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EXHIBIT 10.18
Contract No. 99TX-10266
LICENSE AGREEMENT
EXECUTED BY THE
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
ACTING BY AND THROUGH THE
BONNEVILLE POWER ADMINISTRATION
AND
ADVANCED TELCOM GROUP, INC.
INDEX TO SECTIONS
SECTION PAGE
1. Definitions ................................................... 2
2. Term .......................................................... 3
3. Exhibits....................................................... 3
4. Amendment of Agreement ........................................ 3
5. Ownership ..................................................... 4
6. License ....................................................... 4
7. Payment ....................................................... 4
8. Maintenance, Repair, and Restoration of the Cable ............. 6
9. Regenerator Building(s) ....................................... 8
10. Rights and Obligations Concerning the Cable ................... 9
11. Relocation of the Cable ....................................... 10
12. Representations and Warranties ................................ 11
13. Audit Procedures .............................................. 13
14. Insurance ..................................................... 14
15. Default ....................................................... 16
16. Indemnification; Waiver of Damages ............................ 18
17. Dispute Resolution ............................................ 20
18. General ....................................................... 20
19. Entire Agreement .............................................. 25
Exhibit A (Route Description)
Exhibit B (Fiber Specifications)
Exhibit C (Detailed Restoration Plan)
Exhibit D (Regeneration Site Lease Agreements and Letter of Entry)
Exhibit E (Acceptance Testing Standards)
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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This LICENSE AGREEMENT (Agreement) executed on __________, 1999, by the
UNITED STATES OF AMERICA (Government), Department of Energy, acting by and
through the BONNEVILLE POWER ADMINISTRATION (Bonneville), and ADVANCED TELCOM
GROUP, INC. (ATG). Both Bonneville and ATG may be referred to herein
individually as "Party" and collectively as "Parties."
1. DEFINITIONS
The following terms, when used in this Agreement, shall have the
meanings set forth in this section:
(a) "ATG Fiber" means six (6) optical fibers within the Cable
located on the Commercial Route owned by Bonneville and
designated to be licensed to ATG for the term of this Agreement.
(b) "Bonneville Facilities" means all Bonneville-owned and/or leased
structures, buildings, land, access roads, and equipment along
the Route.
(c) "Bonneville Fiber" means all fiber (except the six (6) dark
optical fibers licensed to ATG) within the Cable designated for
Bonneville's use.
(d) "Bonneville Route" means the portion of the Cable that contains
Bonneville Fiber extending approximately eighty-four (84) miles
between Bonneville's Alvey and Salem Substations.
(e) "Cable" means Bonneville owned seventy-two (72) SMF28 fibers or
installed by Bonneville along the Bonneville Route.
(f) "Cable Accessories" means the equipment necessary to support the
attachment of the Cable to the Bonneville Facilities.
(g) "Cable Restoration" means repairing and returning a damaged
cable back to service following an unscheduled outage.
(h) "Cable Specifications" means the drawings and specifications
regarding the hardware and materials incorporated into the
construction project.
(i) "Commercial Route" means the portion of the Cable that contains
ATG Fiber extending approximately eighty-four (84) miles between
Bonneville's Alvey and Salem Substations as further described in
Exhibit A.
(j) "Fiber Specifications" means the performance attributes of the
fiber within the Cable as described in Exhibit B.
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(k) "Interest Rate" means 1.25 percent per month to be compounded
monthly for each month or portion thereof during which interest
accrues.
(l) "License" means the License granted to ATG in section 6(a).
(m) "Regenerator Building(s)" means the building(s) along the Route
that house the terminal and regenerator equipment owned and
operated by ATG including any optronics or electronics required
by ATG to make use of the ATG Fibers. For the purpose of this
Agreement, the Regenerator Building(s) include conduit and fiber
optic cable, from the Regenerator Building(s) up to Bonneville's
nearest fiber optic splice box which is located adjacent to the
substation fence.
(n) "Route" means the Bonneville Route and the Commercial Route.
2. TERM
(a) This Agreement shall be effective at 2400 hours on the date of
execution by both Parties (Effective Date) and shall continue in
effect for a period of ten (10) years or unless sooner
terminated in accordance with the terms of this Agreement.
(b) The terms of this Agreement may be extended only by mutual
agreement of the Parties.
(c) All obligations incurred and outstanding shall survive the
expiration or termination of this Agreement.
3. EXHIBITS
Exhibit A (Route Description), Exhibit B (Fiber Specifications), Exhibit
C (Detailed Restoration Plan), Exhibit D (Regeneration Site Lease
Agreement and Letter of Entry) and Exhibit E (Acceptance Testing
Standards) are attached hereto and made a part of this Agreement.
4. AMENDMENT OF AGREEMENT
This Agreement may be amended or modified only by written agreement
executed by both Parties. No course of performance or dealing shall
operate to amend or modify this Agreement.
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5. OWNERSHIP
(a) The Cable shall be owned by Bonneville.
(b) Each Party shall own its own electronic and optronic devices
necessary to transmit signals over the fibers each controls.
(c) Bonneville shall also retain ownership of all Bonneville
electric transmission facilities, rights-of-way, structures,
improvements, and components installed on such facilities and
the Route as part of this Agreement.
(d) The Regenerator Building(s) and related equipment within the
Regenerator Building(s) shall be owned by ATG. To the extent
that any such Regenerator Building(s) or related equipment are
fixtures of Bonneville real property at the termination of this
Agreement, Bonneville shall have title to and ownership of such
fixtures.
6. LICENSE
(a) Xxxxx
Xxxxxxxxxx hereby grants to ATG an exclusive and indefeasible
right and License to use the six (6) ATG Fiber along the
Commercial Route as specified in Exhibit A for the Term of this
Agreement.
(b) No Property Interest
This Agreement shall not confer upon ATG any ownership or
possessory interest in the Route or other property owned by
Bonneville except as provided herein, and ATG agrees that it
shall never make any claim of such interest based upon this
Agreement.
7. PAYMENT
(a) ATG shall pay to Bonneville a one-time payment of [*] no later
than September 30, 1999.
(b) ATG shall pay to Bonneville an annual maintenance payment of [*]
per route mile of Cable used by ATG as specified in Exhibit A.
The first such payment shall occur within thirty (30) days of
the execution of this Agreement by both Parties. All subsequent
annual maintenance-payments shall be payable each year on the
anniversary date of the execution of this Agreement.
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[*] Information redacted pursuant to a confidential treatment request
throughout this exhibit.
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(c) Within any given calendar year, ATG will pay to Bonneville its
pro-rata share (based on ATG fiber count compared to the total
fiber count of the Cable) for restoration costs pertaining to
the Commercial Route incurred on or before September 30 of each
year. ATG shall pay Bonneville on or before September 30 of each
year after receipt of an invoice.
(d) ATG shall pay by wire or ACH transfer, using procedures
established by Bonneville's Financial Services Group. ATG may
pay its xxxx by mail, provided that Bonneville receives full
payment by the due date. ATG shall include the following
information in the description field of each transfer:
Bonneville contract number, Xxxxxxx XX0, and End Item Code.
If ATG is paying by mail, payments shall be mailed to:
Bonneville Power Administration
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
(e) Late Payment. Payments not received by Bonneville when due shall
bear interest at the Interest Rate from the date payment was due
until the date payment is made to Bonneville. Late payments
shall be collected pursuant to the Debt Collection Act, 1982, 5
U.S.C. 5514.
(f) Escalation of Annual Charge
All annual payments shall be increased annually on September 30
to an amount equal to such annual payments as escalated by the
Consumer Price Index, All Urban Consumers (CPI-U), U.S. City
Average, All Items, published by the United States Department of
Labor, Bureau of Labor Statistics (1982-84=100) ("Index") as of
the month immediately preceding September 30 of each year. If
the Index is discontinued or revised, the parties shall agree to
another index to be used in order to obtain substantially the
same result as would be obtained if the Index had not been
discontinued or revised.
(g) ATG at its sole cost and expense, shall have the right to have
an engineering consultant review the Bonneville fiber optic
route design and to monitor the ongoing costs of construction of
the Cable. Bonneville agrees to cooperate in good faith with ATG
in this regard and to provide all documentation reasonably
required by ATG.
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8. MAINTENANCE, REPAIR, AND RESTORATION OF THE CABLE
(a) Maintenance of the Cable
(1) During the term of this Agreement, Bonneville shall be
responsible for all physical maintenance of the Cable
and the Cable Accessories. Bonneville shall maintain the
Cable and the Route at all times in good working order
and in a safe condition, in conformity with the Cable
Specifications and all applicable laws and regulations.
(2) ATG shall be responsible for maintenance of its
property, including the Regenerator Building(s) along
the Route.
(b) Detailed Restoration Plan
(1) Restoration activities will be integral to ensuring
successful implementation of this Agreement. Timely
restoration is dependent upon the timely coordination
and cooperation between Bonneville and ATG. The Parties
agree to jointly develop a Detailed Restoration Plan,
which shall, upon its completion become part of this
Agreement as Exhibit C.
(2) The Parties agree to develop within sixty (60) days of
signature of this Agreement by both Parties a Detailed
Restoration Plan, the specifics of which will be based
upon the provisions of this section 8.
(3) The provisions described in this section shall form the
principles and basis for the development of such a plan.
(c) Restoration Priorities and General Requirements
(1) Bonneville's obligation to maintain and repair the Cable
and any activity incidental thereto shall be subordinate
to, and shall not conflict with, Bonneville's rightful
use and operation of its transmission facilities. In the
event both Bonneville's transmission facilities and the
Cable require maintenance or repair, the restoration of
the Cable shall be at all times subordinate to the
restoration of Bonneville's transmission facilities,
unless otherwise agreed to by Bonneville in advance. The
restoration of Bonneville's telecommunications system
shall take priority over restoration activities related
to ATG Fiber as shall restoration rights contained in
pre-existing contracts. The restoration of the ATG Fiber
shall take priority over restoration activities related
to any fibers licensed in contracts subsequent to the
agreement.
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(2) Any and all Bonneville or ATG representatives that
construct, install, repair, replace, or otherwise handle
the Cable, Cable Accessories, ATG Fiber, Bonneville
Fiber, or any related materials and equipment shall be
properly trained and equipped to meet all current
industry standards.
(3) A Bonneville representative must be on site during all
repair and restoration work to perform functions such as
safety watch, protection of Bonneville's transmission
facilities, or obtain line clearances. Bonneville shall
make its best efforts to have a representative arrive
at the site requiring an emergency maintenance activity
pursuant to section 8(d)(1) of this Agreement.
(4) The Party performing the repair and restoration shall
use prudent business methods to acquire the most cost
effective restoration procedures and materials
available given the Cable Specifications, Fiber
Specifications, and current industry standard.
(5) Bonneville shall require all employees or agents of ATG
who work near Bonneville's transmission facilities to
demonstrate that they have been properly trained and
equipped to perform the work. The Parties shall agree in
advance what constitutes proper training and reasonable
costs. The costs of agreed upon training for ATG
employees or agents of ATG shall be borne by ATG.
(6) A Bonneville representative shall have the authority to
stop work for reasons that involve potential health
hazards, safety concerns, and potential disruption to
Bonneville's operating system.
(d) Restoration of the Cable
(1) Bonneville shall immediately, upon notification from
ATG, of a confirmed cable related interruption in
service, failure, disrepair, impairment or other need
for repair or restoration of the ATG Fiber, begin to
mobilize Bonneville crews and make its continuous best
effort to achieve such necessary repair or restoration,
including making its best effort to have maintenance
personnel at the affected site within four (4) hours
after receipt of such notice, provided, however, that in
the event any of ATG rights are interrupted by events
described in section 18(a), repairs and restoration
shall be made as expeditiously as possible consistent
with section 8(c)(1). ATG recognizes that the four (4)
hour response time represents optimal conditions, and
may be impossible to achieve when responding to certain
remote locations. Actual response times will be
influenced by factors such as the terrain, weather
conditions present at the time the request is made, and
the actual mileage from Bonneville's dispatch station to
the fault site.
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(2) For purposes of this section, best efforts means
activities and performance consistent with prudent
utility practice, existing contract provisions for
Bonneville's hourly employees ("Collective Agreement
between BPA and Columbia Power Trades Council"), and
response times that do not jeopardize the health and
safety of Bonneville employees, agents of Bonneville,
ATG employees or agents of ATG.
(3) The Detailed Restoration Plan shall set forth the roles
and responsibilities of the respective parties, and
shall address issues regarding logistical
considerations, response interval factors, communication
between the Parties, sequential activity requirements,
and other related items which would impact response time
and restoration intervals. The aforementioned issues
will be taken into consideration in the determination of
whether Bonneville has used its best efforts in such
restoration or repair activities.
(4) If Bonneville is unable to begin to provide restoration
within the agreed-upon timeframe pursuant to section
8(d)(1), Bonneville shall provide ATG or its Bonneville-
approved subcontractor access to the Cable, pursuant to
the Detailed Restoration Plan, after notification from
ATG of confirmed cable related interruption in service,
failure, disrepair, impairment, or other need for
repair, so that ATG or its Bonneville-approved
subcontractor can make necessary repairs to the Cable
provided such repairs are made in accordance with all
current Bonneville and industry safety standards.
(5) Given that the Cable has been maintained by Bonneville
pursuant to 9(a)(1), and if the cable's ability to
transmit a signal degrades over time to a level
unacceptable to either Party, the Parties will jointly
determine the action to be taken and share any costs
associated with the action on a pro rata basis based
upon the number of fibers in each Party's control.
9. REGENERATOR BUILDING(S)
(a) ATG shall have sole responsibility for the expense and
acquisition of any property or utilities necessary for its
equipment along the Route. If space is available at Bonneville
substations, such space shall be provided to ATG pursuant to the
Regenerator Site Lease Agreement form attached as Exhibit D.
(b) Other than the Bonneville Facilities, ATG shall provide and own
the Cable Accessories splice boxes, and other components
necessary for the operation of the ATG Fiber as set forth in
Exhibit D.
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(c) Bonneville will provide to ATG the Bonneville Safety
Requirements. ATG shall have sole responsibility to comply with
Bonneville Safety Requirements with regard to the installation
and maintenance of ATG facilities on or about Bonneville's
right-of-way and property. ATG's compliance with Bonneville
Safety Requirements and for maintenance of certain environmental
control procedures such as maintenance of the grounds around the
Regenerator Building(s) will be at ATG's expense.
(d) ATG may use Bonneville's access roads to access the Regenerator
Building(s), provided that heavy vehicles or other equipment
being used on the access road will not impair the use of the
access road by Bonneville. Access to the roads shall be limited
to the times and frequency required for maintenance and
operation of the Regenerator Building(s) and equipment, and any
repair and restoration of the Cable pursuant to section 8. ATG
shall at ATG's expense repair any damage to the access roads
caused as a result of ATG use of the access roads.
10. RIGHTS AND OBLIGATIONS CONCERNING THE CABLE
(a) Permits
Bonneville shall acquire all necessary regulatory or
governmental permits and approvals with the exception of any
permits and/or approvals that may be required for the
Regenerator Building(s). Additionally, Bonneville shall acquire
all necessary National Environmental Policy Act (NEPA) permits
for the Regenerator Building(s) pursuant to paragraph (d) of
this section.
When feasible and necessary, Bonneville shall acquire permits,
easements, or additional rights-of-way for the Regenerator
Building(s) provided ATG pays for the full cost of such
assistance and protects Bonneville from future liability
resulting from such actions.
(b) Taxes, Mechanic's Liens, and Encumbrances
ATG shall pay its own income taxes as well as all franchise fees
and other fees and taxes resulting from ATG License over the ATG
Fiber along the Route. ATG shall keep the Route free from all
liens and encumbrances resulting from its performance of this
Agreement. If ATG does not pay the foregoing taxes and fees when
such become due, and such nonpayment results in the imposition
of a lien on, or encumbrance of, the Route, then Bonneville
shall have the right, but not the obligation, to pay all amounts
due and discharge such lien or encumbrance, upon thirty (30)
calendar days prior written notice to ATG and charge the amount
thereof to ATG. In the event Bonneville causes such liens or
encumbrances to be discharged, ATG shall pay such amounts to
Bonneville upon demand together with interest thereon at the
Interest Rate, accruing from the date that Bonneville makes
payment discharging such liens or encumbrances until the date
Bonneville receives full reimbursement from ATG. ATG shall have
the absolute right to dispute or challenge any tax or fee
assessed on its use of the ATG Fibers.
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(c) Access to Local Landowners
Contacts made by ATG with local landowners adjacent to the Route
shall be coordinated with Bonneville as specified in the
Detailed Restoration Plan.
(d) Environmental Compliance Activities
Bonneville shall be responsible for compliance with the Federal,
State, and local laws and regulations pertaining to NEPA and
related public involvement and information exchange in relation
to the proposed project activities. Bonneville shall acquire all
necessary permits associated with the project operations,
maintenance, and construction. The project activities will be
limited to construction and operation of cable, hardware;
Regenerator Building(s), access roads and distribution lines if
needed for Regenerator Building(s). If any mitigation measures
are identified as part of the NEPA compliance activities, these
measures will be performed by Bonneville at the sole cost of ATG
provided, however, that ATG shall not be liable for the costs of
any mitigation measures that arise from activities unrelated to
activities authorized by this Agreement. Contacts with the local
landowners will be performed by Bonneville-appointed
representatives. Any landowner compensation required as part of
the NEPA and project activities will be made by ATG. All of the
compliance activities undertaken by Bonneville pursuant to this
subparagraph shall be at the cost and expense of ATG.
(e) Taxes, title to and ownership of the ATG Fiber shall remain in
Bonneville which will be responsible for ad valorem taxes, if
any, imposed on its ownership of the ATG Fiber. If requested in
writing, Bonneville will reasonably assist ATG in any dispute or
challenge of any tax or fee assessed that ATG believes should be
properly assessed based on the ownership of the ATG Fiber.
11. RELOCATION OF THE CABLE
The Cable or a portion thereof may require relocation or replacement
during the term of this Agreement. The cost of such relocation or
replacement shall be allocated as follows:
(a) If requested by ATG for its operational purposes, ATG shall pay
all such costs, provided, however, that Bonneville shall, in its
sole discretion, determine whether such relocation of the Cable
may be accommodated considering Bonneville's own need to provide
economical and reliable electric power;
(b) If requested by Bonneville due to requirements necessary to
provide economical and reliable electric power, Bonneville shall
pay all such costs;
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(c) If the Cable must be relocated due to the order of any court or
governmental agency, or because of a force majeure event
Bonneville shall, in consultation with ATG designate a new route
for the Cable. The costs associated with such required
relocation that are not paid by a third party, shall be
allocated between the Parties on a pro rata basis.
(d) If the Cable must be relocated pursuant to section 11(c) above,
Bonneville and ATG shall work together to select contractors and
materials to achieve the most cost effective relocation
available in the market place given the Cable Specifications
Fiber, Specifications, and current industry standards.
12. REPRESENTATIONS AND WARRANTIES
(a) ATG represents and warrants to Bonneville as follows:
(1) ATG has full power and authority to execute, deliver,
and perform its obligations under this Agreement. The
execution of this Agreement by ATG has been duly and
validly authorized by all necessary action on the part
of ATG. This Agreement is a legal, valid, and binding
obligation of ATG enforceable against ATG in accordance
with its terms. The execution and delivery of this
Agreement by ATG and the performance of the terms,
covenants, and conditions contained herein will not
violate the articles of the limited partnership or
bylaws of ATG or any applicable law or regulation or any
order of court or arbitrator, and will not conflict with
and will not constitute a material breach of, or default
under, the provisions of any contract by which ATG is
bound. Except as otherwise stated herein, no approval,
authorization, or other action by any governmental
authority or filing with any such authority which has
not been obtained or accomplished is required in
connection with the execution, delivery, and performance
by ATG of this Agreement.
(2) There are no known actions, suits, or proceedings
pending or overtly threatened against ATG before any
court or administrative agency that would materially
impair ATG's performance of its obligations under this
Agreement.
(b) Bonneville represents and warrants to ATG as follows:
(1) Bonneville is duly authorized to execute and deliver
this Agreement and to perform its obligations hereunder.
This Agreement constitutes a legal and valid obligation
of Bonneville enforceable in accordance with its terms
to the full extent provided by law. The enforceability
of this Agreement is qualified as to:
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(A) limitations imposed by bankruptcy laws of the
United States, insolvency, reorganization,
arrangement, moratorium, or other laws relating
to or affecting the enforcement of creditor's
rights generally.
(2) Upon execution of this Agreement, Bonneville warrants
that there are no known conflicts with this Agreement
and that neither execution and delivery of this
Agreement nor performance by Bonneville of its
obligations hereunder constitutes a material breach of
or a default under any constitutional provision, or any
law or administrative regulation, or violate any
judgment, decree, or other instrument, or any other
contract related to the Route to which Bonneville is a
Party or to which Bonneville or any of its property or
assets is subject.
(3) Bonneville has sufficient interests in the real property
along the Route to construct its Cable and carry out its
obligations under this Agreement.
(c) Materials Warranties.
(1) Except as otherwise specifically set forth in the
representations, warranties, covenants and conditions of
this agreement, each party makes no warranty to the
other party or to any other person or entity, whether
express, implied or statutory, as to the installation,
description, quality, merchantability, completeness or
fitness for any purpose of any portion of the system or
any service provided hereunder or described herein, or
as to any other matter, all of which warranties are
hereby excluded and disclaimed.
(2) In procuring and obtaining materials, each Party shall
use reasonable efforts to obtain from the vendors and
suppliers, for the mutual benefit of the Parties,
warranties that such materials are:
(A) of the kind and quality described in the
purchase order or supply contract;
(B) free of defects in workmanship, material, design
and title;
(C) of good and merchantable quality; and where
appropriate, fit for their intended purpose.
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(3) Each Party shall attempt to obtain standard warranty
periods for all materials it is responsible to procure,
and shall use reasonable efforts to obtain longer
warranty periods, if such extended warranties do not
materially increase the cost of such materials. Each
Party's sole obligation and liability to the other with
respect to the materials warranties shall be to
administer such warranties. In no event shall either
Party be deemed to have guaranteed any such warranties
provided by vendors or suppliers.
(4) Each Party will cooperate and assist the other with
respect to any claim that a Party may assert against
vendors and suppliers under such warranties, including
such reasonable actions as may be necessary to assign or
otherwise make available to a Party the right to make
such claims.
(d) No Bonneville Warranty Concerning Route
Bonneville makes no representation or warranty whatsoever
concerning the physical characteristics of the Route. ATG
acknowledges that neither Bonneville nor any of Bonneville's
officers, employees, representatives, contractors, or
subcontractors or agents have made any such representation, nor
is Bonneville or ATG entering into this Agreement in reliance
upon any such representation or warranty.
13. AUDIT PROCEDURES
(a) Records
The Parties shall maintain true and correct sets of records in
connection with the performance of this Agreement and all
transactions related thereto and shall retain all such records
for a period of not less than three (3) years after the
Effective Date has been provided in accordance with section 2 of
this Agreement. The Parties shall also maintain true and correct
sets of records in connection with its accounting, billing, and
collection of its payment of the restoration of the Cable, and
shall retain all such records for a period of not less that
three (3) years after each such transaction.
(b) Reimbursement
If Bonneville or ATG is entitled under this Agreement to be paid
amounts determined in whole or in part on a reimbursement of
costs basis, the costs to be reimbursed shall be only those
reasonably necessary to perform the work in an efficient manner
in accordance with the time schedule required.
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(c) Audit Rights
Notwithstanding anything in this Agreement to the contrary,
either Party which is required to make payment under this
Agreement, may, at the paying Party's sole discretion and
expense, request and perform a complete audit of the records of
the Party requesting reimbursement which are described in
Paragraph 14(a) above. In the event that the Parties agree that
the auditing Party's audit is determined to be correct, the
nonauditing Party shall reimburse the auditing Party the agreed
upon amount. In the event that the nonauditing Party disagrees
with the results of the Party's audit and resolution is not
reached between the Parties, the Parties agree to resolve the
dispute pursuant to Section 17 of this Agreement.
14. INSURANCE
(a) General
At all times during the term of this Agreement and the License
term, ATG at its own cost and expense, shall provide the
insurance specified by this section.
(b) Evidence Required
On the Effective Date of this Agreement, ATG shall provide
Bonneville with a certificate of insurance (Certificate of
Insurance) executed by an authorized representative of the
insurer(s) evidencing that ATG insurance complies with this
section.
(c) Notice of Cancellation, Reduction, or Material Change in
Coverage
Policies shall include a provision requiring written notice by
the insurer(s) to Bonneville not less than thirty (30) calendar
days prior to any cancellation, reduction, or material change in
coverage. If insurance coverage is canceled, reduced, or
materially changed, ATG shall, prior to the effective date of
such cancellation, reduction, or material change, obtain the
coverage required under this section 14 and provide to
Bonneville documentation evidencing such coverage. ATG shall be
responsible to the extent not caused by Bonneville's negligence,
for the costs of any damage, liability, or injury occurring
during such cancellation, reduction, or material change in
insurance coverage which are not otherwise covered by insurance.
(d) Qualifying Insurers
Policies shall be issued by companies which hold a current
policyholders alphabetic and financial size category rating of
not less than A- according to Best's Insurance Report or a
similar rating from another recognized rating agency.
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(e) Insurance Required
(1) Liability
Commercial general liability insurance for bodily injury
(including death) and property damage shall provide
limits of not less than $10 million per occurrence.
(A) Coverage included shall be:
(i) premises and operations;
(ii) broad form property damage;
(iii) products and completed operations;
(iv) blanket contractual liability;
(v) personal injury liability;
(vi) cross-liability and severability of
interests; and
(vii) independent contractors liability.
(B) Coverage shall be endorsed to include the
following:
(i) inclusion of Bonneville, its officers,
representatives, agents, and employees
as an additional insured as respects
services or operations in connection
with this Agreement; and
(ii) stipulation that the insurance is
primary insurance and that no insurance
or self-insurance of Bonneville will be
called upon to contribute to a loss:
(2) Business Automobile Liability Insurance
Business Automobile Liability Insurance for bodily
injury (including death) and property damage shall
provide total limits of not less than $2 million
combined single limit per occurrence to all owned,
non-owned, and hired vehicles.
(3) Workers' Compensation/Employer's Liability Insurance
Statutory Workers' Compensation and Employer's Liability
Insurance for not less than $l million per occurrence
shall apply to employer's liability coverage for all
employees engaged in services or operations under this
Agreement. The policy shall include broad form
all-States/other States coverage.
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(f) Special Provisions
(1) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by ATG and any
approval of said insurance by Bonneville or ATG are not
intended to and shall not in any manner limit or qualify
the liabilities and obligations otherwise assumed by ATG
pursuant to this Agreement, including, but not limited
to, the provisions concerning indemnification.
(2) Bonneville acknowledges that some insurance requirements
contained in this section 14 may be fulfilled by a
formal self-insurance program of ATG. However, this
shall not in any way limit liabilities assumed by ATG
under this Agreement. Any self-insurance program must be
first approved in writing by Bonneville.
15. DEFAULT
(a) Events of Default
If either Party is in material breach or default (Defaulting
Party), under this Agreement, the other Party (Nondefaulting
Party) may notify in writing the Defaulting Party that it is in
material breach or default, such notice to be effective upon its
receipt by the Defaulting Party. The following events shall
constitute material breach or default under this Agreement:
(1) failure to make any payment when due hereunder, with the
exception of payments that become payable to either
Party during the period of any Force Majeure, when the
event of Force Majeure results in a Party's physical
inability to make such payment. During these periods,
the Party experiencing Force Majeure shall immediately
notify the other Party to make alternative arrangements
that are agreeable to both Parties.
(2) failure to perform in any material respect any
obligations required to be observed or performed
hereunder;
(3) any representation or warranty made by one Party to the
other herein proving incorrect in any material respect
as of the date of the making thereof;
(4) ATG files a voluntary petition in bankruptcy, or a
petition in bankruptcy is filed against ATG and not
dismissed within sixty (60) days, or ATG is adjudicated
as bankrupt or insolvent, or files any petition or
answer seeking or acquiescing in any reorganization,
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arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or
future Federal, State, or other statute, law, or
regulation relating to bankruptcy, insolvency, or other
relief for debtors, or seeks or consents to or
acquiesces in the appointment of any trustee,
receiver, custodian, liquidator, or similar official of
ATG or makes any general assignment for the benefit of
creditors;
(5) willful and material interference by one Party to the
other Party's operations; or
(6) failure to make full restitution for any damage to one
Party's real property or equipment caused as a result of
the sole negligent or willful actions by the other
Party.
(b) Remedies
(1) Defaulting Party's Right to Cure
The Defaulting Party shall have the right to cure any
material breach or default under this Agreement within
thirty (30) calendar days after the receipt by the
Defaulting Party of notification of such material breach
or default. In the case of any material breach or
default which may not reasonably be cured within thirty
(30) calendar days, the Defaulting Party shall have the
right to provide the Nondefaulting Party with a plan for
the appropriate actions to cure such material breach or
default. Within the thirty (30) calendar day period, the
Defaulting Party must commence diligently pursuing
appropriate action under the plan to cure the material
breach or default, in which event the Defaulting Party
shall have a longer period of time to cure the material
breach or default so long as the Defaulting Party shall
continue to be diligently pursuing appropriate action
during such period; provided, however, that in no event
shall such time period exceed one hundred twenty (120)
days.
(2) Nondefaulting Party's Remedies
After the time allowed the Defaulting Party to cure any
material breach or default has expired, then the
Nondefaulting Party shall have the right to: (A)
terminate this Agreement; (B) cure any material breach
or default of the Defaulting Party to preserve the
Nondefaulting Party's rights that may be prejudiced as a
result of such material breach or default; and (C)
exercise and pursue all other rights and remedies
available to it under applicable law.
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(3) Rights and Remedies Cumulative
Except as otherwise provided in this Agreement, any
right, or remedy afforded to either ATG or Bonneville
under any provision of this Agreement on account of
material breach or default by the other is in addition
to, and not in lieu of, all rights or remedies afforded
either ATG or Bonneville under any other provision of
this Agreement, by law or otherwise on account of the
material breach or default.
16. INDEMNIFICATION; WAIVER OF DAMAGES.
(a) Indemnification by ATG
(1) To the extent allowed by law, ATG shall release and
indemnify, defend, and hold harmless Bonneville and each
of its directors, officers, agents, representatives,
subcontractors, and employees (the "Bonneville
Indemnitees") from and against any and all liabilities,
losses, claims, demands and actions of any nature
("Claims") for injury to or death of a person, including
an employee of ATG or a Bonneville Indemnitee, or for
loss of or damage to property resulting directly or
indirectly from ATG's performance or nonperformance of
this Agreement, except to the extent that such Claim is
the result of negligence or willful misconduct of a
Bonneville Indemnitee.
(2) ATG accepts responsibility and liability, whether now
existing or arising, in connection with any Federal or
state statute, law, ordinance, regulation or judgment
related to the existence, disposal, or release of
hazardous waste, contaminants or pollutants, including
but not limited to polychlorinated biphenyl (PCB) on the
Route, directly or indirectly resulting from or caused
by ATG or ATG performance or nonperformance of this
Agreement.
(3) If negligence nor willful misconduct of a Bonneville
Indemnitee has contributed to a Claim, ATG shall not be
obligated to indemnify the Bonneville Indemnitees for
the proportionate share of such Claims caused by such
negligence or willful misconduct. Bonneville shall have
the right, at its own cost, to retain counsel, to
monitor, or participate in the defense of any Claim that
is covered by ATG's indemnity hereunder. Bonneville
shall reimburse ATG for that portion of a Claim
determined or agreed to be caused by Bonneville's
negligence or willful misconduct. Reimbursement shall be
due to ATG thirty (30) calendar days after the
determination or agreement with respect thereto, and
shall bear interest at the Interest Rate from said date
until the date of payment by Bonneville.
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(b) Indemnification by Bonneville
(1) To the extent allowed by law, Bonneville shall release
and indemnify, defend, and hold harmless ATG and each of
its directors, officers, agents, representatives,
subcontractors, and employees (the "ATG Indemnitees")
from and against any and all Claims as defined in
section 16(a)(1) for injury to or death of a person,
including an employee of Bonneville or an ATG
Indemnitee, or for loss of or damage to property
resulting directly or indirectly from Bonneville's
performance or nonperformance of this Agreement, except
to the extent that such Claim is the result of
negligence or willful misconduct of a ATG Indemnitee.
(2) Bonneville accepts responsibility and liability, whether
now existing or arising, in connection with any Federal
or state statute, law, ordinance, regulation or judgment
related to the existence, disposal, or release of
hazardous waste, contaminants or pollutants, including
but not limited to PCB on the Route, directly or
indirectly resulting from or caused by Bonneville or
Bonneville's performance or nonperformance of this
Agreement.
(3) If negligence or willful misconduct of a ATG Indemnitee
has contributed to a Claim, Bonneville shall not be
obligated to indemnify the ATG Indemnitees for the
proportionate share of such Claims caused by such
negligence or willful misconduct. ATG shall have the
right, at its own cost, to retain counsel, to monitor,
or participate in the defense of any Claim that is
covered by Bonneville's indemnity hereunder. ATG shall
reimburse Bonneville for that portion of a Claim
determined or agreed to be caused by ATG's negligence or
willful misconduct. Reimbursement shall be due to
Bonneville thirty (30) calendar days after the
determination or agreement with respect thereto, and
shall bear interest at the Interest Rate from said date
until the date of payment by ATG.
(4) Bonneville agrees to indemnify ATG against any claims of
underlying landowners along the Route of damage to
property resulting from Bonneville's construction and
maintenance of the Cable.
(c) Waiver of Certain Damages
Each Party hereby waives any right to consequential, incidental,
special or indirect damages, or damages for lost profits or
exemplary damages with respect to any claim arising out of or
related to this Agreement. The Parties acknowledge that the
foregoing waiver shall not prejudice the right of indemnity
respecting any Claim under this section.
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(d) The provisions of this section shall survive the expiration or
termination of this Agreement.
17. DISPUTE RESOLUTION
(a) Pending resolution of a disputed matter, the Parties shall
continue performance of their respective obligations hereunder.
Any controversy between the Parties rising out of this Agreement
or breach thereof, or out of performance under this Agreement, is
subject to the mediation process described below. If not resolved
by mediation, then the matter must be submitted to the American
Arbitration Association ("AAA") for arbitration before a sole
arbitrator.
(b) A meeting will be held promptly between the Parties to attempt in
good faith to negotiate a resolution of the dispute. The meeting
will be attended by individuals with decision-making authority
regarding the dispute. If within thirty (30) calendar days after
such meeting the Parties have not succeeded in resolving the
dispute, either party may within thirty (30) calendar days
thereafter serve written notice to the other party and submit the
dispute to a mutually acceptable third-party mediator who is
acquainted with dispute resolution methods. If the dispute is not
resolved by mediation either Party may initiate arbitration with
the AAA, upon the written notice from either Party to the other
Party. The dispute shall be resolved by arbitration under the
AAA's Complex Commercial rules. The arbitrator's authority shall
be limited by Federal Law. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. Neither Party is entitled to seek or recover punitive
damages in considering or fixing any award under these
proceedings.
(c) The costs of mediation and arbitration, including any mediator's
fees, AAA administration fee, the arbitrators fee, and costs for
the use of facilities during the hearings," shall be borne equally
by the Parties. Reasonable attorneys' fees may be awarded to the
prevailing Party (provided such a Party can clearly be determined
from the proceedings) at the discretion of the arbitrator. Each
Party's other costs and expenses will be borne by the Party
incurring them.
18. GENERAL
(a) Force Majeure
(1) As used in this Agreement, the term "Force Majeure" means
acts of God (including but not limited to, earthquakes,
fires, floods, windstorms, landslides, and ice storms);
strikes, lockouts, or other labor disputes; acts of public
enemy; acts of vandalism, wars, riots,
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and insurrection; epidemics; civil disturbances; explosions;
train derailments; breakdown or failure of machinery or
facilities (excluding the Cable and Cable Accessories);
accidents to machinery or equipment (excluding the Cable and
Cable Accessories), and delay in delivery of equipment to
the extent such occurrences are beyond the reasonable
control of the Parties; electrical disturbance originating
in or transmitted through such Party's electrical system or
equipment or any electrical system with which such Party's
system or equipment is interconnected; and any other event,
cause, or condition beyond the party's reasonable control,
which, by the exercise of reasonable diligence, prevents the
Party claiming Force Majeure from performing its obligations
under this Agreement.
(2) If either Party is unable to carry out its obligations
under this Agreement as a result of an event, cause, or
condition of Force Majeure, the Party claiming Force Majeure
shall give notice and full particulars of such Force Majeure
in writing to the other Party within five (5) calendar days
at the beginning of the occurrence of the Force Majeure
event, cause, or condition. Any obligations that such Party
is unable to perform due to an event, cause, or condition of
Force Majeure shall be suspended during the continuance of
such event of Force Majeure. The Party claiming Force
Majeure shall use reasonable efforts to remedy and minimize
the effects of such event of Force Majeure with all
reasonable dispatch.
(3) Neither Party shall be liable under this Agreement for, or
be considered to be in material breach or default under,
this Agreement on account of any delay in or failure of
performance due to Force Majeure unless specifically stated
in this Agreement.
(4) If Bonneville is the Party claiming Force Majeure and such
event of Force Majeure prevents restoration by Bonneville or
ATG within one (1) year from the event of such Force
Majeure, then ATG shall have the option to terminate this
Agreement under the provisions of section 15(b)(1).
(b) Notices
All notices and other communications under this Agreement shall be
properly given only if made in writing; and
(1) mailed by certified mail, return receipt requested, postage
prepaid; or
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(2) delivered by facsimile transmission followed by certified
mail to the Party's at the address or facsimile number set
forth in this section 18(b) or such other address or
facsimile number as such Party may designate by notice to
the other Party. Such notices and other communications
shall be effective on the date of receipt. If any such
notice or communication is not received or cannot be
delivered due to a change in the address of the receiving
Party of which notice was not previously given to the
sending Party or due to a refusal to accept by the receiving
Party, such notice or other communication shall be effective
on the date delivery is attempted.
If to Bonneville:
The Bonneville Power Administration
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: To be identified under separate letter
With a copy to:
The Bonneville Power Administration
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: To be identified under separate letter
If to ATG:
Advanced TelCom Group, Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Mr. Xxxx Xxxxxxx
Telephone: (000)000-0000
(c) Assignment
ATG may sell, assign, lease, sublease, or otherwise allow use of
ATG License under this Agreement to any person or entity only
after receiving Bonneville's written approval. Bonneville's
written approval shall not be unreasonably withheld. ATG shall
have the right, without Bonneville's consent, to assign or
otherwise transfer this Agreement in whole or in part (a) as
collateral to any institutional lender to ATG (or institutional
lender to any permitted transferee or assignee of ATG) subject to
the prior rights and obligations of the parties hereunder, (b) to
any parent, subsidiary or affiliate of ATG, (c) to any person,
firm or corporation which shall control, be under the control of
or be under common control with ATG, or (d) any other entity into
which ATG may be merged or consolidated or which purchases all or
substantially all of the stock or assets of ATG; provided that the
assignee or transferee in any such circumstance shall continue to
be subject to all of the
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provisions of this Agreement, including without limitation this
section 18(c) (except that any lender referred to in clause (a)
above shall not incur any obligations under this Agreement, nor
shall it be restricted from exercising any right of enforcement or
foreclosure with respect to any related security interest or lien,
so long as the purchaser in foreclosure is subject to the
provisions of this Agreement, including, without limitation, this
section 18(c); and provided further that in any of the
circumstances described in clauses (b), (c) or (d) all of the
payment obligations of ATG hereunder for the remainder of the Term
shall be paid in full as a condition to such transfer or
assignment; and provided further that promptly following any such
assignment or transfer, ATG shall give Bonneville written notice
identifying the assignee or transferee.
(d) Partial Invalidity
If any provision of this Agreement is determined by a proper court
to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect the performance of
other provisions of this Agreement and this Agreement shall remain
in full force and effect without such invalid, illegal or
unenforceable provision.
(e) Governing Law
This Agreement shall be governed by and construed in accordance
with Federal law.
(f) Terms Generally
The defined terms in this Agreement shall apply equally to both
the singular and the plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine, and neuter forms. The term
"person" includes individuals, limited partnerships, partnerships,
trusts, other legal entities, organizations, anti associations,
and any Government or governmental agency or authority. The words
"include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." The words "approval,"
"consent" and "notice" shall be deemed to be preceded by the word
"written."
(g) Waivers
No waiver of any provision or breach of this Agreement shall be
effective unless such waiver is in writing and signed by the
waiving Party and any such waiver shall not be deemed a waiver of
any other provision of this Agreement or any other breach of this
Agreement.
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(h) Confidentiality
If and to the extent any information or documents furnished by one
Party to the other under this Agreement is confidential or
proprietary to the furnishing Party, the receiving Party shall
treat such information or documents as confidential and
proprietary and shall take reasonable steps to protect against the
unauthorized use or disclosure of such information or documents;
PROVIDED, that such information and documents are conspicuously
marked or otherwise clearly identified as confidential or
proprietary when furnished; and PROVIDED, FURTHER, that this
section 18(g) shall not apply to information or documents in the
public domain or to information or documents required to be
disclosed by any law, rule, regulation, order, or other
requirement of any governmental authority having jurisdiction. If
a Freedom of Information Act request is received by Bonneville for
such written information or documents, Bonneville must promptly
notify ATG of such request and will, further, notify ATG if
Bonneville is required to disclose such written information or
documents.
(i) No Third-Party Beneficiaries
This Agreement creates rights and obligations only between the
Parties hereto. The Parties hereto expressly do not intend to
create any obligations or promise of performance to any other
third person or entity nor have the Parties conferred any rights
or remedy upon any third person or entity other than the Parties
hereto, their respective successor or assigns to enforce this
Agreement.
(j) Miscellaneous
Neither Party shall make public announcement of this Agreement or
the transactions contemplated by this Agreement without the prior
consent of the other Party, unless such public announcement is
necessary to comply with applicable law. This Agreement shall
benefit and bind ATG and Bonneville and their respective permitted
successors and assigns. Time is of the essence of this Agreement.
This Agreement may be executed in counterparts, each of, which
shall be an original, but all of which shall constitute one and
the same Agreement. This Agreement may not be amended or modified
except by a written instrument signed by ATG and Bonneville.
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19. ENTIRE AGREEMENT
Except as stated otherwise herein, this Service Agreement constitutes
the entire Agreement between the Parties with respect to the subject
matter hereof and there are no other understandings or agreements
between the Parties with respect thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in two
counterparts.
ADVANCED TELCOM GROUP, INC. UNITED STATES OF AMERICA
Department of Energy
Bonneville Power Administration
By: /s/ XXXXXXXX XXXXXXX By: /s/ XXXXX X. XXXX
---------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxxx Name: Xxxxx X. Xxxx
---------------------------- ----------------------------
Print/Type Print/Type
Title: Chairman and CEO Title: Account Executive
---------------------------- ----------------------------
Date: 9/8/99 Date: 8/24/99
---------------------------- ----------------------------
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EXHIBIT A
ROUTE DESCRIPTION
The following Route description is a best estimate of how the Route will be laid
out.
From the Salem Substation, the Cable will then traverse a distance of
approximately 23.4 miles to the Albany Substation on the Salem-to-Albany No. l,
115-kv H-frame wood pole line, encountering two river crossings on steel towers.
From Albany Substation, the Cable will span a distance of approximately 39.5
miles to the Xxxxxx Substation, traveling along the Albany-to.-Xxxxxx Xx. 0,
000-xx X-xxxxx wood pole line, with one river crossing on steel towers. From
Xxxxxx Substation, the Cable will run a distance of approximately. 8.3 miles on
the Albany - Xxxxxx No. 1 and Xxxxxx-Xxxx 500-kV lattice steel tower line to
Lane Substation. From Lane Substation, the Cable will run a distance of
approximately 13.2 miles on the Xxxxx-Xxxx 230-kV lattice steel tower line to
the southern terminus of the Cable to be located at the Xxxxx Substation.
Page 1 of 1
27
EXHIBIT B
FIBER SPECIFICATIONS
CORNING(R) SMF-28(TM) CPC6
SINGLE-MODE OPTICAL FIBER
GENERAL
Corning(R) SMF-28(TM) single mode fiber is considered the "standard" optical
fiber for telephony, cable television, submarine, and private network
applications in the transmission of data, voice, and/or video services. Corning
SMF-28 fiber is manufactured to the most demanding specifications in the
industry.
SMF-28 fiber is optimized for use in the 1310 nm wavelength region. The
information carrying capacity of the fiber is at its highest in this
transmission window, and it is also where dispersion is the lowest. SMF-28 fiber
can also be effectively used in the 1550 nm wavelength region.
Corning's enhanced, dual layer acrylate CPC6 coating provides excellent fiber
protection and is easy to work with. CPC6 can be mechanically stripped and has
an outside diameter of 245 (Micron)m. CPC6 is optimized for use in many single
and multi-fiber cable designs including loose tube, ribbon, slotted core, and
tight buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning
SMF-28 has consistent geometric properties, high strength, and low attenuation.
Corning SMF-28 fiber can be counted on to deliver excellent performance and high
reliability, reel after reel.
FEATURES AND BENEFITS
- Versatility in 1310 nm and 1550 nm applications.
- Outstanding geometrical properties for low splice loss and high splice yields.
- OVD manufacturing reliability and product consistency.
- Optimized for use in ribbon, loose tube, and other common cable designs.
Page 1 of 4
28
OPTICAL SPECIFICATIONS
Attenuation
UNCABLED FIBER ATTENUATION CELLS
--------------------------------------------
Attenuation Cells
(dB/km)
----------------------------
Wavelength
(nm) Standard
---------- ----------------------------
1310 (less than/equal to) 0.40
1550 (less than/equal to) 0.30
POINT DISCONTINUITY
No point of discontinuity greater than 0.10 dB at either 1310 nm or 1550 nm.
ATTENUATION AT THE WATER PEAK
The attenuation at 1383 (plus/minus) 3 nm shall not exceed 2.1 dB/km.
ATTENUATION VS. WAVELENGTH
-----------------------------------------------------------
Max
Range Ref. (Greek lambda) Increase
(nm) (nm) (Greek Alpha) (dB/km)
----- ------------------- ---------------------
1285-1330 1310 0.05
1525-1575 1550 0.05
The attenuation in a given wavelength range does not exceed the attenuation of
the reference
wavelength (Greek lambda) by more than the value (Greek alpha).
ATTENUATION WITH BENDING
----------------------------------------------------------------
Mandrel Induced
Diameter Number Wavelength Attenuation
(mm) of Turns (nm) (dB)
-------- -------- ---------- -----------
32 1 1550 (less than/equal to) 0.50
75 100 1310 (less than/equal to) 0.05
75 100 1550 (less than/equal to) 0.10
The induced attenuation due to fiber wrapped around a mandrel of a specified
diameter.
- CABLE CUTOFF WAVELENGTH ((Greek lambda)ccf)
(Greek lambda)ccf (less than) 1260 nm
- MODE-FIELD DIAMETER
9.30 (plus/minus) 0.50 (Greek mu)m at 1310 nm
10.50 (plus/minus) 1.00 (Greek mu)m at 1550 nm
- DISPERSION
Zero Dispersion Wavelength ((Greek lambda)o): 1301.5 nm (less than/equal to)
(Greek lambda) (less than or equal to 1321.5 nm
Zero Dispersion Slope (So): (less than/equal to) 0.092 ps/(nm2 (times) km)
Fiber Polarization Mode Dispersion Coefficient (PMD): (less than/equal to)
0.5 psec/(square root of)km
Page 2 of 4
29
DISPERSION CALCULATION
Dispersion = D(Lambda): (approximately equal to) S (sub 0) divided by 4
[(Lambda) minus (Lambda) (base 0) (power of 4) divided by (Lambda) (cubed)]
ps/nm X km), for 1200 nm (less than or equal to) Lambda (less than or equal to)
1600 nm
(Lambda) = Operating Wavelength
ENVIRONMENTAL SPECIFICATIONS
INDUCED
ENVIRONMENTAL TEXT ATTENUATION
CONDITION (dB/km)
Temperature Dependence (less than or equal to) 0.05 (less than or equal to) 0.05
-60(degrees) to + 85(degrees)C
Temperature-Humidity Cycling (less than or equal to) 0.05 (less than or equal to) 0.05
-10(degrees)C to +85(degrees)C, up to 98% RH
Water Immersion, 23(degrees)C (less than or equal to) 0.05 (less than or equal to) 0.05
Heat Aging, 85(degrees)C (less than or equal to) 0.05 (less than or equal to) 0.05
DIMENSIONAL SPECIFICATIONS
Standard Length (km/reel): 2.2 - 25.0
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: (less than or equal to) 2.0 m radius of curvature Coating Diameter: 245 (plus or minus) 10 (greek mu)m
Cladding Diameter: 125.0 (plus or minus) 1.0 (greek mu)m
Core-Clad Concentricity: (less than or equal to) 0.8 (greek mu)m Coating-Cladding Concentricity: < 12 (greek mu)m
Cladding Non-Circularity: < 1.0%
| Min. Cladding Diameter |
Defined as: | 1- ------------------------ | x 100
| Max. Cladding Diameter |
--------------------------------------------------------------------------------
Page 3 of 4
30
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress (greater than
or equal to) 100 kpsi (0.7 GN/m(squared))
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
CORE DIAMETER: REFRACTIVE INDEX DIFFERENCE:
8.3 (greek mu)m 0.36%
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF REFRACTION (N (inferior eff)):
0.13 1.4675 at 1310 nm
NA was measured at the one percent 1.4681 at 1550 nm
power angle of a one-dimensional far
field scan at 1310 nm.
ZERO DISPERSION WAVELENGTH FATIGUE RESISTANCE PARAMETER (n (inferior d)):
(Lambda (inferior o)): (Greater than or equal to) 20
1312 nm
ZERO DISPERSION SLOPE (So): COATING STRIP FORCE:
0.090 ps/(nm(squared) - km) Dry: 0.7 lbs. (3.2 N)
Wet: 14 days room temperature: 0.7 lbs. (3.2 N)
Page 4 of 4
31
EXHIBIT C
DETAILED RESTORATION PLAN
The Detailed Restoration Plan will be developed within sixty (60) days
of signature of this Agreement by both Parties.
Page 1 of 1
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EXHIBIT D
REGENERATION SITE LEASE AGREEMENTS AND LETTER OF ENTRY.
If needed, information to be provided at a later date.
Page 1 of 1
33
EXHIBIT E
ACCEPTANCE TESTING STANDARDS
Bonneville shall meet the Acceptance Testing Standards set forth below. In the
event Bonneville's performance requirements for its communications system
requires Bonneville to exceed the standards and requirements specified in this
Exhibit, Bonneville shall apply the higher standard.
Client Network Span and Final Acceptance Requirements:
1. DESIGN CRITERIA
The number of cable splices at the time of original construction will be
designed to maximize reel lengths between splices. Due to cable cuts,
project changes and cable relocation, additional splices may be
necessary and are allowed. The number of splices will be monitored to
insure that attenuation and reflection tolerances are maintained.
2. CONSTRUCTION
Cable must be constructed in accordance with sound commercial practices.
Bonneville requirements will in general be more stringent however. The
National Electric Code shall be followed as a minimum.
3. TYPICAL FIBER CABLE INFORMATION
Single mode fiber specifications may vary, depending on the fiber
manufacturer. Typical concatenated levels of 0.40 dB per km @ 1310nm
(for SMF-28) and 0.25 per km @ 1550nm (for SMF-28 fibers and LEAF(TM)).
4. SPAN REQUIREMENTS
Span loss measurements must be performed using the two following
methods: OTDR (optical time domain reflectometer) and insertion loss
(stabilized light source and power meter) measurement in each direction
at 1550nm wavelength. Insertion loss testing will not be completed until
Client fibers have been terminated at each site.
(a) Maximum dB/km loss must not exceed 0.35 dB/km at 1550nm including
splice losses.
Page 1 of 3
34
(b) In no case shall a fiber show a point discontinuity greater than
0.1dB. Discontinuities (known as steps, splices, or attenuation
non-uniformity's) shall be measured with an OTDR to determine the
loss of the localized attenuation. The least squares fit method of
measurement must be used to determine the magnitude of the loss of
a point discontinuity.
(c) Client shall provide Bonneville access to it's fiber termination
panels at each but on the route to perform these measurements.
(d) Preliminary power meter testing consisting of a mechanical fiber
coupler, stabilized light source and a power meter (to assure that
no transposed fibers are spliced) may be completed within 60 days
of the completion of construction.
(e) Test data including OTDR trace data in hard copy or electronic
format must be submitted to Client within 60 days of Bonneville's
receipt of a written request for this data. This data will not be
available until after construction is complete.
In the event the measured span values exceeds the calculated values, Bonneville
will perform corrective maintenance as required to restore the Commercial Fiber
to the tolerances noted in this exhibit.
5. SPLICE LOSS
The bi-directional splice loss average shall be 0.l0dB or less over the
span. All splicing will be performed by the proprietor pursuant to the
Fiber Lease Agreement. All fiber splicing must be fusion type.
6. COMPLIANCE
Client, at its discretion, may choose to physically monitor any or all
testing associated with acceptance of the Commercial Fiber. If requested
in writing test data including OTDR trace data in- hard copies or
electronic form must be submitted to Client for review. Client has the
option to waive any specifications and/or requirements listed in the
technical specification criteria by providing written notice to
Bonneville.
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7. KEY OPTICAL PERFORMANCE CHARACTERISTICS REQUIRED FOR SINGLE-MODE AND
LEAF OPTICAL CABLES
Client fiber shall be Corning LEAF(TM) (see attachment) and a portion of
Bonneville's fiber shall be Single Mode (see attachment).
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