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EXHIBIT 10.1.1
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RIGHT OF OCCUPANCY AGREEMENT
between
NIAGARA MOHAWK POWER CORPORATION
and
TELERGY JOINT VENTURE
Dated February 2, 1996
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TABLE OF CONTENTS
SECTION TOPIC PAGE
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1 DEFINITIONS........................................................ 1
2 PURPOSE OF AGREEMENT............................................... 5
3 SCOPE OF AGREEMENT................................................. 5
4 RIGHT-OF-OCCUPANCY TERM............................................ 7
5 SCOPE OF RIGHT OF OCCUPANCY........................................ 7
6 SELECTION OF THE SPECIFIC BACKBONE ROUTE........................... 9
Documents To Be Provided To TELERGY........................... 9
Working Drawings.............................................. 10
7 ADDITIONAL RIGHTS-OF-OCCUPANCY FOR SPUR ROUTES..................... 11
8 ENTRY AND NOTICE................................................... 12
9 TELERGY WORK....................................................... 13
10 APPROVALS AND PERMITS.............................................. 14
11 CONSTRUCTION AND INSTALLATION...................................... 15
Non-Cable Facilities.......................................... 17
Cable Installation............................................ 17
12 MAINTENANCE AND OPERATION.......................................... 18
13 NIAGARA CAPACITY, RATES, CHARGES AND COSTS......................... 20
Niagara Capacity.............................................. 20
Niagara Spur Capacity......................................... 21
MODIFYING NIAGARA OR TELERGY FACILITIES............................ 21
15 UNAUTHORIZED USE NIAGARA FACILITIES................................ 22
16 CONDEMNATION, BANKRUPTCY, AND OTHER TRANSFERS...................... 23
Bankruptcy.................................................... 23
Right of First Refusal........................................ 24
Relocations................................................... 24
Condemnation.................................................. 24
17 TERMINATION OR DEFAULT BY TELERGY.................................. 25
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SECTION TOPIC PAGE
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18 TERMINATIONS OF AUTHORIZATIONS................................ 26
19 NIAGARA ABANDONMENT........................................... 28
20 NIAGARA'S EXPENSES AND EMPLOYEE COSTS......................... 29
21 INDEPENDENT CONTRACTOR STATUS................................. 29
22 TAXES......................................................... 30
23 NOTICES....................................................... 31
24 LIABILITIES AND INDEMNIFICATION............................... 32
25 INSURANCE..................................................... 33
26 LIENS......................................................... 37
27 AMENDMENTS.................................................... 37
28 CONFIDENTIALITY............................................... 37
29 DISPUTES...................................................... 39
COVENANTS OF THE PARTIES...................................... 39
31 PUBLIC SERVICE COMMISSION APPROVAL REQUIRED................... 39
32 MISCELLANEOUS PROVISIONS...................................... 40
Entire Agreement and Modification......................... 40
Choice of Law............................................. 40
Consents.................................................. 40
Construction of Agreement................................. 40
No Waiver................................................. 41
Force Majeure............................................. 41
Remedies.................................................. 41
Severability.............................................. 41
Compliance................................................ 41
No Merger................................................. 41
Binding Agreement......................................... 41
Acts in Furtherance Of Agreement.......................... 41
Drug and Alcohol Abuse Policy............................. 42
Intellectual Property Sole Property of Niagara............ 42
Patent, Copyright and Trademark Infringement.............. 42
33 ENVIRONMENTAL HAZARD LIABILITY................................ 43
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SECTION TOPIC PAGE
34 EQUAL EMPLOYMENT OPPORTUNITIES.................. 43
Federal Subcontracting Requirements........ 44
35 AUDIT AND MAINTENANCE RECORDS................... 45
36 WARRANTIES...................................... 45
37 SURVIVAL........................................ 46
38 END-OF-TERM..................................... 46
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RIGHT OF OCCUPANCY AGREEMENT
THIS AGREEMENT, made this 2nd day of February, 1996, between NIAGARA MOHAWK
POWER CORPORATION, a corporation organized and existing under the laws of the
State of New York, having its principal office at 000 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called "NIAGARA") and TELERGY JOINT
VENTURE, a Joint Venture organized and existing under the laws of the State of
New York, having its principal office for purposes hereof at 0000 Xxxxxxxxxx
Xxxxxxx, Xxxxxx, Xxx Xxxx 00000 (hereinafter called "TELERGY").
In consideration of the mutual promises and covenants contained herein, TELERGY
and NIAGARA intending to be bound, agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall, unless the context
otherwise requires, have the meanings specified in this Section 1.
1.1 "Agreement" shall mean the Right-of-Occupancy Agreement entered into
herein between NIAGARA and TELERGY, and as the same may be amended,
modified and supplemented from time to time. Words such as "herein,"
"hereafter," "hereof," "hereto," "hereby," and "hereunder," when used with
reference to this Agreement refer to this Agreement as a whole unless the
context otherwise requires. The word "shall" denotes mandatory language;
the word "may" denotes discretionary language.
1.2 "Approved Drawings" shall mean Working Drawings that have been
reviewed and approved by NIAGARA.
1.3 "As Built Drawings" shall mean drawings of a System Segment of the
Backbone Network as actually installed and as amended from time-to-time.
1.4 "Backbone Network" shall mean the fiber optic transmission-based
telecommunications network connecting major cities along the Backbone
Route.
1.5 "Backbone Route" shall mean the geographic location of the Backbone
Network which shall connect major Points-of-Presence as set forth in this
Agreement.
1.6 "Bankruptcy" with respect to any principals of the TELERGY shall mean
the happening of any of the following:
(a) The filing of an application for, or consent to, the appointment
by a Federal District Court of a Trustee over all or substantially all
of its assets;
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(b) The filing of a voluntary petition in bankruptcy or the filing of
a pleading in any court of record admitting in writing its inability
to pay its debts as they become due;
(c) The making of a general assignment for the benefit of creditors;
(d) The filing of an answer admitting the material allegations of, or
its consenting to, or defaulting in answering, a bankruptcy petition
filed against it in any bankruptcy proceeding; or
(e) The entry of an order, judgment, or decree by any court of
competent jurisdiction adjudicating TELERGY or a TELERGY Affiliate
bankrupt or appointing a Trustee over its assets, and such order,
judgement, or decree continuing unstayed and in effect for a period of
sixty (60) consecutive days.
1.7 "Conduit" shall mean an individual pipe, tube or duct forming an enclosed
raceway for cable and/or conductors, also referred to as "duct".
1.8 "Construction Plan" shall mean a proposed schedule of engineering and
design, commencement and completion dates for receipt of Approvals as set forth
in Section 10 herein, and dates for construction, installation and
implementation of the Segments of the Backbone Network.
1.9 "Easement" shall mean an easement in gross and/or the highest lesser
Right-of-Occupancy or use permitted to be granted by the nature of NIAGARA's
interest in and to its Rights-of-Way.
1.10 "Entry Notice" shall mean such notice as set forth in Section 8.
1.11 "Extension Period" shall mean the two, ten-year options, exercisable by
TELERGY, to extend the Initial Term of this Agreement with respect to the
Right-of-Occupancy used in connection with the Backbone Network or discrete
System Segments.
1.12 "Fiber Optic Ground Wire" or "F.O.G. Wire" shall mean static wire
containing optical fibers.
1.13 "Initial Term" shall mean the initial twenty-five (25) year-period of this
Agreement.
1.14 "Maintenance" shall mean maintenance, repairs, upgrades, relocations,
replacement, reinstallation and removal activities.
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1.15 "Make-Ready Work" shall mean all work performed by NIAGARA or its
designated contractor, including but not limited to the rearrangement of
existing facilities, replacement of cable, rodding of duct, and installation of
subduct required to accommodate the installation of TELERGY's Facilities in
accordance with this Agreement.
1.16 "NIAGARA" shall mean the Niagara Mohawk Power Corporation, its successors
and assigns.
1.17 "NIAGARA Capacity" shall mean the equivalent capacity of [* * *] as
set forth below in Section 13, which capacity shall be provided to NIAGARA by
TELERGY in consideration for the Right-of-Occupancy conferred by this Agreement.
1.18 "NIAGARA Facilities" shall mean gas and electric transmission and
distribution lines, conduits, poles, electric or other towers, wires,
conductors, pipes, pipelines, structures and necessary appurtenances above and
below ground located within NIAGARA's Right-of-Way, as well as NIAGARA buildings
and structures.
1.19 "NIAGARA Spur Capacity" shall mean NIAGARA's proportionate increased
capacity from any subsequent technological improvements or extensions or Spurs
that increase the original capacity of the Backbone Network; such increased
capacity shall be provided to NIAGARA in accordance with Section 13 herein.
1.20 "Points of Presence" or "POPs" shall mean the points at which long
distance carriers interconnect with local exchanges for the purpose of providing
inter-exchange telecommunications service to customers in such local exchanges;
as well as the points at which the NIAGARA Capacity and any NIAGARA Spur
Capacity shall be delivered to and interconnect with the Backbone Network.
1.21 "Pre-Construction Survey" shall mean the work operations performed by
NIAGARA or its designated contractor in order to process an application for a
Right-of-Occupancy to the point just prior to performing any necessary
Make-Ready Work.
1.22 "Property Drawings" shall mean the NIAGARA Right-of-Way drawings, plan and
profile drawings for a Right-of-Way within which TELERGY has a
Right-of-Occupancy.
1.23 "Regenerator" shall mean a facility which receives, regenerates, and
retransmits a digital telecommunications transmission signal, together with
attendant equipment and structures, including power sources.
1.24 "Right of Occupancy" shall mean the right to place fiber optic cable, and
splice closures, as well as F.O.G. Wire subject to Section 7.4, within the
Right-of-Way, in accordance with the terms and conditions of this Agreement. A
Right-of-Occupancy under this Agreement shall not provide TELERGY with any
ownership interest in NIAGARA
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CONFIDENTIAL
[* * *] Confidential treatment has been requested with respect to material
omitted on this page. The omitted portions have been filed separately
with the Securities and Exchange Commission.
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Facilities, real property or Right-of-Way. Any TELERGY installation of F.O.G.
Wire in accordance with Sections 6.4.10 and/or 16.5, shall be only for the
purposes of this Agreement, and upon installation, such wire shall be included
in the Right-of-Occupancy, subject to Section 38.2 herein.
1.25 "Right-of-Way" shall mean the area of NIAGARA-owned (in fee, easement,
license, permit, franchise or otherwise), -operated, or -controlled real
property for electric and gas transmission and distribution lines as defined by
the NIAGARA Property Drawings and other documents.
1.26 "Spur System" or "Spur Route" shall mean an extension to the original
Backbone Network, either off of the Backbone Route, or from a TELERGY Facility,
such as a terminal or junction, to the Backbone Route.
1.27 "System Segment" or "Segment" shall mean a portion of the Backbone
Network or a Spur Route or a portion of a Spur Route.
1.28 "Telecommunication System" or "System" shall mean the Backbone Network
and TELERGY Facilities as is heretofore or hereafter conceived, invented or
developed by TELERGY, and which primarily utilizes optical fiber as the means
for transmitting voice, data or video and/or other information pursuant to this
Right-of-Occupancy Agreement.
1.29 "TELERGY" shall mean the Joint Venture, which applies for and is granted
permission by NIAGARA under this Agreement to place its Facilities using
NIAGARA's Right-of-Way and Facilities and which is responsible for compliance
with NIAGARA's regulations and/or standards regarding such accommodations.
1.30 "TELERGY Facilities" means telecommunications facilities installed by or
on behalf of TELERGY in, on, upon, under, across, along and through the
Right-of-Occupancy on a Right-of-Way, including the transmission systems
designed to and used to carry communications traffic and including conduit,
carrier pipes, cables, fibers, junctions, regenerators, power sources, fault
alarm systems, electronics, structures or shelters, towers, satellite earth
stations and all other personal property necessary for or useful to the
construction, installation, operation, maintenance, repair, reinstallation,
replacement, relocation and removal of the Telecommunication System.
1.31 "Working Drawings" shall mean drawings prepared by TELERGY and submitted
to NIAGARA for approval depicting the engineering design and configuration of
the Backbone Network and/or System Segments.
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2 PURPOSE OF AGREEMENT
This Agreement is entered into for the purposes of ensuring that NIAGARA has
sufficient telecommunications capacity to meet its internal needs to satisfy
its public service and corporate obligations and purposes and to authorize
TELERGY's use of NIAGARA's Right-of-Way along the Backbone Route to provide
telecommunications services and advanced interactive information and
entertainment services to customers within and outside New York.
3 SCOPE OF AGREEMENT
3.1 Subject to the provisions of this Agreement, NIAGARA and TELERGY agree
that TELERGY shall acquire, for its own use, unless otherwise provided
pursuant to the terms of this Agreement, a non-exclusive Right-of-Occupancy
in specific NIAGARA Rights-of-Way, for the construction, installation,
operation, and maintenance of a single Backbone Network, comprised of the
backbone cable, related equipment and TELERGY Facilities, along the
Backbone Route. The Right-of-Occupancy shall be revocable only in
accordance with the terms and provisions of this Agreement.
3.2 The rights granted herein constitute Rights-of-Occupancy burdening the
Right-of-Way to the extent such Right-of-Occupancy is permitted pursuant to
the terms of the applicable contract, agreement, easement, permit, license
or franchise conveying to NIAGARA its Right-of-Way.
3.3 Nothing herein shall be construed to obligate NIAGARA in any way to
acquire any Rights-of-Way for TELERGY's use, nor shall NIAGARA be obligated
to grant a Right-of-Occupancy where such grant would contravene any
restriction or condition on NIAGARA's use of a Right-of-Way or otherwise
adversely affect NIAGARA's Facilities or NIAGARA's property rights on any
Right-of-Way, provided that NIAGARA agrees to cooperate and provide
reasonable assistance in good faith, when consistent with NIAGARA's public
service and corporate obligations, with TELERGY efforts to acquire
additional Rights-of-Way, easements or franchises necessary to construct
the Backbone Network, at TELERGY's sole cost and expense.
3.4 NIAGARA does not warrant the validity or apportion ability of any
rights it may hold to place the Backbone Network or TELERGY Facilities
within its Right-of-Way. NIAGARA will, upon written request by TELERGY and
as set forth in Section 6.3, subject to the confidentiality provisions set
forth in Section 28 herein, provide available information and copies of any
documents in its files pertinent to the nature of the rights NIAGARA
possesses over its Right-of-Way. The cost of providing such information and
reproducing documents shall be borne by TELERGY.
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3.5 Where NIAGARA's Right-of Way is, in its reasonable judgement, sufficiently
broad under New York State law to permit TELERGY's Right-of-Occupancy, TELERGY
shall not be required to obtain an independent easement from the fee owner to
place its Facilities. However, where NIAGARA believes that its rights are
insufficient to grant the requested Right of Occupancy, upon prior notice to
TELERGY, NIAGARA, in its discretion, may seek to obtain permission from the fee
owner for TELERGY Facilities, or to defend or to establish TELERGY's
Right-of-Occupancy for its Facilities independent of an easement as set
forth above. The fully allocable costs, if any, of such efforts shall be paid by
TELERGY. Nothing herein shall be deemed, however, to require NIAGARA to obtain
permission, to defend, or to establish TELERGY's Right-of-Occupancy for
TELERGY's Facilities.
3.6 To the extent it has the ability and right to do so, NIAGARA shall provide,
at no cost to TELERGY, access to Right-of-Way necessary for all end-link
connections and repeaters from the Backbone Network to NIAGARA's
Points-of-Presence in specified locations in Buffalo, Albany, Syracuse,
Oswego/Nine Mile, Watertown, Utica and Guilderland, from TELERGY Facilities in
such cities that will provide mutually cost-effective connections of the
geographic locations set forth in Section 9.5 and the NIAGARA Capacity set forth
in Section 13.
3.7 In addition to the Right-of-Occupancy granted by NIAGARA as described in
Sections 3-6, NIAGARA shall grant TELERGY Rights-of-Occupancy at each
Regenerator or junction, at mutually-approved locations along the Backbone
Route, for the installation, maintenance, operation, repair, replacement and
removal, at TELERGY's sole cost and expense, of utilities required to service
the System including auxiliary and primary power sources and water and sewer
lines. When required by the utility company, power supplier or municipality
providing such services, NIAGARA shall grant appropriate access and/or
Right-of-Occupancy within the Right-of-Way to such utility company, power
supplier and/or municipality.
3.8 Except for the NIAGARA Capacity, NIAGARA Facilities, and NIAGARA
Right-of-Way which shall be the property of NIAGARA, the Backbone Network,
TELERGY Facilities, and the Telecommunication System installed using the
Right-of-Occupancy conferred herein shall be and remain at all times the
personal property of TELERGY regardless of the manner or method of installation
of such System(s) or any part or component. The parties agree to execute all
reasonable documentation requested to evidence such ownership.
3.9 Nothing contained herein shall be construed to compel NIAGARA to construct,
reconstruct, retain, extend, repair, place, replace or maintain any
Right-of-Way or NIAGARA Facilities or Right-of-Way not needed for NIAGARA's own
service requirements.
3.10 NIAGARA reserves to itself, its successors and assigns, the right to
relocate, operate and maintain the NIAGARA Facilities or Right-of-Way in such a
manner as will best enable it to fulfill its own service requirements.
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4 RIGHT-OF-OCCUPANCY TERM
4.1 For an Initial Term of twenty-five (25) years commencing on the date
of approval by the New York State Public Service Commission (Commencement
Date) and ending on the expiration of the three-hundredth (300th) month
thereafter, unless earlier terminated or unless extended pursuant to this
Agreement, subject to the terms and conditions set forth in this Agreement,
NIAGARA hereby grants to TELERGY a Right-of-Occupancy in, on, upon, under,
over, across, along and through (hereinafter collectively referred
"within") the Backbone Route Right-of-Way.
4.2 NIAGARA hereby grants TELERGY, its successors and assigns, the right
and option to extend the Initial Term of this Agreement in its entirety or
with respect to any System Segments, from the date upon which it would
otherwise expire for up to two (2) consecutive Extension Periods of ten
(10) years each.
4.3 Each Extension Period may be exercised individually as to each System
Segment or collectively as to any two or more System Segments, by written
notice to NIAGARA, three (3) months prior to the expiration of the Initial
Term or an Extension Period as to each such System Segment (hereinafter
"Election Date"). Such notice shall notify NIAGARA of TELERGY's election
either to exercise its said option for the next Extension Period in respect
to the Backbone Network or any System Segment, or terminate this Agreement
with respect to the Backbone Network or a System Segment, subject to the
Severance Payments set forth in Section 17, upon a date which date shall be
no sooner than twenty-four (24) months from the date of such notice to
NIAGARA. In the event that TELERGY shall elect to extend the term of this
Agreement as to a portion only, but not the entirety, of the System,
TELERGY shall nonetheless continue to provide the NIAGARA Capacity and, if
applicable, any NIAGARA Spur Capacity.
4.4 In the event TELERGY does not give NIAGARA notice of election with
respect to any System Segment on or before the Election Date with respect
to any Extension Period, the Initial Term of this Agreement shall
automatically be extended for thirty (30) days after notice from NIAGARA
advising TELERGY that it has failed to notify NIAGARA of any election.
Within thirty (30) days of receipt of the NIAGARA notice, TELERGY shall
either exercise its said option for the next Extension Period, or terminate
this Agreement with respect to any System Segment upon a date that shall be
no sooner than twenty-four (24) months of the date of such response.
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5. SCOPE OF RIGHT OF OCCUPANCY
5.1 The specific Right-of-Way that will be subject to the
Right-of-Occupancy shall be defined by the parties in the manner set forth
in Section 6. The Right-of-Way for Segment I of the Backbone Route shall be
defined within ninety (90) days following the execution of this Agreement.
Maps showing the Right-of-Way subject to the Right-of-Occupancy shall be
prepared and attached to this Agreement as Exhibit A. The remaining
Rights-of-Way shall be defined by the parties in the manner set forth in
Section 6 within six months following the date of this Agreement.
5.2 Subject to Section 3.6 herein, where TELERGY desires to construct and
install the Backbone Network in areas where NIAGARA's interest in the
Right-of-Way is insufficient to authorize TELERGY Facilities and NIAGARA
does not chose to exercise its right to pursue authorization in accordance
with Section 3.6, TELERGY, at it's sole cost, may negotiate with the fee
simple owners for the right for NIAGARA to allow such use by TELERGY,
provided that NIAGARA shall cooperate with and assist TELERGY as set forth
in Section 3.3 herein.
5.3 TELERGY is not obligated to use the Right-of-Occupancy conferred in
this Agreement. TELERGY may decide to use non-NIAGARA rights-of-way in
certain locations, so long as the specific geographic locations and dates
specified in Sections 3.6 and 9.5, as well as the NIAGARA Capacity as set
forth in Sections 3.6 and 13, are connected to the Backbone Network, which
shall be fully operational.
5.4 The Right-of-Occupancy granted herein shall be nonexclusive, and shall
be subordinated to the provisions of the First Mortgage Indenture dated
October 1, 1937, as amended, from NIAGARA's predecessor (Central New York
Power Corporation) to the Marine Midland Trust Company of New York, now
Marine Midland Bank, N.A. as Trustee, and to all liens, encumbrances,
Rights-of-Occupancy, easements, rights, privileges, licenses, or grants or
whatever nature heretofore or hereinafter given by NIAGARA or its
predecessors or successors in interest, which affect the property of
NIAGARA, including but not limited to drainage rights, streets, roadways,
telephone lines, underground conduits, sewers, manholes, pipes or
right-of-way.
5.5 Nothing herein contained shall be construed as a grant by NIAGARA of
any exclusive Right-of-Occupancy, right or privilege to TELERGY. NIAGARA
shall have the absolute right, without notice to TELERGY, to grant, renew
and extend Right-of-Occupancy, rights, licenses, and privileges to others
not parties to this Agreement, by contract or otherwise, to use any NIAGARA
Facilities or Right-of-Way covered by this Agreement. However,
Right-of-Occupancies existing at the time of such future Right-of-Occupancy
agreements or arrangements shall not be diminished. The rights of TELERGY
shall at all times be subject to such existing and future
Right-of-Occupancy agreements or arrangements. NIAGARA, in negotiating and
entering into any such future Right-of-Occupancy agreements and/or
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arrangements, shall not diminish the Right-of-Occupancy of TELERGY, as
provided for in this Agreement, except as provided herein.
5.6 The rights of parties to whom NIAGARA currently leases or licenses
any of the Right-of-Way on which the Backbone Network will be installed
shall be protected and TELERGY, its contractors, agents and employees shall
assume all responsibility for any damage actually done by TELERGY, its
contractors, agents and employees to lawns, gardens, shrubbery, fences,
real and personal property. Upon completing construction, TELERGY shall
restore the lands to substantially the same condition as before entering
thereon. TELERGY shall investigate and resolve any and all complaints
arising from or in connection with its Right-of-Occupancy in an expeditious
manner.
6 SELECTION OF THE SPECIFIC BACKBONE ROUTE
6.1 Immediately upon executing this Agreement, the parties agree to work
closely and reasonably to prepare Working Drawings reflecting preliminary
and final sites for the Right-of-Occupancy within any Right-of-Way ensuring
that it connects the Points-of-Presence and geographic locations set forth
in Section 3.6 and 9.5 along the Backbone Route. During the initial joint
review and inspection, every reasonable effort will be made by the parties
to produce and modify, if necessary, the Working Drawings through the most
expeditious means. If known to NIAGARA, it shall notify TELERGY of any
outstanding adverse claims affecting any Right-of-Way which TELERGY has
identified for use by the System.
6.2 In the event that NIAGARA shall agree to undertake any TELERGY
requested special Right-of-Way research and services, or engineering
services, TELERGY shall pay all pre-approved costs incurred by NIAGARA in
providing such research and services.
6.3 Documents To Be Provided To TELERGY.
6.3.1 To facilitate TELERGY's determination of the specific
position and location of TELERGY's Facilities and to prepare the
Construction Plan, NIAGARA agrees to provide TELERGY materials and
documents as described in this Section 6.
6.3.2 Within 15 days of the date of this Agreement, NIAGARA will
provide TELERGY with standard engineering guidelines for construction
plans.
6.3.3 Upon request, reasonable access to available title
documentation and Right-of-Way Maps within NIAGARA's possession that
relate to the Backbone Route, including easements, occupancy rights
or any third-party rights heretofore granted and/or restrictions on
the Right-of-Occupancy intended by this Agreement.
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6.3.4 Available survey records for inspection and/or reproduction by
TELERGY, at its sole cost and expense, subject to limitations of survey
contracts, regulations or local laws.
6.3.5 NIAGARA does not guarantee the accuracy of Right-of-Way Maps or
surveys in its possession.
6.3.6 TELERGY shall abide by the confidentiality provisions set forth
in Section 28 with respect to NIAGARA Maps and surveys.
6.4 Working Drawings.
6.4.1 NIAGARA shall permit TELERGY's employees, agents and contractors
to enter the Backbone Route Right-of-Way, subject to the notice provisions
set forth in Section 8, for the purpose of surveying and inspecting the
same and to make such engineering and other tests as may be necessary or
advisable to enable TELERGY to prepare Working Drawings and the
Construction Plan, as well to locate the Right-of-Occupancy on such
Right-of-Way, and to determine the engineering and cost consideration with
respect to construction and installation of the Backbone Network therein.
6.4.2 NIAGARA agrees to participate with TELERGY in a joint review of
the preliminary route designation plans for the Backbone Route
Right-of-Occupancy, and in making reasonably necessary physical inspections
of a Right-of-Way for the purpose of identifying problem areas, arriving at
suitable alternatives, and defining final routes.
6.4.3 Based upon the preliminary Right-of-Occupancy designation,
physical inspections and other engineering data available to TELERGY, it
shall prepare and submit to NIAGARA four (4) sets of construction plans
("Working Drawings") for the Backbone Network. Telergy may submit such
Working Drawings for the entire Backbone Network, or for designated System
Segments.
6.4.4 Working Drawings for each System Segment shall be submitted by
TELERGY to NIAGARA's Engineering Department not less than ten (10) days
prior to TELERGY's anticipated initiation of construction for such System
Segment.
6.4.5 Following each submission of Working Drawings, NIAGARA shall, as
soon as reasonably possible, but no later than ten (10) days of its
receipt, approve the Working Drawings, in whole or in part ("Approved
Drawings"), or raise any bona fide objections, in writing, describing in
reasonable detail the basis for rejection and the necessary modifications
to obtain NIAGARA's approval.
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6.4.6 A "bona fide objection" shall mean any condition that will
cause the unreasonable interference with NIAGARA's operations, pose
an unreasonable hazard to NIAGARA's personnel, customers, properties
or NIAGARA Facilities, pose a violation of law, regulation, code
and/or NIAGARA's Construction Standards and policies, unreasonably
limit the use of the Right-of-Way, or cause a devaluation of
NIAGARA's, its successors' or assigns, rights, title, and or interest
in the Right-of-Way.
6.4.7 Upon receipt of any such objections, TELERGY shall either:
(i) correct the Working Drawings by making appropriate changes thereto
and resubmitting them to NIAGARA for its approval, or (ii) dispute
such objection, by referring the matter in question to NIAGARA for
determination in the first instance, and without thereby waiving any
rights in respect to the matter in controversy.
6.4.8 Upon such resubmission, NIAGARA shall raise any bona fide
objections as set forth in Sections 6.4.5 and 6.4.6.
6.4.9 Notwithstanding anything herein to the contrary, due to the
accelerated construction requirements of the installation of the
Backbone Route, the parties agree to exercise their best efforts
consistent with NIAGARA's public service responsibilities to assure
all Working Drawings are reviewed and approved by NIAGARA in support
of TELERGY's construction schedule.
6.4.10 Procedures and schedules for any necessary F.O.G. Wire
installations on the Backbone Route will be developed jointly by
NIAGARA and TELERGY, who will exercise their best efforts consistent
with NIAGARA's public service responsibility to assure that all F.O.G.
Wire installation(s) are completed as soon as practical.
6.4.11 All Working Drawings, Approved Plans, As-built Drawings,
maps and survey and the copyrights therein, shall be the property of
NIAGARA, and shall be subject to the confidentiality provisions of
this Agreement.
6.4.12 Upon TELERGY's receipt of all Approvals in accordance with
Section 11 as well as the Approved Drawings and NIAGARA's approval of
the Construction Plan, TELERGY's installation and construction in
accordance with this Agreement and, particularly Sections 8-12, shall
commence.
7 ADDITIONAL RIGHTS-OF-OCCUPANCY FOR SPUR ROUTES
7.1 Nothing herein shall be construed to provide TELERGY additional
Right-of-Occupancy in NIAGARA Right-of-Way for the design, engineering,
construction, installation,
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operation, maintenance, repair, replacement, relocation, reinstallation and
removal of any Spur Routes supplementing or extending the Backbone Network.
7.2 Any such Spur Routes required or desired by TELERGY for the design,
engineering, construction, installation, operations, maintenance, repair,
replacement, relocation, reinstallation and removal within NIAGARA
Rights-of-Way, including the installation of fiber optic cable and related
equipment for any such required or desired Spur Routes, shall be negotiated
by the parties, subject to Section 14 herein.
7.3 TELERGY, however, shall have the right either upon the original
installation or subsequently where appropriate, to install multiple fiber
optic cables within the Right-of-Occupancy contemplated herein along the
Backbone Route or portions thereof only to accommodate additional Spur
Routes or interconnects, subject to Section 7.1 and 7.2.
7.4 Except for F.O.G. Wire, if TELERGY shall utilize any of NIAGARA's
Facilities, buildings or structures for the installation of the TELERGY
Facilities, TELERGY shall enter into an appropriate Agreement with NIAGARA
and shall pay NIAGARA's then prevailing rates, charges or negotiated fees.
8 ENTRY AND NOTICE
8.1 In no event shall TELERGY, its employees, agents or contractors, be
authorized to access NIAGARA Right-of-Way or Facilities without NIAGARA
permission, which shall not be unreasonably withheld, and the presence of
a NIAGARA engineer, inspector or escort. Except for emergency situations
or situations requiring expeditious action, whenever TELERGY desires to
enter upon a Right-of-Occupancy to construct, install, maintain, repair,
reinstall, replace, relocate or remove any part or portion of the System
or its Facilities, TELERGY shall submit written notice ("Entry Notice") in
advance to NIAGARA.
8.2 If Entry Notice is required for proposed work that may disturb
NIAGARA's operations, TELERGY's Entry Notice shall include in reasonable
detail, the purpose of the entry, and methods of the proposed construction,
repair, replacement or other work, and shall require approval from
NIAGARA's engineer, and shall require written approval from NIAGARA'S
Engineer.
8.3 Such plans and the timing of all such work shall be subject to the
consent and approval of NIAGARA, and TELERGY's obtaining any required
Approvals as provided in Section 10.
8.4 Prior to commencement of any cable installation, TELERGY shall
provide required notification to the respective local Underground
Utilities Locating Service as is appropriate for that area.
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8.5 TELERGY, upon not less than seven (7) working days prior notice to
NIAGARA, may during any period of construction and installation of the
Backbone Network or, following completion of construction thereof, in
connection with post-construction cleanup activities. Maintenance or
repairs, place inspectors, supervisors, or other reasonably necessary
personnel on site for the protection of TELERGY's operation, property,
Right-of-Occupancy, or the property of others.
8.6 For and during the term of the Agreement, NIAGARA shall not excavate
for the purposes of longitudinal construction and/or insertion of cable or
conduit within five (5) feet of the running line of the System other than
for necessary operations of NIAGARA's Facilities. Except for NIAGARA System
emergencies, all excavations within ten (10) feet of the running line of
the System shall require not less than thirty (30) days prior written
notice to TELERGY and shall be coordinated with TELERGY so as to prevent
damage to the System and the disruption of transmission there over.
Moreover, NIAGARA shall use its best efforts to minimize any disruptions of
the System during the performance of any work by NIAGARA or others within
the restricted area.
9 TELERGY WORK
9.1 Within ninety (90) days after the date of this Agreement, the parties
shall jointly decide, consistent with NIAGARA's public service
responsibilities, whether the Backbone Network shall be installed and
constructed underground or overhead. Underground facilities shall be
installed when technically, operationally and economically feasible.
9.2 A detailed description of the construction technique for each Segment
of the Backbone Network shall be prepared and attached to this Agreement
and incorporated herein, before any construction or installation commences.
9.3 TELERGY shall comply with NIAGARA's Construction Standards and
policies as well as any Approval or Permits, in the construction of the
System. Any material deviations from NIAGARA's standard engineering
guidelines shall require prior written approval of NIAGARA.
9.4 Any changes necessary to NIAGARA's overhead and underground Facilities
necessitated by this Agreement as reasonably determined by NIAGARA will be
made by NIAGARA at TELERGY's sole cost and expense.
9.5 TELERGY shall install and construct the Backbone Network along the
Backbone Route in three Segments. Segment I shall connect [***], on or
before [***]. Segment II shall connect [***] to the aforementioned city
that was not connected during Segment I, on or before [***]. Segment 3
shall connect [***],
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[***], on or before [***]. The locations and dates are critical to
NIAGARA. Segment I must be installed and fully operational on or before
[***]; Segment II must be installed and fully operational on or before
[***]; and the entire Backbone Network along the Backbone Route must be
fully operational and capable of carrying telecommunications traffic on or
before [***].
9.6 TELERGY shall exercise good faith efforts to obtain all Approvals
and Permits, as set forth in Section 11, necessary for construction of the
Backbone Network as expeditiously as possible. TELERGY shall notify
NIAGARA in writing in the event any Approval or Permit is delayed,
advising of the Approval outstanding, reasons for the delay, efforts to
obtain the approval and minimize any delay, and the anticipated date of
approval.
9.7 TELERGY, at its sole risk, cost and expense, shall furnish all
materials to be used in connection with this Right-of-Occupancy, the
Backbone Network and Telecommunications System, and shall construct,
install, operate, maintain, use, change, alter, relocate or remove TELERGY
Facilities or any part thereof in accordance with the design and
specifications on Approved Plan(s) and the terms and conditions of this
Agreement, in a prudent and workmanlike manner, in conformity with any
applicable statutes, rules, orders, regulations and specifications of any
public body having jurisdiction thereof and in conformity with NIAGARA's
standards, rules and policies, and so as not to interfere with or endanger
any property, operations, maintenance, or employees of NIAGARA, or of
other existing parties occupying or using the property of NIAGARA.
9.8 Power sources installed by TELERGY shall meet all applicable
National Electrical Codes, NIAGARA and state and local-ordinance
requirements.
9.9 NIAGARA's activities to support TELERGY's design, planning,
construction, installation or MAINTENANCE efforts, and its conduct of
periodic and post-construction inspections shall not operate to relieve
TELERGY of any responsibility, obligation or liability specified in this
Agreement. TELERGY shall be responsible for compliance with all Federal,
state or local laws, rules, regulations, codes and/or ordinance governing
the activities contemplated by this Agreement.
10 APPROVALS AND PERMITS
10.1 TELERGY shall secure, at its expense, all necessary, final and
unconditional approvals, permits and licenses (collectively referred to as
"Approvals") from all governmental authorities and/or other parties having
jurisdiction or approval rights with respect to the use and occupation of
the Backbone Right-of-Way and the provision of telecommunications
services, the installation, operation and maintenance of the Backbone
Network and Telecommunications System within the Right-of-Occupancy, and
the provision
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of telecommunications services, specifically including, without limitation, any
required environmental approvals. Environmental impact assessments or statements
required, if any, shall be prepared by TELERGY at its sole risk, cost and
expense, with copies provided to NIAGARA.
10.2 NIAGARA shall be required to obtain Approval of this Agreement by the
Public Service Commission of the State of New York, at TELERGY's sole cost and
expense.
10.3 TELERGY shall be responsible for obtaining from third parties, private
entities and/or public agencies any and all necessary easements, rights of way,
licenses, permits, permissions, certifications or franchises to construct,
operate and/or maintain TELERGY Facilities on private or public property at the
location of TELERGY's Facilities.
10.4 NIAGARA agrees that it shall provide reasonable cooperation to TELERGY in
connection with TELERGY's efforts to obtain such necessary permits and
consents.
10.5 If NIAGARA's permission or consent in writing is required by a governmental
or regulatory agency in conjunction with the processing or application by
TELERGY for such permits and consents, or if NIAGARA is required to obtain any
governmental or regulatory approvals with respect to TELERGY's proposed
activities or any related NIAGARA activities necessary to the completion of
TELERGY's proposed activities, NIAGARA shall provide such consent, provided,
however, that NIAGARA shall have the right to review and approve the terms and
conditions, if any, that may be required or requested of NIAGARA by said
governmental or regulatory agency, which such approval shall not be unreasonably
withheld.
10.6 NIAGARA shall have the right to review and approve the terms and conditions
of any such Approvals to insure that they are compatible with the continued use
and maintenance of NIAGARA's Facilities and Rights-of-Way.
10.7 If required by any law or regulation and upon request, NIAGARA agrees to
review and, if approved, shall cause its authorized officers or representatives
to execute any applications or other documentation prerequisites to securing the
Approvals.
10.8 Following the issuance of any necessary Approvals in respect of any System
Segment, and upon compliance with the terms and conditions of this Agreement,
TELERGY, its employees, agents, contractors and/or subcontractors shall have the
right to construct the System within the Right-of-Occupancy within any
Right-of-way in accordance with the Approved Plans.
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11 CONSTRUCTION AND INSTALLATION
11.1 TELERGY shall furnish to NIAGARA a Construction Plan consisting of a
proposed schedule of engineering and design, commencement and completion
dates for receipt of Approvals as set forth in Section 10 herein, and
dates for construction, installation and implementation of the Segments of
the Backbone Network. Time being of essence with respect to Sections 3.6,
9.5 and 13 herein, said schedule shall not otherwise be binding on the
parties but shall be an indication of proposed construction and
installation, unless otherwise specified in this Agreement.
11.2 Except as herein otherwise expressly set forth, construction and
installation of the Backbone Network and the furnishing of all labor,
materials and equipment necessary to construct and install the same, shall
be at TELERGY's expense. All such work shall be performed in a good and
workmanlike manner and in compliance with all laws, ordinances, codes and
regulations, and Approvals of any governmental authorities having
jurisdiction there over, and any appropriate NIAGARA construction
standards, practices and/or procedures.
11.3 All access to areas in and around NIAGARA Facilities shall be
coordinated by NIAGARA in accordance with TELERGY's anticipated
construction schedule.
11.4 TELERGY shall have the right to select the type of fiber optic cable
to be installed in NIAGARA's Right-of-Way and Facilities, subject to
NIAGARA's review and approval, which shall not be unreasonably withheld.
11.5 TELERGY Facilities shall be placed, maintained, relocated or removed
in accordance with NIAGARA's requirements and specifications, including
but not limited to the current editions of NIAGARA's Code Rule 53,
Underground Standards for Construction, the National Electric Code (NEC),
the National Electrical Safety Code (NESC), Rules and Regulations of the
Occupational Safety and Health Act (OSHA), and all Approvals, or rules or
regulations of any governing authority having jurisdiction. Where a
difference in specification may exist, the more stringent shall apply.
11.6 TELERGY Facilities shall not physically, electronically or
inductively, or otherwise, interfere with NIAGARA's Facilities.
11.7 NIAGARA reserves the right to specify the type of construction
standards and practices required in situations not otherwise covered in
this Agreement. In such cases, NIAGARA, will furnish to TELERGY written
materials, if available, specifying and explaining the required
construction.
11.8 TELERGY Facilities installation may be performed, at TELERGY's
discretion, by NIAGARA, NIAGARA's designated contractor upon delivery of
any appropriate facilities by
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TELERGY, or by TELERGY or its subcontractor, following completion of Make-Ready
Work.
11.9 In the event that TELERGY Facilities installation is performed by a
contractor or sub-contractor, NIAGARA and TELERGY each shall have the right to
approve such contractor or sub-contractor, which approval shall not be
unreasonably withheld; however, TELERGY shall be responsible for all acts of
its contractors and shall ensure its contractors compliance with the provisions
of this Agreement. Following completion of TELERGY Facilities installation,
TELERGY shall have the right to conduct testing in accordance with NIAGARA
approval to insure that agreed-upon design specifications have been met.
11.10 NIAGARA reserves the right to prohibit all TELERGY Facilities other than
fiber optic cable, splice closures and repeaters from its manholes, pull boxes
and hand holes. Splices in TELERGY's fiber optic cables shall be located only
in manholes, pull boxes or hand holes.
11.11 TELERGY shall be responsible for any problems from, or in, TELERGY
Facilities, unless such problem was caused by the intentional or reckless act
or omission of NIAGARA.
11.12 Non-Cable Facilities.
11.12.1 As requested by TELERGY, NIAGARA, where franchised and
reasonable, shall provide to TELERGY at the regenerator sites, metered
electric service, the cost of which shall be paid by TELERGY in accordance
with applicable New York State Public Service Commission approved
tariffs.
11.12.2 TELERGY shall be entitled to install its regenerator facilities
for its Telecommunications System along the Backbone Route. The location
of such Facilities shall be subject to NIAGARA's advance written approval.
No regenerator facility shall be located on any portion of such Rights-of-
Way or other NIAGARA property identified by NIAGARA as unavailable due to
a planned NIAGARA use at such location. Whenever possible, Niagara agrees
to locate TELERGY's regenerator facilities with sites on the Backbone
Route approximately [***] feet by [***] feet in size, which sites will be
located at or near power plants or substations or as identified by
TELERGY, which shall be deemed part of the Right-of-Occupancy hereunder.
11.12.3 During construction of the System, NIAGARA agrees to allow
TELERGY and its contractors and subcontractors, without charge, to use
portions of the Backbone Route Rights-of-Way at NIAGARA pre-approved
locations only for the erection of temporary structures and fences to
protect TELERGY's construction materials, equipment and fuel, provided no
adverse impact to NIAGARA's Facilities, operations or environmental
requirements shall result therefrom and further provided
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omitted on this page. The omitted portions have been filed separately
with the Securities and Exchange Commission.
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that any such structures and/or fences shall be removed by TELERGY
following completion of construction of the applicable System
Segment.
11.13 Cable Installation.
11.13.1 Cables crossing under public roadways shall be at a location
and depth as determined by state and local conditions, laws,
regulations, Approvals or orders of public authorities, and shall
also be in accordance with the Approved Drawings, Construction Plan
and Construction Standards.
11.13.2 Cables crossing over or under other existing public
utilities shall be located and installed in accordance with local
conditions, laws, regulations, Approvals, or orders of public
authorities, and any requirements of the New York State Public
Service Commission.
11.13.3 If, in the conduct of work, any changes or alterations,
permanent or temporary, in existing pipelines, sewers, drains,
conduits, fences, power, signal or communication lines or other
utilities are necessary, such changes shall be made or caused to be
made, by TELERGY and at TELERGY's sole risk, cost and expense, in
accordance with Section 8.1 herein.
11.13.4 Emergency cable installation, Maintenance and repair methods
shall comply with standards and policies to be developed by the
parties.
11.13.5 TELERGY, at its sole cost and expense, shall furnish, erect
and thereafter maintain cable markers designating all TELERGY
underground Facilities. Such markers shall be installed along the
Backbone Network running line. The cable markers shall be placed in
conformity with industry standards or as otherwise approved by
NIAGARA.
12 MAINTENANCE AND OPERATION
12.1 Within six (6) months following completion of any Segment, TELERGY
shall furnish to NIAGARA final, executed "As Built Drawings," of
reproducible quality, depicting the Backbone Network, or System Segment,
which, as the same may be amended from time to time and/or as the running
line may from time to time be shifted by settlement, natural forces or
casualties, shall constitute the locations of the Right-of-Occupancy.
12.2 As Built Drawings shall become Exhibits to and form a part of this
Agreement upon verification and approval by NIAGARA.
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12.3 Following the completion of the initial construction of any
System Segment, the operation, maintenance, repair, replacement,
reinstallation, relocation and/or removal thereof shall be solely at
TELERGY's cost and under its control, except as otherwise set forth in this
Agreement, including but not limited to Sections 8 and 10 governing
Approvals and Entry Notice.
12.4 Unless prohibited by law or any governmental agency ruling or by
local franchise, TELERGY shall have the right to leave in place within the
Right-of-Way rather than remove therefrom any buried cable(s), conduit or
other appurtenances so placed.
12.5 All Maintenance, repair and restoration ("Maintenance") costs
related to the Backbone Network, the Telecommunication System and TELERGY
Facilities shall be the responsibility of TELERGY.
12.6 All Maintenance associated with TELERGY Facilities, including
ongoing operational activities as well as repairs and service interruptions
of TELERGY's Facilities, shall be the ultimate responsibility of TELERGY
subject to NIAGARA review and inspection. TELERGY shall be entitled, at its
sole cost, to hire a qualified telecommunications maintenance company to
perform Maintenance activities with respect to TELERGY Facilities, subject
to NIAGARA approval, which shall not be unreasonably withheld.
12.7 All Maintenance associated with NIAGARA Facilities resulting from
or attributable to TELERGY's Right-of-Occupancy shall be the responsibility
of NIAGARA; however TELERGY shall be responsible for all associated costs.
12.8 To the extent that NIAGARA's maintenance of a Right-of-Way
encompasses a TELERGY Right-of-Occupancy, NIAGARA will extend such standard
maintenance services to cover such Right-of-Occupancy without cost to
TELERGY, unless the existence of TELERGY's Facilities significantly
increases the cost-associated with such Maintenance.
12.9 Upon a request from TELERGY to perform Maintenance with respect
to NIAGARA's Facilities, recognizing that time may be of the essence,
NIAGARA shall investigate the need for such Maintenance, within a
reasonable period of time. Maintenance of NIAGARA Facilities shall be
performed only by NIAGARA's, at its discretion based, on its investigative
findings.
12.10 With respect to Maintenance of TELERGY Facilities, a NIAGARA
inspector, engineer or escort shall be present and shall be authorized to
terminate such activities when, in the inspector's sole discretion, said
activities pose a danger to NIAGARA's Facilities.
12.11 In no event shall access to NIAGARA's Facilities or Right-of-Way
be authorized without the presence of a NIAGARA inspector or escort.
Notwithstanding the foregoing provision, NIAGARA agrees that if TELERGY
designates a contractor for Maintenance, the
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Maintenance company shall be granted access to the NIAGARA Facilities and
TELERGY's Facilities, under such terms and conditions as may be set by
NIAGARA, and within such fixed period of time as may be agreed upon between
TELERGY, NIAGARA and the selected contractor.
12.12 TELERGY shall have the right, subject to NIAGARA's availability,
to inspect its Facilities periodically, upon thirty (30) days prior written
notice to NIAGARA. Such inspection costs shall be borne solely by TELERGY.
No inspection shall be authorized and/or conducted by TELERGY without the
presence of NIAGARA's inspector or escort.
13 NIAGARA CAPACITY, RATES, CHARGES AND COSTS
13.1 Niagara Capacity.
13.1.1 In consideration of the granting of the
Right-of-Occupancy within the Backbone Route Right-of-Way,
TELERGY initially shall provide Niagara with [***] of capacity of
the Backbone Network along the entire Backbone Route ("NIAGARA
Capacity").
13.1.2 The NIAGARA Capacity and any NIAGARA Spur Capacity shall
be delivered to selected NIAGARA Points-of-Presence, which sites
may change from time-to-time during the term of this Agreement.
The NIAGARA Capacity shall be delivered to NIAGARA selected
Points-of-Presence in [***] to ensure that [***] are connected to
the Backbone Network.
13.1.3 In each city, the NIAGARA Capacity dedicated from
TELERGY Facilities in such cities to NIAGARA's Facilities in such
cities shall be engineered and installed by TELERGY to initially
provide NIAGARA with lit fiber in the amount of [***],
delivered to the specified NIAGARA lightwave distribution panel.
Service will be delivered by TELERGY to NIAGARA at the [***]
level but NIAGARA is solely responsible for equipment necessary
to multiplex or demultiplex.
13.1.4 TELERGY shall engineer, furnish, install and maintain
all electronics, cabling, and equipment to each [***] demarcation
in the above locations. Such demarcation will be a standard [***]
interface termination (fiber distribution panel).
13.1.5 NIAGARA shall engineer, furnish, install and maintain
all electronics, cabling, etc, beyond the lightwave distribution
panel demarcation in the above locations. NIAGARA may provide
access, floor space and support service, such as
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commercially available electricity and HVAC, at NIAGARA's Facilities as
listed above where available at NIAGARA's discretion.
13.1.6 The parties agree that the baseline NIAGARA/TELERGY ratio in
respect of the System shall be defined within ninety (90) days after
the System is designed in accordance with this Agreement.
13.2 NIAGARA SPUR CAPACITY.
13.2.1 At its own expense, TELERGY shall have the right to replace
and upgrade the System due to changes in technology as long as the
NIAGARA Capacity is not adversely affected. In the event of any such
replacement and upgrade of the capacity of the Backbone Network,
TELERGY shall increase the NIAGARA Capacity and, if applicable, the
NIAGARA Spur Capacity proportionally as described below.
13.2.2 NIAGARA shall have the right to receive additional NIAGARA
Spur Capacity as a proportionate increase in the capacity of the
Backbone Network at the [***] level in order to maintain, but
not exceed, the baseline NIAGARA/TELERGY established pursuant to
13.1.6, provided that such proportionate increase shall be limited to a
maximum total equivalent capacity of [***].
13.2.3 TELERGY agrees to inform NIAGARA in the event that NIAGARA's
proportionate share of the installed and in service NIAGARA Capacity
exceeds [***].
13.3 The NIAGARA Capacity and, if applicable, the NIAGARA Spur Capacity
shall be owned by NIAGARA and may be utilized for any purpose whatsoever
at NIAGARA's sole discretion.
13.4 In addition to constructing, installing and maintaining the NIAGARA
Capacity and Spur capacity, TELERGY shall be responsible for all costs
arising out of or related to this Right-of-Occupancy Agreement.
14 MODIFYING NIAGARA OR TELERGY FACILITIES
14.1 Should NIAGARA, for its own service requirements, need to modify
existing or install additional NIAGARA Facilities using Right-of-Way
subject to the TELERGY Right-of-Occupancy, NIAGARA shall notify TELERGY.
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14.1.1 Except in an emergency, a written notice shall be sent as
soon as possible before any such installation or modification is
implemented or installed, and NIAGARA shall pay costs for the
rearrangement of TELERGY's Facilities.
14.1.2 In the event TELERGY is responsible for costs pursuant to
Section 14.1.1, TELERGY shall have the option either to (i) pay
NIAGARA the costs thereof for the rearrangement of TELERGY's
Facilities, or (ii) arrange for such reinstallation in accordance with
the terms and conditions of this Agreement.
14.1.3 TELERGY shall have the right to have its inspectors, at its
sole cost and expense, present during any relocation work by NIAGARA
in accordance with Section 12.14.
14.1.4 Within seven (7) working days of the date of completion of
NIAGARA's relocation and post-construction inspection, it shall notify
TELERGY in writing that the relocation is completed.
14.1.5 In the event TELERGY or its contractors performs relocation
activities, TELERGY shall make the necessary arrangements to ensure
that NIAGARA's inspectors are available.
14.1.6 TELERGY shall notify NIAGARA within seven (7) working days of
the completion of any TELERGY Facilities. TELERGY shall make such
arrangements as may be necessary to enable NIAGARA to inspect such
Facilities. If TELERGY's Facilities are not deemed in compliance with
NIAGARA engineering and/or operating standards, applicable Approvals,
and safe work practices on initial inspection by NIAGARA, subsequent
inspections to determine if any appropriate corrective action has been
taken may be made by NIAGARA. TELERGY shall reimburse NIAGARA for the
cost of any inspections of TELERGY's Facilities.
14.2 Should TELERGY, for its own business requirements, require or desire
additional Rights-of-Occupancy or NIAGARA Facilities, TELERGY shall notify
NIAGARA in writing and submit an Application for Right of Occupancy
(Attachment B), if appropriate.
14.2.1 NIAGARA shall process any request in the same manner and
subject to the same conditions and provisions set forth in this
Agreement, advising TELERGY of NIAGARA's acceptance, rejection or
modification of said request.
14.2.2 TELERGY shall reimburse NIAGARA for actual costs involved for
such review, processing and modifications, upon submission of
documented invoices.
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15 UNAUTHORIZED USE NIAGARA FACILITIES
15.1 If any TELERGY Facilities shall be found occupying NIAGARA Facilities
or Right-of-Way for which a Right-of-Occupancy has not been granted by
NIAGARA, NIAGARA, without prejudice to its other rights or remedies under
this Agreement, including termination or otherwise, may impose a charge and
require TELERGY to submit in writing, within ten (10) days after receipt of
written notification from NIAGARA of the unauthorized occupancy, an
Application for a Right-of-Occupancy (Exhibit B). If such Application is
not received by NIAGARA within the specified time period, NIAGARA may
remove TELERGY's Facilities without liability, and the cost of such removal
shall be borne by TELERGY.
15.2 For the purpose of determining the applicable charge, the unauthorized
occupancy of NIAGARA's Facilities or Right-of-Way shall be treated as
having existed for a period of [***] prior to its discovery; or for the
period beginning with the date of the initial Agreement, whichever period
shall be shorter, and NIAGARA's prevailing rates, charges and fees shall be
due and payable forthwith whether or not TELERGY is permitted to continue
the occupancy.
15.3 Should NIAGARA remove TELERGY's Facilities from NIAGARA's Facilities
or Right-of-Way under Section 15.1 or 18.5, NIAGARA will deliver to TELERGY
the Facilities so removed upon payment by TELERGY of the cost of removal,
storage and delivery, and all other amounts due NIAGARA. NIAGARA shall have
a lien on TELERGY's Facilities removed from NIAGARA's Facilities or
Right-of-Way, with power of public or private sale, to cover any amounts
due NIAGARA. Such liens shall not operate to prevent NIAGARA from pursuing,
at its option, any other remedy in law, equity or otherwise.
15.4 No act or failure to act by NIAGARA with regard to an unauthorized
occupancy shall be deemed as a Right-of-Occupancy for the occupancy, and,
if any Right-of-Occupancy should be subsequently issued, it shall not
operate retroactively or constitute a waiver by NIAGARA of any of its
rights or privileges under this Agreement, or otherwise, provided, however,
that TELERGY shall be subject to all liabilities, obligations and
responsibilities of this Agreement in regard to said unauthorized occupancy
from its inception.
16 CONDEMNATION, BANKRUPTCY, AND OTHER TRANSFERS
16.1 Nothing contained in this Agreement shall be construed as prohibiting
NIAGARA from undertaking any merger, reorganization, or acquisition
activity whether voluntary or involuntary, so long as such activity shall
not hinder, impede, alter or vary the terms and conditions of the
Right-of-Occupancy conferred herein.
16.2 TELERGY shall not assign, sub-license, sublet or transfer the rights
associated with this Agreement of the Right-of-Occupancy, granted herein,
and such rights shall not inure to
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the benefit of TELERGY's successors or assigns without the prior written
consent of NIAGARA, as well as Public Service Commission and other
regulatory bodies' review and approval, if required. In the event such
consents are granted by NIAGARA, the provisions of this Agreement shall
apply to and bind TELERGY's successors and assigns.
16.3 Bankruptcy. Subject to the rights of the principals of TELERGY, in
the event that either of the principals of TELERGY is involved in a
bankruptcy as defined in Section 1.5 of this Agreement, or in the event
that the interest of TELERGY Facilities or the Right-of-Occupancy become
the subject of garnishment, attachment or tax lien proceeding, and in the
further event that such a petition and/or proceeding shall not be quashed
or removed within 45 days after filing, service or levy, whichever first
occurs, NIAGARA shall have the right and option within 15 days after the
expiration of such 45-day period to purchase "proportionately the interest
incumbered as the "computed" value payable in cash within that 15-day
period.
"Proportionately" shall mean that portion of the undivided interest in the
property involved in such bankruptcy, garnishment, attachment or tax lien
proceeding, which the undivided interest owned by a TELERGY bears to all of
the undivided interest in the subject property other than that involved in
such bankruptcy, garnishment, attachment of tax lien proceeding.
"Computed value" shall mean the value of the undivided interest in the
subject property as computed by the regularly retained certified public
accountants of TELERGY. Such computation shall be binding and conclusive
upon the parties absent manifest error.
16.4 Right of First Refusal. There shall be no sale, exchange or other
transfer or assignment of the whole or any portion of any assets of TELERGY
without the prior written consent of NIAGARA. NIAGARA shall have the right,
in the first instance, to acquire the subject assets based upon the
computed value as defined in Section 16.3 herein.
16.5 Relocations. In the event that a portion of NIAGARA's Right-of-Way
or NIAGARA Facilities, where TELERGY has a Right-of-Occupancy occupied by
TELERGY Facilities, is required for NIAGARA's gas and electric business,
NIAGARA will exercise a best effort approach for TELERGY's continued use of
the Right-of-Occupancy in Right-of-Way or NIAGARA Facilities. However,
where this is not appropriate, NIAGARA will, where feasible, with F.O.G.
Wire supplied by TELERGY, pull in, attach and make ready for TELERGY
connection, the F.O.G. Wire on the rebuilt/relocated sections of the
Right-of-Way or NIAGARA Facilities.
16.5.1 TELERGY, at its sole cost, assumes all responsibility for all
installations, training, materials, splices and bypass necessary to
reconnect the relocated portion of the System to the balance of the
Backbone Network. Additionally, TELERGY agrees that such F.O.G. Wire
shall meet NIAGARA's electrical and structural design requirements and
all applicable Approvals.
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16.5.2 If NIAGARA is required by any municipal or state public
authority or agency to relocate its Right-of-Way or NIAGARA Facilities
which contain TELERGY's Facilities, TELERGY shall pay its
proportionate share of total relocation costs. The cost shall include
all relocation and reasonably incurred "tie-up" costs under the
circumstances at the usual rates recoverable by NIAGARA in relocation
projects.
16.6 Condemnation. Should any portion of the Right-of-Occupancy along the
Backbone Route used by TELERGY for Backbone Network be appropriated and/or
acquired by condemnation or the power of eminent domain by any public or
quasi-public authority, then the Rights-of-Occupancy hereby granted to the
extent appropriated shall terminate, but this Agreement shall otherwise
remain in full force and effect.
16.6.1 If any taking includes any portion of the Backbone Network,
TELERGY's interest shall be severed from NIAGARA's interest in such
proceeding and the parties agree to have the condemnation awards
specifically allocated between and payable in accordance with
TELERGY's interest, both physical and occupational, including any
incremental value of an affected Right-of-Way by virtue of the
installation of the Backbone Network, and NIAGARA's interest, both
physical and ownership rights. In addition, if permitted pursuant to
applicable law, TELERGY shall be entitled to make a claim for, and
then receive, the portion of the award attributable to either the
entire amount if separately allocated or the proportionate share if
combined in a lump sum award, the Backbone Network and/or damages
payable on account of Backbone Network relocation expenses.
16.6.2 To the extent it has knowledge, NIAGARA shall notify TELERGY
immediately of any condemnation threatened or filed against any
portion of the Right-of-Way along the Backbone Route which includes
TELERGY's preliminary route designation plan or could include any part
of the System within a Right-of-Occupancy. NIAGARA further agrees not
to sell or convey any portion of a Right-of-Occupancy on a
Right-of-Way containing any Facilities to such acquiring authority in
lieu of condemnation without prior notice to and approval by TELERGY.
17. TERMINATION OR DEFAULT BY TELERGY
17.1 TELERGY shall not terminate its use of the System (Discontinuance)
or any portion thereof except as set forth in this Section 17 during the
first twenty-five (25) years of this Agreement ("Initial Term").
17.2 If TELERGY terminates this Agreement during the first twenty-five
(25) years of the Initial Term, or the operation and Maintenance of the
Backbone Network, or any portion thereof, without NIAGARA approval in
writing, TELERGY shall (i) at TELERGY's sole cost, pay NIAGARA a one time
sum of seven thousand dollars ($7,000.00) per mile of
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NIAGARA's Right-of-Way effected by the portion of the Backbone Network so
terminated, and (ii) make business arrangements for the provision of
capacity up to an amount that is equivalent to the NIAGARA Capacity and any
NIAGARA Spur Capacity in service at the time of termination, as determined
by NIAGARA.
17.3 The per-mile-severance-payment figure shall be reduced annually on
the anniversary of the Commencement Date by one/twenty-fifth (1/25th),
commencing with the first anniversary thereof.
17.4 NIAGARA shall advise TELERGY of its Capacity requirements pursuant
to Section 17.2 upon its receipt of notice from TELERGY that TELERGY has
determined to terminate its operation and maintenance of the Backbone
Network, or a portion thereof.
17.5 If TELERGY fails to satisfy the requirements and obligations set
forth in Sections 3.7 and 9.5 of this Agreement, TELERGY shall pay any and
all costs associated with, related to or arising from NIAGARA's relocation
or extension of its private microwave system, including but not limited to,
reasonable attorney fees and disbursements.
17.6 If TELERGY fails to satisfy the requirements set forth in Sections
3.6, 9.5 and/or 13, TELERGY shall pay any and all costs associated with
NIAGARA's relocation or extension of its private microwave system.
18 TERMINATIONS OF AUTHORIZATIONS
18.1 Regardless of the reason for the valid termination of this
Agreement, TELERGY shall reimburse NIAGARA for [***] incurred in
connection with this Agreement.
18.2 In addition to rights of termination provided to NIAGARA under other
provisions of this Agreement, NIAGARA shall have the right to terminate a
Right-of-Occupancy granted pursuant to the provisions of this Agreement
where:
(a) TELERGY's Facilities are maintained or used in violation of any
law or in aid of any unlawful act or undertaking, or
(b) TELERGY ceases to have authority to construct and operate its
Facilities on public or private property covered by the
Right-of-Occupancy; or
(c) TELERGY fails to comply with any of the terms and conditions of
this Agreement or defaults in any of its obligations thereunder.
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omitted on this page. The omitted portions have been filed separately
with the Securities and Exchange Commission.
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(d) TELERGY's Facilities occupy NIAGARA's Facilities or Right-of-way
without having first been issued a Right-of-Occupancy therefor; or
(e) TELERGY, subject to the provisions specified in this ??? should
permanently cease to provide telecommunications services over its
Facilities, which shall mean for a period of six (6) consecutive
months.
(f) TELERGY Facilities or Right-of-Occupancy are used by others not
a party to this Agreement without the prior written consent of
NIAGARA, which consent shall not be unreasonably withheld, provided
that such use shall not be construed as including use by TELERGY's
customers as provided for in this Agreement.
(g) TELERGY sublets or apportions part of a Right-of-Occupancy to an
entity not a party to this Agreement without the prior written consent
of NIAGARA, which consent shall not be unreasonably withheld.
(h) TELERGY's Right-of-Occupancy can be terminated by NIAGARA
wherever and whenever a governmental agency requires the same, in
which case NIAGARA will remove and return TELERGY's Facilities to
TELERGY, at TELERGY's expense.
(i) TELERGY's insurance carrier shall at any time notify NIAGARA
that the policy or policies of insurance as required in Section 26
will be or have been canceled or amended so that those requirements
will no longer be satisfied; or
(j) TELERGY shall fail to pay any sum due or to deposit any sum
required under this Agreement, within thirty (30) days following
TELERGY's receipt of written notice requiring such payment or deposit
from NIAGARA.
(k) any authorization which may be required by any governmental or
private authority for the construction, operation and maintenance of
TELERGY's Facilities in NIAGARA Facilities or Right-of-Way is denied,
revoked or canceled.
(l) the Public Service Commission of the State of New York or the
Federal Communications Commission makes a determination that TELERGY's
Right-of-Occupancy would make NIAGARA a telephone corporation for
purposes of Commission regulation under the Public Service Law.
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18.3 Notwithstanding the above, TELERGY shall have the right to cure the
above stated defaults within thirty (30) days of written notice by NIAGARA
to TELERGY of said default. Upon receipt of said written notice and within
five (5) days, TELERGY shall notify NIAGARA of its intention to cure the
default within the said 30-day period set forth above. If TELERGY fails to
give such five days notice or if TELERGY advises NIAGARA that it does not
intend to cure, then TELERGY shall be deemed in default and the thirty (30)
day period for cure shall not apply.
18.4 In the event of termination of any of TELERGY's authorizations
hereunder, or at the expiration of the Term of this Agreement, NIAGARA will
remove, abandon, or maintain for NIAGARA's use, TELERGY's Facilities within
ninety days of the effective date of the termination; provided, however,
that TELERGY shall be liable for and pay all fees and charges pursuant to
provisions of this Agreement to NIAGARA until TELERGY's Facilities are
actually removed, abandoned or maintenance is taken over by NIAGARA,
whichever comes first and provided further that each party shall be
required to perform any and all obligations under this Agreement until such
time. NIAGARA shall have the right to remove such Facilities at TELERGY's
expense and without any liability on the part of NIAGARA for damage or
injury to such Facilities or interruption of TELERGY's services except for
liability for damage or injury to such Facilities caused by the negligence
of NIAGARA or its agents or employees. At NIAGARA's sole option, NIAGARA
may elect to remove TELERGY's Facilities, or any portion thereof, abandon
such Facilities in place, or maintain such Facilities for its own use.
18.5 When TELERGY's Facilities are removed, abandoned or maintained by
NIAGARA, no further Right-of-Occupancy shall be permitted until TELERGY has
first complied with all of the provisions of this Agreement as though no
such Right-of-Occupancy had been previously made and all outstanding
charges due to NIAGARA for Right-of-Occupancy have been paid in full.
19 NIAGARA ABANDONMENT
19.1 NIAGARA may at any time and for any reason abandon Right-of-Way if
NIAGARA no longer requires it for its public service or corporate purposes,
provided however that in the event of a voluntary NIAGARA abandonment of
Right-of-Way that includes any portion or portions of the Backbone Route or
Spur Route Right-of-Occupancy within which TELERGY shall have installed its
Facilities, NIAGARA shall give TELERGY not less than six (6) months prior
written notice.
19.2 In the case of a proposed involuntary NIAGARA abandonment, such as one
due to a calamity or earthquake or other natural calamity rendering the
Backbone Route or Spur Route Right-of-Way, or portions thereof, unusable,
of any portion or portions of said Backbone Route or Spur Right-of-Way,
within which TELERGY shall have installed
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its Facilities, NIAGARA shall give TELERGY written notice of any such
abandonment as soon as practical before any such abandonment ("Involuntary
Notice").
19.3 In any event, where the NIAGARA abandonment is voluntary, TELERGY
shall have the option to continue to use the affected Right-of-Occupancy,
to the extent possible. If TELERGY should exercise such option to continue
to use a NIAGARA abandoned Right-of-Way, TELERGY shall thereafter be
responsible for the maintenance of the applicable Right-of-Way.
19.4 If an abandoned portion of the Backbone Route or Spur Route
Rights-of-Way shall be acquired, obtained, or sold to any entity other than
TELERGY, such sale shall be subject to the existing Rights-of-Occupancy and
the rights granted to TELERGY under this Agreement. The obligations of the
respective parties under this article shall survive the Expiration Date in
respect of any occurrences within the Term.
20 NIAGARA'S EXPENSES AND EMPLOYEE COSTS
20.1 NIAGARA's costs and expenses for [***].
20.2 Such expenses indicated in Section 21.1 shall include, but not be
limited to [***].
21 INDEPENDENT CONTRACTOR STATUS
NIAGARA reserves no control whatsoever over the employment, discharge,
compensation of or services rendered by TELERGY's employees or contractors,
and it is the intention of the parties that TELERGY shall be and remain, an
independent contractor and that nothing herein shall be construed
inconsistently with TELERGY's status as an independent contractor or as
creating or implying any partnership or joint venture between NIAGARA and
TELERGY.
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on this page. The omitted portions have been filed separately with the
Securities and Exchange Commission.
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22 TAXES
22.1 TELERGY shall pay all transfer taxes, documentary stamps, recording
costs or fees, or any similar expense in connection with the recording or
filing of any memoranda or short form of the Agreement describing the
Right-of-Occupancy granted to TELERGY hereby.
22.2 TELERGY further agrees that if it is determined by any state or
local governmental authority that the sale, acquisition, license, grant,
transfer or disposition of any part or portion of the Rights-of-Occupancy
herein described requires the payment of any taxes, including but not
limited to sales, use, real property transfer gains taxes, or tax on the
furnishing of utility services under any statute, regulation or rule,
TELERGY shall pay the same, plus any penalty or interest thereon, directly
to said taxing authority, and shall defend and hold NIAGARA harmless
therefrom; provided, however, TELERGY's said obligation to hold NIAGARA
harmless shall not apply to any penalty or interest due in respect of the
delinquent payment of any such tax where the delinquency shall result due
to NIAGARA's failure to promptly notify TELERGY of any known assessment
and/or levy of such tax and/or to send TELERGY any invoice or xxxx in
respect thereof.
22.3 TELERGY shall pay all annual or periodic real property, personal
property, gross receipts, franchise tax or other taxes levied or assessed
upon the Right-of-Occupancy, Backbone Network, or Telecommunications
System, or on account of their existence, and shall indemnify, defend and
hold harmless NIAGARA against the payment thereof. TELERGY shall be
responsible for the filing of any and all returns or other filings in
respect of such personal property taxes.
22.4 NIAGARA shall indemnify and hold harmless TELERGY from and against
any annual or periodic taxes levied or assessed in respect of the
Rights-of-Way, exclusive of the Right-of-Occupancy, Backbone Network, or
Telecommunications System, including net income taxes, increases in such
taxes.
22.5 To the extent that NIAGARA is required to make any kind of
submission or filing with any governmental or regulatory authority which
could effect the amount of any tax that TELERGY must pay pursuant to this
Agreement, NIAGARA shall coordinate such submission or filing, and the
information contained therein, with TELERGY. Further, NIAGARA agrees that
it shall provide TELERGY prompt notice of the receipt of any notice of
assessment in respect of the Rights-of-Way, or any portion thereof, which
may include as an increment of the amount of such assessment a sum which is
attributable to this Agreement and/or the Backbone Network.
22.6 TELERGY shall have the right to protest any such levy or assessment
in respect of any such tax or other fee or charge which TELERGY is
obligated to pay in accordance with the Agreement, or to make claim for
refund, rebate, reduction or abatement of any of said
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taxes. Further, TELERGY shall have the right to protest any assessment of
which it has been given notice pursuant to this Section. NIAGARA shall
cooperate, where appropriate, with TELERGY, at TELERGY's cost and expense,
including reasonable attorney's fees, in the prosecution of any protest
regarding the assessment and/or levy or any claim for refund, rebate,
reduction or abatement of said taxes.
23 NOTICES
23.1 Any notice to be given to NIAGARA under this Agreement shall be sent
by certified mail or overnight express delivery:
(one copy each to):
(1) Director-Net. Mgmt. & Comm.
NIAGARA Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
and
(2) NIAGARA Project Mgr. - TELERGY Project
Network Management & Comm. Department
NIAGARA Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
23.2 Any notice given to TELERGY under this Agreement shall be sent by
certified mail or overnight express delivery:
(one copy each to):
(1) KCI Network Services, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx 00000
and
(2) Plum Street Enterprises
Vice-President of Mass Marketing
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
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23.3 Notice shall also be given to such other parties as may be designated
in writing to the other party.
23.4 Unless otherwise herein set forth, notices shall be sent, postage
prepaid, either by registered or certified U.S. Mail, Return Receipt
Requested, or by overnight express delivery service, and shall be deemed
served or given when received by the addressee, as evidenced by the date of
the Return Receipt or the receipt provided by the delivery service.
23.5 In case of an emergency demanding immediate examination or repairs of
the Facilities by NIAGARA, notice shall be given by either party to the
other in person or by telephone to the emergency response center designated
in writing by each party to the other. Each party giving such notice shall
follow up with written notice within three (3) business days.
23.6 During the maintenance and operation phase, in order to secure safety
of NIAGARA's operations, employees and crews, and of TELERGY employees
and/or contractors, Entry Notices shall be given to NIAGARA's appropriate
Regional Control Operator by TELERGY.
24 LIABILITIES AND INDEMNIFICATION
24.1 To the fullest extent permitted by law, TELERGY (in this Section 24
sometimes referred to as "Indemnitor") agrees to defend, indemnify and save
NIAGARA, its agents and employees (sometimes referred to as "Indemnitee")
harmless from and against any and all liabilities, cost, suit charge,
expenses, claims, losses, damages, cause of action, bodily injury or death
of any person whomsoever, including employees of the parties, or damage to
any property, real and personal, including environmental damages, and
economic damages to property of NIAGARA or TELERGY, whether owned, leased
or licensed, including but not limited to TELERGY's Facilities, and all
costs and expenses, including, but not limited to attorneys' fees and
disbursements incurred or sustained by the Indemnified party in any action
or proceeding between Indemnitor and the Indemnified party, or between the
Indemnified party and any third party, or otherwise incurred or sustained
in enforcing this indemnification, caused by, arising out of or in any way
connected with this Right-of-Occupancy or the construction, installation or
subsequent operation, maintenance, repair, replacement, reinstallation,
relocation or removal of TELERGY's Backbone Network, Telecommunications
System, or its Facilities, unless such loss, injury or damage shall have
resulted solely from the reckless or deliberate act or omission to act of
NIAGARA or its agents, employees or contractors.
24.2 To the fullest extent permitted by law, NIAGARA agrees to defend,
indemnify and save TELERGY harmless from and against any and all claims,
losses, damages, bodily injury or death of any persons whomsoever,
including employees of the parties, or damage to any property, including
property of NIAGARA or TELERGY, whether owned, leased or licensed,
including TELERGY's Facilities, excluding damages to TELERGY's Facilities
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occasioned by emergency actions of NIAGARA, and all costs and expenses,
including, but not limited to attorneys' fees and disbursements incurred or
sustained by the Indemnified party in any action or proceeding between
Indemnitor and the Indemnified party, or between the Indemnified party and
any third party, or otherwise incurred or sustained in enforcing this
indemnification, caused by, arising from or growing out of the negligent
act or omission to act of NIAGARA or its agents, employees or contractors.
24.3 Either party ("Indemnitor") shall have the right to defend the
other party ("Indemnitee"), by counsel of the Indemnitor's selection
reasonably satisfactory to the other party ("Indemnitee"), with respect to
any claims within the indemnification provisions hereof. The parties shall
give each other prompt notice of any asserted claims or actions indemnified
against, shall cooperate with each other in the defense of any such claims
or actions and shall not settle any such claims or actions without the
prior consent of the indemnifying party ("Indemnitor").
24.4 Except for third-party bodily injury, personal injury or property
damage obligations, neither of the parties shall be liable to the other for
special, consequential or exemplary damages (including, without limitation,
any claims from any client, customer or patron of either party for loss of
services) arising under this Agreement or from the breach of any of the
provisions hereof.
24.5 The obligations of the respective parties under this Section 24
shall survive the expiration date in respect of any occurrences within the
term. Furthermore, TELERGY understands and agrees that it is responsible
for any and all costs and expenses incurred by NIAGARA to enforce this
indemnification provision. The obligations set forth herein shall survive
completion of the work and termination of this contract for any reason.
24.6 TELERGY shall take prompt action to defend and indemnify NIAGARA
against claims, actual or threatened, but in no event later than the
service of a summons, complaint, petition or other service of process
against NIAGARA alleging damage, injury, liability or expenses attributed
in any way to this Agreement, the Work, or the acts, fault, negligence,
equipment, facilities, personnel, or property of TELERGY, its agents,
employees, subcontractors or suppliers. TELERGY shall defend any such claim
or threatened claim, including as applicable, engagement of legal counsel,
to respond to, defend, settle or compromise any claim or threatened claim.
25 INSURANCE
25.1 From the commencement of the Work, through the term of this
Agreement or longer where specified, TELERGY shall provide at its own
expense, insurance policies with coverages intended to be primary, issued
by reputable insurance companies acceptable to NIAGARA which meet or exceed
the requirements listed herein.
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(a) Workers Compensation and Employers Liability Insurance
required by the State of New York. Coverage shall include the
U.S. Longshoremen's and Harbor Workers Compensation Act and the
Xxxxx Act.
(b) Public Liability, covering all operations to be performed
under this Agreement, with minimum limits of:
- Bodily Injury $1,000,000/$1,000,000
- Property Damage $ 500,000/$ 500,000
OR
- Combined Single Limit $1,000,000
OR
- BI & PD per occurrence $1,000,000
- General Aggregate and
Product Aggregate $2,000,000
25.2 This policy shall include Contractual Liability, Products-Completed
Operations and Explosion, Collapse and Underground (XCU) coverage. If the
Products-Completed Operations coverage is written on a Claims-made basis,
coverage shall be maintained continuously for at least two (2) years after
final acceptance of the work.
25.3 Automobile Liability, covering all owned, non-owned and hired
vehicles used in connection with the work to be performed under this
Contract with minimum limits of:
- Bodily Injury $300,000/$500,000
- Property Damage $100,000
OR
- Combined Single Limit $500,000
25.4 Protective Liability Policy in the name of NIAGARA covering all work
performed under the contract, with limits as specified in Section 25.1. In
lieu of providing this coverage, TELERGY may include NIAGARA as an
additional insured under the public liability policy to provide coverage
for, but not limited to, the liability arising out of TELERGY's work under
this Agreement.
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25.5 Watercraft Liability, if the Work requires the use of watercraft, with the
same limit of liability of not less than $1,000,000 combined single limit.
25.6 Aircraft Liability, if Work requires the use of aircraft, with a limit of
liability of not less than $1,000,000 combined single limit.
25.7 At the request of NIAGARA, TELERGY shall provide Professional liability
coverage with a limit of liability to be determined by NIAGARA's Risk Management
Department.
25.8 In the event TELERGY uses subcontractors in connection with this
Agreement, it shall require all subcontractors to provide the same insurance
coverage as required in Section herein.
25.9 Prior to starting work, TELERGY shall promptly provide NIAGARA with the
original Owner's Protective Liability policy and Certificate(s) of Insurance for
all other coverages required herein at the following address:
Niagara Mohawk Power Corporation
ATTN: Risk Management/Building C-1
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Such certificates, and any renewals or extensions thereof, shall provide that at
least thirty (30) days prior written notice shall be given to NIAGARA in the
event of any cancellation or diminution of coverage, except in respect of
non-payment of premiums, in which event NIAGARA shall receive ten (10) days
prior notice. Such certificate(s) of insurance shall outline the amount of
deductible or self-insured retentions which shall be for the account of TELERGY.
Such deductibles of self-insured retentions shall not exceed one-hundred
thousand (100,000) dollars unless agreed to in writing by NIAGARA's Risk
Management Department.
25.10 If any policy should be canceled prior to the period set forth in this
Agreement, and TELERGY fails immediately to procure other insurance as specified
herein, NIAGARA reserves the right to procure such insurance and to charge the
cost to TELERGY.
25.11 TELERGY shall furnish NIAGARA with copies of any accident reports sent to
TELERGY's insurance carriers covering accidents occurring in connection with or
as a result of the performance of work under this Agreement.
25.12 These requirements are in addition to any which may be required elsewhere
in the Contract. TELERGY shall comply with any governmental and/or site specific
insurance requirements even if not stated herein.
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25.13 Nothing contained in these insurance requirements shall be
construed as limiting the extent of TELERGY's responsibility for payment
of damages resulting from its work under the Purchase Order, or under this
Agreement, or limiting, diminishing or waiving TELERGY's obligations to
defend and save harmless NIAGARA in accordance with Section 24.
25.14 The maintenance of the insurance hereinabove specified shall not
limit either party's liability under this Agreement, but shall be
additional security therefor.
25.15 All insurance shall be effected by valid and enforceable policies
issued by insurers of responsibility and licensed to do business in the
State of New York, such responsibility and the insuring agreements to meet
with the reasonable approval of NIAGARA and TELERGY.
25.16 The limits of the policies required hereunder shall be increased
from time to time by agreement of the parties to meet changed
circumstances including, but not limited to, changes in the purchasing
power of the dollar and the course of plaintiff's verdicts in personal
injury actions; provided, however, such limits shall not be increased more
frequently than every five (5) years.
25.17 In recognition of the potential for changes in the insurance
market and the availability and cost of insurance, the parties hereby
expressly agree that, in the event that either (i) the insurance required
of TELERGY hereunder shall cease to be available (either as to limits or
coverages) or (ii) such insurance shall be available only at excessive
cost, the parties shall agree upon alternative policy limits and/or
coverages, as well as appropriate levels of self-insurance for TELERGY.
25.18 Nothing in this Section 25 shall be construed as to prevent
TELERGY from satisfying its insurance obligations pursuant to this
Agreement under a blanket policy or policies or pursuant to a decision to
self insure which meets or exceeds the requirements hereof. In the event
of self insurance, NIAGARA shall receive from TELERGY written notification
indicating such coverage thirty (30) days prior to implementation of self
insurance and thirty (30) days prior to any change in such self insurance
status.
25.19 TELERGY shall be responsible for obtaining property insurance,
at its own cost and expense, covering all real and personal property used
in connection with this Agreement, with minimum limits of liability
customarily maintained by other Persons of similar size and business.
26 LIENS
26.1 In the event that any property of NIAGARA shall become subject
to any mechanics' artisan' or materialmans' liens chargeable to or through
TELERGY, TELERGY shall promptly cause such lien to be discharged and
released of record, by payment, posting of
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bond, court deposit or other means, without cost to NIAGARA and shall
indemnify NIAGARA against all costs and expense, including reasonable
attorneys' fees, reasonably incurred in discharging and releasing such
lien; provided, however, that if any such lien is not so discharged and
released within thirty (30) days after notice thereof by NIAGARA to
TELERGY, or within such shorter period as shall be mandated under
applicable local law, then NIAGARA may pay or secure the release or
discharge thereof at the expense and cost of TELERGY.
26.2 Nothing herein shall preclude TELERGY and/or NIAGARA as the case may
be from contesting any such lien or the contract or action upon which the
same arose after the same shall have been bonded as described above.
27 AMENDMENTS
27.1 Each party shall be responsible for its own costs, including legal
fees, incurred in negotiating or finalizing this Agreement.
27.2 Neither this Agreement nor any term or provision hereof can be
amended, waived, modified, supplemented, discharged or terminated, except
by an instrument in writing signed by the party against which enforcement
thereof is sought.
27.3 This Agreement and any amendment, modification, waiver or supplement
hereto may be executed by the parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original for all
purposes, but all such counterparts shall together constitute but one and
the same instrument.
28 CONFIDENTIALITY
28.1 NIAGARA and TELERGY agree to respect the confidentiality of this
Agreement and materials used or prepared in connection herewith, and shall
restrict the distribution of this Agreement and all maps, material,
documents and information identified in this Agreement as confidential,
only to those persons designated to implement the provisions hereof and
their respective counsels, consultants and advisors; provided, however
that any such disclosure to persons who are not employees and counsel(s)
of the parties shall be made only after such persons have executed a
written agreement to be bound by the terms of this Section and shall not
further disclose confidential information to additional persons absent
written agreement from the parties hereto. The parties further agree that
they shall not disclose or furnish to any third parties copies of this
Agreement or any materials referred to herein, without the prior written
consent of the other party hereto, except as shall be necessary in order
to implement the provisions hereof, including the construction of the
System, securing the necessary approvals therefor, and the financing of
the System, and except as required by Court order
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or as otherwise required by law, the New York State Public Service
Commission or any other governmental entity or in any legal proceedings
relating to this Agreement.
28.2 Notwithstanding to the contrary, either party shall notify the other,
as soon as practicable, in the event that any disclosure request as
contemplated in Section 28.1 would require disclosure of confidential
material provided by any one party to the other hereunder and the party so
notified shall have the right to formally dispute any such disclosure of
such confidential material where such disclosure would unreasonably harm,
prejudice, or destroy such party's proprietary interest, the information
requested is not rationally related to the purpose for which such
information is sought, or such party could submit other non-confidential
information that could satisfy the request. Any such party may petition
for exemption from Freedom of Information Act or other similar disclosure
requirements, for "in camera" inspection of such confidential information,
or for other limitations on the disclosure of confidential information.
28.3 Neither party shall have the right to obtain any information or
documents from the other which are not material to the provisions or
implementation of this Agreement.
28.4 The parties recognize that this Agreement and the materials and
documents referred to herein, may contain information which a reasonably
informed person would recognize as confidential, insider information which
should be handled accordingly.
28.5 The parties agree that in distributing copies or portions of these
materials to person necessary to implement the same, such copies shall be
clearly marked or indicated as "confidential" and prohibiting further
distribution, copy or reproduction of the same.
28.6 In the event of an actual or threatened disclosure of such
information by either party, its agents, employees, or contractors, which
might cause irreparable harm to the other party, it is agreed that
monetary remedies available at all may be inadequate and, therefore, the
aggrieved or threatened party shall be entitled to receive injunctive
relief as an equitable remedy.
28.7 The obligations of the parties under Section 28 shall survive the
expiration date for a period of ten (10) years.
29 DISPUTES
29.1 It is the intent of the parties that disputes which may arise between
them, or between employees of each, be resolved as quickly as possible, and
may, in certain instances, involve decisions made on the spot. When such
resolution is not possible, and depending upon the nature of the dispute
and the phase of installation of the Facilities and System, the parties
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agree to seek to resolve such disputes, insofar as they do not constitute a
breach or default under this Agreement, in the manner set forth in this
section.
29.2 Questions as to the right of access to the Right-of-Occupancy
within a Right-of-Way during design, planning, construction, installation,
maintenance and operational phases, or access to or copies of NIAGARA's
documents, shall in all instances be referred initially to the designated
or authorized representative of NIAGARA, which representative shall render
such decision within a reasonable period. Decisions of such designated or
authorized representative shall be referable by TELERGY to NIAGARA's
Engineer.
29.3 Any other dispute between the parties shall be referred
initially to NIAGARA's Engineer for decision, which shall be rendered in
writing within a reasonable period time.
29.4 The parties agree that neither shall proceed against the other
by litigation or otherwise before the offending party has had notice of and
reasonable time and opportunity to respond to and/or cure any breach or
default hereunder.
29.5 TELERGY agrees to give testimony or depositions, either in court
or before other tribunals in connection with any matters covered by this
Agreement.
30 COVENANTS OF THE PARTIES
30.1 Except as otherwise provided, each of the parties represents,
warrants and covenants to the other that: (i) it has full right and
authority, including any requisite corporate approvals, to enter into and
to perform its respective obligations under this Agreement; (ii) the
execution of this Agreement is not violative of its charter, by-laws or
any laws or regulation by which it is bound or to which it subject; (iii)
no litigation or governmental proceeding is pending or threatened which
might adversely affect this Agreement, the transactions contemplated by
this Agreement, or the rights of the parties hereunder.
31 PUBLIC SERVICE COMMISSION APPROVAL REQUIRED
31.1 TELERGY's and NIAGARA's performance under this Agreement are
contingent upon approval by the NIAGARA Board of Directors and a favorable
determination by the New York Public Service Commission and any authorized
Federal or State agency, from which determination TELERGY shall not seek
appellate review, absent NIAGARA approval, which shall not be withheld
unreasonably.
31.2 In the event that the necessary regulatory approvals are not
obtained, either party shall have the option of terminating this Agreement
on or before July 31, 1996 by written notice to the other party pursuant
to the Notice provisions set forth in Section 28.
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32 MISCELLANEOUS PROVISIONS
32.1 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understanding of such parties in connection herewith. It may not be
modified or amended nor may any obligation of either party be changed or
discharged except in writing signed by the duly authorized officer or
agent of the party to be charged. Notice of changes in any applicable
tariffs will be provided in accordance with Section 24. Currently
effective Right-of-Occupancy or Licenses, if any, issued pursuant to
previous agreements shall remain in effect as if issued pursuant to this
Agreement.
32.2 Choice of Law. This Agreement shall be governed by, and interpreted
according to, the laws of the State of New York, without giving effect to
the principles of conflicts of law. No claim, demand, action, proceeding,
arbitration, litigation, hearing, motion or lawsuit arising from, related
to, or connected with this Agreement shall be commenced or prosecuted in
any jurisdiction other than courts in the State of New York, and any
judgment, determination, order, finding or conclusion reached in any other
jurisdiction shall be null and void between the parties hereto.
32.3 Consents. No consent or approval required of any party pursuant to
this Agreement shall be unreasonably withheld or delayed.
32.4 Construction of Agreement. The Section headings in this Agreement and
the Table of Contents hereof are for convenience of reference only and
shall neither be deemed to be a part of this Agreement nor modify,
define, expand or limit any of the terms or provisions hereof. All
references to numbered Sections, unless otherwise indicated, are to
Sections of this Agreement. Words and definitions in the singular shall
be read and construed as though in the plural and vice versa, and words
in the masculine, neuter or feminine gender shall also be read and
construed as though in either of the other genders.
32.5 No Waiver. Any waiver by either party at any time of any of its
rights as to anything contained herein shall not be deemed to be a waiver
of the same or similar right at a subsequent time. The failure of any
party to seek redress for violation of or to insist upon the strict
performance of any covenant or condition of this Agreement shall not
prevent a subsequent act, which would have originally constituted a
violation, from having the effect of any original violation.
32.6 Force Majeure. Any failure of either party to perform its
obligations under this Agreement shall not be a breach of this Agreement
if such failure results from Acts of God, governmental action that did
not result from wrongdoing by the party involved in such governmental
action, or labor strikes that could not reasonably be avoided by the
party subject to such labor strike.
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32.7 Remedies. The rights and remedies provided by this Agreement are
cumulative and the use of any one right or remedy by any party shall not
preclude or waive its right to xxx on any or all other remedies. Said
rights and remedies are given in addition to any other rights such party
may have by law, statute, ordinance or otherwise, except as such remedies
are expressly limited in this Agreement.
32.8 Severability. Any provision of this Agreement which is invalid,
illegal or unenforceable in any manner in any jurisdiction shall be, as to
such jurisdiction, ineffective to the extent of such invalidity,
illegality or unenforceability without in any ways affecting the validity,
legality or enforceability of the remaining provisions hereof, and any
such invalidity, illegality or unenforceability in any jurisdiction shall
not invalidate or in any way affect the validity, legality or
enforceability of such provision in any other jurisdiction.
32.9 Compliance. NIAGARA and TELERGY shall at all times observe and
comply with the provisions of this Agreement, and such provisions are
subject to all laws, ordinances, contracts and regulations which in any
manner affect the rights and obligations of the parties herein.
32.10 No Merger. There shall be no merger of this Agreement or the
Rights-of-Occupancy hereby granted with the fee estate in a Right-of-Way
by reason of the fact that this Agreement, and the Rights-of-Occupancy
created by this Agreement, or any interest in this Agreement or in any
such Rights-of-Occupancy, may be held, directly or indirectly, by or for
the account of any person who shall own the fee estate in a Right-of-Way
or any interest in such fee estates, and no such merger shall occur unless
and until all persons having an interest in this Agreement, and in the
Rights-of-Occupancy created by this Agreement, shall join in a written
instrument effecting such merger and shall duly record the same.
32.11 Binding Agreement. Subject to Section 16.2, the provisions of this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, successor, and assigns.
32.12 Acts In Furtherance Of Agreement. NIAGARA and TELERGY each agree
to do such other and further acts and things, and to execute and deliver
such additional instruments and documents, not creating any obligations,
or imposing any expenses, additional to those otherwise created or imposed
by this Agreement, as either party may reasonably request from time to
time whether at or after the execution of this Agreement, in furtherance
of the express provisions of this Agreement.
32.13 Drug And Alcohol Abuse Policy. TELERGY personnel, its agents and
contractors shall be fit for duty at all times during their performance of
any activities pursuant to this Agreement, and shall not be under the
influence of alcohol or drugs. TELERGY's personnel, agents and contractors
shall not bring, use, distribute, sell or possess alcoholic beverages or
illegal drugs during the performance of any activities on NIAGARA
property. TELERGY
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shall not assign any individual who is in violation of this policy to
perform and activities pursuant to this Agreement, and if TELERGY
discovers any individual is in violation of these requirements, it shall
immediately remove any such person from the performance of activities
and/or NIAGARA property. Violation of these requirements by TELERGY
personnel, agents and contractors shall result in denial of access to
NIAGARA property, facilities and equipment and, in the case of possession,
use or sale of illegal drugs, shall be reported to NIAGARA's Security
Department immediately.
32.14 Intellectual Property Sole Property of Niagara. All information,
analyses, conclusions, reports, drawings, specifications ("Information")
developed, obtained, or prepared by either party pursuant to this
Agreement shall be the sole property of NIAGARA, provided however that
Working Drawings developed and prepared by TELERGY shall be the sole
property of TELERGY subject to the Confidentiality Provisions set forth in
Section 28 herein.
32.15 Patent, Copyright and Trademark Infringement. All royalties for
any patent, invention, article, name, symbol, logo or arrangement that may
be furnished by TELERGY and used or embraced in TELERGY Facilities shall be
paid solely by TELERGY. TELERGY shall protect and save harmless NIAGARA
against any and all claims, demands, proceedings, judgments, orders and
costs, including legal fees and disbursements, on account of any such
royalty or fee and shall pay all judgments against NIAGARA resulting
therefrom before they become enforceable liens against NIAGARA property.
Should any suits for infringement of patents, copyrights or trademarks be
brought against NIAGARA, TELERGY shall give a bond in amount and with
sureties satisfactory to NIAGARA to indemnify NIAGARA against any
judgments, costs, and attorneys' fees and disbursements. Should any
injunction be threatened or issued, TELERGY shall promptly secure
dissolution thereof by giving bond or otherwise or, a NIAGARA's option,
shall promptly cease use of the article, arrangement, invention, name or
logo that is subject to such dispute.
33 ENVIRONMENTAL HAZARD LIABILITY
33.1 Upon TELERGY's furnishing to NIAGARA appropriate plans and
drawings of its planned facilities and the allowance of a reasonable
amount of time for NIAGARA to review such plans, NIAGARA agrees to
promptly inform TELERGY of any such hazardous or toxic waste areas,
whether or not designated as such by the Environmental Protection Agency
or any other similar federal, state or local authority, of which NIAGARA's
Environmental Affairs Department, Syracuse, New York, has knowledge of or
of which such Department may subsequently learn with respect to the
Backbone Route. If such hazardous or toxic waste areas are located on land
owned by NIAGARA in fee, NIAGARA agrees to defend, indemnify and hold
TELERGY harmless from any and all claims, fines and actions arising out of
the existence of any such hazardous or toxic waste areas or the obligations
which may now or hereafter be imposed, statutory or otherwise, to remove
therefrom or otherwise neutralize or contain, any such toxic or hazardous
substances, unless such liability is: (i) created by a
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release by TELERGY or its agents, employees, contractors or subcontractors
of a toxic or other hazardous substance into the environment, (ii) created
by TELERGY's or its agents', employees', contractors', subcontractors'
disturbance of a pre-existing condition within the Right-of-Way of which
TELERGY had knowledge provided that NIAGARA shall disclose to TELERGY all
such pre-existing conditions within the Backbone Route known to NIAGARA,
or (iii) created by TELERGY's or its agents', employees', contractors' or
subcontractors' disturbance of a pre-existing condition within the
Right-of-Way where the condition was not previously known by NIAGARA.
33.2 No Toxic Materials. TELERGY shall not place any material on
NIAGARA's Right-of-Way or facilities that is recognized by appropriate
governmental authority as toxic/hazardous material, equipment and waste.
33.3 In the event TELERGY discovers, or has knowledge of hazardous or
toxic waste areas, whether or not designated as such the Environmental
Protection Agency or any other similar federal, state or local authority,
it shall immediately stop work if discovered during construction, and
notify the designated representative of NIAGARA's Environmental Affairs
Department in Syracuse, New York.
33.4 NIAGARA also agrees to promptly inform TELERGY of any other uniquely
sensitive and protected environmental resources along the Backbone Route
which is known to NIAGARA's Environmental Affairs Department, Syracuse,
New York.
33.5 In the event any such hazardous or toxic waste areas or any other
regulated environmental resources (including, but not limited to regulated
wetlands, protected streams, navigable waters, rare, threatened,
endangered or protected species or species habitats, sensitive
archaeological sites, etc.) are identified with respect to the Backbone
Route, their location shall be included on the "As Built Drawings"
furnished to NIAGARA in accordance with Section 12.1 of this Agreement.
34 EQUAL EMPLOYMENT OPPORTUNITIES
34.1 The provisions of the following laws, Executive Orders, and any
rules and regulations issued thereunder, are incorporated herein by
reference as part of the Agreement:
(a) Paragraphs one (1) through seven (7) of Section 202 of
Executive Order 11246, as amended, relating to equal opportunity
in employment under government contracts and subcontracts;
(b) Section 2012 of Title 38 of the United States Code and
Executive Order 11701, as amended, relating to affirmative action
obligations of
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government contractors and subcontractors for disabled veterans and
veterans of the Vietnam era;
(e) Section 03 of the Rehabilitation Act of 1973, and Executive Order
1178, as amended, relating to affirmative action obligations of
government contractors and subcontractors for handicapped workers;
and
(d) The Human Right Law of the State of New York (Article 1 of the
Executive Law).
34.2 The parties agree to fully comply with such provisions, and any
amendments thereof. In addition, all subcontractors and agreements that the
parties enter into to accomplish the work under the terms of this Agreement
shall obligate such subcontractors to comply with such provisions.
34.3 FEDERAL SUBCONTRACTING REQUIREMENTS
(a) The provisions of the following laws, Executive Orders, and any
rules and regulations issued thereunder, are incorporated herein by
reference as part of this Agreement;
(b) Executive Order 1162, as amended, relating to utilization of
minority business enterprises in the performance of government
contracts and subcontracts;
(c) Executive Order 12138, as amended, relating to utilization of
women-owned businesses in the performance of government contracts and
subcontracts; and
(d) Section 211 of Public Law 9-07, as amended, relating to
utilization of small business concerns and small disadvantaged
business concerns in the performance of government contracts and
subcontracts.
(e) The parties agree to fully comply with such provisions and any
amendments thereof. In addition, all subcontracts and agreements
the parties enter into to accomplish the work under the terms of this
Agreement shall obligate such subcontractors to comply with such
provisions.
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35 AUDIT AND MAINTENANCE OF RECORDS
35.1 At TELERGY's expense, NIAGARA has the right, upon ten (10) day
written notice to TELERGY, to audit TELERGY's books and records at
the location where such books and records are maintained insofar as
they pertain to the terms and conditions of this Agreement. The
audits will be performed during normal business hours 9:00 a.m. to
5:00 p.m., Monday through Friday. Such audits may be performed by
NIAGARA's employees or by professional auditing firms or both.
36 WARRANTIES
36.1 NIAGARA makes no representation as to the full continuity of
its Backbone Route or Spur Route Rights-of-Way. TELERGY recognizes
that NIAGARA acquired some portions of its Rights-of-Way many years
ago prior to the personal knowledge of existing NIAGARA employees,
and for that reason, NIAGARA cannot warrant that it has complete
title in fee simple, easement or otherwise. NIAGARA will make
available to TELERGY for its review all agreements and other
documents in NIAGARA's possession in respect of NIAGARA's right,
title and interest in and to its Backbone Route and Spur Route
Rights-of-Way. In the event that TELERGY shall determine in its
reasonable judgment that any part or all of NIAGARA's right, title
and interest in and to its Rights-of-Way shall be inadequate for use
in conjunction with the transaction contemplated hereby, NIAGARA at
its option may take, at TELERGY's expense, such action as TELERGY
determines to be necessary to correct such inadequacies. Further,
NIAGARA will at all times following execution of this Agreement and
during the term of Agreement provide such cooperation and assistance
as TELERGY may reasonably request in respect of issues or problems
regarding use of the NIAGARA Rights-of-Way for the purposes
contemplated herein.
36.2 TELERGY warrants that the Facilities connected with, necessary
for, or useful, to the NIAGARA Capacity provided for in Section 13
shall be operational and functional on or before the dates specified
in Section 9.5 herein.
36.3 TELERGY acknowledges that all work, including but not limited
to any construction and maintenance activities, to be performed in
connection with this agreement poses great hazards to human beings
and personal property. TELERGY warrants that it will make its
employees, agents and contractors aware of these hazards as well as
the potential consequences associated with exposure to these hazards.
Furthermore, TELERGY warrants that it has full responsibility for any
and all injury and damages to persons or property resulting from
these hazards and any failure by TELERGY to advise its employees,
agents or contractors as required herein.
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37 SURVIVAL
37.1 The provisions of this Agreement shall survive granting of the
Rights-of-Occupancy provided for herein and delivery of this Agreement for
recording, if such recording is necessary to effectuate the rights granted
herein.
38 END-OF-TERM
38.1 At the expiration of the Term, TELERGY shall remove its Facilities
excluding any buried cable(s), conduit, buried appurtenances associated
with the cable installation (but does not include building foundations/
structures), or any other material and/or equipment as outlined in Section
12A, from the Right-of-Occupancy and restore any material damage resulting
from such removal.
38.2 Except for the NIAGARA Capacity, NIAGARA acknowledges, confirms and
agrees that all of the Facilities at any time and from time to time
installed by or on behalf of TELERGY within the Backbone Route or Spur
Route Rights-of-Way shall at all times be and remain personal property of
TELERGY regardless of the manner or mode of installation thereof and shall
at all times during and within a reasonable period after the expiration of
the Term be removable by TELERGY with the exception of any F.O.G. Wire,
which, at TELERGY's option may either be removed and replaced with a Static
Wire at TELERGY's expense or abandoned in place.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate on the date and year first above written.
Date: 2/2/96 /s/ X. X. Xxxxxx
-------------------- ---------------------------------------
NIAGARA MOHAWK POWER CORP.
By: X. X. Xxxxxx
------------------------------------
Title: VP - Electric Delivery
---------------------------------
Date: 2/2/96 ---------------------------------------
-------------------- TELERGY JOINT VENTURE
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: C.E.O
---------------------------------
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