EXHIBIT 10.57*
* Confidential treatment has been requested in connection with this
document.
NETWORK AGREEMENT BETWEEN
ALLIANT ENERGY COMPANIES AND
MCLEODUSA TELECOMMUNICATIONS SERVICES, INC.
This agreement is between Wisconsin Power and Light Co., a Wisconsin corporation
with offices at 000 Xxxx Xxxxxxxxxx, Xxxxxxx, XX 00000, IES Utilities, Inc. an
Iowa corporation with offices at 000 0xx Xx. XX, Xxxxx Xxxxxx, XX 00000 and
Interstate Power Corporation, a Delaware corporation with principal offices at
0000 Xxxx Xx., Xxxxxxx, XX 00000, and any other corporation, 40% or more of
which is owned by any of the foregoing, or which is under common ownership or
control with any of the foregoing, or which is owned by Alliant Energy
Corporation (hereinafter "Alliant Energy" or the "Alliant Energy Company or
Companies"), and McLeodUSA Telecommunications Services, Inc. ("McLeodUSA"), an
Iowa corporation with offices at McLeodUSA Technology Park, 0000 X Xxxxxx XX, X
X Xxx 0000, Xxxxx Xxxxxx, Xxxx 00000-0000.
I. PURPOSE/ GRANT. This Agreement is for the purpose of exchanging attachment
space on the Alliant Energy Network for telecommunications capacity owned by
McLeodUSA, pursuant to the Telecommunications Act of 1996. It takes the place of
all previous contracts on this subject and is effective as of the date signed.
It is valid for Attachments of telecommunications equipment to the Alliant
Energy Network and utilization of telecommunications capacity on McLeodUSA's
Network, and for no other purpose.
With this Agreement, Alliant Energy grants McLeodUSA, and any other corporation,
40% or more of which is owned by or which is under common ownership or control
of McLeodUSA the right to construct, install, maintain, operate, inspect and
remove communications cable, and the necessary fixtures, wires and equipment,
including antennae, associated with communications cable used for the purpose of
transmitting telecommunications and communications signals including but not
limited to audio, video or data type communications ("Telecommunication
Purposes"). With this Agreement, McLeodUSA grants Alliant Energy the right to
usage of communications signals, associated with the transmittal of
telecommunications and communications signals, including but not limited to
audio, video or data type communications, anywhere on the McLeodUSA Network
("Transport Capacity") pursuant to the terms of this Agreement.
II. TERM. This Agreement has an initial term of 30 years, and automatically
renews for 5 five year terms, unless written notice to terminate is given by
either party to the other three years prior to the expiration of the initial or
any renewal term. This is not an exclusive agreement. Either party may enter
into similar arrangements with other parties, including but not limited to other
telephone companies, municipalities, private individuals, utilities or CATV
companies.
III. DEFINITIONS
"McLeodUSA Network" means the communications network consisting of fiber, fiber
cable, telephone cable, optronics, attachments, hubs, Customer Connections (the
connection from a customer site that purchases communications service from
McLeodUSA) and other communications materials owned, leased and constructed by
McLeodUSA, including fiber-optic fibers, fiber-optic cable, and hardware owned
by McLeodUSA.
"The Alliant Energy Network" means the network consisting of underground duct
and overhead structures, including microwave and radio towers, owned by any
Alliant Energy Company, carrying that company's electrical transmission and
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distribution system, distribution, transmission and other facilities owned by
Alliant Energy, fee owned real estate on which such facilities are located and
equipment used for transmission and distribution of energy. Real estate which is
not used as right of way or for electric or gas utility structures is not
subject to this Agreement, and utilization of such real estate by McLeodUSA
shall be subject to a separate agreement requested from Alliant Energy Real
Estate and Right of Way Department (hereinafter "AEREROWD").
"Alliant Energy Engineering Standards" means the written, uniformly applied
standards developed by Alliant Energy for use in determining the methods and
equipment used, and safety precautions to be taken, in making an attachment to
the Alliant Energy Network.
"Optronics" means device(s), otherwise known as an "opto-electrical transducer",
which converts electrical energy to optical energy and vice versa, which are
used as transmitters and receivers in fiber optic communications systems.
Optronics includes devices installed or existing on Alliant Energy Company owned
or leased premises, as well as the portion of the device installed or existing
on the McLeodUSA Network which is necessary for Alliant's usage, but does not
include that portion of an optronic device on the McLeodUSA Network which is
necessary for use by other McLeodUSA customers.
"Attachment" means the placement of McLeodUSA fiber, wires, fiber cable,
telephone cable, optronics, and associated equipment on or in Alliant Energy
Network.
"Alliant Energy Pricing Option" means the model utilized by McLeodUSA for
pricing the installation of fiber and optronics for the Alliant Energy
Companies, attached hereto and incorporated herein by reference as Exhibit A.
The Alliant Energy Pricing Option is valid only for utilization of DS-1 and DS-3
capacity by Alliant Energy on McLeodUSA's Network. Other fiber, optronics or
network construction requests by Alliant Energy shall be by separate agreement.
IV. ATTACHMENT PERMITS
Before making an Attachment, McLeodUSA will obtain a permit to attach from
AEREROWD using the procedure and forms attached hereto and incorporated herein
by reference as Exhibit B. The Attachments must meet Alliant Energy Engineering
Standards, copies of which will be provided to McLeodUSA. Alliant shall provide
McLeodUSA with copies of any changes to such Engineering Standards which relate
to McLeodUSA Attachments. Overlashing will be allowed with a separate permit
from the AEREROW. Alliant shall conduct inspections to assure that McLeodUSA
complies with such Alliant Energy Engineering Standards.
McLeodUSA agrees to reimburse Alliant Energy for the cost of a field study,
including but not limited to the cost of a pre-construction inspection by
Alliant Energy personnel, engineering, planning any changes to the Alliant
Energy equipment necessary to accommodate the Attachment, and the cost of a
post-construction inspection.
McLeodUSA, its subsidiaries and affiliates, agree that utilization of the
Alliant Energy Network shall be limited to Telecommunications Purposes only. All
telecommunications equipment must be installed and maintained by McLeodUSA
according to the requirements of all applicable Federal, State and local codes
and authorities, including but not limited to the Telecommunications Act of
1996.
V. SERVICE REQUESTS BY ALLIANT ENERGY
Alliant Energy will complete a Service Order form (attached as Exhibit C)
requesting utilization of Transport Capacity on McLeodUSA's Network. Such form
shall describe the location of the facilities to be utilized and the Capacity
required. Alliant Energy agrees that utilization of Transport Capacity on
McLeodUSA's Network will not be used to compete with McLeodUSA's
telecommunications business and will be limited to voice, video and data
communications for internal purposes only, which purposes include metering,
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monitoring or controlling energy and water utilization by customers, to the
extent that such uses shall not adversely impact McLeodUSA service to its
customers.
VI. ATTACHMENT, OVERLASHING, REPLACEMENT,TRANSFER OR OTHER SERVICES
A. ALLIANT ENERGY NETWORK. The parties recognize that it may be to their mutual
benefit for Alliant Energy to perform installing, replacing, transferring or
overlashing of any McLeodUSA telecommunications facilities on the Alliant Energy
Network. To the extent reasonably and economically feasible, McLeodUSA shall
make good faith efforts to subcontract this type of work to Alliant Energy.
McLeodUSA will, prior to the commencement of any such services, supply to
Alliant Energy evidence that its personnel have been properly and adequately
trained in safe working practices in and around electric lines. If McLeodUSA
Attachments are to be made in the vicinity of a substation in the Alliant Energy
Network, as shown on the route map supplied by McLeodUSA pursuant to the
Attachment Permit requested by McLeodUSA under Section IV of this Agreement,
McLeodUSA will, at Alliant Energy's request, provide an access loop or splice
point at, or as close as reasonably possible to, the substation.
B. MCLEODUSA NETWORK. In the event that Alliant Energy requests that McLeodUSA
undertake a project for which construction of additional facilities on the
McLeodUSA Network is required, the costs of such construction shall be charged
to Alliant Energy pursuant to the Alliant Energy Pricing Option attached hereto
and incorporated herein by reference as Exhibit . Requests for such construction
shall be made using the procedure and forms attached hereto and incorporated
herein by reference as Exhibit D.
VII. ALLIANT ENERGY NETWORK CHANGES TO ACCOMMODATE ATTACHMENT
If Alliant Energy determines that a structure, tower, duct or real estate is
inadequate to support the McLeodUSA Attachment, the structure, tower, duct or
real estate will be modified or replaced. Such replacement shall be at
McLeodUSA's expense if such modification or replacement is required by Alliant
Energy Engineering Standards. The expense will be determined by adding the total
cost of the new facilities, engineering and testing, related maintenance,
removal of the old facilities, and any cost to third parties. Subtracted from
that total will be the salvage (not to exceed original cost) or the accumulated
depreciation (whichever is greater) and any expenditure for Alliant Energy's
convenience. The remaining amount will be billed to McLeodUSA. Amounts due third
parties are to be paid directly to them by McLeodUSA. McLeodUSA must provide the
necessary guying to support unbalanced loads. The guying must meet Alliant
Energy's Engineering standards. McLeodUSA may attach guying to the Alliant
Energy anchors only if Alliant Energy determines that there is adequate anchor
capacity. If Alliant Energy determines that the anchor does not have sufficient
capacity, McLeodUSA will provide its own anchor.
If it is necessary to replace or rearrange the Alliant Energy Network facilities
to accommodate McLeodUSA's Attachment pursuant to the Alliant Energy Engineering
standards. Alliant Energy will replace or rearrange its facilities and xxxx
McLeodUSA for the costs.
If more than one customer, including McLeodUSA, which has no attachment
simultaneously submits a request for attachment, and if construction,
replacement or rearrangement is required, the cost will be prorated. This
proration will be agreed on before construction begins.
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VIII. OPTRONICS
Installation of all Optronics will be performed by McLeodUSA on McLeodUSA's
Network. Alliant Energy will pay for optronics installed by McLeodUSA in
accordance with the Alliant Energy Pricing Option, Exhibit A. McLeodUSA will own
and maintain all optronics.
IX. MAINTENANCE OF ATTACHMENTS
McLeodUSA agrees to maintain its Attachments in safe condition and good repair
in accordance with all code requirements and in the manner required by Alliant
Energy. Except for Attachments involving: 1)hazardous conditions; or 2)
potential effect on the reliability of the Alliant Energy Network, Alliant
Energy will provide McLeodUSA 10 days notice and the opportunity to repair or
replace Attachments which do not comply with the Alliant Energy Engineering
standards. Attachments involving hazardous conditions or potential effect on the
reliability of the Alliant Energy Network may be repaired or replaced by Alliant
Energy without notice or the opportunity to cure. McLeodUSA will pay for such
repair or replacement upon receipt of a xxxx therefor from Alliant Energy.
McLeodUSA's Attachments must not impair the use of the Alliant Energy Network by
Alliant Energy or other attachers. McLeodUSA agrees to transfer or relocate its
Attachments upon sixty (60) days advance notice when requested by Alliant
Energy, unless otherwise agreed upon by the parties. In an emergency Alliant
Energy may transfer McLeodUSA's Attachments, to another structure, tower, duct
or location and xxxx McLeodUSA for the work. If McLeodUSA has not removed any
Attachments within sixty 60 days of request by Alliant Energy, McLeodUSA
authorizes the removal of any such Attachments by Alliant Energy at McLeodUSA's
expense.
When it is necessary for Alliant Energy to replace a structure, tower, duct or
location to which McLeodUSA is attached, Alliant Energy will give McLeodUSA 60
days notice in advance of the construction date. McLeodUSA agrees to have a crew
at the job to make the transfer with the Alliant Energy crew or reimburse
Alliant Energy for making the transfer. If Alliant Energy replaces a structure,
tower, duct or location based on its need, McLeodUSA will only be responsible
for paying the costs of transferring its Attachment to the new structure, tower,
duct or location.
Alliant Energy will perform all tree trimming required for its attachments on
Alliant Energy Network. McLeodUSA will pay, as the portion of the tree trimming
costs related to McLeodUSA facilities, 20% of Alliant tree-trimming costs
attributed to the structures, towers, ducts or real estate on which McLeodUSA
has Attachments.
X. NETWORK CHANGES
Except as provided otherwise in this agreement, McLeodUSA will be responsible
for the actual costs to relocate, rearrange or otherwise modify any part of the
McLeodUSA Network or Alliant Energy Network, if these costs have resulted from a
change sought by McLeodUSA. In no event will Alliant Energy be responsible for
costs to relocate, rearrange or otherwise modify McLeodUSA Attachments on the
Alliant Energy Company's Network which are requested or required by changes to
the electrical system.
If the relocation, rearrangement or other modification of the McLeodUSA Network
or Alliant Energy Network is necessitated by requirements of public authorities,
requirements of private property owners or any accident or other unforeseen
circumstances not caused by the tortious conduct of McLeodUSA or Alliant Energy,
then each party shall be responsible for their respective costs of relocating,
rearranging or otherwise modifying their networks.
XI. ABANDONMENT
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A. ALLIANT ENERGY COMPANY NETWORK
If the Alliant Energy Company desires at any time to abandon any pole, duct or
Tower upon which McLeodUSA Attachments exist, it shall give McLeodUSA 60 days
advance notice in writing to that effect. If at the expiration of said period
Alliant Energy Company has no Attachments on such pole, duct or Tower but
McLeodUSA has not removed all of its Attachments, such pole, duct or Tower shall
become the property of McLeodUSA. Thereafter, McLeodUSA shall assume all
responsibility for maintenance and insurance, and agrees thereafter to defend
indemnify and hold harmless the Alliant Energy Company from every obligation,
liability or cost and from all damages, expenses or charges incurred after such
abandonment, arising out of, or because of, the presence of or the condition of
such pole, duct, Tower or any Attachments not caused by the Alliant Energy
Company's failure to maintain such in accordance with industry standards.
McLeodUSA shall pay Alliant Energy a sum equal to the fair market value of such
abandoned pole, duct or tower, offset by any amount paid to Alliant Energy which
increased the fair market value of said pole. McLeodUSA will receive a properly
authorized xxxx of sale. In such event McLeodUSA shall be responsible for
obtaining all consents and easements to maintain the poles, ducts and Towers at
their present location.
If McLeodUSA desires at any time to abandon any Attachments on the Alliant
Energy Network, McLeodUSA shall give Alliant Energy sixty (60) days advance
notice in writing.
B. MCLEODUSA NETWORK
If McLeodUSA desires at any time to abandon any part of the McLeodUSA Network on
which Alliant Energy utilizes Capacity, such that Alliant Energy's
Communications Network would be interrupted, McLeodUSA shall give Alliant Energy
sixty (60) days advance notice in writing.
Within such sixty (60) day period, Alliant Energy may elect to purchase such
McLeodUSA Network assets. If Alliant Energy elects to purchase such abandoned
assets, Alliant Energy shall pay McLeodUSA a sum equal to the fair market value
of the purchased assets, offset by any amount paid to McLeodUSA by Alliant
Energy for the construction of same.
C. CONDITIONS
Any transfer is subject to the consent of any party which either party:
a. has granted a security interest in its Network, or
b. has entered into a debt agreement containing covenants
stating that such transfer would constitute a default or
restricts such transfer.
If consent cannot be obtained, the right to purchase shall be extinguished as to
that offer. Upon a duly authorized transfer, McLeodUSA will provide a properly
authorized xxxx of sale to Alliant Energy. In such event, Alliant Energy shall
be responsible for obtaining all consents and easements to maintain the
attachments at their present location. Thereafter, Alliant Energy shall assume
all responsibility for maintenance and insurance. After such transfer, Alliant
Energy agrees thereafter to defend, indemnify and hold harmless McLeodUSA from
every obligation, liability or cost and from all damages, expenses, and charges
incurred after such abandonment arising out of or because of the presence of or
the condition of such attachments not caused by McLeodUSA's failure to
adequately maintain such in accordance with industry standards.
XII. Termination/EXPIRATION
A. Termination
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During the initial 30 year term, this Agreement may not be terminated by either
party except for material breach of its provisions and, if practicable, three
years (3) prior written notice to the breaching party. During any of the five
(5) year renewal terms, this Agreement may be terminated by either party for any
reason upon three (3) years prior written notice. Any accrued Transport Capacity
shall have no value other than a unit of measure used in exchange for Alliant
Energy's use on the McLeodUSA Network, and upon termination of this Agreement
all accrued Transport Capacity shall have no cash equivalent value.
B. EXPIRATION
Upon expiration of the initial term and any renewal terms of this Agreement, the
parties shall cooperate to the fullest extent possible to place each other in a
position to continue that party's business operations with the least practicable
interruption. Where necessary, the parties agree to sell to each other, at fair
market value, such of their Network as is feasible under then existing legal,
technological and regulatory conditions, in order to allow the other party to
continue its business operations. Any transfer is subject to the consent of any
party which either party
a. has granted a security interest in its Network, or
b. has entered into a debt agreement containing covenants stating
that such transfer would constitute a default or restricts
such transfer.
If consent cannot be obtained, the right to purchase shall be extinguished as to
that offer.
XIII. INFORMATION EXCHANGE AND NETWORK PLANNING
The parties agree to exchange information regarding changes in their respective
networks and future plans for Network location or expansion. McLeodUSA will
provide to Alliant Energy updated reports of anticipated McLeodUSA Network
expansion or construction at the same time as reports of accrued Transport
Capacity calculated pursuant to Section XV are provided. Semi-annual reports to
Alliant shall reflect the amount of Transport Capacity accrued by Alliant
pursuant to Section XV of this Agreement offset by the amount of Transport
Capacity used by Alliant. Such reports shall include a copy of the McLeodUSA
network map. Alliant Energy will provide McLeodUSA a map of the Alliant Network,
including towers upon request [or with the transmission of utlization reports].
XIV TOWERS
Alliant Energy-IES Utilities grants McLeodUSA the right to use for
Telecommunications Purposes microwave towers owned by it, in exchange for
Transport Capacity as shown in section XV. [Confidential material has been
omitted pursuant to a request for confidential treatment filed with the SEC
under Rule 24b-2(b) and has been filed separately with the SEC] McLeodUSA shall
retain any rental income from other users of the microwave towers in
consideration of its management of the microwave towers for Alliant Energy-IES .
Alliant Energy-IES Utilities reserves the right to deny access to microwave
towers to any third party, including McLeodUSA, due to engineering or insurance
concerns, including but not limited to electrical interference or maintenance of
the physical/structural integrity of the towers. In the event that McLeodUSA
receives payments from any third party for conversion of any frequency required
by the FCC to be abandoned, McLeodUSA shall either: perform the conversion to a
communications system with capacity as good or better than that of the microwave
tower, or shall remit these payments to Alliant Energy.
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Alliant Energy grants McLeodUSA the right to attach for Telecommunications
Purposes to all other towers (meaning the towers owned by IPC and WPL and
collectively referred to as "Other Towers"), including but not limited to radio
towers, owned by Alliant Energy in exchange for Transport Capacity as shown in
Section XV. Such grant of right is not exclusive, and does not preclude usage of
such other towers by Alliant Energy for its own purposes. In the event that a
third party makes a bona fide offer to lease space for the attachment of
telecommunications facilities used for Telecommunications Purposes to Alliant
Energy's Other Towers in its Network, other than that portion of the Network
owned by IES Utilities, and such attachment is within the capabilities of such
Other Tower, the AEREROWD shall inform McLeodUSA of such request. In the event
that McLeodUSA desires to attach its facilities in the area requested by the
third party, XxXxxx USA shall compensate Alliant Energy for such Attachment as
provided in Article XV. In the event that McLeodUSA does not attach its
facilities in the space requested by the third party, but desires to reserve
said space, XxXxxx USA shall compensate Alliant Energy for such reservation as
described in Article XV. In the event that no attachment or reservation of such
space is required, no compensation shall be due to Alliant Energy. In the event
that the attachment of telecommunications facilities to Other Towers is not
subject to regulation by any state agency, including but not limited to the
Public Service Commission of Wisconsin or Minnesota or any successor Agency, the
parties shall negotiate the use of the Other Towers by McLeodUSA. Alliant Energy
is responsible for insurance and maintenance of the Towers.
XV. PAYMENT
McLeodUSA will pay Alliant Energy for Attachments on the Alliant Energy Network
by making Capacity available on the McLeodUSA Network. This Capacity will be
made available utilizing the following formula.
[CONFIDENTIAL MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT FILED WITH THE SEC UNDER RULE 24B-2(B) AND HAS BEEN FILED SEPARATELY
WITH THE SEC]
The Transport Capacity shall be useable by any Alliant Energy Company at any
time during the initial term of this Agreement or any renewal term.
The parties agree that the total amount of Transport Capacity accrued but not
used by Alliant Energy as of the effective date of this Agreement shall be
re-calculated using the formula expressed above.
In the event that [CONFIDENTIAL MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT FILED WITH THE SEC UNDER RULE 24B-2(B) AND HAS BEEN
FILED SEPARATELY WITH THE SEC] ceases to become the standard unit of measurement
on the McLeodUSA Network due to technology changes, the parties shall reasonably
agree on the replacement measurement (SUCH AS [CONFIDENTIAL MATERIAL HAS BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED WITH THE SEC
UNDER RULE 24B-2(B) AND HAS BEEN FILED SEPARATELY WITH THE SEC] or other form of
capacity measurement), and shall convert all accrued Transport Capacity to said
unit of measurement, subject to McLeodUSA approval in compliance with
McLeodUSA's standards and practices.
Time is of the essence in installation of the fiber and fiber optic cable for
utilization by the Alliant Energy Companies.
Installation costs for fiber and optronics dedicated to Alliant Energy, or for
its proportionate share thereof will be paid by the Alliant Energy Company
pursuant to Exhibit A, the Alliant Energy Pricing Option. Changes in the Alliant
Energy Pricing Option may be made from time to time by
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McLeodUSA. The Alliant Energy Pricing Option contain an overhead component.
Alliant Energy may request an audit of the overhead component on an annual
basis. In the event that the audit reveals a difference of ten percent (10%)
more or less than the overhead rate stated in the Alliant Energy Pricing Option,
Alliant Energy shall pay the difference between what was charged over the
previous twelve months and actual overhead costs to McLeodUSA, or McLeodUSA
shall refund to Alliant Energy the amount of overpayment over the twelve months.
In the event that an audit is required by a regulatory agency, each party shall
bear one half the costs of the audit.
[CONFIDENTIAL MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT FILED WITH THE SEC UNDER RULE 24B-2(B) AND HAS BEEN FILED SEPARATELY
WITH THE SEC] If McLeodUSA agrees to design, engineer and install fiber optic
cable pursuant to said request, cost of design, installation and construction
shall be as stated in the then-current Alliant Energy Pricing Option. In the
event that McLeodUSA does not agree to expansion of its Network to include the
location requested, Alliant Energy may itself, or may contract with a third
party to, design, engineer and build fiber optic cable, optronics and associated
equipment in the location desired by Alliant Energy, but may only use McLeodUSA
facilities upon McLeodUSA's approval in compliance with McLEodUSA's standards
and practices.
XVI. ATTACHMENT INSPECTION
Following the pre- and post-construction inspections under Section IV of this
Agreement, Alliant Energy reserves the right to make periodic inspections of
McLeodUSA's Attachments on its Network. Such inspections will be at McLeodUSA's
expense. Failure to make inspections does not waive any rights of Alliant Energy
under this agreement. Alliant Energy will notify McLeodUSA in writing (see
notice provision) before it makes such an inspection. It is McLeodUSA's option
to accompany Alliant Energy personnel during the inspection.
XVII. INSURANCE
McLeodUSA will carry the following types of insurance: worker's compensation
liability as established by the applicable state statutes and comprehensive
general liability. The comprehensive general liability will have a contractual
liability endorsement. The minimum limits for the comprehensive general
liability coverage will be bodily injury $300,000/$1,000,000, and property
damage $500,000. A certificate of insurance will be approved by Alliant Energy
before any Attachments to its Network are made under this agreement.
XVIII. LIABILITY AND DAMAGES
Both parties reserve the right to maintain their Networks and to operate
facilities in a manner that will best enable them to fulfill their service
requirements. No Alliant Energy Company will be liable for any interruptions of
service to McLeodUSA except as may be caused by Alliant Energy's negligence or
willful misconduct. McLeodUSA agrees that it is responsible for any overlashings
on its lines attached to any Alliant Energy's Network.
McLeodUSA agrees to exercise all necessary precautions to avoid damage to
facilities of Alliant Energy and other attachers. McLeodUSA agrees to indemnify
Alliant Energy from and against any loss, damage, or claims resulting from any
acts or omissions of McLeodUSA. McLeodUSA agrees to make an immediate report to
al Alliant Energy of any loss or damage to Alliant Energy's or other attacher's
or overlasher's facilities and agrees to pay the cost of repairs, except if due
to Alliant Energy's negligence or willful misconduct.
Alliant Energy shall promptly notify McLeodUSA of (i) any damages caused by
Alliant Energy to the McLeodUSA Network or (ii) any claims against McLeodUSA for
property damage, bodily injury or death arising directly or indirectly out of
Alliant Energy's use of the McLeodUSA Network. Notwithstanding any other
provision to the contrary, neither party shall be liable to the other for the
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other party's consequential or indirect damages, including but not limited to,
exemplary or punitive damages, loss of profits or revenue, whether arising out
of this transaction or breach of this Agreement or otherwise.
XVIII. INDEMNIFICATION
McLeodUSA agrees to take all necessary precautions to safeguard the public
against damages or injury and to save Alliant Energy harmless from any and all
damages, expense, costs and reasonable attorney's fees on account of injury to
person, life or property or injury resulting in the death of any person or
persons in any manner arising out of or in connection with attachment, removal,
relocation, rearrangement, reconstruction, repair or overlashings of McLeodUSA's
Attachments on Alliant Energy's Network, except as may be caused by Alliant
Energy's negligence or willful misconduct.
If Alliant Energy is made a party to any suit or litigation on account of injury
or damage or alleged injury or damage to person, life or property or on account
of an injury or damage or alleged injury resulting in the death of any person or
persons, arising out of or in connection with the attachment, removal,
relocation, rearrangement, reconstruction, repair of McLeodUSA's Attachments to
the Alliant Energy Network, except as may be caused by Alliant Energy's
negligence or willful misconduct, McLeodUSA will defend such actions on behalf
of Alliant Energy, including claims and causes of action at common law or
arising under any statute. If judgment will be obtained or claim allowed against
Alliant Energy, McLeodUSA will pay and satisfy such judgment or claim in full,
except as may be caused by Alliant Energy's negligence or willful misconduct.
XIX. RIGHTS
Nothing in this Agreement will affect the rights of others not mentioned in this
Agreement including the rights to use structures or towers or structure or tower
space.
Neither party shall assign, sublet or otherwise transfer this Agreement or any
of its rights and interest to any firm, corporation or individual, without the
prior written consent of the other party, except either party shall have the
right by written notification to the other to assign, convey or otherwise
transfer its rights, title, interest and obligations under this Agreement to any
entity controlled by the party, controlling or under common control or any
entity into which a party may be merged or consolidated or which purchases all
or substantially all of the assets of such party. In the case of a divestiture
of utility transmission or distribution facilities to a third party, the
Transport Capacity accrued to Alliant Energy as a result of Attachment by
McLeodUSA on the divested facilities shall be deducted from the total Transport
Capacity accrued by Alliant Energy, and McLeodUSA shall pay to the entity to
whom these assets are divested the fair market value of their rental, as
determined by the FCC from time to time. In the event that real estate is sold
or divested by Alliant Energy on which McLeodUSA facilities are located, Alliant
Energy shall convey an easement to McLeodUSA for its facilities located on such
real estate and may sell the land subject to the easement without removing the
McLeodUSA Attachments. Alliant Energy shall be entitled to continue to use all
Transport Capacity accrued under this Agreement without reduction by reason of
the sale of real estate. This Agreement shall extend to and bind the successors
and assigns of Alliant Energy and the permitted successors and the permitted
assigns of McLeodUSA.
XX. TERMS
Failure to enforce any of the terms or conditions of this Agreement will not
constitute a waiver of any such terms or conditions. Alliant Energy and
McLeodUSA reserve the right to and may seek any and all remedies and relief
available at law. Neither McLeodUSA nor Alliant Energy will be deemed to have
waived any rights or remedies at law by virtue of executing this Agreement.
Bills for any charges under this Agreement will be payable within thirty days
after the date of invoice. Should any term of this Agreement be determined by a
court or other entity of competent jurisdiction to be unenforceable, all other
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terms of this Agreement will remain in full force and effect.
XXI. NOTICES
All notices required by this Agreement will be in writing and sent to the
following address. Address changes may be made in writing. Notices will be
effective upon receipt unless otherwise stated.
McLeodUSA Telecommunications Services, Inc.
McLeodUSA Technology Park
0000 X Xxxxxx XX, XX Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000.
Attention: Law Group.
The Alliant Energy Utilities hereby designate:
Alliant Energy Real Estate and Right of Way Department
X.X. Xxx 000
Xxxxxxx, Xxxx 00000-0000
To receive any notices sent to any Alliant Energy Company pursuant to this
Agreement.
Dated this 24th day of November, 1999
Wisconsin Power and Light Co. McLeodUSA Telecommunications
Services, Inc.
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------- ----------------------
Xxxxxxx X. Xxxx, President
IES Utilities, Inc. Alliant Energy Corporate Services, Inc. as
Agent for other Alliant Energy Companies
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------- ---------------------
Interstate Power Corporation
By: /s/ X. X. Xxxxxx
--------------------
10
EXHIBIT A
[CONFIDENTIAL MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT FILED WITH THE SEC UNDER RULE 24B-2(B) AND HAS BEEN FILED SEPARATELY
WITH THE SEC]
