Exhibit 10.26
AGREEMENT FOR THE PROVISION OF
FIBER OPTIC FACILITIES AND SERVICES
BETWEEN
ALABAMA POWER COMPANY AND
SOUTHERN INTEREXCHANGE FACILITIES, INC.
APC CONTRACT NUMBER SI001
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TABLE OF CONTENTS
ARTICLE PAGE
1 Definition........................................................... 1
2 Engineering and Design............................................... 3
3 Construction and Installation........................................ 4
4 Operation, Maintenance and Repair.................................... 5
5 Costs and Installments............................................... 7
6 Services and Facilities.............................................. 8
7 Use of Fibers........................................................ 9
8 Approvals and Consultation........................................... 10
9 Term................................................................. 11
10 Ownership of the Cable and Equipment................................. 11
11 Casualty............................................................. 13
12 Restoration in the Event of Outages.................................. 14
13 Alteration of Route.................................................. 14
14 Access and Security.................................................. 15
15 Expenses............................................................. 15
16 Confidentiality...................................................... 16
17 Other Activities of the Parties...................................... 16
18 Compliance with Laws................................................. 17
19 Force Majeure........................................................ 17
20 Dispute Resolution................................................... 18
21 Conditions Precedent................................................. 18
22 Assignment........................................................... 19
23 Amendment............................................................ 19
24 Binding Effect; Limitation of Benefits............................... 19
25 Notices.............................................................. 19
26 Publicity and Advertising............................................ 21
27 Severability......................................................... 21
28 Independent Contractors.............................................. 21
29 Labor Relations...................................................... 21
30 Benefited Parties.................................................... 22
31 Exercise of Right.................................................... 22
32 Additional Actions and Documents..................................... 22
33 Survival............................................................. 23
34 Headings............................................................. 23
35 Incorporation of Exhibits............................................ 23
36 Governing Law........................................................ 23
37 Counterparts......................................................... 23
38 Entire Agreement..................................................... 23
Signatures.......................................................... 23
i
AGREEMENT FOR THE PROVISION OF
FIBER OPTIC FACILITIES AND SERVICES
THIS AGREEMENT (hereinafter referred to as the "Agreement"), effective as
of the 29 day of MAR, 1990, between SOUTHERN INTEREXCHANGE FACILITIES, INC.
(hereinafter referred to as "SI"), an Alabama corporation with its principal
place of business located at 000 0/0 Xxxxx Xxxx, Xxxx, Xxxxxxx 00000, and
ALABAMA POWER COMPANY, (hereinafter referred to as "APC"), an Alabama
corporation with its principal place of business located at 000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, sets forth the terms and conditions for the
provision of certain telecommunications facilities and services as hereinafter
described.
W I T N E S S E T H
WHEREAS, APC for its own use has placed or will place fiber optic cable in
the static wire as part of APC's electric transmission operations along certain
of their transmission lines, which APC utilizes to operate a fiber optic
transmission system; and
WHEREAS, SI desires to obtain fiber optic telecommunications transmission
capacity in certain of the areas in which APC's electric transmission lines are
located; and
WHEREAS, SI desires to obtain from APC, and APC is willing to provide to
SI, the right to use certain designated fibers; and
WHEREAS, the parties desire to define the terms and conditions under which
said user rights will be accomplished; and
WHEREAS, the transactions reflected in this Agreement are unique and unlike
any previous transactions between the parties;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and promises hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1. DEFINITIONS
1.1 Additional Fibers - The optical fibers which are to be part of the SI
System and which are to be dedicated exclusively to SI's use as provided herein.
The numbers of Additional Fibers for each Route Segment are set forth in Exhibit
A, attached hereto.
1.2 Affiliated Carriers - Unless the context otherwise requires, the term
"Affiliated Carriers" of SI includes only the following: Consolidated
Communications Corporation, Inc., Southern Interexchange Facilities, Inc.,
Southern Interexchange Services, Inc., Delta Communications, Inc., Brindlee
Mountain Telephone Company, Valley Telephone Services, or the successor, parent,
or subsidiary of any of them.
1.3 APC - Unless the context otherwise requires, the term "APC" includes
Alabama Power Company, its directors, officers, employees, agents, successors
and permitted assigns.
1.4 APC Actual Cost - Shall be as set forth in Subarticle 4.3.
1.5 APC Space - Floor space to be provided to APC by SI in New Buildings
and in Common Access Areas of other SI facilities, including certain POPs, for
equipment to be used by APC solely in connection with the Primary Fibers.
1.6 APC System - The fiber optic communication transmission facilities
comprised entirely of the Primary Fibers and the equipment and other articles of
property (other than any fiber
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optic cable which does not include Primary Fibers) used solely in connection
with the Primary Fibers, including without limitation, any such equipment
located in APC Space at SI POPs.
1.7 APC Territory - The geographical areas within the State of Alabama
within which APC
a. provides electric service at retail; or
b. owns or operates overhead or underground electric transmission
lines.
1.8 Cable - The fiber optic cable incorporating the Primary Fibers, the
Additional Fibers and associated suspension hardware to be installed pursuant to
this Agreement.
1.9 Circuit Service Date - The date on which a Route Segment is accepted
by SI as operational in accordance with the acceptance specifications set forth
in Exhibit C hereto.
1.10 Confidential Information - Information provided by a party to this
Agreement to the other party to this Agreement for use in connection with the
performance of this Agreement which is considered by the disclosing party to be
confidential or proprietary information and which is so identified by the
disclosing party as provided below. Confidential information may take the form
of documentation, drawings, specifications, software, technical or engineering
data, business information and other forms, and may be communicated orally, in
writing, by electronic or magnetic media, by visual observation, or by other
means. When information deemed by the disclosing party to be confidential or
proprietary is furnished in a tangible form, the disclosing party shall
prominently xxxx the information in a manner to indicate that it is considered
proprietary or confidential or otherwise subject to limited distribution. When
such information is provided orally, the disclosing party shall, at the time of
disclosure, clearly identify the information as being proprietary or
confidential or otherwise subject to limited distribution. No information shall
be deemed confidential for purposes hereof unless it has been so designated in
accordance with this Subarticle 1.9.
1.11 Equipment - The power equipment, electronic and optronic equipment,
including without limitation repeaters, junctions, alarm monitoring equipment
and all other articles of property which may be necessary to provide a network
of fiber optic transmission capacity throughout the SI System. Notwithstanding
any other provision of this Agreement, the term "Equipment" shall not include
any power equipment, electronic and optronic equipment, repeaters, junctions,
alarm monitoring equipment or any other articles of property installed or
located at a SI POP or a SI Central Office. The word "equipment" when not
capitalized, refers to equipment of any sort generally.
1.12 Local Access and Transport Area (LATA) - A geographic area within
which a local exchange company provides communications services.
1.13 New Buildings - Buildings and shelters, including repeater housings
that, pursuant to this Agreement, are to be constructed, erected or positioned
on real property of which APC or SI is the fee simple owner in order to house
electronic and optronic equipment unless and until such time as SI designates
such building, shelter or repeater housing as a POP. It is understood by the
parties that SI reserves the right to designate any such building, shelter or
repeater housing as a POP at any time, at which time such New Building shall
cease to be a New Building for all purposes hereunder. Such designation shall be
given to APC in writing. After such designation, if SI either fails to utilize
or ceases to utilize any designated building, shelter or repeater housing as a
POP for a period of 180 consecutive days, such building, shelter or repeater
housing shall cease to be a POP and shall become a New Building.
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1.14 Point of Presence (POP) - A physical location within a LATA at which
SI establishes itself for the purpose of (i) obtaining LATA access and to which
the local exchange company provides exchange access services and (ii)
interconnecting co-located interexchange carriers.
1.15 Primary Fibers - The optical fibers installed hereunder on the Route
Segment and which are to be (i) part of the APC System (but not part of the SI
System) and (ii) dedicated exclusively to APC's use as provided herein. Unless
otherwise agreed, the usable Primary Fibers shall be as set forth in Exhibit A
attached hereto; provided, however, that the requirement of usability throughout
the Term of the Agreement shall not apply to Primary Fibers located on the Route
Segment as to which the Term of this Agreement has expired.
1.16 Route Segment - A portion of the SI System and the APC System between
one of the numbered pairs of points set forth in Exhibit A.
1.17 SCS - Unless the context otherwise requires, the term "SCS" includes
Southern Company Services, Inc., its directors, officers, employees, agents,
successors and permitted assigns.
1.18 SES - Unless the context otherwise requires, the term "SES" includes
The Southern Company, Alabama Power Company and Southern Company Services, Inc.,
and their respective directors, officers, employees, agents, successors and
permitted assigns.
1.19 SI - Unless the context otherwise requires, the term "SI" includes
Southern Interexchange Facilities, Inc., its directors, officers, employees,
agents, parent, subsidiaries, affiliates, successors and permitted assigns.
1.20 SI Central Office - A SI facility at which functions related to
portions of the SI Network in addition to the SI System are performed.
1.21 SI Network - The digital communications transmission facilities of
SI, including without limitation both the Additional Fibers and associated
Equipment and other digital communications transmission facilities, whether
existing on the date hereof or constructed hereafter.
1.22 SI Space - Floor space to be provided to SI by APC in then-existing
facilities of APC along the route of the SI System.
1.23 SI System - The fiber optic communications transmission facilities
comprised entirely of the Additional Fibers, the New Buildings and the Equipment
to be constructed pursuant to this Agreement between, but not including, the SI
POPs.
1.24 Specifications - The performance specifications for the SI System set
forth in Exhibit C hereto.
1.25 Unaffiliated Carriers - Unless the context otherwise requires, the
term "Unaffiliated Carriers" includes all carriers that are not Affiliated
Carriers.
In addition to the foregoing, certain other terms are defined within the body of
the Agreement.
ARTICLE 2. ENGINEERING AND DESIGN
2.1 Obligations of APC
(a) APC shall engineer in consultation with SI and provide detailed
specifications, construction working prints and other data as necessary to
permit construction and installation of the Cable (including without limitation
identifying any New Buildings required for the SI System) in accordance with the
Specifications. All such detailed specifications (including estimates of Actual
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Costs), construction working prints and other data shall be subject to SI
Approval, and SI shall be entitled to have representatives present at all
regularly scheduled project meetings.
(b) APC shall design and configure all alternating current power
sources and other necessary and related articles of property which (together
with the articles of property to be designed and configured by SI pursuant to
Subarticle 2.2 (a) hereof) may be necessary for or useful to provide useable
fiber optic transmission capacity throughout the SI System.
2.2 Obligations of SI
(a) SI shall design and configure all electronic and optronic
equipment for the SI System, including without limitation repeaters, terminals,
junctions, alarm monitoring equipment and all other necessary and related
articles of property which (together with the articles of property to be
designed and configured by APC pursuant to Subarticle 2.1 (b) hereof) may be
necessary or useful to provide a network of fiber optic transmission capacity
throughout the SI System. SI shall have no responsibility for equipment to be
used solely in connection with the APC System, including without limitation, any
such equipment installed or located in APC Space in any New Building or at any
SI facility.
(b) Except as specifically provided for herein, SI shall have no
obligations with respect to engineering and design of the Cable or the
installation thereof, but shall have certain rights in connection with
consultation about and approvals thereof.
ARTICLE 3. CONSTRUCTION AND INSTALLATION
3.1 Obligations of APC
(a) APC shall make available electric transmission and distribution
poles, towers, substations and facilities owned or controlled by APC as required
to provide for a continuous location on which the Cable and the Equipment can be
placed, and, to the extent APC has lands available therefor, for the
construction of New Building. Such transmission and distribution facilities
shall be physically capable of supporting the Cable, or APC shall make, or have
made, at SI's expense, such improvements necessary to cause the transmission and
distribution facilities to support such Cable.
(b) APC shall supervise and, in consultation with SI, shall be
responsible for construction and installation as necessary to install the Cable
(including without limitation suspension hardware) required for the SI System
and the APC System, in accordance with the engineering and design requirements
finalized pursuant to Article 2 hereof and the Specifications; provided,
however, that APC shall not commence construction and installation of either
Route Segment No. 2 or Route Segment No. 3 without having received notification
to proceed with the appropriate Route Segment from SI.
(c) APC shall, at the expense of SI, acquire any additional land or
rights in land that may be necessary for the location and placement of New
Buildings; provided, however, that if the use of the power of eminent domain is
necessary in order to acquire any such additional land or rights in land, then
any required condemnation action shall be brought by SI in its own behalf.
Except in the case of condemnation by SI, APC shall exert its best efforts to
minimize the cost of such additional land or rights in land.
(d) APC shall be responsible, upon SI's request and at SI's expense,
for the acquisition of any easement or right-of-way rights that may be required
in order to permit (1) the installation, operation and maintenance of the Cable
or (2) the use of the Additional Fibers by SI; provided, however, that if the
use of the power of eminent domain is necessary in order to acquire any such
additional rights required for the use of the Additional Fibers by SI, then any
required condemnation action shall be brought at the expense of APC in the name
and for the use of SI. If
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the cost of right-of-way perfection for any single tract is expected by APC to
exceed $500.00, APC shall notify SI. APC and SI shall agree upon proper action.
SI will not be responsible to pay in excess of $50,000.00 for all right-of-way
perfection without its further consent. However, if this limit is exceeded, SI
will, in good faith, negotiate with APC a fair cost allocation for such excess,
taking into account, among other things, APC's efforts to minimize such costs.
APC shall exert its best efforts to eliminate or minimize any such out-of-pocket
costs.
This Subarticle 3.1(d) is not intended as an acknowledgment by either
party that any such acquisition of additional rights is required, but only to
allocate the responsibility for such acquisition.
(e) APC shall provide, or arrange for the provision of, alternating
current electric power service to all New Buildings and SI Space.
3.2 Obligations of SI
(a) SI shall perform site preparation and shall prepare foundations
and fencing for all New Buildings.
(b) SI shall at its expense install all New Buildings and Equipment
used in equipping the Additional Fibers.
(c) SI shall reimburse APC for APC's Actual Cost incurred in
connection with engineering, construction and installation of the Cable
(including without limitation the labor cost of removal of existing static
wire). SI shall reimburse APC's Actual Cost of any upgrading or replacement of
poles or facilities that is necessary in order to make such poles or facilities
capable of supporting the Cable. Notwithstanding the foregoing, all equipment
utilized solely in connection with the Primary Fibers shall be paid for solely
by APC, and SI shall have no obligation to reimburse APC in connection
therewith.
(d) SI shall either pay directly or reimburse APC for any fees payable
to the Alabama Department of Transportation for the use of public rights-of-way
paralleling public highways as a result of SI's use of or right to use the
Additional Fibers.
(e) SI shall at its own expense obtain all municipal street franchise
rights that may be required for the installation of the Additional Fibers in
public rights-of-way or the use thereof by SI.
ARTICLE 4. OPERATION, MAINTENANCE AND REPAIR
4.1 Obligations of APC
(a) APC shall be solely responsible, at SI's expense, for the
operation, maintenance and repair of the Cable so as to assure continuing
conformity with the applicable Specifications. In connection therewith, APC
shall satisfy the requirements described in Subarticle 4.1(b) hereof.
(b) APC shall provide, at SI's expense, end-to-end maintenance and
restoral services for the Cable. Notwithstanding any other provision of this
Agreement, the maintenance and repair standards for the Cable shall be at least
as high as those standards utilized by APC for the maintenance and repair of
other portions of its internal communications systems.
(c) APC shall be solely responsible for the operation, maintenance and
repair of all aspects of the APC System, in addition to the Cable.
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(d) APC shall at its expense perform routine inspections of the Cable
and routine right-of-way maintenance, including without limitation flights over
the Route Segment on which the Cable is located, in accordance with its standard
maintenance procedures for its transmission and distribution lines and
transmission and distribution rights-of-way.
(e) In accordance with the operation and maintenance procedures set
forth in Exhibit C hereto, APC shall provide telephonic notice to the SI NCC
prior to performing any maintenance activity with respect to the Cable or any
associated transmission or distribution line, transmission or distribution pole,
transmission or distribution tower or other facility. Such notice shall include
the Route Segment on which such maintenance is to be performed, the location at
which such maintenance is to be performed and the projected commencement and
completion times of such maintenance activity.
(f) APC shall make a reasonable effort to schedule the performance of
reimbursable maintenance, repair and restoration activities pursuant to
Subarticles 4.1 (a) and (b) so as to avoid the payment of overtime wage rates.
4.2 Obligations of SI
(a) SI shall be solely responsible for the operation, maintenance and
repair of all aspects of the SI System other than the Cable so as to assure
continuing conformity with the Specifications, including without limitation
continual monitoring of the SI Network (but not including the Primary Fibers),
fault location, procurement of replacement cable used in any restoration, and
maintenance and replacement of repeater and terminal equipment as required.
(b) SI shall reimburse APC for APC's Actual Cost in connection with
the performance by APC of its obligations with respect to the Cable pursuant to
Subarticles 4.1(a) and (b) hereof. SI shall reimburse APC for all taxes (other
than income taxes) attributable to the SI System paid by APC.
(c) SI shall pay APC's standard tariffed rates for electric power
service provided to New Buildings by APC and shall pay or reimburse APC for the
payment for electric power service provided to New Buildings by any retail
electric supplier or suppliers.
4.3 APC'S Actual Cost; Billing and Verification
(a) For purposes of this Agreement, "APC's Actual Cost" of performing
any activity shall consist of the sum of (1) all amounts paid by APC to third
party contractors or suppliers, including affiliated companies, in connection
with such activity (including any financing charges directly associated with or
attributable to such amounts) plus APC's then-prevailing reasonable overhead
charges for such activities, (2) all hourly wages paid by APC to employees of
APC for the performance of such activity or any part thereof, plus APC's then-
prevailing reasonable overhead charges for the same, (3) a ratable portion of
the salary of each salaried employee of APC who is personally involved in such
activity or any part thereof, determined by multiplying the weekly, monthly or
annual salary of each such employee by a fraction, the numerator of which is the
number of hours devoted to such activity by such employee during any pay period
and the denominator of which is the sum of the total number of hours worked and
the number of vacation hours and sick leave hours taken by such employee in such
pay period, plus APC's then-prevailing reasonable charges for the same,
("overhead charges") and (4) APC's standard charges for the use of vehicles used
in the performance of such activity.
(b) The overhead charges referred to in Subarticle 4.3 (a) above, are
APC's standard overhead charges for such activities, and are intended to be
exclusive of any profit to APC. The APC overhead charges shall be updated
annually by written notice from APC to SI.
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(c) Notwithstanding any other provision of this Agreement, no cost the
incurrence of which requires SI approval shall be included in APC's Actual Cost
if such SI approval was not obtained. SI shall have the right, at all reasonable
times and at SI's expense, to inspect APC's records and charges of its Actual
Costs incurred hereunder and to verify the accuracy of such Actual Costs.
(d) Notwithstanding any other provision of this Agreement no cost
incurred by APC in connection with operating, maintaining or using the Primary
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Fibers and Equipment shall be included in APC's Actual Cost, unless approved by
====================
SI's Manager in accordance with Subarticle 8.1.
4.4 Upgrades and Rebuilding
Notwithstanding any other provision of this Agreement, no substantial
expansion or upgrade of the Cable shall be required or undertaken pursuant to
this Agreement without the concurrence of APC and SI; provided, however, that
the foregoing shall not be construed to preclude either party from rebuilding or
upgrading at its own expense its own equipment or facilities without the
concurrence of the other party. Without limiting the generality of the
foregoing, no provision of this Agreement shall be construed to entitle SI to
place or to cause APC to place more than one (1) Cable on any single Route
Segment.
ARTICLE 5. COSTS AND INSTALLMENTS
5.1 In consideration of APC's willingness to enter into a long term
business relationship, its provision of facilities and services hereunder and
its grant to SI the use of the Additional Fibers during the Term of this
Agreement, SI agrees to reimburse APC its Actual Cost for the construction and
installation of each Route Segment (except as set forth below) on a monthly
basis (upon receipt of an itemized monthly invoice from APC) as costs are
incurred by APC, provided, however, that, with respect to Route Segment Numbers
2 and 3 SI may choose to pay such costs in five (5) installments as set forth
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below:
25% of the total estimated cost of the Route Segment shall be due upon
notification by SI to APC to proceed with commencement of work on such
Route Segment.
20% of the Actual Cost of the Route Segment shall be due on each of
the first, second and third anniversary dates of such notification and
the balance of the Actual Cost shall be due on the fourth anniversary
date thereof.
APC estimates of the Actual Cost of each Route Segment are set forth in
Exhibit B hereto, and APC shall use its best efforts, consistent with good
construction and operating practices, to construct and install the Cable at a
cost in accordance with or below such estimates; provided, however, that nothing
contained herein shall relieve SI from its obligation to reimburse APC its total
Actual Costs incurred by APC, even if such Actual Costs exceed the estimates set
forth in Exhibit B, except that (i) the Actual Costs to be reimbursed by SI
shall be reduced by an amount equal to one-half of the amount by which the
Actual Cost, excluding the acquisition cost of the cable and the cost of the
splices, exceeds an average cost of $15,000 per mile for either Route Segment
Number 2 or Route Segment Number 3, provided that such reduction shall in no
event exceed an amount equal to $1,500 per mile, and (ii) SI agrees to
contribute to the cost of the APC System an amount equal to one-half of the
total savings in Actual Cost, excluding the acquisition cost of the cable and
the cost of the splices, below an average cost of $15,000 per mile for either
Route Segment No. 2 or Route Segment No. 3, up to a maximum contribution from SI
of an amount equal to $1,500 per mile.
The Actual Cost for any Route Segment for which APC is reimbursed monthly
will include the items described in Subarticle 4.3 above.
The Actual Cost for any Route Segment for which payment is made to APC in 5
annual installments will include the items described in Subarticle 4.3 above
plus an amount calculated
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monthly by applying a per annum rate equal to the announced prime rate of
AmSouth Bank N.A. plus one percent (1%) to the unpaid balance of total capital
expenditures accrued by APC for the Route Segment.
5.2 In further consideration of APC's performance under this Agreement, SI
shall provide to APC the following capacity on its transmission system between
agreed upon locations: (i) upon execution of this Agreement and until
installation of the second Route Segment to be constructed hereunder, the
equivalent of 1,000 T-1 miles per month; (ii) upon installation of the second
Route Segment and until the installation of the third Route Segment to be
constructed hereunder, the equivalent of 1305 T-1 miles per month; and (iii)
after installation of the third Route Segment, the equivalent of 1750 T-1 miles
per month. The certain facilities provided by SI shall have communications
capability that is equal or superior in quality, speed, reliability and cost to
the communications capability then available to APC.
5.3 In the event SI does not give APC notification to proceed with
commencement of work, within one (1) year from the date hereof, on either Route
Segment Number 2 or Route Segment Number 3, SI agrees to pay APC, in addition to
all other amounts payable under this Agreement, an amount equal to 15% of the
gross revenues of SI attributable to the use of the Additional Fibers for any
purpose in excess of 7.1 (ii) below.
5.4 SI shall also permit APC to utilize any SI building or towers,
wherever located, for the purpose of installing and operating APC's
communications devices and antennae used in connection with the operations of
the Southern electric system, provided that such use by APC does not materially
interfere with SI's use of such buildings and/or towers. Any costs incurred in
connection with the use of SI's buildings or towers by APC, including the costs
of any modification to SI's facilities to accommodate APC's use, shall be borne
by APC.
ARTICLE 6. SERVICES AND FACILITIES
6.1 Provided by APC
(a) APC hereby grants to SI the right to use the fiber optic
transmission capacity of the Additional Fibers set forth in Exhibit A, during
the Term of this Agreement.
(b) Where available and requested by SI, APC shall provide (without a
separate charge to SI) SI Space adequate to permit SI to install its Equipment
in then-existing APC facilities along each Route Segment. APC shall provide
space for racks of Equipment as needed. Unless previously specified, SI Space
will comply with power, ground, physical and environmental requirements outlined
in SI technical publications.
6.2 Provided by SI
Where available and requested by APC, SI shall provide or cause to be
provided APC Space in the Common Access Areas of SI facilities along the Route
Segments in New Buildings, or buildings adjacent thereto, adequate in each case
to permit APC to install racks of its optronics, multiplex and associated
equipment used to equip the Primary Fibers and to interconnect the APC System to
the SI Network. Unless otherwise agreed, APC Space will comply with power,
ground, physical and environmental requirements outlined in SI technical
publications. Such APC Space shall be used by APC to house APC equipment
necessary to permit the use of the Primary Fibers and interconnection with the
SI Network. Unless otherwise agreed, APC Space in a SI facility other than a New
Building, or buildings adjacent thereto, shall be in the Common Access Area of
such facility, and to the extent reasonably practicable, APC Space in a New
Building shall be separated by a wall and shall have an entrance separate from
any area containing SI's electronic and optronic equipment. SI shall provide APC
Space in the Common Access Areas of SI facilities without charge to APC. APC
Space will not exceed 120 square feet.
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ARTICLE 7. USE OF FIBERS
7.1 During the term of this Agreement, SI may use (or permit the use of)
the Additional Fibers and the communications transmission capacity thereof for
any lawful purpose; provided however, SI agrees not to use the facilities
provided under this Agreement specifically for local exchange services or for
intrametropolitan area dedicated facilities (i) to provide connections or
complete traffic between customers or between customers and Unaffiliated
Carriers and (ii) until notification by SI to APC to proceed with commencement
of work on either Route Segment Number 2 or Route Segment Number 3 to provide
connections or complete traffic to or between any interexchange carriers or
alternate access providers except the following: MCI Telecommunications
Corporation, Sprint, Telecom USA and any Affiliated Carrier of SI. SI warrants
that such fibers, capacity and the use thereof shall not be provided to others
without first obtaining all required regulatory certifications by appropriate
regulatory bodies.
7.2 During the Term of this Agreement, APC may use (or permit use of) the
Primary Fibers for any lawful purpose, including without limitation, for (a) its
internal telecommunications, (b) communications with its suppliers directly
related to its electric utility business, (c) communications with its
electricity customers directly related to (i) the providing of electric service
by APC to such customers, (ii) the providing of weather radar services by APC to
such customers or (iii) the providing of other services by APC to such customers
which services are not, at the time of the commencement of the provision of such
services by APC, in competition with services then offered by SI or services
which SI is then in the process of actively planning or implementing, (d) the
provision of telecommunications capacity, telecommunication services, or any
combination thereof to any person or entity primarily engaged in the business of
generating, transmitting or distributing electric power (or any combination
thereof) and their affiliates engaged in such business for their internal use in
connection with such business (e) the provision of certain communication
services without charge to a limited number of users with highly specialized
needs that cannot be met by SI (similar to services provided to similar users
without charge by APC prior to the Effective Date of this Agreement) who request
such services without solicitation by APC (each of the uses or services set
forth in this Subarticle 7.2 being referred to herein as an "Enumerated Use").
7.3 If during the Term of this Agreement APC intends to use the Primary
Fibers for a purpose which it believes to be other than an Enumerated Use as
described in Subarticle 7.2 above (any such use not constituting an Enumerated
Use being referred to herein as an "Additional Use"), APC shall give notice to
SI of such intent prior to the commencement of such Additional Use, and on or
before the date of the commencement of such Additional Use APC shall pay to SI
an amount equal to its Proportionate Amount (APC twenty-five percent and SI
seventy-five percent) of the net book value of the Cable on the affected Route
Segment; provided, that if APC has paid such amount with respect to an
Additional Use of the Primary Fibers, no additional payment shall be required
hereunder with respect to any other Additional Use of the Primary Fibers, and;
provided further, that no Additional Use by APC shall be permitted if such
Additional Use shall result in APC being deemed to be a telecommunications
carrier.
7.4 If during the Term of this Agreement SI believes that APC is using the
Primary Fibers for an Additional Use and APC has not previously paid the amount
required by Subarticle 7.3 above, with respect to an intended Additional Use, SI
shall notify APC of such Additional Use, and, within thirty (30) days of receipt
of such notice from SI, APC shall either (a) acknowledge (in a written notice to
SI) such use to be an Additional Use and within one hundred fifty (150) days of
such acknowledgment either (1) discontinue such Additional Use (or cause such
Additional Use to be discontinued) or (2) pay to SI an amount equal to the sum
of the Proportionate Amounts for the Route Segment plus interest thereon at a
rate equal to the interest rate then being charged by Chemical Bank, New York,
New York, to its largest and most credit-worthy commercial borrowers on the
outstanding amount so overdue, or, if less, the highest rate then permitted by
applicable law, from the date on which APC commenced such Additional Use until
the date upon which payment
Page 9 of 23
is made pursuant to this Subarticle 7.4; provided, that if APC has paid such
--------
amount with respect to an Additional Use of the Primary Fibers, no additional
payment shall be required hereunder with respect to any other Additional Use of
the Primary Fibers; or (b) refer the determination of whether such use
constitutes an Additional Use to the dispute resolution procedure set forth in
Article 20 hereof. If the final determination of such dispute resolution
procedure is that such use is an Enumerated Use, no payment to SI shall be
required hereunder with respect to such use. If such final determination is that
such use is an Additional Use, then APC shall, within one hundred eighty (180)
days of such determination, either discontinue such Additional Use (or cause
such Additional Use to be discontinued) or pay to SI an amount equal to the sum
of the Proportionate Amounts for the Route Segment plus interest thereon at a
rate equal to the interest rate then being charged by Chemical Bank, New York,
New York, to its largest and most credit-worthy commercial borrowers on the
outstanding amount so overdue, or, if less, the highest rate then permitted by
applicable law, from the date on which APC commenced such Additional Use until
the date upon which payment is made pursuant to this Subarticle 7.4; provided,
that if APC has previously paid such amount with respect to an Additional Use of
the Primary Fibers, no additional payment shall be required hereunder with
respect to any other Additional Use of the Primary Fibers.
7.5 Notwithstanding any other provision of this Agreement, in the event
APC becomes obligated pursuant to either Subarticle 7.3 or Subarticle 7.4 above,
to pay to SI an amount equal to the sum of the Proportionate Amounts for the
Route Segment, then from and after the date on which such obligation accrues:
(a) APC will be obligated to reimburse SI for its Proportionate Amount of
the net book value of the Cable on the affected Route Segment; and
(b) APC shall reimburse SI for that proportion of any amounts paid by SI
pursuant to the first sentence of Subarticle 7.3 above in connection with
the repair, restoration or replacement of any portion of the Cable that
bears the same ratio to the total amount so paid by SI as the number of
Primary Fibers bears to the total number of Primary and Additional Fibers
included in the Cable installed on the Route Segment with respect to which
such payment relates.
At its option, SI may apply all or any portion of any amount due from APC
under this Subarticle 7.5 with respect to the cost of acquiring Cable or of
repairing, restoring or replacing the Cable as an offset against any amounts due
to APC under any other provision of this Agreement or may invoice APC for all or
any portion of such amounts not theretofore applied as such an offset. APC shall
pay any such amount within thirty (30) days after the receipt of such statement.
In addition to any other right or remedy available to SI, if APC fails to make
any required payment pursuant to this Subarticle 7.5 within thirty (30) days
after receipt of such statement, then such overdue payment shall be subject to a
late payment charge equal to the interest rate then being charged by Chemical
Bank, New York, New York, to its largest and most credit-worthy commercial
borrowers on the outstanding amount so overdue, or, if less, the highest rate
then permitted by applicable law.
ARTICLE 8. APPROVALS AND CONSULTATION
8.1 SI's Vice President is hereby designated as the "SI Project Manager,"
and APC's Manager, Information Network is hereby designated as the "APC Project
Manager" for purposes of this Agreement. Whenever pursuant to this Agreement
either party is entitled to approve a matter, the Project Manager for the party
responsible for the matter shall notify the Project Manager of the other party
of the nature of such matter. The Project Managers shall discuss such matter,
and each Project Manager is hereby authorized to approve such matter on behalf
of his company if such Project Manager believes such matter to be in the best
interests of his company. In no event shall any such approval be unreasonably
withheld or delayed.
Page 10 of 23
8.2 Whenever in this Agreement it is provided that APC will take action
"in consultation with SI," it is intended that such consultation shall be
thorough and meaningful, and that the views of SI with regard to the matter
under consultation shall be given the weight appropriate to the experience and
expertise of SI in telecommunications.
8.3 Whenever in this Agreement it is provided that SI will take action "in
consultation with APC," it is intended that such consultation shall be thorough
and meaningful, and that the views of APC with regard to the matter under
consultation shall be given the weight appropriate to the experience and
expertise of APC in telecommunications and in the transmission and use of
electric power.
ARTICLE 9. TERM
9.1 The original term of this Agreement (hereinafter referred to as the
"Original Term") shall commence on the Effective Date first above written and,
with respect to any Route Segment, end on the twentieth (20th) anniversary of
the Circuit Service Date for such Route Segment (hereinafter referred to as the
"Original Termination Date"). Unless SI elects not to extend and renew the term
of this Agreement with respect to a Route Segment in the SI System by giving
written notice as described below, the Term of this Agreement with respect to
such Route Segment shall be automatically extended and renewed for two (2)
additional periods of ten (10) years each (each such additional Term hereinafter
referred to as a "Renewal Term"), such Renewal Terms to begin immediately
following expiration of the Original Term, or the immediately preceding Renewal
Term, as the case may be, for such Route Segment and to end respectively on the
tenth (10th) and twentieth (20th) anniversaries of the Original Termination Date
for any such Route Segment. If SI desires not to renew the Term of this
Agreement for a Route Segment, SI shall give APC written notice thereof at least
two (2) years prior to the commencement of the applicable Renewal Term for such
Route Segment. The Original Term and any Renewal Terms are collectively referred
to herein as the "Term."
ARTICLE 10. OWNERSHIP OF THE CABLE AND EQUIPMENT
10.1 Legal Title. Legal title to the Cable, and to any item of Equipment
installed upon electric transmission or distribution poles of APC, shall be held
by APC. Legal Title to any item of Cable or Equipment which is purchased or
obtained initially by SI shall vest in APC upon delivery of such item to APC.
With respect to the Cable and those fibers not dedicated to SI's use hereunder,
APC shall have absolute legal and beneficial ownership. With respect to the
Additional Fibers, APC shall hold legal title to the same as SI's nominee and,
with respect to such property, SI, having paid the amount stated above, will be
the beneficial owner. Accordingly, SI shall, for tax purposes, account for such
property as the owner thereof, and as between the parties, shall be entitled to
any investment tax credit, depreciation and any other tax attributes with
respect to the Additional Fibers. APC agrees that it will not, for tax purposes,
account for the property associated with the Additional Fibers as though it were
the tax owner thereof and shall not attempt to claim any of the tax attributes
with respect thereto. The parties agree they shall file all tax returns and
otherwise take all actions with respect to taxes in a manner which is consistent
with the foregoing. Beneficial ownership of the Additional Fibers shall revert
to APC upon termination of this Agreement.
10.2 Purchase Option. Not earlier than (a) its receipt of notice from SI
electing not to renew the Term for the Route Segment or (b) the beginning of the
thirty-eighth (38th) year of the Term for a Route Segment, APC may give written
notice to SI tentatively electing to purchase the New Buildings, Equipment or
both located or installed on such Route Segment as of the date of APC's written
notice as provided in this Subarticle 10.2. Notwithstanding the foregoing, APC's
right to purchase the New Buildings and Equipment pursuant to this Subarticle
10.2 shall not apply to any former New Building which has been designated by SI
as a POP or to any equipment installed in or located at such POP, other than
repeater equipment used to equip the Additional Fibers (hereinafter referred to
as the "Optional Repeater Equipment"). The purchase price for any such purchase
shall
Page 11 of 23
be equal to the aggregate Fair Market Value (as hereinafter determined) of the
applicable New Buildings, Equipment and Optional Repeater Equipment to be
purchased. The Fair Market Value of the applicable New Buildings, Equipment and
Optional Repeater Equipment shall be determined in accordance with the
procedures set forth in the third paragraph of this Subarticle 10.2. At the
close of such procedures, APC shall notify SI in writing of its final
determination, which shall be irrevocable, of the applicable New Buildings,
Equipment and Optional Repeater Equipment, if any, which APC elects to purchase,
which notice shall be furnished not less than two (2) years prior to the end of
the Term for such Route Segment. The provisions of this Subarticle 10.2 also
permit and apply equally to an election by APC to retain title, and to obtain
all beneficial rights of use, to any Equipment the title to which was held by
APC during the Term of this Agreement pursuant to Subarticle 10.1 above, solely
because it was installed upon a transmission or distribution tower or pole of
APC.
If APC elects to purchase any of the applicable New Buildings, Equipment or
Optional Repeater Equipment as above provided, then at the end of the Term with
respect to the Route Segment and upon payment to SI of the Fair Market Value of
the applicable New Buildings, Equipment and Optional Repeater Equipment, SI
shall transfer to APC all right, title and interest of SI in and to the
applicable New Buildings, Equipment or Optional Repeater equipment purchased by
APC.
"Fair Market Value" shall mean the fair market sales value (without regard
to any of the terms and conditions herein provided) which would be obtained in
an arm's length transaction between an informed and willing purchaser under no
compulsion to buy and an informed and willing seller under no compulsion to
sell. Whenever "Fair Market Value" is required to be determined under this
Agreement, it shall be determined by the mutual agreement of APC and SI in
accordance with the preceding sentence. If APC and SI do not agree within ninety
(90) days after APC's notice of tentative election, such amounts shall be
determined by a qualified independent appraiser mutually satisfactory to APC and
SI. If APC and SI fail to agree upon a satisfactory independent appraiser within
ten (10) working days following the end of the ninety (90) day period referred
to above, APC and SI shall each within ten (10) business days appoint a
qualified independent appraiser, and such appraisers shall jointly determine
such amounts. If, within thirty (30) days after the appointment of the latter of
such two (2) appraisers, such two (2) appraisers cannot agree upon such amounts,
such two (2) appraisers shall, within ten (10) days, appoint a third appraiser
and such amounts shall be determined by such three (3) appraisers, who shall
make their appraisals within fifteen (15) days following the appointment of the
third appraiser, and any determination so made shall be conclusive and binding
upon APC and SI. If no such third appraiser is appointed within the ten (10)
days specified therefor, either party may apply to the American Arbitration
Association to make such appointment, and both parties shall be bound by any
appointment so made. If either party shall have failed to appoint an appraiser,
the determination of Fair Market Value of the single appraiser appointed shall
be final. If three (3) appraisers shall be appointed and the determination of
one (1) appraiser is more disparate from the average of all three (3)
determinations than each of the other two (2) determinations, then the
determination of such appraiser shall be excluded, the remaining two (2)
determinations shall be averaged and such average shall be final and binding
upon the parties hereto. If no determination is more disparate from the average
of all three (3) determinations than all the other determinations then such
average shall be final and binding upon the parties hereto. The appraisal
procedure shall be conducted in accordance with the American Arbitration
Association rules as in effect on the date hereof, except as modified hereby.
The expenses of the foregoing appraisal procedure with respect to the applicable
New Buildings and Equipment, whenever undertaken pursuant to this Agreement,
shall be borne equally by APC and SI, provided, that such expenses of the
appraisal procedure shall be borne by APC with respect to each tentative
election of its purchase option rights which does not result in the purchase of
the applicable New Buildings, Equipment and Optional Repeater Equipment;
provided further, that APC may at any time notify SI and the appraisers that it
has determined not to purchase the applicable New Buildings, Equipment and
Optional Repeater Equipment, whereupon SI shall bear any expenses of the
appraisal procedure incurred after such notice.
Page 12 of 23
In the event that a casualty occurs with respect to any New Building,
Equipment or Optional Repeater Equipment after a determination of the Fair
Market Value for such New Building, Equipment or Optional Repeater Equipment, a
new determination of the Fair Market Value shall be made for the New Building or
Optional Repeater Equipment replacing the property which was the subject of such
casualty, and such predetermined Fair Market Value shall be the purchase price
for such replacement New Building, Equipment or Optional Repeater Equipment;
provided, that no such new Fair Market Value determination shall be required
hereunder if, prior to such casualty, APC had failed to furnish to SI not less
than two (2) years prior to the Term for the applicable Route Segment, its final
determination of the New Buildings, Equipment or Optional Repeater Equipment it
elected to purchase; and provided further, that in the event of such a new Fair
Market Value determination prior to the date for APC's irrevocable notice of the
property which it elects to purchase hereunder, such date shall be extended as
required so that APC shall have not less than three (3) months from its receipt
of such Fair Market Value determination to the date by which it must provide
such irrevocable notice to SI.
ARTICLE 11. CASUALTY
11.1 Unless otherwise agreed, if the whole or any part of (a) the Cable,
(b) the Equipment, (c) any New Building, (d) any APC Space in the Common Access
Area of a SI POP or (e) any SI Space in a APC facility is damaged or destroyed
by casualty, APC shall promptly repair, restore or replace (i) the Cable or (ii)
the SI Space (or both) and SI shall promptly repair, restore or replace (x) the
Equipment, (y) the New Building or (z) the APC Space (or any of them), in each
case as necessary to restore the SI System (including without limitation, if
applicable, the APC Space or the SI Space) to full compliance with the
provisions of this Agreement.
11.2 Except as hereinafter provided, the repair, restoration and
replacement of Equipment, New Buildings and APC Space in Common Access Area of a
SI POP as provided in this Article 11 shall be at the sole expense of SI.
Notwithstanding the foregoing, if any Equipment, New Building or APC Space in
the Common Access Area of a SI POP is damaged or destroyed due to in whole or in
part to the negligence or willful misconduct of APC, then APC shall bear the
proportion of the cost of repairing, restoring or replacing such Equipment, New
Building or APC Space, as applicable, for the damage to or destruction of which
it is causally responsible.
11.3 Except as hereinafter provided, the repair, restoration and
replacement of any SI Space in an APC facility shall be at the sole expense of
APC. Notwithstanding the foregoing, if any SI Space located in an APC facility
is damaged or destroyed due in whole or in part to the negligence or willful
misconduct of SI, then SI shall bear the proportion of the cost of APC
repairing, restoring or replacing such SI Space, as applicable, for the damage
to or destruction of which it is causally responsible.
11.4 Except as hereinafter provided, if any portion of the Cable is
damaged or destroyed by casualty at any time prior to the commencement of the
sixteenth (16th) year of the Original Term with respect to the Route Segment on
which such portion of the Cable is installed, then APC's repair, restoration and
replacement of such portion of the Cable shall be at the sole expense of SI; and
if any portion of the Cable is damaged or destroyed by casualty at any time
following the commencement of the sixteenth (16th) year of the Original Term but
prior to the Original Termination Date with respect to the Route Segment on
which such portion of the Cable is installed, then SI shall have the option of
APC repairing, restoring and replacing such portion of the Cable at SI's expense
or terminating this Agreement for its convenience. Unless SI notifies APC in
writing of its election to terminate the Agreement within five (5) business days
of notification to SI of a casualty, SI shall be deemed to have elected repair,
restoration and replacement of the Cable. If SI elects to terminate this
Agreement as set forth in the preceding sentence, the Additional Fibers shall be
dedicated for use by APC in any manner whatsoever and SI shall assign, at no
cost to APC, all its rights and title to all New Buildings and Equipment to APC
immediately thereafter.
Page 13 of 23
ARTICLE 12. RESTORATION IN THE EVENT OF OUTAGES
12.1 Upon any interruption of the transmission capacity of the SI System
or any of the Primary Fibers, including without limitation any failure of such
transmission capacity to satisfy the applicable Specifications, APC and SI agree
to take steps promptly to provide restoration of such transmission capacity in
accordance with the procedures and priorities set forth in Exhibit C hereto;
provided, however, that nothing herein or in Exhibit C shall be construed to
preclude APC from giving higher priority to the restoration or preservation of
electric power service (including without limitation the restoration or
preservation of communications capability that in APC's judgment is immediately
necessary to the provision of electric power service) than to the restoration of
service hereunder.
ARTICLE 13. ALTERATION OF ROUTE
13.1 Whenever during the Term of this Agreement it may be necessary or
desirable from the standpoint of APC's electric utility operations to do so, APC
may upon reasonable notice to SI relocate all or any part of the SI System to
one or more alternate routes or rights-of-way. In such event, APC shall give SI
as much notice as reasonably practicable and, except in case of emergency, at
least forty-five (45) days' written notice of the proposed relocation of the SI
System, specifying a seven (7) day period during which APC is prepared to
transfer the service over the SI System to the new right-of-way. Within ten (10)
days of such notice, SI shall advise APC of the time or times within such seven
(7) day period when SI desires to accomplish such transfer of service, or, if it
fails to do so, within ten (10) days following the expiration of such ten (10)
day period, APC shall advise SI of the time or times within such seven (7) day
period when such transfer of service shall be accomplished. At the time or times
so designated, the parties shall cooperate to accomplish such transfer of
service in accordance with the provisions of Exhibit C. Any such relocation
shall be at the sole expense of APC, including without limitation, the cost of
any land, interests in land, facilities and equipment necessary to accomplish
such relocation.
13.2 In the event that during the Term of this Agreement APC is required
by public authorities or by lawful order or decree of a regulatory agency or
court to relocate all or any part of the electric transmission or distribution
facilities upon which the SI System or any part thereof is located, APC and SI
shall cooperate in performing such relocation so as to minimize any interference
with the use of the SI System or the APC System by either party and to avoid
unreasonably impairing the ability of each to provide communications services of
the type, quality and reliability contemplated by this Agreement. Any such
relocation shall be accomplished in accordance with the provisions of Exhibit C.
Unless otherwise agreed by the parties, SI shall bear seventy-five percent (75%)
and APC shall bear twenty-five percent (25%) of the cost directly associated
with the relocation of the Cable, and SI shall bear all costs directly
associated with the relocation of Equipment and New Buildings; provided,
however, that APC shall bear all costs directly associated with the relocation
of the Cable, the Equipment and New Buildings to the extent that any such
relocation results from the failure or inability of APC to obtain (including
without limitation, through the exercise of the power of eminent domain either
in its own name or in the name and for the use of SI, or both) any easements,
right-of-way rights or other rights in land necessary to permit the
installation, operation and maintenance of APC's electric transmission towers,
poles or other facilities or the Cable (including without limitation, the use of
the Additional Fibers by SI) upon the land from which the Cable, Equipment or
New Buildings must be relocated; provided further, that the immediately
preceding proviso of this sentence shall not apply in the event of a relocation
resulting from the inability of APC to obtain necessary easements, right-of-way
rights or other rights in land through the exercise of the power of eminent
domain in a proceeding that is timely instituted and diligently prosecuted
unless APC certified to SI prior to the installation of the Cable that APC had
obtained all necessary easements, rights-of-way or other rights in land.
Page 14 of 23
Notwithstanding the provisions of the foregoing paragraph, if any such
relocation is required after the sixteenth (16th) year of the Original Term with
respect to the Route Segment affected by such relocation, then SI shall have the
option of bearing the cost of such relocation in accordance with the provisions
of the foregoing paragraph or terminating this Agreement for its convenience.
Unless SI notifies APC in writing of its election to terminate the Agreement
within thirty (30) days of notice to SI of a required relocation, SI shall be
deemed to have elected to bear its proportionate share of the cost of such
relocation as provided in the foregoing paragraph. If SI elects to terminate
this Agreement as set forth above, the Additional Fibers shall be dedicated for
use by APC in any manner whatsoever and SI shall assign, at no cost to APC, all
its rights and title to all New Buildings and Equipment on such Route Segment to
APC immediately thereafter.
ARTICLE 14. ACCESS AND SECURITY
14.1 SI agrees, upon reasonable request, to allow APC direct ingress and
egress to all APC Space to be provided to APC as described above, and to permit
APC to be on SI's premises at such times as may be required for APC to perform
any appropriate maintenance and repair of equipment at such APC Space. SI may
require that a representative of SI accompany any representatives of APC having
access to the APC Space except in New Buildings having separate entrances
providing access only to the APC Space therein. Employees and agents of APC
shall, while on the premises of SI, comply with all rules and regulations,
including without limitation security requirements and, where required by
government regulations, receipt of satisfactory governmental clearances. APC
shall provide to SI a list of APC's employees or authorized APC designee's
employees who are performing work on, or who have access to, the APC Space. SI
shall have the right to notify APC that certain APC or authorized APC designee
employees are excluded if, in the reasonable judgment of SI, the exclusion of
such employees is necessary for the proper security and maintenance of SI's
facilities.
14.2 APC agrees, upon reasonable request, to allow SI direct ingress and
egress to all SI Space to be provided to SI as described above, and to permit SI
to be on APC's premises at such times as may be required for SI to perform any
appropriate maintenance and repair of Equipment located at such SI Space. APC
may require that a representative of APC accompany any representatives of SI
having access to the SI Space. Employees and agents of SI shall, while on the
premises of APC, comply with all rules and regulations, including without
limitation security requirements and, where required by government regulations,
receipt of satisfactory governmental clearances. SI shall provide to APC a list
of SI's employees or authorized SI designee's employees who are performing work
on, or who have access to, the SI Space. APC shall have the right to notify SI
that certain SI or authorized SI designee employees are excluded if, in the
reasonable judgment of APC, the exclusion of such employees is necessary for the
proper security and maintenance of APC's facilities.
14.3 Except as provided in Subarticle 14.2 above, with respect to the SI
Space, SI and authorized SI designees shall have the right to visit any
facilities of APC utilized in providing the SI System upon reasonable prior
written notice to APC; provided, that APC may require that a representative of
APC accompany any representatives of SI or of an authorized SI designee making
such visit. Such visitation right shall include the right to inspect the SI
System and to review worksheets, to review performance or service data, and to
review other documents used in conjunction with this Agreement. Employees and
agents of SI or of an authorized SI designee shall, while on the premises of
APC, comply with all rules and regulations, including without limitation
security requirements and, where required by government regulations, receipt of
satisfactory governmental clearances. APC shall have the right to notify SI that
certain SI or authorized SI designee employees are excluded if, in the
reasonable judgment of APC, the exclusion of such employees is necessary for the
proper security and maintenance of APC's facilities.
ARTICLE 15. EXPENSES
15.1 Except for costs and expenses specifically assumed by a party under
this Agreement, each party hereto shall pay its own expenses incident to this
Agreement (including without limitation
Page 15 of 23
amendments hereto) and the transactions contemplated hereunder, including all
legal and accounting fees and disbursements.
ARTICLE 16. CONFIDENTIALITY
16.1 Each party agrees to provide to the other party such information as
shall be necessary to permit the performance of their respective obligations
hereunder. Each party hereto shall, in accordance with Subarticle 1.9 hereof, at
or prior to the time of providing information, identify in writing as
confidential all information provided by such party to the other party to this
Agreement which is considered by such providing party to be confidential or
proprietary information. No information which is provided by either party to the
other shall be considered Confidential Information unless it is specifically so
identified in writing at or before the time it is provided to such other party.
Neither party hereto will, without the prior written consent of the party
providing such Confidential Information, (i) use any portion of such
Confidential Information for any purpose other than performance pursuant to this
Agreement, or (ii) disclose any portion of such Confidential Information to any
persons or entities other than the officers and employees of such party who
reasonably need to have access to the Confidential Information for purposes of
performance under this Agreement and who are bound by appropriate
confidentiality agreements and commitments consistent with those utilized by
such party in protecting its own confidential information.
Nothing herein shall be construed to prohibit APC from utilizing
Confidential Information provided by SI in connection with APC's or APC's
operation, maintenance and use of the APC System or to prohibit SI from
utilizing Confidential Information provided by APC in connection with SI's use
of the Additional Fibers, notwithstanding the fact that such operation,
maintenance or use of the APC System by APC or such use of the Additional Fibers
by SI might not, for some purposes, be deemed to be performance pursuant to this
Agreement. The obligations of a recipient party with respect to Confidential
Information shall remain in effect during and after the Term of this Agreement
except to the extent that (a) such Confidential Information becomes generally
available to the public other than as a result of unauthorized disclosure by the
recipient or persons to whom the recipient has made the information available,
(b) such Confidential Information has been released without restriction by the
party providing the Confidential Information to another person or entity, (c)
such Confidential Information was received by the recipient on a non-
confidential basis from a third party lawfully possessing and lawfully entitled
to disclose such information, or (d) the recipient party is able to establish
that the Confidential Information was independently developed or discovered by
employees or agents of such party who had no knowledge of the Confidential
Information by reason of the disclosure hereunder.
Confidential Information shall remain the property of the disclosing party
and shall be returned to the disclosing party or shall be destroyed upon
termination of the performance pursuant to this Agreement on the basis of which
such Confidential Information was provided. Each recipient party agrees to
safeguard Confidential Information utilizing the same degree of care utilized by
such recipient party in protecting its own Confidential Information. If the
receiving party is compelled to disclose Confidential Information through lawful
process in judicial or administrative proceedings, the receiving party shall
give notice within a reasonable time to permit the disclosing party the
opportunity to seek suitable protective arrangements before the Confidential
Information is disclosed, and the receiving party shall cooperate fully with the
disclosing party's efforts to obtain such protective arrangements.
ARTICLE 17. OTHER ACTIVITIES OF THE PARTIES
17.1 Either party may engage in and possess interests in other business
ventures of any nature whatsoever, and may conduct all activities, including
activities in connection with fiber optic and other communications facilities,
except as specifically and explicitly limited pursuant to this Agreement.
Nothing in this Agreement is intended, or shall be interpreted, to restrict
either party in connection with any such activity contemplated pursuant to this
Agreement, so long as a party does
Page 16 of 23
not violate any specific, explicit restriction or obligation set forth in this
Agreement. Without limiting the generality of the foregoing, nothing in this
Agreement shall be construed or interpreted to prohibit APC from installing or
permitting others to install additional communications capacity, including
without limitation fiber optic transmission capacity, within the rights-of-way
constituting any Route Segment, but only where the use of such
telecommunications capacity by others is to connect areas other than the
termination points of each Route Segment.
ARTICLE 18. COMPLIANCE WITH LAWS
18.1 Each party to this Agreement shall comply, at its own expense, with
all applicable laws, statutes, regulations, rules, ordinances, orders,
injunctions, writs, decrees or awards of any government or political subdivision
thereof, or any agency, authority, bureau, commission, department or
instrumentality thereof, or any agency, authority, bureau, commission,
department or instrumentality thereof, or any court, tribunal, or arbitrator, in
all applicable, material respects in connection with this Agreement.
18.2 Each party hereto agrees to comply, and to cause its employees to
comply, with all applicable requirements of law pertaining to its activities in
connection with this Agreement, including without limitation:
(a) all requirements of law affecting safety and health, including
without limitation the Occupational Safety and Health Act of 1970,
as amended, and any applicable Right to Know statutes;
(b) all requirements of law prohibiting discrimination against any
employee or applicant for employment because of race, color,
religion, sex, national origin, age or handicap;
(c) workers' compensation laws, unemployment compensation laws, sickness
and disability laws, social security laws, the Fair Labor Standards
Act of 1938, as amended, and all other requirements of law relating
to employment and to the licensing and operations of its employees;
and
(d) requirements imposed by any other federal, state or local regulatory
bodies having jurisdiction over its activities in connection with
this Agreement.
ARTICLE 19. FORCE MAJEURE
19.1 Notwithstanding any provision of this Agreement, the performance of
the obligations set forth in this Agreement, other than obligations to pay
money, shall be suspended or excused in the event that such performance is
adversely affected by an event of Force Majeure or its adverse effects. "Force
Majeure" shall mean the occurrence or nonoccurrence of any act or event that
has, had or reasonably may be expected to have an adverse effect on the rights
or the obligations arising pursuant to this Agreement or an adverse effect on
the engineering, construction, installation, operation, maintenance or
management of all or any portion of the SI System, if such act or event is
beyond the reasonable control of the party relying thereon as justification for
not performing an obligation or complying with any condition required of such
party pursuant to this Agreement. Such acts or events include, but are not
limited to, the following:
(a) acts of God, landslides, sink holes, lightning, hurricanes,
earthquakes, fires, explosions, floods, acts of a public enemy, wars,
blockades, insurrections, riots, or civil disturbances;
(b) labor disputes, strikes, work slowdowns, or work stoppages;
Page 17 of 23
(c) orders, writs, decrees or judgments of any federal, state, or local
court, administrative agency, or governmental body, so long as not the
result of wanton or willful action or inaction of the party relying
thereon; provided, however, the contesting in good faith by such party of
any such order or judgment, or the good faith failure by such party to
contest any such order or judgment, shall not constitute or be construed to
constitute a wanton or willful action or inaction of such party;
(d) suspension, termination, interruption, denial, or failure of renewal of
any permit, license, consent, authorization, or approval necessary to the
operation, maintenance or management of the SI System if such act or event
is not the result of wanton or willful action of the party relying thereon;
(e) adoption of or change after the date of the execution of this Agreement
in any federal, state, or local laws, rules, regulations, ordinances,
permits, or licenses, or changes in the interpretation of such laws, rules,
regulations, ordinances, permits, or licenses by a court or public agency
having jurisdiction;
(f) failure of any subcontractor or any supplier to furnish labor,
services, materials, or equipment in accordance with its contractual
obligations, provided such failure is itself due to an event of Force
Majeure or its adverse effect and the party relying thereon cannot obtain
substitute performance within a reasonable time; or
(g) a defect in manufactured equipment or manufactured components,
provided, that in any case where such equipment or component was
manufactured by the party (or an affiliate of such party) seeking to rely
upon such defect as an event of Force Majeure, such defect shall be deemed
an event of Force Majeure only to the extent that the defect was caused by
an independent event of Force Majeure.
ARTICLE 20. DISPUTE RESOLUTION
20.1 Each party to this Agreement agrees to use good faith efforts to
negotiate and resolve any controversy or claim between the parties hereto
arising out of or relating to this Agreement or any breach thereof (hereinafter
referred to as a "Dispute"). If a Dispute cannot be resolved through such
efforts, then either party may seek resolution of a Dispute by submitting such
Dispute to a "Dispute Committee," consisting of one designee of each party, by a
written submission delivered to the other party. The Dispute Committee shall
consider the Dispute within the thirty (30) day period following the date of
such submission.
If any Dispute cannot be resolved by the Dispute Committee within said
period in accordance with the procedures set forth in the preceding paragraph,
then both parties shall be entitled to pursue their remedies at law and in
equity with respect to the dispute. The parties hereby agree and confirm that
the Cable to be constructed, operated and maintained pursuant to this Agreement
is unique. Accordingly, in addition to any other remedies which either party may
have at law or in equity, the parties hereby agree that each party shall have
the right to have all obligations, undertakings, agreements, covenants and other
provisions of this Agreement specifically performed by the other, and that
either party shall have the right to obtain an order or decree of such specific
performance in any of the courts of the United States or of any state or other
political subdivision thereof. During the pendency of a Dispute, the parties
shall continue to satisfy all of their obligations pursuant to this Agreement.
ARTICLE 21. CONDITIONS PRECEDENT
21.1 All obligations of the parties hereto are subject to the condition
that all requisite governmental and regulatory approvals of the execution,
delivery and performance of this Agreement have been, or will be, obtained. Each
party agrees to exert its best efforts to obtain all such approvals
Page 18 of 23
applicable to its execution, delivery and performance of this Agreement as
promptly as reasonably practicable and, in furtherance thereof, to modify or
amend this Agreement in such particulars as may be required to obtain such
approval; provided, that if any such required modification or amendment to this
Agreement would, in the good faith judgment of either party, render the benefits
to such party of this Agreement as a whole uneconomical in light of the
obligations of such party under this Agreement as a whole, then APC and SI shall
negotiate in good faith in an effort to restore insofar as possible the economic
benefits of the SI System to SI and the economic benefits of the APC System to
APC.
ARTICLE 22. ASSIGNMENT
22.1 Neither party hereto shall assign this Agreement, in whole or in
part, whether by operation of law or otherwise, without the prior written
consent of the other party; provided, however, that either party may assign this
Agreement to any entity which controls, is controlled by or is under common
control with such party and to any entity which acquires all or substantially
all of such party's assets. It shall be a condition precedent to any such
permitted assignment that the assignee shall execute a counterpart of this
Agreement, thereby becoming a party to this Agreement and agreeing to be bound
by all of the terms and provisions hereof.
22.2 Notwithstanding the foregoing, with respect to any Route Segment for
which APC is reimbursed its Actual Cost of construction and installation on a
monthly basis as such costs are incurred, SI shall have the right to assign this
Agreement to a lending institution where such is required of said lending
institution as part of its financing agreement with SI for such Route Segment.
ARTICLE 23. AMENDMENT
23.1 This Agreement shall not be amended, altered or modified except by an
instrument in writing duly executed by all parties.
ARTICLE 24. BINDING EFFECT; LIMITATION OF BENEFITS
24.1 This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns. It
is the explicit intention of the parties hereto that no person or entity other
than the parties hereto is or shall be entitled to bring any action to enforce
any provision of this Agreement against any of the parties hereto, and that the
covenants, undertakings, and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors or permitted assigns.
ARTICLE 25. NOTICES
25.1 Unless otherwise provided in this Agreement, all notices, demands,
requests, reports, approvals or other communications which may be or are
required to be given, served or sent pursuant to this Agreement shall be in
writing and shall be hand-delivered, mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, delivered by
overnight courier or transmitted by telecopy or telegraph, addressed as follows:
If to APC:
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Manager, Information Resources
with copies to:
Page 19 of 23
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Manager Information Network
and
Southern Company Services, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Sr. Vice President
Information Resources
and
Southern Company Services, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
and
X. X. Xxxxx, Xx., Esq.
Xxxxx & Xxxxxxx
Post Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to SI:
Southern Interexchange Facilities, Inc.
Xxxx Xxxxxx Xxxxxx X
000 Xxxxx Xxxx Xxxxxx
Xxxx, Xxxxxxx 00000
Attention: President
with copies to:
Southern Interexchange Facilities, Inc.
Post Office Drawer E
000 Xxxxx Xxxx Xxxxxx
Xxxx, Xxxxxxx 00000
Attention: Vice President
and
Southern Interexchange Facilities, Inc.
Xxxx Xxxxxx Xxxxxx X
000 Xxxxx Xxxx Xxxxxx
Xxxx, Xxxxxxx 00000
Attention: Counsel
Page 20 of 23
Each party may designate by notice in writing a new address to which any
notice, demand, request, report, approval or communication may thereafter be so
given, served or sent. Each notice, demand, request, report, approval or
communication which shall be mailed in the manner described above, or which
shall be delivered to a telegraph company, shall be deemed sufficiently given,
served, sent or received for all purposes at such time as it is delivered to the
addressee (with the return receipt or the delivery receipt being deemed
conclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
ARTICLE 26. PUBLICITY AND ADVERTISING
26.1 Neither party hereto shall publish or use any advertising, sales
promotions, or other publicity materials that use the other party's logo,
trademarks, or service marks without the prior written approval of the other
party. Except as provided in Subarticle 26.2 below, each party shall have the
right to review and approve any publicity materials, press releases or other
public statements by the other party that refer to or describe any aspect of
this Agreement. Each party agrees not to issue any such publicity materials,
press releases or public statement without the prior written approval of the
Public Relations Department for the other party. Unless otherwise agreed,
neither party shall release the text of this Agreement or any material portion
thereof (other than in a form modified to remove all references to the identity
of the other party) to any person or entity other than the parties hereto for
any purpose other than those specified in Subarticle 26.2 below.
26.2 The provisions of Subarticle 26.1 above, shall not apply to
reasonably necessary disclosures in or in connection with regulatory filings or
proceedings, financial disclosures which in the good faith judgment of the
disclosing party are required by law, or disclosures that may be reasonably
necessary in connection with the performance of this Agreement or any of the
obligations hereof.
ARTICLE 27. SEVERABILITY
27.1 If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, said part
shall be ineffective to the extent of such invalidity only, without in any way
affecting the remaining parts of said provision or the remaining provisions of
said agreement; provided, however, that if any such ineffectiveness or
unenforceability of any provision of this Agreement, in the good faith judgment
of either party, renders the benefits to such party of this Agreement as a whole
uneconomical in light of the obligations of such party under this Agreement as a
whole, then APC and SI shall negotiate in good faith in an effort to restore
insofar as possible the economic benefits of the SI System to SI and the
economic benefits of the APC System to APC.
ARTICLE 28. INDEPENDENT CONTRACTORS
28.1 In all matters pertaining to this Agreement, the relationship of APC
and SI shall be that of independent contractors, and neither APC nor SI shall
make any representations or warranties that their relationship is other than
that of independent contractors. This Agreement is not intended to create nor
shall it be construed to create any partnership, joint venture, employment or
agency relationship between SI and APC; and no party hereto shall be liable for
the payment or performance of any debts, obligations, or liabilities of the
other party, unless expressly assumed in writing herein or otherwise. Each party
retains full control over the employment, direction, compensation and discharge
of its employees, and will be solely responsible for all compensation of such
employees, including social security, withholding and worker's compensation
responsibilities.
ARTICLE 29. LABOR RELATIONS
29.1 Each party hereto shall be responsible for labor relations with its
own employees.
Page 21 of 23
29.2 APC agrees to notify SI immediately whenever APC has knowledge that a
labor dispute concerning its employees is delaying or threatens to delay APC's
timely performance of its obligations under this Agreement. APC shall endeavor
to minimize impairment of its obligations to SI (by using APC's management
personnel to perform work, or by other means) in event of a labor dispute.
29.3 SI agrees to notify APC immediately whenever SI has knowledge that a
labor dispute concerning its employees is delaying or threatens to delay SI's
timely performance of its obligations under this Agreement. SI shall endeavor to
minimize impairment of its obligations to APC (by using SI's management
personnel to perform work, or by other means) in event of a labor dispute.
29.4 If SI determines that APC's activities pursuant to this Agreement in
any SI facility are causing or will cause labor difficulties for SI, APC agrees
to discontinue those activities until the labor difficulties have been resolved;
provided, that in any such event and notwithstanding any other provision of this
Agreement, SI shall during the pendency of such labor difficulties perform at
its own expense any such activities that may be reasonably necessary to the
operation and maintenance of the APC System or any portion thereof.
29.5 If APC determines that SI's activities pursuant to this Agreement in
any APC facility are causing or will cause labor difficulties for APC, SI agrees
to discontinue those activities until the labor difficulties have been resolved;
provided, that in any such event and notwithstanding any other provision of this
Agreement, APC shall during the pendency of such labor difficulties perform at
its own expense any such activities that may be reasonably necessary to the
operation and maintenance of the SI System or any portion thereof.
ARTICLE 30. BENEFITED PARTIES
30.1 Each of the Parties hereto understands and agrees that the other
Party is entering into this Agreement not only for its own benefit but also and
equally for the benefit of its parent company and affiliated companies, present
and future, and that each and every right, benefit, remedy, license and warranty
accruing to such Party hereunder likewise accrue to its parent company and
affiliates, including but not limited to the right to enforce this Agreement in
their respective names; provided, however that in no event shall any provision
of this Agreement be construed as making the parent company or any affiliate of
either Party liable for any charges or other amounts due hereunder, except to
the extent that the parent company or any affiliate shall have separately
obligated itself as a guarantor.
ARTICLE 31. EXERCISE OF RIGHT
31.1 No failure or delay on the part of either party hereto in exercising
any right, power or privilege hereunder and no course of dealing between the
parties shall operated as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
ARTICLE 32. ADDITIONAL ACTIONS AND DOCUMENTS
32.1 Each of the parties hereto hereby agrees to take or cause to be taken
such further actions, to execute, acknowledge, deliver and file or cause to be
executed, acknowledged, delivered and filed such further documents and
instruments, and to use its best efforts to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement, whether at or after the
execution of this Agreement.
Page 22 of 23
ARTICLE 33. SURVIVAL
33.1 It is the express intention and agreement of the parties hereto that
all covenants, agreements, statements, representations, warranties and
indemnities made in this Agreement shall survive the execution and delivery of
this Agreement.
ARTICLE 34. HEADINGS
34.1 Article headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way defined or affect the
meaning, construction or scope of any of the provisions hereof.
ARTICLE 35. INCORPORATION OF EXHIBITS
35.1 The Exhibits referenced in and attached to this Agreement shall be
deemed an integral part hereof to the same extent as if written at length
herein.
ARTICLE 36. GOVERNING LAW
36.1 The validity, interpretation and performance of this Agreement and
each of its provisions shall be governed by the laws of the State of Alabama.
ARTICLE 37. COUNTERPARTS
37.1 To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signatures of or on behalf of each party appear on each counterpart; but it
shall be sufficient that the signature of or on behalf of each party appear on
one or more of the counterparts. All counterparts shall collectively constitute
a single agreement. It shall not be necessary in any proof of this Agreement to
produce or account for more than the number of counterparts containing the
respective signatures of or on behalf of all of the parties.
ARTICLE 38. ENTIRE AGREEMENT
38.1 This Agreement constitutes the entire agreement between the parties
with respect to the transactions contemplated herein, and it supersedes all
prior oral or written agreements, commitments or understandings with respect to
the matters provided for herein.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed on their behalf, as of the day and year first hereinabove set forth.
ALABAMA POWER COMPANY SOUTHERN INTEREXCHANGE FACILITIES, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx Xxxxxx
------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxx
----------------------------- ---------------------------------
(Printed or typed) (Printed or typed)
Title: Executive Vice-President Title: President
---------------------------- --------------------------------
Page 23 of 23
ROUTE SEGMENT TO BE CONSTRUCTED
-------------------------------
EXHIBIT A TO APC
CONTRACT #SI001
PAGE 1 OF 3
CABLE
CONSTRUCTION ORDER ROUTE
COMPLETION FIBER TYPE LENGTH LENGTH
ROUTE SEGMENT 1 DATE COUNT CONSTRUCTION (MILES) (MILES)
--------------- ------------ ----- ------------ ------- -------
Fultondale 24 OPGW 6.16 5.91
Substation to (6
Xxxxxx Substation Primary)
Xxxxxx Substation 24 OPGW 3.91 3.79
to East (6
Birmingham Primary)
Substation
East Birmingham 36 OPGW 1.98 1.88
Substation to (6
Northside Primary)
Substation
Northside 42 UG 1.89 1.53
Substation to (12
Parkwest Primary)
Substation
Parkwest 36 Self Support 1.89 1.48
Substation to (6 Dielectric
Sprint POP to Primary)
AT&T Duct
------- -------
Total 15.83 14.59
SI DESIGNATED FIBER ACCESS POINTS:
---------------------------------
- East Birmingham Switching Station
- MCI POP (Birmingham)
- Telecom USA POP (Birmingham)
- APC Corporate Headquarters
- Sprint POP (Birmingham)
ROUTE SEGMENT TO BE CONSTRUCTED
-------------------------------
EXHIBIT A TO APC
CONTRACT #SI001
PAGE 2 OF 3
CABLE
CONSTRUCTION ORDER ROUTE
COMPLETION FIBER TYPE LENGTH LENGTH
ROUTE SEGMENT 2 DATE COUNT CONSTRUCTION (MILES) (MILES)
--------------- ------------ ----- ------------ ------- -------
Xxxxxx Nuclear 12 OPGW 17.72 17.10
Plant to Xxxx (6
Substation to Primary)
Dothan Substation
Dothan Substation 24 OPGW 112.27 108.55
to Pinckard (6
Substation to Primary)
Snowdown
Substation to
Montgomery
Switching
Substation
Montgomery 36 OPGW 4.42 4.16
Switching (12
Substation to Primary)
West Montgomery
Substation to
Xxxxxxx Street
Substation ------ ------
Total 134.41 129.81
*Xxxxxxx Street 36 UG/Self
Substation to (12 Support
APC Southern Primary)
Division Office
*APC Southern 36 UG
Division Office (6
to SI POP Primary)
*APC Southern 36 UG
Division Office (6
to Sprint POP Primary)
SI DESIGNATED FIBER ACCESS POINTS:
---------------------------------
- Sprint POP (Montgomery)
- APC Southern Division Office
- SI POP (Xxxxxxxxxx)
- Xxxxxxxxxx Switching Station
- SI POP (Dothan)
- Xxxxxxxx Telecommunications
* Route Length and Cable Order Lengths have not been determined and will be
provided to SI prior to construction start.
ROUTE SEGMENT TO BE CONSTRUCTED
-------------------------------
EXHIBIT A TO APC
CONTRACT #SI001
PAGE 3 OF 3
CABLE
CONSTRUCTION ORDER ROUTE
COMPLETION FIBER TYPE LENGTH LENGTH
*ROUTE SEGMENT 3 DATE COUNT CONSTRUCTION (MILES) (MILES)
---------------- ------------ ----- ------------ ------- -------
East Birmingham
Substation to
Xxxxxxxxxx
Switching Station
to APC Southern
Division Office
-----
Total *105
SI DESIGNATED FIBER ACCESS POINTS:
---------------------------------
- Xxxxxxxxxx Switching Substation
- East Birmingham Switching Station
* Preliminary Engineering for this route has not been accomplished. All Route
Parameters will be provided to SI prior to construction start.
COST
EXHIBIT B to APC
Contract Number SI001
Page 1 of 1
ROUTE SEGMENT NUMBER FROM/TO ESTIMATED COST
-------------------- ------- TO CONSTRUCT
-------------
1 Fultondale TVA $ 742,000
Substation to AT&T
Duct
2 From Xxxxxxxxxx to $ 5,815.440
Xxxxxx Nuclear Plant
3 From Birmingham to $ 4,580,000
Xxxxxxxxxx
MAINTENANCE AND OPERATING PLAN
EXHIBIT C to APC Contract Number
SI001
Page 1 of 6
A. GENERAL
-------
1. The following information describes the maintenance, operating and
interface procedures associated with the Agreement between SI and
APC.
2. This Exhibit documents day-to-day operations and restoration
activities. Changes to this document must be agreed to by both
parties.
3. Over the life of the Agreement there will be periodic local
contacts or meetings at specified intervals to:
a. Verify maintenance arrangements
b. Clarify positions
c. Update contacts and telephone numbers
d. Solve problem areas or disagreements
4. Significant changes to the maintenance, operating and interface
plans or procedures will be annexed as an addendum to this Exhibit
C.
5. Where SI provides network services to APC, these services will be
integrated with other network services residing on SI fiber pairs.
6. APC equipment associated with these services must be Dual DS3
Multiplexer 1000 or CB149 compatible.
B. WORK CENTER AND INTERFACE PROCEDURES
------------------------------------
1. The primary focal points for trouble reporting, scheduling
coordination and escalation will be between the SI facility known
as the Network Control Center, "NCC", (24 HOUR COVERAGE), and the
affected SES Telecommunication Control Center, "TCC", (24 HOUR
COVERAGE).
2. SI NCC
SI Facilities, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxx, Xxxxxxx 00000
a. Contact: NCC
Telephone: 000-0000
EXHIBIT C to APC Contract Number
SI001
Page 2 of 6
b. Contact: Ms. Xxxxxx Xxxxxxx
Telephone: 000-0000
c. Contact: Mr. Xxx Xxxx
Telephone: 000-0000
3. SES TCC
Southern Company Services, Inc.
000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
000-000-0000
a. Contact: Xxx X. Xxxx
Telephone: 000-000-0000 (W)
000-000-0000 (H)
b. Contact: Xxxxxx X. Xxxxx
Telephone: 000-000-0000 (W)
000-000-0000 (H)
C. CONSTRUCTION AND SERVICE PROVISIONING
-------------------------------------
1. Construction will be managed as an APC project. Cable
delivery, equipment delivery and construction schedules will be
coordinated, published and distributed to both companies.
2. Any deviation from these schedules requires notification to the
other party.
3. APC will notify SI of static line/fiber placement and splice box
installation as the work is completed.
4. SI will notify APC of New Buildings and equipment placements as
well as splice completions and when the fiber is considered ready
for service.
5. All network services provided to APC will be tested for pre-service
using existing standard SI methods, procedures and performance
parameters.
6. Continuity testing for connection of end-to-end services will be
scheduled and coordinated by the SI NCC and the SES TCC to ensure
compatibility.
7. The SI NCC and the SES TCC will agree that the service has been
tested, meets requirements and is being placed into service.
EXHIBIT C to APC Contract Number
SI001
Page 3 of 6
8. The results from each test sequence will be documented and will
serve as a benchmark for future tests.
9. If a facility fails the test by a small margin it will be re-
tested. In a re-test situation, the section or path must remain in
limits for two (2) consecutive test intervals. If the path or
section fails the re-test or initial tests results indicate the
facility fails by a large margin, fault locating and trouble
clearing procedures will be initiated to clear the trouble.
D. CONSTRUCTION LOSS REQUIREMENTS
------------------------------
1. The Outside Plant Loss (OSPL) cannot exceed -20 decibels on any
span. OSPL is the fiber and splices that make up the optical path
between Lightguide Stranded - Cable Interconnect Terminals or
Universal Splice Enclosures at terminals or line repeater stations.
The fiber is tested for span loss at 1310 nm and 1550 nm.
2. Tests will be made with an Optical Time Domain Reflectometer (OTDR)
and the fiber is characterized for 1310 nm and 1550 nm. Current SI
standards and experience will determine acceptability of the fiber.
This includes checks for micro-bending at both frequencies. The
APC and SI fibers will be required to meet the same levels of
performance. Span loss and micro-bending will normally indicate
typical fiber and splice problems.
3. The fiber will be re-tested annually to ensure continued
performance capability. Any variance will be isolated and
corrected.
E. ADMINISTRATIVE
--------------
1. Performance reports and/or frequency of reports concerning the
performance monitoring of network services will be developed
between the SES TCC and the SI NCC. It is expected that
performance will be based on SI standards in effect during the life
of the Agreement.
2. APC will furnish to SI the location numbering plan and road access
maps to the rights-of-way (Route Maps), each individual
tower/splice location and substations where SI equipment/stations
are located.
EXHIBIT C to APC Contract Number
SI001
Page 4 of 6
3. APC will notify the SI NCC of any hazardous conditions that arise
along the right-of-way or at sub or repeater stations that could
affect service. Clearance of these conditions will be reported.
4. APC will notify the SI NCC of any hazard or condition that may
jeopardize safety of SI personnel. Expected time of clearance and
final clearance will also be reported.
5. APC will notify SI of any special right-of-way or property owner
problems or considerations. In addition, any conditions that may
restrict access to splice locations or New Buildings will be
reported.
6. APC will if needed and upon request, provide temporary special
arrangements for access and/or transportation to allow SI personnel
to reach the necessary work location.
7. APC will be responsible for property owner relations.
8. APC and SI field forces will develop and coordinate contingency
plans for physical restoration pertaining to crucial locations such
as highway crossing, rivers, etc. These plans will be furnished to
both the SI NCC and the SES TCC as well as to field personnel
responsible for those locations.
9. Safety procedures are an annex to this Exhibit C.
F. DAMAGE REPORTING AND RESTORATION
--------------------------------
1. The SI NCC will notify the SES TCC immediately of locations
experiencing failure indications. APC will notify SI NCC
immediately of the nature, location and any pertinent information
concerning the Cable Route Segment or New Building damage.
2. APC will provide a list of APC locations where spare Cable,
provided by SI, if any, will be stored.
3. APC will notify the SI NCC of the estimated time of arrival of the
permanent replacement cable at the fault location.
4. Field site managers for each company will be designated and their
identity will be provided to the SI NCC and SES TCC respectively
for the coordination of communications.
EXHIBIT C to APC Contract Number
SI001
Page 5 of 6
5. The SES TCC will provide status reports to the SI NCC at least
hourly concerning progress of restoration and estimated time that
SI personnel may begin work at the fault location.
6. APC will notify SI when it is safe for personnel to begin work.
a. At temporary or permanent repair splice locations, it is
agreed that SI will be allowed to perform any parallel work
which can be performed safely and is agreed to by the field
site managers.
b. Standard SI physical restoration techniques, fiber splicing
priorities and order of splicing methods will be used.
7. The SI NCC will provide status to the SES TCC, at least hourly, of
the estimated time of restoration of APC services.
8. The replacement cable performance will be tested and verified by SI
field and NCC forces using SI standard procedures, test
equipment/computerized test systems and existing performance
criteria.
9. If temporary cables, supplied and stored by SI, are used for
restoration, APC will notify the SI NCC when the placement of
permanent cable can be scheduled and when placement has been
completed. This will allow SI to schedule and perform permanent
splicing.
10. SI may place temporary New Buildings at or near the site of
existing buildings when necessary to restore service to those
buildings or equipment.
G. MAINTENANCE AND TROUBLE REPAIR
------------------------------
1. The SES TCC will notify the SI NCC when any work is scheduled or
performed on APC equipment which may generate an alarm or threshold
violation to SI monitored equipment or locations.
a. SI standard thresholds of performance will be used to detect
trouble or deterioration.
b. SI will notify APC when threshold violations are indicative
of trouble or repair. Access by SI to splice sites for
routine maintenance, inspection and other activities will be
coordinated between local field forces.
EXHIBIT C to APC Contract Number
SI001
Page 6 of 6
2. SI may place signs and markings on New Buildings where both
companies share sites and may place markers and signs to xxxx
underground cables between APC facilities and New Buildings.
Overall appearance of buildings and grounds will be managed by
local SI and APC field forces.
3. Where practical, the static line will be extended from the APC
facility to a pole near the New Building. The static line will be
brought down the pole to a splice box where a non-metallic fiber
cable will be spliced to the fiber of the static line. From the
splice box the Cable will be encased in U-Guard down the rest of
the pole and placed below ground to the New Building.
H. RELOCATIONS
-----------
1. Proper notice as required by the Agreement shall be furnished to
the SI NCC and the SES TCC.
2. Engineering information for the route section to be relocated,
including tower and splice location of the exiting and relocated
route section, shall be furnished to the SI NCC and the SES TCC.
3. All new construction shall be complete and tested prior to cutting
service from the existing to the relocated Route Segment.
4. Transfer of service shall be coordinated between Field Operations,
the SI NCC and the SES TCC.
5. All safety and installation procedures in other sections shall
apply to relocations.
TELECOMMUNICATIONS SAFETY PROCEDURE
Annex 1 to EXHIBIT C to APC
Contract Number SI001
Page 1 of 2
SUBJECT: FIBER SPLICING ON OPGW
INTRODUCTION
------------
The purpose of this procedure is to establish a policy for the safe
operation of equipment and personnel in the installation and maintenance of
splices in the OPGW (composite fiber optic overhead ground wire).
PRIORITY
--------
No work shall be performed until line personnel have taken appropriate
action, as defined by various operating and transmission bulletins, to ensure
that the work environment is free from any electrical and mechanical hazards.
GENERAL
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1. The vehicle cab and body shall be bonded to the chassis.
2. A stirrup or stud shall be welded to the truck or van chassis front
and rear or a grounding reel shall be bonded to the chassis.
3. A 1/0 copper ground cable with accepted clamp shall be used to ground
the vehicle and the OPGW cable to the structure ground.
4. All grounds shall be attached to the pole or structure permanent
ground.
OPERATING AT THE JOB SITE
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The following conditions shall be met before splicing operations can
begin:
1. Permission shall be received from line personnel to begin work. Line
personnel are responsible to take down and store the splice case.
2. Approved rubber overshoes shall be worn at all times for additional
protection by personnel at the transmission line work site.
3. The two (2) OPGW leads shall be bonded together and to the structure
ground.
4. The vehicle chassis shall be grounded to the same structure ground.
Annex 1 to EXHIBIT C to APC
Contract Number SI001
Page 2 of 2
5. If a metallic strength member is used in the OPGW, it shall be
grounded during splicing operations and during storage.
6. After completion of the work, the removal of the grounds shall be the
last function accomplished prior to leaving the work area.
7. At no time during the application or removal of grounds should a
person allow himself to be in series with OPGW and the ground lead.
8. Hard hats shall be worn at the work site.
EMERGENCY PERSONNEL
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In an emergency situation, such as a line down condition,
Telecommunications personnel shall wait for line personnel to secure and ground
the OPGW leads and determine that the work area is safe.
