 15, 2000.
(n) "Hazardous Material" means any material determined to be
hazardous to health or the environment by virtue of being: (a)
a hazardous waste as defined by the Resource Conservation and
Recovery Act; (b) a hazardous substance as defined by the
Comprehensive Environment, Compensation, and Liability Act;
(c) a substance regulated under the Toxic Substances Control
Act; (d) a substance regulated under the Federal Insecticide,
Fungicide, and Rodenticide Act; or (e) applicable state
environmental statutes. References to statutes include any
amendments thereto and any regulations promulgated thereunder.
The foregoing statutory references shall be revised as
necessary to include statutes enacted subsequent to the
Effective Date, that impose new environmental or mitigation
obligations with regard to any Route.
(o) "Interest Rate" means 1.25 percent per month to be compounded
monthly for each month, or portion thereof, during which
interest accrues.
(p) "License" means the right to access and the exclusive right to
use, resell, sublicense and/or exchange the full
electromagnetic capacity of designated Dark Fibers for the
purpose of providing any and all "lit" and "unlit"
communication services without limitation, but not to own,
construct, possess, maintain, or repair such Dark Fibers.
"License" does not include any right or interest of any kind
in any conductor, tower, substation, or equipment used for
transmission of electric energy. When used as a verb,
"License" means the act of granting a License defined in the
foregoing sentence.
(q) "Regeneration Hut" means each building along each Route that
houses the terminal and regeneration equipment necessary to
regenerate the signals transmitted over optical fibers,
including any optronics or electronics required to make use of
such fibers. "XXX Regeneration Huts," installed by XXX for
regenerating signals on XXX Fibers, shall include the conduit
and optical-fiber cable from each regeneration hut up to the
nearest Splice Box on the Cable Route and/or the nearest BPA
substation fence, as determined by BPA. "BPA Regeneration
Huts" are any Regeneration Huts separately installed and
operated by BPA for regenerating the signals on BPA Fibers.
(r) "Route" means the Cable on each of the paths described in
Exhibit A.
2. Termination and Replacement of Existing Agreements
License Agreement Nos. 97TX-10072, dated July 18, 1997, 97TX-10080,
dated January 8, 1998, and 98TX-10143, dated March 20, 1998, are
terminated as of the Effective Date, and replaced in their entirety by
this Agreement, except as specified in section 2 of the Settlement
Agreement between the Parties executed on the Effective Date and to
which this Agreement is attached as Exhibit A.
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3. Term
(a) This Agreement shall be effective at 2400 hours on the
Effective Date and shall continue in effect for a period of
twenty (20) years or unless sooner terminated in accordance
with its express provisions.
(b) The term of this Agreement may be extended only by mutual
agreement in writing executed by authorized representatives of
both Parties. Conditioned upon the faithful performance of
this Agreement, the Parties agree to commence, immediately
after the 17th anniversary date of this Agreement, good faith
negotiations about possible terms and conditions, including
License fees and other payments, for extension of this
Agreement beyond the termination date for all or some portion
of the fibers Licensed herein with due regard for unusual
circumstances and Bonneville's actual and projected
operational need for the fiber at that time. The provisions of
this section 3(b) are not intended to limit any Party's
discretion to determine what is in its interest and to approve
or deny any requested extension.
(c) All obligations incurred under this Agreement by either Party
and outstanding at the time of expiration or termination of
this Agreement shall survive until satisfied.
4. Exhibits
Exhibit A (Route Description), Exhibit B (Fiber Specifications),
Exhibit C (Detailed Restoration Plans), Exhibit D (Regeneration Site
Lease Agreement ) and Exhibit E (Acceptance Testing Standards) are
attached hereto and made a part of this Agreement.
5. Amendment of Agreement
This Agreement may be amended or modified only by written agreement
executed by authorized representatives of both Parties. Amendment or
modification of sections 8(a), 8(b) and/or section 16(b)(4) of this
Agreement shall require the written consent of Citizens Utilities
Company. No course of performance or dealing nor any waiver or delay in
the enforcement of any rights granted hereunder shall operate to amend
or modify this Agreement.
6. Ownership
(a) The Cable, including the XXX Fiber, the Bonneville Facilities
and any Bonneville Regeneration Huts shall be owned by
Bonneville.
(b) The XXX Regeneration Huts and the contents thereof shall be
owned and controlled by XXX throughout the term of this
Agreement. To the extent that any XXX property or equipment is
determined to be fixtures of Bonneville's real property at the
expiration or termination of this Agreement, Bonneville may
elect to receive title to and ownership of such fixtures, at
no cost to Bonneville, or Bonneville may direct XXX to remove
the fixtures and reasonably restore the property to its
pre-fixture condition, at ELI's expense. Notwithstanding the
foregoing sentence, XXX shall have the right to remove, at its
expense, all XXX prefabricated Regeneration Huts from
Bonneville property at the expiration or termination of this
Agreement.
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7. License
(a) Grant. Bonneville hereby grants to XXX a License to the XXX
Fibers throughout the term of this Agreement, subject to all
the terms and conditions set forth in this Agreement.
(b) No Property Interest. Except with regard to the provisions of
section 6(b) regarding XXX Regeneration Huts, this Agreement
shall not confer upon XXX any ownership or possessory interest
in any Route or other property owned by Bonneville, and XXX
agrees that it shall never make any claim of such interest
based upon this Agreement.
(c) Exclusivity As To XXX Fibers. The License hereby granted shall
be exclusive as to the XXX Fiber. Bonneville shall have the
right to use all Bonneville Fibers and Bonneville Facilities,
or any portion thereof, and to enter upon each Route to access
the Cable at points outside any fence surrounding ELI's
Regeneration Huts for any and all purposes consistent with
this Agreement. Such use and access by Bonneville shall be
undertaken so as to minimize any interference with the rights
granted XXX by this Agreement. Bonneville shall provide notice
to XXX of such access as early as possible under the
circumstances. Bonneville expressly reserves the right to
grant Licenses to third parties regarding Bonneville Fiber;
provided, however, that this Agreement is not intended to
create any obligations on the part of XXX with regard to any
such third parties.
(d) Additional Fiber. During the term of this Agreement,
Bonneville will entertain proposals from XXX to license
additional Dark Fiber on the Routes herein or other existing
or future fiber-optic cable routes owned by Bonneville if such
fiber is available for commercial license. Bonneville will
respond to any such proposal within ten (10) business days
after receipt of such proposal with an acceptance, rejection
or counter-proposal.
8. License Fee and Payments for Maintenance and Restoration of XXX Fiber
(a) XXX shall pay to Bonneville, no later than the execution of
this Agreement and annually thereafter upon the anniversary
date of this Agreement, the sum of [*] as a License fee.
(b) Annual Maintenance Payment
(1) XXX shall pay to Bonneville an "Annual Maintenance
Payment" of [*] per route mile for the 1,646
Cable miles shown on the table in section 1(j). The
first such payment shall be made on the Effective
Date of this Agreement. All subsequent Annual
Maintenance Payments shall be payable each year on
the anniversary date of the Effective Date.
* Confidential material has been omitted pursuant to a request for confidential
treatment. Such material has been filed separately with the Securities and
Exchange Commission.
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(2) Commencing with the first anniversary of the
Effective Date and continuing thereafter on each
anniversary date, the Annual Maintenance Payment
shall be adjusted annually by the amount of any
increase or decrease in the Consumer Price Index, All
Urban Consumers (CPI-U), U.S. City Average, All
Items, published by the United States Department of
Labor, Bureau of Labor Statistics (1982-84=100)
("Index") for the preceding twelve (12) months. If
the Index is discontinued or revised, the Parties
shall select a mutually agreeable replacement,
published by a reputable third party. In the event of
impasse, the issue shall be referred to arbitration,
in accordance with section 18, for the limited and
specific purpose of determining the replacement index
that best replicates the Index, as it was in effect
on the Effective Date.
(c) For each Bonneville Fiscal Year (October 1 through September
30), XXX shall reimburse Bonneville its pro-rata share (based
on XXX Fiber count compared to the total fiber count of the
Cable) for Cable Restoration costs pertaining to each Route
actually incurred by Bonneville during the preceding Fiscal
Year (pro rated for partial years under this Agreement).
Bonneville shall invoice XXX for such reimbursement amount on
or about December 31 of each year, commencing in 2000. XXX
shall reimburse Bonneville no later than January 30 of the
following year.
(d) XXX shall pay all amounts due to Bonneville by wire or ACH
transfer, using procedures regularly established and made
known to XXX by Bonneville's Financial Services Group. XXX may
pay its xxxx by mail; provided, however, that all checks must
be received allowing sufficient time for funds to be credited
to Bonneville's account by the due date. XXX shall include the
Bonneville contract number in the description field of each
transfer, check, or other payment instrument. If XXX is paying
by mail, payments shall be mailed to:
Bonneville Power Administration
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
(e) Late Payment. Payments not received by Bonneville when due
shall bear interest at the Interest Rate from the date payment
was due until the date payment is made to Bonneville. Nothing
in this section 8(e) shall be deemed to limit the rights of
Bonneville in accordance with sections 16 and 18 hereof.
9. Maintenance, Repair, and Restoration of the Cable
(a) Maintenance of the Cable.
(1) During the term of this Agreement, Bonneville shall
be responsible for all maintenance of the Cable and
the Cable Accessories along each Route. Bonneville
shall maintain the Cable, the Cable Accessories and
the Routes at all times in good working order and in
a safe condition, in conformity with the License
rights granted XXX by this Agreement, Cable
Specifications, Prudent Utility Practice and all
applicable laws and regulations.
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(2) XXX shall be responsible for maintenance of its
property, including the Regeneration Huts along the
Route.
(b) Detailed Restoration Plan. Cable Restoration activities will
be integral to ensuring successful implementation of this
Agreement. Timely restoration is dependent upon the timely
coordination and cooperation between Bonneville and XXX. The
Parties acknowledge that Detailed Restoration Plans were
prepared pursuant to the Agreements referenced in section 2
for all Routes except Xxxxxx-Xxxxx and Xxxxx-Bandon. The
existing Detailed Restoration Plans are incorporated as part
of this Agreement as Exhibit C, until such times as they are
modified pursuant to section 5. The Parties agree to cooperate
in completing Detailed Restoration Plans covering the
remaining Routes within thirty (30) days from the Effective
Date. Upon completion, these remaining Detailed Restoration
Plans shall also become part of this Agreement as Exhibit C.
(c) Restoration Priorities and General Requirements.
(1) Bonneville's obligation to maintain and repair the
Cable and any activity incidental thereto shall be
subordinate to, and shall not conflict with,
Bonneville's rightful use and operation of its
electric power transmission facilities. In the event
both Bonneville's transmission facilities and the
Cable require maintenance or repair, the restoration
of the Cable shall be at all times subordinate to the
timely restoration of Bonneville's transmission
facilities, unless otherwise agreed to by Bonneville
in advance. With regard to each Route, the
restoration of Bonneville's telecommunications system
and fibers for its internal use and restoration of
any fibers Licensed to any other party by contract
dated prior to the date specified in the following
table shall take priority over restoration activities
related to XXX Fiber. With regard to each Route, the
restoration of the XXX Fiber shall take priority over
restoration activities related to any fibers licensed
to any other party in contracts subsequent to the
date specified in the following table.
Route Date
----- ----
Xxxxxx-Xxxxxxxxx (Portland-Seattle) March 20, 1998
Xxxx-Xxxx (Portland-Spokane) March 20, 1998
Xxxx-Xxxxxxxxx (Spokane-Seattle) March 20, 1998
Xxxxxx-Xxxxx (Portland-Xxxxxx) July 18, 1997
Xxxx-Xxxxx (Portland-Malin) January 8, 1998
Xxxxx-Bandon (Xxxxxx-Bandon) Effective Date
--------------
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(2) Any and all Bonneville or XXX representatives that
construct, install, repair, replace, or otherwise
handle the Cable, Cable Accessories, XXX Fiber,
Bonneville Fiber, or any related materials and
equipment shall be properly trained and equipped to
meet all current industry standards. To the extent
employees or agents of XXX will work near Bonneville
transmission facilities, XXX shall utilize only
representatives that have been properly trained and
equipped to perform the work safely and competently
in that environment. Costs of such training and
equipment for XXX employees and agents shall be borne
by XXX.
(3) XXX and Bonneville agree that a Bonneville
representative shall and must be on site during all
repair and restoration work to perform functions such
as safety watch, protection of Bonneville's
transmission facilities, or obtain line clearances.
Bonneville shall make its best efforts to have a
representative arrive at the site requiring an
emergency maintenance activity pursuant to section
9(d)(1) of this Agreement. The Bonneville
representative shall have the authority as to the
workers of either Party on the site to stop work for
reasons that involve potential health hazards, safety
concerns or potential disruption to Bonneville's
transmission system.
(4) The Party performing repairs and Cable Restoration
shall use Prudent Utility Practice to complete their
work in the most timely fashion, using the most cost
effective restoration procedures and materials
available, given the Cable Specifications, Fiber
Specifications, and current industry standards, and
given Bonneville's electric transmission
responsibilities.
(d) Restoration of the Cable.
(1) Bonneville shall immediately, upon notification from
XXX, of a confirmed cable related interruption in
service, failure, disrepair, impairment or other need
for repair or restoration of the XXX Fiber, begin to
mobilize Bonneville crews and make its continuous
best effort to achieve such necessary repair or
restoration, including making its best effort to have
maintenance personnel at the affected site within
four (4) hours after receipt of such notice,
provided, however, that in the event any of XXX
rights are interrupted by events described in section
19(a), repairs and restoration shall be made as
expeditiously as possible. XXX recognizes that the
four (4) hour response time represents optimal
conditions, and may be impossible to achieve
particularly when responding to certain remote
locations and including, but not limited to, events
of Force Majeure. Actual response times will be
influenced by factors such as the terrain, weather
conditions present at the time the request is made,
and the actual mileage from Bonneville's dispatch
station to the fault site.
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(2) Whenever, in accordance with this Agreement,
Bonneville is required to use its best efforts, it
shall be deemed to have done so if it acts consistent
with Prudent Utility Practice. Prudent Utility
Practice shall mean the practice that would be
employed under comparable circumstances by a prudent
owner and operator in the utility business in
accordance with good industry practices, and
specifically accounting for existing contract
provisions for Bonneville's hourly employees
("Collective Agreement between BPA and Columbia Power
Trades Council"), and response times that do not
jeopardize the health and safety of Bonneville
employees, agents of Xxxxxxxxxx, XXX employees or
agents of XXX.
(3) The Detailed Restoration Plan shall set forth the
roles and responsibilities of the respective Parties,
and shall address issues regarding logistical
considerations, response interval factors,
communication between the Parties, sequential
activity requirements, and other related items which
would impact response time and restoration intervals.
The aforementioned issues will be taken into
consideration in the determination of whether
Bonneville has used its best efforts in such
restoration or repair activities.
(4) If Bonneville is unable to begin to provide
restoration within the agreed-upon timeframe pursuant
to section 9(d)(1), Bonneville shall provide XXX or
ELI's Bonneville-approved subcontractor access to the
Cable, pursuant to the Detailed Restoration Plan,
after notification from XXX of confirmed
Cable-related interruption in service, failure,
disrepair, impairment, or other need for repair, so
that XXX or its Bonneville-approved subcontractor can
make necessary repairs to the Cable provided such
repairs are made in accordance with all current
Bonneville and industry safety standards. Prudent
Utility Practice shall govern all activities
undertaken pursuant to this section 9(c)(4).
(5) To the extent the Cable has been maintained by
Bonneville in accordance with section 9(a)(1), if the
Cable's ability to transmit a signal degrades over
time to a level reasonably unacceptable to either
Party, the Parties will jointly determine the action
to be taken and share any costs associated with the
action, if any, on a pro rata basis based upon the
ratio of XXX Fibers to total fibers in the Cable
along the relevant Route.
(e) Duty to Notify. Each Party shall use commercially reasonable
efforts to provide timely information to the other Party
(e.g., by telephone, electronic communication or in writing as
appropriate) of all plans, activities and changes in condition
that could affect the other Parties' operations or the safety
of its personnel and contractors.
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10. REGENERATION HUTS
(a) XXX shall have sole responsibility for the expense and
acquisition of any property or utilities necessary for its
equipment along the Route. If space is available at Bonneville
substations, taking account of Bonneville's current and
projected needs for space and ensuring no interference with
Bonneville's other operations, such space shall be provided to
XXX pursuant to the Regeneration Hut Site Lease Agreement form
attached as Exhibit D.
(b) Other than the Bonneville Facilities, XXX shall provide all
components necessary for the operation of the XXX Fiber.
(c) Bonneville shall provide to XXX updated versions of the
"Bonneville Safety Requirements." XXX shall have
responsibility, in consultation with the Bonneville
representative assigned pursuant to section 9(c)(3), to comply
with Bonneville Safety Requirements as in effect from time to
time with regard to the installation and maintenance of XXX
facilities on or about Bonneville Facilities. XXX shall bear
the expense of its compliance with Bonneville Safety
Requirements, as modified, including environmental-control
procedures such as maintenance of the grounds around the
Regeneration Huts and with other requirements imposed by\
governmental agencies other than BPA.
(d) The License granted to XXX in Section 7 includes the right to
use Bonneville's access roads to access all XXX Regeneration
Huts; provided, however, that XXX shall use commercially
reasonable efforts to ensure that heavy vehicles and other
equipment being used on an access road do not impair its use
by Bonneville. Access to the roads shall be limited to the
times and frequency, as reasonably determined by XXX, required
for maintenance and operation of the Regeneration Huts and
equipment, and any repair and restoration activities pursuant
to section 9. XXX shall, at ELI's expense, repair any damage
to the access roads caused as a result of XXX use thereof.
11. RIGHTS AND OBLIGATIONS CONCERNING THE CABLE
(a) Permits. Bonneville shall acquire, at Bonneville's expense,
all necessary regulatory and governmental permits and
approvals with the exception of any permits and/or approvals
that may be required for the XXX Regeneration Huts.
Notwithstanding the foregoing, Bonneville shall, with ELI's
cooperation and assistance, acquire all necessary National
Environmental Policy Act (NEPA) permits for the Regeneration
Huts pursuant to section 11(d), at Bonneville's expense,
except for expenses related to mitigation activities as
described in section 11(d). Nothing in this Agreement is
intended to nor does it commit any agency of the United
States, other than Bonneville, to take any action or to
administer any law or regulation in any particular manner.
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(b) Taxes, Mechanic's Liens, and Encumbrances. XXX shall pay all
taxes as well as all franchise fees and other fees and other
obligations to third parties relating to ELI's use of fiber
covered by the License granted pursuant to Section 7. XXX
shall keep each Route free from all liens and encumbrances
resulting from its performance of this Agreement. If XXX does
not pay any taxes, fees or other obligations when such become
due and payable, and such nonpayment results or may result in
the imposition of a lien on, or encumbrance of, the Route,
then Bonneville shall have the right, but not the obligation,
to pay all amounts due and discharge such lien or encumbrance,
upon thirty (30) calendar days prior written notice to XXX and
charge the amount thereof to XXX. In the event Bonneville
causes such liens or encumbrances to be discharged, XXX shall
reimburse such amounts to Bonneville upon demand, together
with interest thereon at the Interest Rate, accruing from the
date that Bonneville makes payment discharging such liens or
encumbrances until the date Bonneville receives full
reimbursement from XXX. Such discharge by Bonneville shall not
be construed to waive or release any defense XXX may have
against the third party that placed the discharged lien or
encumbrance, but any such defense XXX may have shall not
affect Bonneville's right to reimbursement from XXX for the
discharged lien or encumbrance. If requested in writing,
Bonneville shall reasonably assist XXX in disputing or
challenging any tax, lien, or fee.
(c) Access to Local Landowners. Contacts made by XXX with local
landowners adjacent to each Route, regarding activities on or
related to Bonneville rights-of-way, shall be coordinated with
Bonneville, as specified in the Detailed Restoration Plan. XXX
may contact local landowners unilaterally regarding its
activities on other property.
(d) Environmental Compliance Activities. Bonneville shall be
responsible for compliance with the Federal, state, and local
laws and regulations pertaining to NEPA and related public
involvement and information exchange relating to the actions
of XXX under this Agreement. Bonneville shall acquire all
necessary permits associated with any Cable operations,
maintenance and construction along each Route. If any
mitigation measures are required as part of the NEPA
(including state and local requirements) compliance
activities, these measures shall be undertaken by Bonneville
at the sole cost of XXX provided, however, that XXX shall not
be liable for the costs of any mitigation measures that
Bonneville would have been required to undertake in the
absence of this Agreement. All contacts with the local
landowners related to NEPA compliance shall be performed by
Bonneville-appointed representatives.
12. MODIFICATION OF THE CABLE
The Parties acknowledge that the Cable or a portion thereof may require
relocation, modification, or replacement during the term of this
Agreement. The cost of such relocation, modification or replacement
shall be allocated as follows:
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(a) If requested by XXX for its operational purposes, XXX shall
pay all such costs, provided, however, that Bonneville shall,
in its sole discretion, determine whether such modification of
the Cable may be accommodated considering Bonneville's own
needs to provide economical and reliable electric
transmission, Bonneville's own needs for communications
capabilities, and Bonneville's provision of fiber and
communications capabilities to others.
(b) If requested by Bonneville due to requirements necessary to
provide economical and reliable electric transmission,
Bonneville's own needs for communications capabilities, or
Bonneville's provision of fiber and communications
capabilities to others, Bonneville shall be responsible for
all such costs.
(c) If the Cable must be relocated due to the final,
non-appealable order of any court or governmental agency
having jurisdiction, or because of a Force Majeure event,
Bonneville shall, in consultation with XXX and other licensees
of the fiber on the relevant Route, designate a new route for
the Cable. The costs associated with such required relocation
that are not paid by a third party, shall be allocated among
the Parties and any other Licensees pro rata, based upon their
respective numbers of fibers. If the Cable must be relocated
pursuant to this Section 12(c), Bonneville and XXX shall work
together to select contractors and materials to achieve the
most timely and cost-effective relocation available in the
market place given the Fiber Specifications and then-current
Prudent Utility Practices.
13. REPRESENTATIONS AND WARRANTIES
(a) XXX represents and warrants to Bonneville as follows:
(1) XXX has full power and authority to execute, deliver,
and perform its obligations under this Agreement. The
execution of this Agreement by XXX has been duly and
validly authorized by all necessary action on the
part of XXX. This Agreement is a legal, valid, and
binding obligation of XXX enforceable against XXX in
accordance with its terms. The execution and delivery
of this Agreement by XXX and the performance of the
terms, covenants, and conditions contained herein
will not violate the articles of incorporation or
bylaws of XXX or any applicable law or regulation or
any order of any court or arbitrator, and will not
conflict with and will not constitute a material
breach of, or default under, the provisions of any
contract by which XXX is bound. Except as otherwise
stated herein, no approval, authorization, or other
action by any governmental authority or filing with
any such authority which has not been obtained or
accomplished is required in connection with the
execution, delivery, and performance by XXX of this
Agreement.
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(2) There are no known actions, suits, or proceedings
pending or overtly threatened against XXX before any
court or administrative agency that would materially
impair ELIs performance of its obligations under this
Agreement.
(3) XXX has requested Bonneville to enter into this
Agreement in reliance upon the Guaranty and that XXX
is aware that, in light of prior disputes among the
parties, Bonneville would not be willing to enter
into this Agreement without the Guaranty or to permit
this Agreement to remain in effect if the Guaranty
were no longer available. XXX is also aware that
Bonneville would not be willing to enter into this
Agreement were ELI's obligation to make the payments
under section 8(a) and (b) hereof subject to
suspension or delay by reason of a dispute relation
to Bonneville's performance of its obligations under
this Agreement.
(b) Bonneville represents and warrants to XXX as follows:
(1) Bonneville has full power and authority to execute,
deliver, and perform its obligations under this
Agreement. This Agreement constitutes a legal and
valid obligation of Bonneville enforceable in
accordance with its terms to the full extent provided
by law.
(2) Upon execution of this Agreement, Bonneville warrants
that there are no known conflicts with this Agreement
and that neither execution and delivery of this
Agreement nor performance by Bonneville of its
obligations hereunder constitutes a material breach
of or a default under any constitutional provision,
or any law or administrative regulation, or violate
any judgment, decree, or other instrument, or any
other contract related to the Route to which
Bonneville is a Party or to which Bonneville or any
of its property or assets is subject.
(3) Bonneville has sufficient interests in the real
property along each Route to construct its Cable,
carry out its obligations under this Agreement; allow
XXX to access XXX Regeneration Huts and BPA
Facilities; and allow XXX to provide all
telecommunication services over XXX Fiber that are
contemplated by the License granted in section 7.
(4) Compliance with the terms and conditions of this
Agreement by XXX will not adversely affect the safe,
efficient, or reliable operation of Bonneville's
electric transmissions facilities.
-13-
(c) Materials Warranties.
(1) Except as otherwise specifically set forth in the
representations, warranties, covenants and conditions
of this Agreement, each Party makes no warranty to
the other Party or to any other person or entity,
whether express, implied or statutory, as to the
installation, description, quality, merchantability,
completeness or fitness for any purpose of any
portion of the Cable or any, services, facilities or
equipment provided hereunder or described herein, or
as to any other matter, all of which warranties are
hereby excluded and disclaimed.
(2) In procuring and obtaining materials, each Party
shall use reasonable efforts to obtain from the
vendors and suppliers, for the mutual benefit of
itself and the other Party, warranties that such
materials are:
(A) of the kind and quality described in the
purchase order or supply contract;
(B) free of defects in workmanship, material,
design and title;
(C) of good and merchantable quality; and where
appropriate, fit for their intended purpose.
(d) No Bonneville Warranty Concerning Route. Bonneville makes no
representation or warranty whatsoever concerning the physical
characteristics of the Route or ELI's economic or commercial
prospects hereunder. XXX acknowledges that neither Bonneville
nor any of Bonneville's officers, employees, representatives,
contractors, or subcontractors or agents have made any such
representation or warranty. Neither Bonneville nor XXX is
entering into this Agreement in reliance upon any such
representation or warranty. ELI's payment and other
obligations hereunder are in no way contingent upon ELI's
success or failure in marketing the XXX Fiber, or services
based upon XXX fiber, to others.
14. AUDIT PROCEDURES
(a) Records. The Parties shall maintain true and correct sets of
records, including accounting, billing and collection records,
in connection with the performance of this Agreement and all
transactions related thereto and shall retain all such records
for a period of not less than three (3) years after such
transaction or event or related time period.
-14-
(b) Reimbursement of Costs. If Bonneville or XXX is entitled under
this Agreement to be paid amounts determined in whole or in
part on a reimbursement-of-costs basis, the costs to be
reimbursed shall be only those reasonably necessary for that
Party to perform the work in an efficient manner in accordance
with the time schedule required.
(c) Audit Rights. A Party from whom any reimbursement is required
under this Agreement may, at its sole discretion and expense,
request and with reasonable notice perform a complete audit of
the records related to the requested reimbursement of the
Party requesting reimbursement. In the event that the Parties
agree that the amount of requested reimbursement is accurate,
and that the demand for reimbursement is justified under this
Agreement, then the nonauditing Party shall reimburse the
auditing Party the agreed upon amount. In the event that the
nonauditing Party disagrees with the results of the Party's
audit and resolution is not reached between the Parties, the
Parties agree to resolve the dispute pursuant to section 18 of
this Agreement.
15. Insurance
(a) General. At all times during the term of this Agreement, XXX
at its own cost and expense, shall procure, maintain in full
force and effect, and pay for the insurance specified by this
section 15.
(b) Evidence Required. Within thirty (30) days of the Effective
Date of this Agreement, XXX shall provide Bonneville with a
certificate of insurance executed by an authorized
representative of Qualified Insurers as described in section
15(d) evidencing that XXX has insurance in place that complies
in all respects with this section, and that such insurance was
effective as of the Effective Date.
(c) Notice of Cancellation, Reduction, or Material Change in
Coverage. Each policy shall include a provision requiring
written notice by the insurer(s) to Bonneville not less than
thirty (30) calendar days prior to cancellation, reduction, or
material change in coverage. If insurance coverage is
canceled, reduced, or materially changed, XXX shall, prior to
the effective date of such cancellation, reduction, or
material change, obtain and have in effect the coverage
required under this section and provide to Bonneville prior to
the noticed cancellation, reduction or material change date
documentation evidencing the effectiveness of such coverage.
XXX shall be responsible to the extent not caused by
Bonneville's negligence, for the costs of any damage,
liability, or injury which are not otherwise covered by
insurance.
(d) Qualifying Insurers. Policies shall be issued by and
maintained in force with companies which hold a current
policyholders alphabetic and financial size category rating of
not less than "A-" according to Best's Insurance Report or a
similar rating from another recognized rating agency.
-15-
(e) Insurance Required.
(1) Liability. Commercial general liability insurance for
bodily injury (including death) and property damage
shall provide limits of not less than $10 million per
occurrence.
Coverage included shall be:
(A) premises and operations;
(B) broad form property damage;
(C) products and completed operations;
(D) blanket contractual liability;
(E) personal injury liability;
(F) cross-liability and severability of interests;
and
(G) independent contractors liability.
(2) Business Automobile Liability Insurance. Business
Automobile Liability Insurance for bodily injury
(including death) and property damage shall provide
total limits of not less than $2 million combined
single limit per occurrence to all owned, non-owned,
and hired vehicles.
(3) Workers' Compensation/Employer's Liability Insurance.
Statutory Workers' Compensation and Employer's
Liability Insurance for not less than $1 million per
occurrence shall apply to employer's liability
coverage for all employees engaged in services or
operations under this Agreement. The policy shall
include broad form all-States/other States coverage.
(4) All coverage identified above shall be endorsed to
include the following:
(A) inclusion of Bonneville, its officers,
representatives, agents, and employees as
additional insureds in regard to services or
(B) operations performed in connection with this
Agreement; and
(C) a stipulation that the insurance is primary
insurance and that no insurance or
self-insurance of Bonneville will be called
upon to contribute to a loss.
(f) Special Provisions.
(1) Neither the foregoing specification of insurance
requirements nor ELI's conformance with such
requirements is intended to limit or qualify the
liabilities and obligations otherwise assumed by XXX
or Bonneville pursuant to this Agreement, including,
but not limited to, the provisions concerning
indemnification.
-16-
(2) Bonneville acknowledges and agrees that XXX may
fulfill some insurance requirements contained in this
section 15 by means of a formal self-insurance
program of XXX or its parent corporation; provided,
however, that self-insurance shall not in any way
limit the potential liabilities assumed by XXX under
this Agreement. Any self-insurance program must be
first approved in writing by Bonneville, which
approval shall not be unreasonably withheld or
delayed.
16. Default
(a) Events of Default. If either Party is in breach or default of
this Agreement ("Defaulting Party"), the other Party
("Nondefaulting Party") may notify in writing the Defaulting
Party that it is in breach or default, such notice to be
effective upon its receipt by the Defaulting Party. A copy of
any notice of breach or default under section 8(a) or section
8(b) shall also be provided to Citizens Utilities Company. The
following events shall constitute breach or default under this
Agreement:
(1) failure to make any payment when due hereunder, with
the exception of payments that become payable to
either Party during the period of any Force Majeure,
but only when the event of Force Majeure results in a
disruption of the banking system and a Party's
physical inability to make such payment; provided,
however, that the Party experiencing such Force
Majeure shall immediately notify the other Party and
make alternative arrangements that are agreeable to
both Parties, but must in any case resume the regular
schedule for making payments as soon as possible and
pay any unpaid bills immediately upon the conclusion
of any period of Force Majeure;
(2) failure to perform in any material respect any
obligations required to be observed or performed
hereunder;
(3) any representation or warranty made by one Party to
the other herein proving incorrect in any material
respect as of the date of the making thereof;
(4) the filing by XXX of a voluntary petition in
bankruptcy, or a petition in bankruptcy filed against
XXX that is not dismissed within sixty (60) days, or
the adjudication of as bankrupt or insolvent, or the
filing of any petition or answer seeking or
acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution,
or similar relief under any present or future
Federal, State, or other statute, law, or regulation
relating to bankruptcy, insolvency, or other relief
for debtors, or seeks or consents to or acquiesces in
the appointment of any trustee, receiver, custodian,
liquidator, or similar official of XXX or any general
assignment of XXX assets for the benefit of
creditors;
-17-
(5) willful and material interference by one Party with
the other Party's operations;
(6) failure to make, or arrange with the other Party for,
full and timely repair of any damage to one Party's
property or equipment caused as a result of the
negligent or willful actions by the other Party; or
(7) acceptable alternative arrangements are not agreed
to, or an acceptable letter of credit is not
delivered, as contemplated and required by section 16
of the Guaranty.
(b) Remedies.
(1) Defaulting Party's Right to Cure.
The Defaulting Party shall have the right to cure any
breach or default under this Agreement (other than a
default under section 16(a)(7)) within ten (10)
calendar days after the receipt by the Defaulting
Party of notification of such breach or default
(thirty (30) calendar days after the receipt of
notification by both XXX and Citizens Utility Company
of a default under section 8(a) and/or 8(b)).
(2) Nondefaulting Party's Remedies. Subject to sections
16(b)(3)(A) and (B), after the time allowed the
Defaulting Party to cure any alleged breach or
default has expired, then the Nondefaulting Party
shall have the right to: (A) terminate this
Agreement; (B) cure any breach or default of the
Defaulting Party to preserve the Nondefaulting
Party's rights that may be prejudiced as a result of
such material breach or default; and (C) exercise and
pursue cumulatively any and all other legal rights
and remedies, available to it under this Agreement or
applicable law.
(3) Termination by Bonneville.
(A) In the event XXX fails to make any payment
when due pursuant to sections 8(a) and (b),
and such failure is not cured within the
time specified in section 16(b)(1),
notwithstanding that at such time there may
be disputes between the parties relating to
this Agreement and despite resolution
procedures have commenced pursuant to
section 18, this Agreement shall terminate
at 12 midnight on the last day of the sixth
(6th) month following the month in which
such default occurred, and XXX shall pay to
Bonneville the Liquidation Payment, as
defined below, within five (5) days of the
end of the cure period specified in section
16(b)(1).
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(B) If a default shall occur pursuant to section
16(a)(7), this Agreement shall terminate,
without any requirement of notice, effective
as of 12 midnight on December 31 of such
year or 12 midnight on the last day of the
sixth (6th) month following the month in
which such default occurred, whichever is
earlier.
(4) Liquidation Payment. In the event this Agreement is
to be terminated pursuant to section 16(b)(3)(A), XXX
shall pay to Bonneville on the date provided in
section 16(b)(3)(A) as liquidated damages the sum of
$20,000,000, which payment shall be Bonneville's sole
and exclusive remedy (in addition to such
termination) for a failure to make any payment when
due pursuant to sections 8(a) and (b), but shall not
in any way limit Bonneville's rights as provided in
section 18(d) hereof. The Parties hereby acknowledge
and agree that such amount represents a reasonable
estimate of the revenues Bonneville would receive
under this Agreement over the time that may be
required for Bonneville, in the exercise of
reasonable diligence, to License or otherwise
re-market all Dark Fibers covered by this Agreement,
and is not a penalty or forfeiture. The Parties
further acknowledge and agree that Bonneville's
damages are difficult or impossible to determine,
otherwise obtaining an adequate remedy is
inconvenient and that the liquidated-damage amount
constitutes a reasonable approximation of the harm or
loss that Bonneville would be expected to suffer upon
termination of this Agreement for nonpayment of
amounts due under sections 8(a) and (b) hereof and
the risk of delay in licensing or otherwise
re-marketing such Dark Fibers.
17. Indemnification; Waiver of Damages
(a) Indemnification by XXX.
(1) To the extent allowed by law, XXX shall release and
indemnify, defend, and hold harmless Bonneville and
each of its officers, agents, representatives,
subcontractors and employees (the "Bonneville
Indemnitees") from and against any and all
liabilities, losses, claims, demands and actions of
any nature ("Claims") for injury to or death of a
person, including an employee of XXX or a Bonneville
Indemnitee, or for loss of or damage to property
resulting directly or indirectly from ELI's
performance or nonperformance of this Agreement,
except to the extent that such Claim is the result of
negligence or willful misconduct of a Bonneville
Indemnitee.
(2) XXX shall indemnify and hold Bonneville harmless from
any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses arising from
or due to the presence of Hazardous Materials at or
within any Regeneration Hut or along any Route, if
XXX or its agent,
-19-
contractor, employee, or invitee is responsible for
the introduction of the Hazardous Material. This
indemnity obligation includes, without limitation,
any and all costs due to Hazardous Materials that
flow, diffuse, migrate, or percolate into, onto or
under the property, or from the property to
neighboring property or groundwater, prior to, on or
after the Effective Date.
(3) If negligence or willful misconduct of a Bonneville
Indemnitee has contributed to a Claim, XXX shall not
be obligated to indemnify the Bonneville Indemnitees
for the proportionate share of such Claims caused by
such negligence or willful misconduct. Bonneville
shall have the right, at its own cost, to retain
counsel, to monitor, or participate in the defense of
any Claim that is covered by ELI's indemnity
hereunder. Bonneville shall reimburse XXX for that
portion of a Claim determined or agreed to be caused
by Bonneville's negligence or willful misconduct.
Reimbursement shall be due to XXX thirty (30)
calendar days after the determination or agreement
with respect thereto, and shall bear interest at the
Interest Rate from said date until the date of
payment by Bonneville.
(b) Indemnification by Bonneville.
(1) To the extent allowed by law, Bonneville shall
release and indemnify, defend, and hold harmless XXX
and each of its directors, officers, agents,
representatives, subcontractors, and employees (the
"XXX Indemnitees") from and against any and all
Claims as defined in section 17(a)(1) for injury to
or death of a person, including an employee of
Bonneville or an XXX Indemnitee, or for loss of or
damage to property resulting directly or indirectly
from Bonneville's performance or nonperformance of
this Agreement, except to the extent that such Claim
is the result of negligence or willful misconduct of
an XXX Indemnitee.
(2) Bonneville shall indemnify and hold XXX harmless from
any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses arising from
or due to the presence of Hazardous Materials at or
on any Bonneville Facility or Route, if Bonneville or
its agent, contractor, employees, co-owner, or
invitee is responsible for the introduction of the
Hazardous Material. This indemnity obligation
includes, without limitation, any and all costs due
to Hazardous Materials that flow, diffuse, migrate,
or percolate into, onto or under the property, or
from the property to neighboring property or
groundwater, either prior to or after the Effective
Date.
(3) If negligence or willful misconduct of an XXX
Indemnitee has contributed to a Claim, Bonneville
shall not be obligated to indemnify the XXX
Indemnitees for the proportionate share of such
Claims
-20-
caused by such negligence or willful misconduct. XXX
shall have the right, at its own cost, to retain
counsel; to monitor, or participate in the defense of
any Claim that is covered by Bonneville's indemnity
hereunder. XXX shall reimburse Bonneville for that
portion of a Claim determined or agreed to be caused
by ELI's negligence or willful misconduct.
Reimbursement shall be due to Bonneville thirty (30)
calendar days after the determination or agreement
with respect thereto, and shall bear interest at the
Interest Rate from said date until the date of
payment by XXX.
(4) Bonneville agrees to indemnify XXX against any claims
of underlying landowners along the Route of damage to
property resulting from Bonneville's construction and
maintenance of the Cable.
(c) Waiver of Certain Damages.
Each Party hereby waives any right to consequential,
incidental, special or indirect damages, or damages for lost
profits or exemplary damages with respect to any claim arising
out of or related to this Agreement provided that such waiver
shall not be construed in any way to limit Bonneville's right
to the Liquidation Payment as provided in section 16(b)(4).
The Parties acknowledge that the foregoing waiver shall not
prejudice the right of indemnity respecting any Claim under
this section.
(d) The provisions of this section shall survive the expiration or
termination of this Agreement and until such time as all
potential claims contemplated by this section have been
precluded by operation of law.
18. Dispute Resolution
(a) Any controversy, claim, or other dispute of any kind between
the Parties arising out of or relating to this Agreement or
the alleged breach thereof, or out of performance under this
Agreement ("the Dispute"), shall be subject to the dispute
resolution process set forth in this section. If the Dispute
is not resolved by the process set forth in section (b) below,
then the Dispute shall be submitted to binding arbitration
administered by the American Arbitration Association ("AAA")
before a single, independent arbitrator selected by the
parties in accordance with the then-effective AAA Complex
Commercial Arbitration Rules ("AAA Rules"). Mediation or
arbitration pursuant to this section shall take place in
Portland, Oregon or Vancouver, Washington. The Parties shall
continue performance of their respective obligations hereunder
pending resolution of the Dispute, provided that the pendency
of any Dispute shall not interfere with the termination of
this Agreement pursuant to section 16(b)(3) or the requirement
for a Liquidation Payment pursuant to section 16(4).
-21-
(b) Upon request by either Party, a meeting shall be held between
the Parties to attempt in good faith to negotiate a resolution
of the Dispute. Such meeting shall be held within five (5)
days after the Party asserting the Dispute has provided the
other Party written notice thereof. The meeting shall be
attended by individuals with decision-making authority
regarding the Dispute. If, within five (5) calendar days after
such meeting, the Parties have not succeeded in resolving the
Dispute through good faith negotiation, then either Party may,
within thirty (30) calendar days thereafter, serve written
notice to the other Party and submit the Dispute to a mutually
acceptable third-party mediator who has at least five (5)
years experience with dispute resolution of complex commercial
contracts. If the Dispute is not resolved by mediation within
seven (7) days after completion of mediation sessions, then,
within thirty (30) days of the completion of the mediation
process and upon written notice from either Party to the other
Party, either Party may initiate arbitration of the Dispute
with the AAA.
(c) Arbitration under this section shall proceed in accordance
with the following procedures:
(1) The arbitration shall be governed by the
then-effective AAA Rules and the Federal Arbitration
Act, 9 U.S.C.1, et seq. Discovery in the
arbitration shall be governed by the then-effective
Federal Rules of Civil Procedure.
(2) Under no circumstances shall either Party seek or be
entitled to recover punitive damages as part of any
arbitration award under this Agreement.
(3) The arbitrator shall apply Federal law, and in no
circumstances shall the arbitrator apply a rule of
decision or adopt a remedy that is inconsistent with
the governing precedents of Federal law. Judgment
upon any award rendered by the arbitrator may be
entered in any court of competent jurisdiction.
(d) In the event that XXX fails to make a payment required under
section 8(a) and/or (b) of this Agreement, either prior to or
during the course of an arbitration, the Parties' rights and
the arbitrator's authority shall be subject to the following
restrictions:
(1) Any claim by XXX asserting damages as a result of an
alleged breach of this Agreement by Bonneville shall
be limited in time and scope to damages directly
incurred within the period between the date of such
breach and the date of termination of this Agreement
by Bonneville pursuant to section 16 of this
Agreement, and the arbitrator shall not have
authority to entertain any claims by XXX for any
damages other
-22-
than those to which XXX has been limited by this
provision, to award any damages inconsistent with
this provision, or to impede , prevent or reverse the
implementation of sections 16(b)(3) and (4) hereof.
(2) In the event that Bonneville recovers payments due
from XXX through the Guaranty, Bonneville shall have
no right to seek damages from XXX for those payments;
provided, however, that Bonneville shall have the
absolute right to pursue additional claims and
damages against XXX not related to such payments, and
arising under or relating to this Agreement. The
recovery of any damages by Bonneville for claims
other than for payments under section 8(a) and/or(b)
of this Agreement shall not be limited or lessened by
any recovery obtained by Bonneville under the
Guaranty.
(e) The parties specifically agree and intend that the pendency of
any dispute shall not interfere with the obligation of XXX to
make payments under section 8(a), 8(b) or 16(b)(4) or the
termination of this Agreement pursuant to section 16(b)(3).
(f) The Parties agree to share equally the costs of mediation and
arbitration, including any mediator's fees, AAA administration
fee, the arbitrator's fee, and costs for the use of facilities
during the hearings. At the discretion of the arbitrator,
reasonable attorneys' fees may be awarded to the prevailing
Party in any arbitration. Each Party's other costs and
expenses shall be borne by the Party incurring them.
19. General
(a) Force Majeure.
(1) As used in this Agreement, the term "Force Majeure"
means acts of God (including but not limited to,
earthquakes, fires, floods, windstorms, landslides,
and ice storms); strikes, lockouts, or other labor
disputes; acts of public enemy; acts of vandalism,
wars, riots, and insurrection; epidemics; civil
disturbances; explosions; train derailments;
breakdown or failure of machinery, equipment, or
facilities (excluding the Cable, Cable Accessories
and Regeneration Huts); accidents to machinery,
equipment, or facilities (excluding the Cable, Cable
Accessories and Regeneration Huts), and delay in
delivery of equipment to the extent such occurrences
are beyond the reasonable control of the Party
claiming Force Majeure; electrical disturbance
originating in or transmitted through such Party's
electrical system or equipment or any electrical
system with which such Party's system or equipment is
interconnected; and any other event, cause, or
condition beyond the Party's reasonable control,
-23-
which, by the exercise of reasonable diligence,
prevents the Party claiming Force Majeure from
performing its obligations under this Agreement.
(2) If either Party is unable to carry out its
obligations under this Agreement as a result of an
event, cause, or condition of Force Majeure, the
Party claiming Force Majeure shall give notice and
full particulars of such Force Majeure both by
telephone and in writing to the other Party as soon
as possible, but no later than three (3) calendar
days from the beginning of the occurrence of the
Force Majeure event, cause, or condition. Any
obligations that such Party is unable to perform due
to an event, cause, or condition of Force Majeure
shall be suspended during the continuance of such
event of Force Majeure, provided that the obligation
to make payments shall only be suspended to the
extent provided in section 16(a)(1). The Party
claiming Force Majeure shall use best efforts to
remedy and minimize the effects of such event of
Force Majeure with all reasonable dispatch.
(3) Neither Party shall be liable under this Agreement
for, or be considered to be in material breach or
default under, this Agreement on account of any delay
in or failure of performance due to Force Majeure
unless specifically stated to the contrary in this
Agreement.
(4) If Force Majeure prevents restoration or complete
performance by Bonneville or XXX within one (1) year
from the event of such Force Majeure, then the Party
not claiming Force Majeure shall have the option to
terminate this Agreement.
(b) Notices. All notices and other communications under this
Agreement shall be properly given only if made in writing; and
(1) mailed by certified mail, return receipt requested,
postage prepaid; or
(2) delivered by facsimile transmission followed by
certified mail to the Party or specified entity at
the address or facsimile number set forth in this
section or such other address or facsimile number as
such Party or specified entity may designate by
notice to the other Party. Such notices and other
communications shall be effective on the date of
receipt. If any such notice or communication is not
received or cannot be delivered due to a change in
the address of the receiving Party or specified
entity of which notice was not previously given to
the sending Party or due to a refusal to accept by
the receiving Party or specified entity, such notice
or other communication shall be effective on the date
delivery is attempted.
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If to Bonneville:
The Bonneville Power Administration
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx - TM/DITT-2
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to XXX:
Electric Lightwave, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Vice President, Finance
Telephone: (000) 000-0000 Fax: (000) 000-0000
With a copy to:
Electric Lightwave, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to Citizens Utility Company:
Citizens Utilities Company
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
Citizens Utilities Company
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Vice President, General Counsel
-25-
Names and addresses specified above may be changed through notice given in
accordance with this provision.
(c) Assignment. Neither Party shall assign this Agreement or any
of its rights or obligations under this Agreement without
prior written consent of the other Party, which consent may
not be unreasonably withheld or delayed; provided, however,
that XXX shall have a right to assign its rights and
obligations under this Agreement to Citizens Utilities Company
or its successors (collectively "Citizens") so long as
Citizens guarantees ELI's payments under this Agreement
pursuant to the Guaranty. For purposes of this provision a
merger or consolidation of XXX, a sale of substantially all of
the assets of XXX or a sale or other disposition by Citizens
Utility Company of more than fifty percent (50%) of the voting
securities of XXX shall be deemed to be an "assignment" of
this Agreement requiring the consent of Bonneville, which
consent shall not be unreasonably withheld or delayed. In the
event that XXX xxxxx, assigns, leases, subleases, or otherwise
allows use of ELI's License under this Agreement, XXX or its
assigned entity, shall continue to serve as a single
point-of-contact to Bonneville for all activities relating to
this Agreement. Nothing in this paragraph shall require
Bonneville's consent to agreements entered into by XXX
regarding any activity in the ordinary course of business
permitted under the License.
(d) Partial Invalidity. If any provision of this Agreement is
determined by a proper court or government entity to be
invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall not affect the performance of other
provisions of this Agreement and this Agreement shall remain
in full force and effect without such invalid, illegal or
unenforceable provision.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with Federal law.
(f) Terms Generally. The defined terms in this Agreement shall
apply equally to both the singular and the plural forms of the
terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine, and
neuter forms. The term "person" includes individuals,
corporations, limited partnerships, partnerships, trusts,
other legal entities, organizations, and associations, and any
Government or governmental agency. The words "include,"
"includes" and "including" shall be deemed to be followed by
the phrase "without limitation." The words "approval,"
"consent" and "notice" shall be deemed to be preceded by the
word "written."
(g) Waivers. No waiver of any provision or breach of this
Agreement shall be effective unless such waiver is in writing
and signed by the waiving Party and any such waiver shall not
be deemed a waiver of any other provision of this Agreement or
any other breach of this Agreement.
-26-
(h) Confidentiality. If and to the extent any information or
documents furnished by one Party to the other under this
Agreement is confidential or proprietary to the furnishing
Party, the receiving Party shall treat such information or
documents as confidential and proprietary and shall take
reasonable steps to protect against the unauthorized use or
disclosure of such information or documents; provided, that
such information and documents are conspicuously marked or
otherwise clearly identified as confidential or proprietary
when furnished; and provided, further, that this section 19(h)
shall not apply to information or documents in the public
domain or to information or documents required to be disclosed
by any law, rule, regulation, order, or other requirement of
any governmental authority having jurisdiction. If a request
is received under the Freedom of Information Act, 5 U.S.C.
552, by Bonneville for such written information or documents,
Bonneville shall promptly notify XXX of such request to accord
XXX reasonable time within which to seek to enjoin any
disclosure. Neither Party shall make initial public
announcement of this Agreement or the transactions
contemplated by this Agreement without the prior review by the
other Party, unless such public announcement is necessary to
comply with applicable law; provided, however, that this
provision shall not apply to the regular marketing activities
of either Party.
(i) No Third-Party Beneficiaries. This Agreement creates rights
and obligations only between the Parties hereto. The Parties
hereto expressly do not intend to create any obligations or
promise of performance to any other third person or entity nor
have the Parties conferred any rights or remedy upon any third
person or entity other than the Parties hereto, their
respective successor or assigns to enforce this Agreement. XXX
shall not make any representations to the contrary in any
agreement with any third party.
(j) Successors and Assigns. This Agreement is binding upon the
Parties, and their respective successors and assigns.
(k) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original
agreement for all purposes, but both of which shall be
considered one instrument and shall become a binding agreement
when any one or more counterparts has been signed by each of
the Parties.
(l) Entire Agreement. This Agreement reflects the entire agreement
of the Parties with respect to the License and supercedes all
prior contracts (except to the extent the Parties have
separately agreed to preserve any provisions of such prior
contracts), discussions, negotiations, representations,
conditions and other prior communications, whether oral or
written, concerning the subject matter of this Agreement.
-27-
(m) Advice of Counsel/Construction. Each of the Parties represents
that in the execution of this Agreement, and the negotiations
leading thereto, it has had the opportunity to consult legal
counsel of its own selection, and that, prior to the execution
of this Agreement by each Party, the Party's attorney reviewed
this Agreement, suggested any desired changes and advised the
Party with respect to the advisability of executing this
Agreement. This Agreement shall be deemed to have been drafted
by both Parties, and no rule of construction shall be applied
against any Party as the drafter.
(n) Headings. Titles and headings of sections or paragraphs in
this Agreement are inserted for convenience of reference only
and are not intended to affect the interpretation or
construction of this Agreement.
(o) Survival of Certain Provisions. Notwithstanding any other
provisions of this Agreement, the obligations of the parties
under sections 15 (to the extent of any claim arising with
respect to the period prior to expiration or termination of
this Agreement), 17, 18 and 19(h) shall survive the expiration
or termination of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in
two counterparts.
ELECTRIC LIGHTWAVE, INC. UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxx Name: Xxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Print/Type Print/Type
Title: Chief Executive Officer Title: Transmission Account Executive
--------------------------------- ------------------------------------
Date: May 15, 2000 Date: May 15, 2000
--------------------------------- ------------------------------------
-28-
EXHIBIT A
SMF-28 CPC-6
72 STRAND FIBER
ROUTE DESCRIPTION - Xxxxxx-Xxxxxxxxx (Portland-Seattle)
The southern terminus of the route begins at BPA's Xxxxxx Substation located
eight (8) miles west of Portland. The cable is attached to the St. Xxxxx-Xxxxxx
No. 2 xxxx pole line and deadends at St. Xxxxx Substation located ten (10) miles
northwest of Portland. The cable is then attached to the Xxxx-St. Xxxxx No. 1
steel tower line, crosses the Columbia River and deadends at Xxxx Substation
located twelve (12) miles north of Portland. Going north out of Xxxx Substation
the cable is attached to the Xxxx-Lexington No. 1 steel tower line and deadends
at Lexington substation located a few miles north of Longview. The cable is then
attached to the Lexington-Longview No. 1 wood pole line that deadends at
Longview substation located in the west part of Longview. The cable then is
attached from a point two (2) miles north of Lexington out of Longview on the
Longview-Chehalis No. 1 steel tower line and deadends at Chehalis substation
located four (4) miles south of Chehalis. The cable then goes north out of
Chehalis for eleven (11) miles on the Chehalis-Xxxxxxxxx steel tower line and
then is attached to the Paul-Allston No. 2 for the last three (3) miles going
into Xxxx substation located three (3) miles northeast of Chehalis. The cable
goes north out of Xxxx on the Xxxx-Satsop No. 1 steel tower line and deadends on
the wood pole lines south of Olympia substation located in the southwest part of
Olympia. The cable then goes west and north on the Olympia-Grand Coulee No. 1,
the Olympia-White River No. 1 and the Chehalis-Xxxxxxxxx No. 1 steel tower lines
until it terminates at Xxxxxxxxx substation. The total length of the route is
approximately 192 miles and requires five (5) regeneration stations located near
BPA facilities along the way.
-1 of 00-
XXXXX XXXXXXXXXXX - Xxxx-Xxxx (Xxxxxxxx-Xxxxxxx)
XXXX-XXXXXXXX FIBER ROUTE SEGMENT
SMF/DS CPC-6
36 STRAND FIBER
i)
Xxxx Substation To North Bonneville Substation - 36.0 Miles
Xxxxxxx Control Center
North Xxxxxxxxxx - Xxxx No. 2
AFB 187 (37/2) To AFX 1 (1/1)
Xxxxxxx - Xxxxxxxxx No. 1
FY 703 (151/5)
Fiber Optic Wood Pole
AMV 4 (1/1A)
Substation Dead End Structure
Bay 11, 230 kV Switchyard
North Bonneville Substation
North Bonneville Substation To Big Eddy Substation -
50.2 Miles
Substation Dead End Structure
Bay 13, 230 kV Switchyard
North Bonneville Substation
North Bonneville - Midway No. 1
AS 1 (1/1) To HB 152 (29/2)
Fiber Optic Wood Pole Parallel to XxXxxx - Xxxx No. 1
AMV 5 (116/3) To AMV 88 (97/4A)
Spearfish Tap To Xxxxxxxxx - Goldendale No. 1
4/3 To 1/1
Fiber Optic Wood Pole
AMV 89 (2/4A) To AMV 90 (2/4B)
Big Eddy - Midway No. 1
AN 5 (2/3) To AN 2 (1/2)
The Dalles Powerhouse - Big Eddy Switchyard Line No. 1
EN 3 (1/3) To EN 4 (1/4)
Substation Dead End Structure
Bay 10, 115 kV Switchyard
Big Eddy Substation
-2 of 11-
Big Eddy Substation To Xxxx Day Substation - 18.9 Miles
Substation Dead End Structure
Bay 35, 230 kV Switchyard
Big Eddy Substation
Fiber Optic Wood Pole
AMV 130 (1/1) To AMV 131 (1/2)
Substation Dead End Structure
Bay 9E, 500 kV Switchyard
Big Eddy Substation
Xxxx Day - Big Eddy No. 2
BG 79 (19/4) To BG 1 (1/1)
Substation Dead End Structure
Bay 11 W, 500 kV Switchyard
Xxxx Day Substation
Xxxx Day Substation To Xxxxx Substation - 30.3 Miles
Substation Dead End Structure
Bay 6E, 500 kV Switchyard
Xxxx Day Substation
Slatt - John Day No. 1
CD 658 (31/1) To CD 521A (1/1)
Fiber Optic Wood Pole
AMV 92 (46/1A)
Xxxxx Substation
--------------------------------------------------------------------------------
Xxxxx Substation To XxXxxx Substation - 45.5 Miles
Fiber Optic Wood Pole
AMV 92 (46/1A)
Xxxxx Substation
XxXxxx - Xxxxx No. 1
CD 520A (46/1) To CD 394 (19/5)
Fiber Optic Wood Pole
AMV 94 (19/4A) To AMV 96 (19/4C)
XxXxxx - Xxxxx Xx. 0
XX 000 (19/3) To CD 312 (2/2)
Fiber Optic Wood Pole
AMV 98 (2/1A)
XxXxxx - Roundup No. 1
TL 9 (2/8) To TL 1 (1/1)
Substation Dead End Structure
Bay 10, 230 kV Switchyard
XxXxxx Substation
-3 of 11-
XxXxxx Substation To Franklin Substation - 26.5 Miles
Substation Dead End Structure
Bay 2, 69 kV Switchyard
XxXxxx Substation
Fiber Optic Wood Pole
AMV 99 (1/7A) To AMV 100 (1/7B)
XxXxxx - Xxxxxxxx Xx. 0
XX 0 (1/7) To SN 149R (20/8)
Fiber Optic Wood Pole Parallel To XxXxxx - Xxxxxxxx No. 2
AMV 101 (21/1) To AMV 119 (24/5)
XxXxxx - Xxxxxxxx No. 2
Sh 4 (24/6) To ABH 1 (27/7)
Substation Dead End Structure
Bay 5, 230 kV Switchyard
Franklin Substation
XXXXXXXX - XXXX FIBER ROUTE SEGMENT
SMF-28 CPC-6
36 STRAND FIBER
Franklin Substation to Xxxxxx Substation - 21.0 Miles
Substation Dead End Structure
Bay 9, 115 kV Switchyard
Franklin Substation
Xxxxxx - Xxxxxxxx Xx. 0
XX 000 (21/13) To UH 1 (1/1)
Substation Dead End Structure
Bay 5, 115 kV Switchyard
Xxxxxx Substation
Xxxxxx Substation To Xxxx Substation - 3.9 Miles
Substation Dead End Structure
Bay 19, 230 kV Switchyard
Xxxxxx Substation
Midway - Xxxxxx No. 2
AFA 143 (29/6) To AFA 130 (27/4)
Lower Monumental - Xxxx No. 1
ACF 183 (39/2) To ACF 191 (40/5)
Substation Dead End Structure
Bay 8, 500 kV Switchyard
Xxxx Substation
-4 of 11-
Xxxx Substation to Hanford Substation - 19.6 Miles
Midway - Xxxxxx No. 2
AFA 130 (27/4) To AFA 74 (15/3)
Xxxx - Xxxxxxx No. 1
AAV 54 (11/3) To CA 261 (18/4)
Substation Dead End Structure
Bay 4, 500 kV Switchyard
Hanford Substation
Hanford Substation To Midway Substation - 14.3 Miles
Midway - Xxxxxx No. 2
AFA 74 (15/3) To AFA 10 (2/3)
Midway Xxxxxx No. 1
TV 11 (2/3) To TV 1 (1/1)
Substation Dead End Structure
Bay 7, 115 kV Switchyard
Midway Substation
Midway Substation To Moxee Substation - 34.0 Miles
Substation Dead End Structure
Bay 4, 115 kV Switchyard
Midway Substation
Midway - Moxee No. 1
YC 1A (1/1) To YC 222 (34/8)
Substation Dead End Structure
Bay 4, 115 kV Switchyard
Moxee Substation
Moxee Substation To Xxxxxxx Substation - 40.0 Miles
Substation Dead End Structure
Bay 9, 114 kV Switchyard
Moxee Substation
Columbia - Moxee No. 1
YD 1 (66/10) To FF 388A (26/5)
Substation Dead End Structure
Bay 5W (26/4), 500 kV Switchyard
Xxxxxxx Substation
-5 of 11-
Xxxxxxx Substation To Columbia Substation - 26.0 Miles
Substation Dead End Structure
Bay 5E (26/3), 500 kV Switchyard
Xxxxxxx Substation
Columbia - Moxee No. 1
FF 389A (26/2) To FF 442 (19/1)
Olympia - Grand Coulee No. 1
AF 664 (137/5) To AF 736 (155/3)
Substation Dead End Structure
Bay 17, 230 kV Switchyard
Columbia Substation
Columbia Substation to Valhalla Substation - 5.4 Miles
Substation Dead End Structure
Bay 5, 230 kV Switchyard
Columbia Substation
Rocky Reach - Columbia No. 1
AC 98 (21/3) To AC 79 (17/3)
Columbia - Valhalla No. 1
NJ 34 (4/9) To NJ 47 (5/12)
Substation Dead End Structure
Bay 5, 115 kV Switchyard
Valhalla Substation
Valhalla Substation To Xxxxxxx Substation - 16.7 Miles
Rocky Reach - Columbia No. 1
AC 79 (17/3) To XX 0 (0/0)
Xxxxxxx - Xxxxxxx Xx. 0
XX 00 (2/1) To DL 10 (1/1)
Substation Dead End Structure
Bay 3, 500 kV Switchyard
Xxxxxxx Substation
-6 of 11-
Xxxxxxx Substation To Chief Xxxxxx Substation - 44.6 Miles
Substation Dead End Structure
Bay 4, 500 kV Switchyard
Xxxxxxx Substation
Chief Xxxxxx - Xxxxxxx No. 1
GU 221 (45/6) To GU 10 (2/3)
Grand Coulee - Chief Xxxxxx Xx. 0
XX 000 (33/1) To FB 261 (33/5)
Substation Dead End Structure
Bay 10, 230 kV Switchyard
Chief Xxxxxx Substation
Chief Xxxxxx Substation To Grand Coulee Substation - 31.7 Miles
Grand Coulee - Chief Xxxxxx Xx. 0
XX 000 (33/1) To FB 1R (1/1)
Substation Xxxx Xxx Xxxxxxxxx
Xxx X00, 230 kV Switchyard
Grand Coulee Substation
Grand Coulee Substation To Monroe Control Center - 82.9 Miles
Substation Dead End Structure
Bay Y19, 230 kV Switchyard
Grand Coulee Substation
Grand Coulee - Xxxx No. 5
AH 14R (1/1) to AH 413 (82/4)
Grand Coulee - Xxxx
XX 717 (82/8) To ZC 729 (84/2)
Monroe Control Center
-7 of 00-
XXXXX XXXXXXXXXXX - Xxxx-Xxxxxxxxx (Spokane-Seattle)
SMF-28 CPC-6
72 STRAND FIBER
Xxxx To Xxxxxxxxx (Southern Route) 3/19/98
Station or Line
(Tower Ser. #) Distance Operational Line Name Comments
(miles)
Xxxx
---------------------------- --------------------- ------------------------------ ----------------------------------
52 Grand Coulee - Xxxx no. 2 115 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Creston
---------------------------- --------------------- ------------------------------ ----------------------------------
00 Xxxxx Xxxxxx - Xxxx xx. 0 000 xX
---------------------------- --------------------- ------------------------------ ----------------------------------
Grand Coulee
---------------------------- --------------------- ------------------------------ ----------------------------------
9 Columbia - Grand Coulee no. 3 230 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 66/2
---------------------------- --------------------- ------------------------------ ----------------------------------
0 Transition
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 66/1
---------------------------- --------------------- ------------------------------ ----------------------------------
21 Columbia - Grand Coulee no. 1 230 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
St. Xxxxxxx (regen)
---------------------------- --------------------- ------------------------------ ----------------------------------
44 Columbia - Grand Coulee no. 1
---------------------------- --------------------- ------------------------------ ----------------------------------
Columbia
---------------------------- --------------------- ------------------------------ ----------------------------------
26 Olympia - Grand Coulee no. 1 230 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Xxxxxxx
---------------------------- --------------------- ------------------------------ ----------------------------------
38 Olympia - Grand Coulee xx. 0 000 xX (Xxx. Xxx.)
---------------------------- --------------------- ------------------------------ ----------------------------------
Easton R.S. (regen) Splice at structure 92/2
---------------------------- --------------------- ------------------------------ ----------------------------------
2 Olympia - Grand Coulee no. 1
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 90/3
---------------------------- --------------------- ------------------------------ ----------------------------------
Transition
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 80/3
---------------------------- --------------------- ------------------------------ ----------------------------------
8 Xxxxxxx - Xxxxx no. 4 Stampede Pass
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 89/1
---------------------------- --------------------- ------------------------------ ----------------------------------
Transition
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 81/5
---------------------------- --------------------- ------------------------------ ----------------------------------
11 Olympia - Grand Coulee xx. 0 000 xX (Xxx. Xxx.)
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 70/6
---------------------------- --------------------- ------------------------------ ----------------------------------
0 Transition
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 27/3
---------------------------- --------------------- ------------------------------ ----------------------------------
00 Xxxxxxxxx - Xxxxxxxx no. 3 230 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 12/1
---------------------------- --------------------- ------------------------------ ----------------------------------
0 Transition
---------------------------- --------------------- ------------------------------ ----------------------------------
Str. 4/1
---------------------------- --------------------- ------------------------------ ----------------------------------
3 Raver - Echo Lake no. 1 500 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Raver
---------------------------- --------------------- ------------------------------ ----------------------------------
10 Xxxxx - Xxxxxxxxx no. 2 500 kV
---------------------------- --------------------- ------------------------------ ----------------------------------
Xxxxxxxxx
---------------------------- --------------------- ------------------------------ ----------------------------------
Total distance 268
---------------------------- --------------------- ------------------------------ ----------------------------------
Notes:
---------------------------- --------------------- ------------------------------ ----------------------------------
1. All cable is 72 count.
---------------------------- --------------------- ------------------------------ ----------------------------------
-8 of 00-
XXXXX XXXXXXXXXXX - Xxxxxx-Xxxxx (Portland-Xxxxxx)
SMF-28 CPC-6
72 STRAND FIBER
The northern origination point of the Route begins at Bonneville's Xxxxxx
Substation, located eight (8) miles west of Portland, Oregon. The Cable will be
attached to the Xxxxxx-Oregon City Xx. 0, 000-xX H-frame wood pole line running
for a distance of approximately 21.4 miles to the Oregon City Substation. The
Cable will then run from the Oregon City Substation a distance of approximately
0.7 miles on the Oregon City to Xxxxxxx Xx. 0, 000-xX X-xxxxx wood pole line to
the 1/10 structure location. From the 1/10 structure, the Cable will traverse a
distance of approximately 24.7 miles on the Big Eddy-Chemawa Xx. 0, 000-xX
lattice steel tower line to the Chemawa Substation. The Cable will then run on
the Xxxxxxx-xx-Xxxxx Xx.0, 000-xX double circuit steel tube line for
approximately 10.7 miles until it reaches the Salem Substation. From the Salem
Substation, the Cable will then traverse a distance of approximately 23.9 miles
to the Albany Substation on the Xxxxx-xx-Xxxxxx Xx.0, 000-xX X-xxxxx wood pole
line, encountering two river crossings on steel towers. From Albany Substation,
the Cable will span a distance of approximately 39.8 miles to the Xxxxxx
Substation, traveling along the Albany-to-Xxxxxx Xx. 0, 000-xX H-frame wood pole
line, with one river crossing on steel towers. From a point near Xxxxxx
Substation, the Cable will run a distance of approximately five (5.0) miles on
the Xxxxxx-Xxxx 500-kV lattice steel tower line to Lane Substation. From Lane
Substation, the Cable will run a distance of approximately 13.4 miles on the
Xxxxx-Xxxx 230-kV lattice steel tower line to the southern terminus of the Cable
to be located at the Xxxxx Substation.
-9 of 00-
--------------------------------------------------------------------------------
XXXXX XXXXXXXXXXX - Xxxx-Xxxxx (Xxxxxxxx-Xxxxx)
SMF-28 CPC 6
72 STRAND FIBER
ROUTE DESCRIPTION
Station or (Tower Line Distance Line Comments
Serial No.) (miles) Name
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxx
------------------------------- ---------------------------- ---------------------------- ----------------------------
14.7 North Bon. - Xxxx No. 1 From Xxxx to structure
AFX 113A
------------------------------- ---------------------------- ---------------------------- ----------------------------
(AFX 113A) Line Transition
------------------------------- ---------------------------- ---------------------------- ----------------------------
6.7 North Bon.- Troutdale From Structure
No. 2 AFX 113A to Troutdale
------------------------------- ---------------------------- ---------------------------- ----------------------------
Troutdale
------------------------------- ---------------------------- ---------------------------- ----------------------------
53.4 Big Eddy-Troutdale No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Parkdale
------------------------------- ---------------------------- ---------------------------- ----------------------------
24.0 Big Eddy - Troutdale
No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Big Eddy
------------------------------- ---------------------------- ---------------------------- ----------------------------
29.4 Big Xxxx - Xxxxxxx No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Maupin
------------------------------- ---------------------------- ---------------------------- ----------------------------
68.0 Big Xxxx - Xxxxxxx No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxxxx
------------------------------- ---------------------------- ---------------------------- ----------------------------
15.1 Xxxxxxx - Xxxxx Xxxxx Xx. 0
------------------------------- ---------------------------- ---------------------------- ----------------------------
Pilot Butte
------------------------------- ---------------------------- ---------------------------- ----------------------------
29.6 Pilot Butte - XxXxxx No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
XxXxxx
------------------------------- ---------------------------- ---------------------------- ----------------------------
45.5 XxXxxx - Fort Rock No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
(ALC 308) From XxXxxx to str. 46/3
(Serial No. ALC 308)
------------------------------- ---------------------------- ---------------------------- ----------------------------
0.1 Line Transition
------------------------------- ---------------------------- ---------------------------- ----------------------------
(CG 406) Starting point on Grizzly
- Captain Xxxx (86/5)
------------------------------- ---------------------------- ---------------------------- ----------------------------
-10 of 11-
------------------------------- ---------------------------- ---------------------------- ----------------------------
1.5 Grizzly - Captain Xxxx No.1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Fort Rock BPA Compensation Station
------------------------------- ---------------------------- ---------------------------- ----------------------------
28.5 Grizzly - Captain Xxxx No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Sycan
------------------------------- ---------------------------- ---------------------------- ----------------------------
60.0 Grizzly - Captain Xxxx No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Captain Xxxx
------------------------------- ---------------------------- ---------------------------- ----------------------------
7.4 Captain Jack - Malin No. 1
------------------------------- ---------------------------- ---------------------------- ----------------------------
Malin
------------------------------- ---------------------------- ---------------------------- ----------------------------
Total Miles = 383.9
------------------------------- ---------------------------- ---------------------------- ----------------------------
ROUTE DESCRIPTION - Xxxxxx e-Bandon (Eugene-Bandon)
SMF-28 CPC-6
36 STRAND FIBER
The Route consists of a 36 count ADSS single-mode fiber optic cable from Xxxxx
Substation in Eugene, Oregon, to Bandon Substation in Bandon, Oregon. The route
will follow two of Bonneville's existing transmission lines. These lines are the
Xxxxx-Fairview Xx. 0 000 xxxxxxxx (xX) line and the Fairview-Bandon No. 1 115 kV
line. The 230 kV line has steel towers along it for about fifteen (15) miles.
The rest of the line is constructed of wood pole H-frame structures as well as
the Fairview-Bandon line. The line begins at Xxxxx Substation and travels in a
southwest direction through Bonneville's Reston Substation near Roseburg,
Oregon. A Regenerator Building may be located on Bonneville property near Reston
Substation. From Reston the line continues xxx xxxx to Fairview Substation near
Coquille, Oregon. This part of the line is located in some very rough terrain in
the coast range. From Fairview Substation the cable route will follow the
Fairview-Bandon 115 kV line in a southwest direction into Bandon Substation.
This part of the route is still located in the rough terrain of the coast range.
-11 of 11-
EXHIBIT B
FIBER SPECIFICATIONS
CORNING(R) SMF-28(TM) CPC6
SINGLE-MODE OPTICAL FIBER
GENERAL
Corning(R) SMF-28(TM) single mode fiber is considered the "standard" optical
fiber for telephony, cable television, submarine, and private network
applications in the transmission of data, voice, and/or video services. Corning
SMF-28 fiber is manufactured to the most demanding specifications in the
industry.
SMF-28 fiber is optimized for use in the 1310 nm wavelength region. The
information-carrying capacity of the fiber is at its highest in this
transmission window, and it is also where dispersion is the lowest. SMF-28 fiber
can also be effectively used in the 1550 nm wavelength region.
Corning's enhanced, dual layer acrylate CPC6 coating provides excellent fiber
protection and is easy to work with. CPC6 can be mechanically stripped and has
an outside diameter of 245 (micro)m. CPC6 is optimized for use in many single
and multi-fiber cable designs including loose tube, ribbon, slotted core, and
tight buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-28 has consistent geometric properties, high strength, and low attenuation.
Corning SMF-28 fiber can be counted on to deliver excellent performance and high
reliability, reel after reel.
FEATURES AND BENEFITS
* Versatility in 1310 nm and 1550 nm applications.
* Outstanding geometrical properties for low splice loss and high splice yields.
* OVD manufacturing reliability and product consistency.
* Optimized for use in ribbon, loose tube, and other common cable designs.
-1 of 8-
OPTICAL SPECIFICATIONS
Attenuation
--------------------------------------------------- Point Discontinuity
Uncabled Fiber Attenuation Cells
----------------------- ----------------------------
Attenuation Cells No point of discontinuity greater than 0.10 dB at either 1310 nm
(dB/km) or 1550 nm.
----------------------- ----------------------------
Wavelength (nm) Standard
----------------------- ----------------------------
1310 <= 0.40 Attenuation at the Water Peak
----------------------- ----------------------------
1550 <= 0.30 The attenuation at 1383 +/- 3 nm shall not exceed 2.1 dB/km.
----------------------- ----------------------------
Attenuation vs. Wavelength
------------------- ------------------- ------------------
Range Ref. (lambda) Max Increase <- The attenuation in a given wavelength range does not
(nm) (nm) (alpha) (dB/km) exceed the attenuation of the reference
------------------- ------------------- ------------------
1285-1330 1310 0.05 wavelength ((lambda)) by more than the value (alpha).
------------------- ------------------- ------------------
1525-1575 1550 0.05
------------------- ------------------- ------------------
Attenuation With Bending
---------------- -------------- --------------- ------------------
Mandrel Number of Wavelength Induced <- The induced attenuation due to fiber wrapped
Diameter Turns (nm) Attenuation around a mandrel of a specified
(mm) (dB) diameter.
---------------- -------------- --------------- ------------------
32 1 1550 <= 0.50
---------------- -------------- --------------- ------------------
75 100 1310 <= 0.05
---------------- -------------- --------------- ------------------
75 100 1550 <= 0.10
---------------- -------------- --------------- ------------------
* Cable Cutoff Wavelength ((lambda)ccf) * Mode-Field Diameter
(lambda)ccf < 1260 nm 9.30 +/- 0.50 (mu)m at 1310 nm
10.50 +/- 1.00 (mu)m at 1550 nm
* Dispersion
Zero Dispersion Wavelength ((lambda)o): 1301.5 nm <= (lambda)o <= 1321.5 nm
Zero Dispersion Slope (So): <= 0.092 ps/(nm2 x km)
Fiber Polarization Mode Dispersion Coefficient (PMD): <= 0.5 psec/square root km
-2 of 8-
Dispersion Calculation
----------------------------------------------------------------------------------------------------------------------
Dispersion=D(lambda):approximately So/4 [(lambda)-(lambda)o to the 4th power/(lambda) to the 3rd power]ps/
(nm x km), for 1200 nm <=(lambda)<=1600 nm (lambda)=Operating Wavelength
----------------------------------------------------------------------------------------------------------------------
ENVIRONMENTAL SPECIFICATIONS
Induced Attenuation Operating Temperature Range
Environmental Test Condition (dB/km) -60(Degree)C to +85(Degree)C
----------------------------------------- ------------------------------
1310 nm 1550 nm
----------------------------------------- ------------- ----------------
Temperature Dependence <= 0.05 <= 0.05
-60(Degree) to +85(Degree)C
----------------------------------------- ------------- ----------------
Temperature-Humidity Cycling <= 0.05 <= 0.05
-10(Degree)C to +85(Degree)C, up to 98%
RH
----------------------------------------- ------------- ----------------
Water Immersion, 23(Degree)C <= 0.05 <= 0.05
----------------------------------------- ------------- ----------------
Heat Aging, 85(Degree)C <= 0.05 <= 0.05
----------------------------------------- ------------- ----------------
DIMENSIONAL SPECIFICATIONS
Standard Length (km/reel): 2.2 - 25.0
Glass Geometry Coating Geometry
Fiber Curl: => 2.0 m radius of curvature Coating Diameter: 245 +/- 10 (mu)m
Cladding Diameter: 125.0 +/- 1.0 (mu)m Coating-Cladding Concentricity: < 12 (mu)m
Core-Clad Concentricity: <= 0.8 (mu)m
Cladding Non-Circularity: < 1.0%
Defined as: [1-(Min. Cladding Diameter/Max. Cladding Diameter)] x 100
-3 of 8-
MECHANICAL SPECIFICATIONS
Proof Test:
The entire length of fiber is subjected to a tensile proof stress => 100 kpsi
(0.7 GN/m2)
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
Core Diameter: Refractive Index Difference:
8.3 (mu)m 0.36%
Numerical Aperture: Effective Group Index of Refraction (Xxxx):
0.13 1.4675 at 1310 nm
NA was measured at the one percent power angle of a 1.4681 at 1550 nm
one-dimensional far-field scan at 1310 nm.
Zero Dispersion Wavelength ((lambda)o): Fatigue Resistance Parameter (nd):
1312 nm => 20
Zero Dispersion Slope (So): Coating Strip Force:
0.090 ps/(nm2okm) Dry: 0.7 lbs. (3.2 N)
Wet: 14 days room temperature: 0.7 lbs. (3.2 N)
-4 of 8-
FIBER SPECIFICATIONS
CORNING(R) SMF/DS(TM) CPC6
SINGLE-MODE DISPERSION-SHIFTED OPTICAL FIBER
GENERAL
Corning(R) SMF/DS(TM) single-mode fiber is designed for the requirements of
long-haul and high capacity applications where 1550 nm systems offer reduced
regeneration frequency, and use of Erbium-doped Fiber Amplifiers. Applications
for this product include telephony, cable television, private network, and
submarine systems where long-link spans and high data rates are required.
SMF/DS fiber is optimized for use in the 1550 nm wavelength region. With low
dispersion in this operating window, fiber information-carrying capacity is at
its highest. The patented segmented core design has achieved low dispersion
attenuation, and bond loss at the 1550 operating wavelength.
Corning's enhanced, dual acrylate CPC6 coating provides excellent fiber
protection and is easy to work with. CPC6 can be mechanically stripped and has
an outside diameter of 245 (mu)m. CPC6 is optimized for use in many single and
multi-fiber cable designs including loose tube, ribbon, slotted core, and tight
buffer cables.
SMF/DS fiber is manufactured using the Outside Vapor Deposition (OVD) process,
that produces a totally synthetic, ultra-pure fiber. As a result, Corning SMF/DS
has consistent geometric properties, high strength and low attenuation. Corning
SMF/DS fiber can be counted on to deliver excellent performance and high
reliability reel after reel.
FEATURES AND BENEFITS
* Patented segmented core design provides low attenuation, dispersion, and bend
loss at 1550 nm.
* Outstanding geometrical properties for low splice loss and high splice yields.
* OVD manufacturing reliability and product consistency.
* Optimized for use in loose tube, ribbon, and other common cable designs.
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OPTICAL SPECIFICATIONS
Attenuation
Attenuation Cell: Point Discontinuity:
<=0.25 dB/km at 1550 nm No point discontinuity greater than 0.10 dB at 1550 nm.
Attenuation vs. Wavelength
----------------------------------------------------------
------------------- ------------------- ------------------
Range Ref. (lambda) Max Increase <- The attenuation in a given wavelength range does
(nm) (nm) (alpha) (dB/km) not exceed the attenuation of the reference wavelength
((lambda)) by more than the value (alpha).
------------------- ------------------- ------------------
1525-1575 1550 0.05
------------------- ------------------- ------------------
Attenuation With Bending
------------------------------------------------------------------
Mandrel Number of Wavelength Induced <- The induced attenuation due to fiber wrapped
Diameter Turns (nm) Attenuation around a mandrel of a specified diameter.
(mm) (dB)
---------------- -------------- --------------- ------------------
32 1 1550 <= 0.50
---------------- -------------- --------------- ------------------
40 100 1550 <= 0.05
---------------- -------------- --------------- ------------------
* Fiber Cutoff Wavelength ((lambda)cf) * Mode-Field Diameter
1120 nm 2.0 m radius of Coating Diameter: 245 +/- 10 (mu)m
Curvature
Cladding Diameter: 125.0 +/- 1.0 (mu)m Coating Concentricity: > 0.70
-
Core-Clad Concentricity: <= 1.0 (mu)m
Cladding Non-Circularity: < 2.0%
Defined as: Min. Coating Thickness
---------------------------------
Max. Coating Thickness
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Defined as: [1-Min. Cladding Diameter/Max. Cladding Diameter] x 100
MECHANICAL SPECIFICATIONS
Proof Test:
The entire length of fiber is subjected to a tensile proof stress => 100 kpsi
(0.7 GN/m2)*
*Higher proof test available at a premium.
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
Attenuation at 1310 nm: Refractive Index Difference:
0.38 dB/km The refractive index difference between the
peak of the core and the cladding is 0.9%, and
the difference between the peak of the ring
and the cladding is 0.3%.
Numerical Aperture: Effective Group Index of Refraction (Xxxx):
0.17 1.4718 at 1310 nm
NA was measured at the one percent 1.4711 at 1550 nm
Power angle of a one-dimensional far-
Field scan at 1550 nm.
Zero Dispersion Wavelength ((lambda)o): Fatigue Resistance Parameter (nd);
1550 nm => 20
Zero Dispersion Slope (So): Coating Strip Force:
0.075 ps/(nm2xkm) Dry: 0.7 lbs: (3.2 N)
Wet, 14 days room temperature: 0.7 lbs. (3.2 N)
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EXHIBIT C
DETAILED RESTORATION PLAN
The Detailed Restoration Plans shall be attached and incorporated within thirty
(30) days from the Effective Date.
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Lease No.___________
Tract No.___________
EXHIBIT D
REGENERATOR HUT LEASE
This Exhibit D to the License Agreement constitutes the Lease for Regenerator
Huts located on Property owned by the UNITED STATES of AMERICA, through the
Bonneville Power Administration, Department of Energy. By and through this
Exhibit the UNITED STATES of AMERICA, Department of Energy, Bonneville Power
Administration (hereinafter called "Lessor"), does hereby, subject to existing
rights, if any, of other parties, lease Electric Lightwave, Inc. (hereinafter
called "Lessee"), the following described property (Property) LEGAL DESCRIPTION
OF PROPERTY or PROPERTIES, more particularly shown in Attachment XX, attached
and incorporated herein, subject to following covenants and conditions.
1) Purpose. The Lessee shall use and occupy said Property for the sole
and exclusive purpose of operating, repairing, replacing and
maintaining a Regenerator Hut and shall be restricted to such use and
include the following egresses;
a) fiber cable buried from Lessee's shelter to vaults in which
Lessee splices into Lessor's line cable; b) electrical cable from
Lessee's shelter to electrical service location; c) telephone
cable from Lessee's shelter to telephone service location; and d)
fiber cable buried from Lessee's station to Lessee's customer(s).
The Lessor shall use the Property for a Regeneration Hut, which is
more particularly shown in the "as built" drawings that includes
drawings of Lessee's cables on Lessor's property, in Attachment XX,
attached and incorporated herein, located thereon, as part of the NAME
OF PROJECT and for no other purpose. NOTE IF A SINGLE SITE, DELETE THE
PHRASE AS PART OF THE NAME OF PROJECT. ALSO INCLUDE A DRAWING OF THE
FACILITIES AND ATTACH AS AN EXHIBIT.
2) Use of Equipment and Activities at the Site. Lessee shall maintain a
distance of fifteen (15) feet between its equipment, including
maintenance equipment, and the transmission line conductors. The
Lessee shall limit the height of any bushes and shrubs used in
landscaping to ten (10) feet. Lessee shall not connect any of its
equipment, structures or fences, to the Lessor's fences. The Lessor
shall have the right to cut any brush or shrubs of the Lessee that
interfere with the Lessor access to and operation and maintenance of
its facilities.
3) Other Restrictions on Use of Property. Lessee's use of this Property
shall exclude the following unless otherwise agreed to by the Lessor
in writing:
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a) Lessee shall not install towers, buildings, or other structures
for cellular, PCS, digital, or analog radio communications of any
type.
b) Lessee shall not use the Property to store any waste or materials
other than incidental test equipment or spare parts needed to
maintain the integrity of the Lessee's fiber optic network. Such
test equipment and spare parts shall be stored in the Lessee's
building on the Property.
c) Lessor shall not use the Property for lodging persons.
4) Modifications to the Lease or Property. This Lease may be modified to
change the number or location of sites for the Regeneration Hut. Such
modification shall be in writing. The parties may agree to add sites
or delete sites from coverage of this Lease. If the parties agree to
change the number of sites, the Lessor shall change the payment to
reflect the different number of sites. Lessee shall provide design
plans for approval prior to modification of the Property. Plans will
include location of the proposed facility, and shall include
measurements from BPA facilities such as substation fences, poles,
transmission lines, etc. Also included in design plans shall be an
electrical grounding plan for the Lessee facility. Lessee shall xxxx
the as-built location of all buried cables, including fiber, electric,
phone, etc. Marking will be such as to insure the location of the
buried cable can be readily seen. The Lessee shall provide as-built
drawings at a scale and accuracy so they can be readily incorporated
into Lessor's records. Lessee may be requested to install additional
conduits for future fiber needs to prevent the need to dig new
trenches and to keep the underground fiber in designated areas. Lessor
retains the unilateral right to require removal of a Regeneration Hut
or Huts from any site or sites if in the Lessor's sole determination,
the Lessor requires use of the site or sites. Lessor shall notify
Lessee of Lessor's required use of the sites 180 days prior to
removal. If removal is required by Lessor, the Lessor shall reimburse
the Lessee for the reasonable expenses incurred to remove the
Regeneration Hut and the associated machinery and equipment. If the
modifications described in this paragraph reduce the number of sites
to zero, this Lease shall be void.
5) Term. This Lease shall become effective upon execution by the Lessor
and the Lessee of both the License Agreement and this Exhibit to the
License Agreement and shall continue so long as the Fiber License
remains in effect and the Lessee continues to have Regeneration Huts
located on Lessor's property related to the License.
6) Lease Payment. For and in consideration of this Lease, Lessee shall
pay to Lessor the sum of ___________________________________________
DOLLARS ($ ) annually, monthly, one-time -payment (pick one). The
payment under this Lease is in addition to any payments under the
License Agreement unless specifically stated herein. The first payment
is due upon signature of this Lease by both parties. Checks shall be
made payable to Bonneville Power Administration and shall be mailed
with a remittance copy of the invoice to Bonneville Power
Administration (FRO), at X.X. Xxx 0000, Xxxxxxxx, Xxxxxx 00000-0000.
The check shall be marked with Lease No. _____________
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7) Late Payments. Payments not received within five (5) days of the due
date will accrue interest at the rate of 18.25 percent per annum from
the effective date of the Lease term until payment is received. A
twenty-five dollar ($25) charge to cover costs incurred for processing
and handling a delinquent account will also be assessed. If the
payment is not paid within thirty (30) days after the due date, this
Lease shall be subject to termination by the Lessor.
8) Modifications to Property or Regeneration Huts. Lessee shall limit
digging at the Property to that necessary for initial construction and
subsequent maintenance and repair. Lessee shall make no other
alterations or modifications in or to the Property or equipment and
buildings located thereon without the prior written consent of Lessor.
9) Posting Requirements. The Lessee shall post on or about the
regeneration hut in a visible location that no digging shall be
allowed in or around the Property. Such posting shall also state that
no equipment or structures shall be connected to the Bonneville Power
Administration fences.
10) Condition of Property during the Lease. During the term of the Lease,
Lessee shall not use or occupy the Property, or permit the same to be
used or occupied, for any purpose which may endanger the safety of
personnel at the site or may create a hazardous condition to the
Lessor's equipment, including fire or otherwise. Nor shall the Lessee
use or occupy the Property in a manner contrary to the provisions of
the License Agreement.
11) Termination. Lessor may terminate this Lease for any default or
deviation by the Lessee of any provision contained herein or of any
provision contained in the License Agreement. Lessee may terminate
this Lease if the Property is no longer needed for operating,
repairing, replacing and maintaining a Regenerator Hut. Any waiver by
Lessor of any default(s) or deviation(s) shall not constitute a waiver
of the right to terminate this Lease for any subsequent default or
deviation. Termination of this Lease shall not relieve Lessee of any
liabilities or responsibilities incurred prior to the date of the
termination.
12) Condition of Property upon Expiration or Termination of the Lease.
Lessee shall leave the premises at the expiration of this Lease, or
any renewal or extension thereof, in as good a condition as prior to
this Lease. Also, except for Lessor's right to elect to retain
fixtures at the termination of this Lease as provided in the License
Agreement, Lessee shall remove all its equipment and building(s), and
repair any damage to the Property to a condition satisfactory to
Lessor caused by Lessee's equipment, building(s) or removal thereof.
Any of Lessee's equipment or building(s) remaining on the Property
thirty (30) days after the termination date of the Lease become the
property of the Lessor and may be disposed of by Lessor, at Lessee's
sole expense, in a manner that the Lessor deems appropriate. If Lessee
fails to restore the Property to Lessor's satisfaction, Lessor may
restore the Property to such condition at the Lessee's expense.
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13) Weed Control. Lessee shall eradicate and control any noxious weeds or
brush located within the Leased area as required by local, county,
state, or federal law, as well as the cutting of all dry grasses,
weeds, etc., determined by Lessor or the local fire-control officer to
present a possible fire hazard. Lessee shall not store herbicides on
the Property. Misuse or misapplication of herbicides by the Lessee
that result in damage to human health or the environment shall be the
responsibility of the Lessee. Should Lessee fail to adhere to a weed
control program, Lessor, at its option, may authorize the work to be
done and the Lessee shall pay for the work authorized. Such work will
be authorized only after Lessor gives the Lessee seventy-two (72)
hours to perform such work by giving notice of Lessee's failure.
14) Subleasing and Assignment. Lessee is permitted to allow other users of
fiber-optic cable installed by Lessor to co-locate on the Property
however, Lessee shall not have the right to assign this Lease to
others.
15) Utilities and Other Services. This Lease includes the right to occupy
the site for utilities and other services necessary to support the
Regeneration Hut as long as those services are included in the "as
built" drawing. Lessor shall pay for all water, gas, heat, light,
power, telephone service and any other services supplied to the
premise.
16) Notices and Correspondence. All notices and correspondence required or
permitted to be given under this Exhibit shall be in writing and shall
be delivered personally, by courier service or express mail service,
or by prepaid first class mail, addressed as follows:
If to Lessor If to Lessee
The Bonneville Power Administration - TR-3 ________________
Attention: Manager, Real Property Services
X.X. Xxx 0000 ________________
Xxxxxxxx, XX 00000-0000
(if by courier or express mail)
000 X.X. 00xx Xxxxxx
Xxxxxxxx, XX 00000
All correspondence or notices pertaining to this Lease should
reference Lease No. XXXXXX. Any notice or document shall be deemed to
have been delivered when delivered in person or by courier or express
mail service or three (3) business days after it has been deposited in
the U.S. Mail, first class postage prepaid, addressed as specified
above. Either party may change the address to which notice or
documents shall be sent by giving notice of such a change to the other
party.
17) Other Provisions:
a) Lessee warrants that no person or selling agency has been
employed or retained to solicit or secure this Lease upon an
agreement or understanding for a commission, percentage,
brokerage, or contingent fee, except bona fide established
commercial or selling agencies maintained by Lessee for the
purpose of securing business.
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b) For breach or violation of this warrant, Lessor shall have the
right to annul this Lease without liability.
c) Lessee shall pay to the proper authority, when and as the same
become due and payable, all assessments and similar charges,
which, at any time during the term of this Lease, may be taxed,
assessed, or imposed upon or against the Lessee with respect to
or upon the Leased premises.
d) Lessee shall not permit or take any action that would encumber
title to the Property.
e) Whenever an attorney, agent, or other person or corporation on
behalf of the Lessee, executes the Lease the name of Lessee shall
appear above the signature of the person signing.
18) Headings. The headings contained in this Exhibit are used for the
convenience and reference of the parties and do not limit the scope or
intent of the clauses contained herein.
This Lease is hereby accepted and its terms agreed to this ___ day of
_________, 2000.
UNITED STATES OF AMERICA
Bonneville Power Administration
By: ______________________________
ELECTRIC LIGHTWAVE, INC
By: ______________________________
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EXHIBIT E
ACCEPTANCE TESTING STANDARDS
(Applicable only to Xxxxx-Bandon portion of Route)
Bonneville shall meet the Acceptance Testing Standards set forth below. In the
event Bonneville's performance requirements for its communications system
requires Bonneville to exceed the standards and requirements specified in this
Exhibit, Bonneville shall apply the higher standard.
Client Network Span and Final Acceptance Requirements:
1. Design Criteria
The number of cable splices at the time of original construction will be
designed to maximize reel lengths between splices. Due to cable cuts,
project changes and cable relocation, additional splices may be necessary
and are allowed. The number of splices will be monitored to insure that
attenuation and reflection tolerances are maintained.
2. Construction
Cable must be constructed in accordance with sound commercial practices.
Bonneville requirements will in general be more stringent however. The
National Electric Code shall be followed as a minimum.
3. Typical Fiber Cable Information
Single mode fiber specifications may vary, depending on the fiber
manufacturer. Typical concatenated levels of 0.40 dB per km @ 1310nm (for
SMF-28) and 0.25 per km @ 1550nm (for SMF - 28 fibers and LEAF TM).
4. Span Requirements
Span loss measurements must be performed using the two following methods:
OTDR (optical time domain reflectometer) and insertion loss (stabilized
light source and power meter) measurement in each direction at 1550nm
wavelength. Insertion loss testing will not be completed until Client
fibers have been terminated at each site.
(a) Maximum dB/km loss must not exceed 0.35 dB/km at 1550nm including
splice losses.
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(b) In no case shall a fiber show a point discontinuity greater than
0.1dB. Discontinuities (known as steps, splices, or attenuation
non-uniformity's) shall be measured with an OTDR to determine the loss
of the localized attenuation. The least squares fit method of
measurement must be used to determine the magnitude of the loss of a
point discontinuity.
(c) Client shall provide Bonneville access to it's fiber termination
panels at each hut on the route to perform these measurements.
(d) Preliminary power meter testing consisting of a mechanical fiber
coupler, stabilized light source and a power meter (to assure that no
transposed fibers are spliced) may be completed within sixty (60) days
of the completion of construction.
(e) Test data including OTDR trace data in hard copy or electronic format
must be submitted to Client within sixty (60) days of Bonneville's
receipt of a written request for this data. This data will not be
available until after construction is complete.
In the event the measured span values exceeds the calculated values, Bonneville
will perform corrective maintenance as required to restore the Commercial Fiber
to the tolerances noted in this exhibit.
5. Splice Loss
The bi-directional splice loss average shall be 0.10dB or less over the
span. All splicing will be performed by the proprietor pursuant to the
Fiber Lease Agreement. All fiber splicing must be fusion type.
6. Compliance
Client, at its discretion, may choose to physically monitor any or all
testing associated with acceptance of the Commercial Fiber. If
requested in writing test data including OTDR trace data in- hard
copies or electronic form must be submitted to Client for review.
Client has the option to waive any specifications and/or requirements
listed in the technical specification criteria by providing written
notice to Bonneville.
7. Key Optical Performance Characteristics Required For Single-Mode and LEAF
Optical Cables
Client fiber shall be Corning LEAF TM (see attachment) and a portion of
Bonneville's fiber shall be Single Mode (see attachment).
