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EXHIBIT 10.18
FIBER OPTIC CABLE AGREEMENT
This Fiber Optic Cable Agreement (the "Agreement") is entered
into this 28th day of May, 1997, by and between the Arkansas State Highway and
Transportation Department (hereinafter the "AHTD") and Digital Teleport, Inc.
(hereinafter the "Fiber Optic Company," or "FOC").
W I T N E S S E T H:
WHEREAS, 23 U.S.C. Sections 109 and 111 and Federal
Regulations promulgated pursuant thereto, govern use and points of access to the
Interstate and other controlled access highways and the 1989 Policy of The
American Association of State Highway and Transportation Officials provides for
longitudinal use when a determination is made that denial of such use would
result in severe hardship or is contrary to the public interest;
WHEREAS, the United States Telecommunications Act of 1996
requires the provision of right of way for telecommunications purposes by states
on a nondiscriminatory basis;
WHEREAS, with the presently available technology, the
development and installation of a dedicated Fiber Optic Cable System at or in
close proximity to the Federal-Aid highway system is desirable or necessary in
order to achieve the mandates of certain federal laws and regulations; and
WHEREAS, the parties hereto desire to enter into an agreement,
under which the FOC installs and maintains a buried Fiber Optic Cable System on
certain highways in Arkansas, a portion of which system is reserved for the use
of the AHTD to aid in complying with these federal legal mandates.
NOW, THEREFORE, in consideration of these mutual covenants,
promises and representations, the parties agree as follows:
(1) DEFINITIONS:
(A) Airspace: That space located above, at, or below an
AHTD highway's established grade line, lying within
the approved right-of-way limits.
(B) FCAH: Interstate and other fully controlled access
highways in the State of Arkansas ("FCAH").
(C) Fiber Optic Cable Corridor: The three-dimensional
area above, below, and at ground level, within the
metes and bounds description of AHTD's Airspace
along the FCAH from the Missouri State Line on
I-540 to the District 4 Headquarters in Fort Xxxxx
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and from Fort Xxxxx to the District 8 Headquarters
in Russellville on I-40 and to Little Rock on I-40.
(D) Fiber Optic Cable System: The Fiber Optic Cable
System consists of all fiber optic cable, conduits,
splices, buildings and enclosures, manholes, hand
holes and related appurtenances.
(E) Highway Purpose: To maintain and operate the state
highway system in Arkansas and not for commercial
use or resale.
(F) Point of Demarcation: Splice points wherein the FOC
provides AHTD connection access to AHTD's six (6)
dark fibers as required in the Agreement.
(G) Utility Accommodation Policy: The Utility
Accommodation Policy, as adopted by the Arkansas
State Highway Commission and as amended by the
Commission from time to time.
(2) PURPOSE: This Agreement establishes the respective
responsibilities of AHTD and the FOC for the purpose of installing and
maintaining a buried Fiber Optic Cable System in the Fiber Optic Cable Corridor.
(3) CONSIDERATION: In exchange for granting to FOC a permit
for the construction and operation of the Fiber Optic Cable System in the Fiber
Optic Cable Corridor, the FOC, at no charge to the AHTD, will provide AHTD with
six (6) dedicated dark fiber optic strands along the Fiber Optic Cable Corridor
so long as the FOC, or any of its successors or assignees, continues to occupy
the Fiber Optic Cable Corridor; additionally, the FOC shall install, at no cost
to the AHTD, dark fiber optic cables from the Fiber Optic Cable Corridor along
I-540 from the Missouri Line along the I-540 right-of-way of the AHTD into the
AHTD's District Headquarters in Fort Xxxxx, Arkansas, and from Fort Xxxxx to the
District 8 Headquarters in Russellville and to Little Rock along the I-40
right-of-way, all to the satisfaction of the AHTD; and the FOC shall at no time
charge any fees for the usage of any strands dedicated to the AHTD nor shall
their successors or assigns so long as the FOC or any of its successors or
assignees continues to occupy the Fiber Optic Cable Corridor.
(4) THE PERMIT: Nothing contained in this Agreement shall be
construed as the granting of an easement from the AHTD to the FOC. AHTD hereby
grants to FOC only a permit for the construction and operation of the Fiber
Optic Cable System within the defined Fiber Optic Cable Corridor. The permitted
activities granted to the FOC by this Agreement shall be located within the
AHTD's airspace in the Fiber Optic Cable Corridor and may be revocable in
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accordance with the Utility Accommodation Policy, and, if so revoked, the AHTD
shall terminate this Agreement. If such Agreement is so terminated by the AHTD,
the FOC hereby specifically agrees that it shall have absolutely no legal
recourse against the AHTD or the Arkansas State Highway Commission, or any of
that Department's or Commission's officers, agents, servants, or employees. This
Agreement may also be terminated by the FOC in accordance with the provisions of
this Agreement. The permitted activities shall be broad enough to accommodate
the Fiber Optic Cable System and its maintenance, and shall be located as
specified by AHTD's representative. The FOC shall have the option to locate any
part of the Fiber Optic Cable System within the Fiber Optic Cable Corridor, but
the use of that corridor shall not be exclusive. Nothing in this Agreement shall
limit AHTD's authority to install its own independent fiber optic cable within
AHTD Airspace for Highway Purposes, if AHTD elects to do so. If a third party is
allowed to install a fiber optic cable within AHTD Airspace, FOC may inspect any
such installation prior to its commencement and any such third party will be
required to pay the cost of any additional protection for the Fiber Optic Cable
System which the FOC might reasonably require.
(5) CONTRACT DOCUMENTS: This Agreement between AHTD and the
FOC incorporates by reference the terms of the Utility Accommodation Policy.
(6) CONSTRUCTION GUIDELINES:
(A) The location of all facilities constructed within
the Fiber Optic Cable Corridor or on AHTD
right-of-way shall be approved by Chief Utility
Section, AHTD. Standard utility permits will be
issued covering all the installations. All plans for
the installation of the Fiber Optic Cable System
shall be submitted to AHTD's Chief Utility Section
for approval at least 30 days prior to the desired
date of excavation or trenching for installation.
Attachment to any structure shall be submitted
thirty (30) days prior to installation. AHTD will
approve or disapprove any such submissions within
fifteen (15) days of receipt thereof. AHTD's
approval or disapproval of such plans shall be made
in accordance with the Utility Accommodation Policy.
(B) With the exceptions noted in this Agreement, all
work shall be accomplished in accordance with the
permit policies and regulations, including those set
forth in the Utility Accommodation Policy.
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(7) TERMS AND CONDITIONS:
(A) AHTD's use of the AHTD fibers will be solely for
Highway Purposes. AHTD shall have access to the AHTD
fibers along the Fiber Optic Cable Corridor at
predetermined splice points. Within ten (10) days
from the date of this Agreement, AHTD will advise
FOC of AHTD's determination of the splice and access
points as required by AHTD for its dark fibers.
(B) The FOC shall own and operate the Fiber Optic Cable
System and retain all revenues derived from it.
(8) FORCE MAJEURE: If a party's performance of its obligations
hereunder becomes impossible or impractical because of an act of God, war, riot,
fire, explosion, accident, flood, sabotage, inclement weather, strikes, lockouts
or injunctions or any other cause beyond the reasonable control of such party,
such party shall be given a reasonably adequate time to remedy such situation.
These conditions do not constitute grounds for avoidance of a party's
obligations hereunder but merely excusable delay. A condition, however, will not
excuse performance if it does not directly affect performance under the terms
hereof.
1. The party invoking this provision shall immediately
notify the other party orally and promptly
thereafter provide notice in writing of the cause
for the delay, restriction or limitation of its
ability to perform, together with an estimate of the
extent to which its performance has been and will be
delayed.
2. Should a "Force Majeure" delay the performance of
this Agreement for a period in excess of thirty (30)
days, the party delayed from performing shall on or
before the 1st and 15th day of each calendar month
thereafter notify the other party of its best
estimate of the length of time such "Force Majeure"
will remain in effect and, notwithstanding any
provision herein to the contrary, the other party
may take such reasonable actions as will mitigate
any damages.
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(9) CABLE AND EQUIPMENT:
The FOC will furnish all fiber optic cable that meets
FOC's cable specifications and all equipment necessary for installation of the
cable. Each party will provide its own optronics and electronics to operate its
own fiber or that dedicated to it.
(10) MAINTENANCE:
(A) General Maintenance:
1. General Maintenance. FOC technicians will be
responsible for the maintenance and protection
of the Fiber Optic Cable System, including the
six AHTD dark fibers in accordance with FOC's
company policies. This maintenance obligation
with respect to the AHTD fibers shall apply only
to those areas where AHTD fibers co-occupy cable
contained in the Fiber Optic Cable System.
2. Distribution of Duties Among the FOC and
Subcontractors: The FOC will have the
responsibility for all aspects of the
installation of the Fiber Optic Cable System,
including those aspects the FOC subcontracts to
other firms.
(11) STATE AND FEDERAL REGULATIONS: The FOC agrees to abide by
all federal and state regulations which pertain to the subject matter of this
Agreement and shall maintain and/or obtain any necessary certifications,
licenses, or governmental approval and file any required reports, tariffs, or
notices needed to effectuate the terms of this Agreement.
(12) RIGHT TO CURE: In the event that AHTD determines that FOC
is in material violation of any of its obligations under this Agreement, AHTD
shall notify FOC of said violation in writing, after which, notwithstanding
anything else herein to the contrary, FOC shall have a period of ninety (90)
days from the date of such notice to cure such violation. This ninety (90) day
period may be extended upon the agreement of the parties.
(13) RELOCATION: In the event of any highway expansion which
conflicts with the location of the Fiber Optic Cable System the Fiber Optic
Cable Corridor will be relocated in AHTD's Airspace in accordance with the
Utility Accommodations Policy.
(14) SALE OR ASSIGNMENT: The FOC reserves the right to sell or
assign, at any time, any or all of its rights under this
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Agreement, or any of FOC's assets under this Agreement. The FOC shall provide
written notice to AHTD of any such sale or assignment and provide AHTD any such
assignee's written agreement to abide by the terms of this Agreement and to
undertake the obligations of the FOC no later than thirty (30) days prior to
the effective date of any such sale or assignment.
(15) TERMINATION OF THE AGREEMENT: When this Agreement and the
right it conveys is terminated, the FOC shall have the option to:
(A) Sell the Fiber Optic Cable System and the FOC's
owned equipment and fixtures pertinent to the system
on AHTD property to AHTD, or any portion thereof
which is acceptable to AHTD, at a price to be
mutually agreed upon.
(B) Sell the Fiber Optic Cable System and the FOC's
owned equipment and fixtures pertinent to the
system on the AHTD property to a successor provider
of fiber optic cable services to AHTD, or sell any
portion thereof to a successor provider which is
acceptable to AHTD.
(C) Abandon the entire Fiber Optic Cable System on
AHTD's property, or any portion thereof, in a
written notice to AHTD, in which instance that
portion of the Fiber Optic Cable System becomes the
sole and exclusive property of AHTD; except,
however, the FOC may not abandon any items or
equipment which may contain or create hazardous or
regulated wastes or materials without prior notice
to AHTD of the description and location of those
materials. AHTD may refuse to accept the
abandonment of all or any portion of the Fiber
Optic Cable System tendered by the FOC until any
hazardous or regulated wastes or materials have
been removed in accord with all applicable laws. In
any event, the FOC remains liable for the
remediation and full restoration of any damaged
real or personal property and for injuries or death
resulting from the presence of any hazardous or
regulated wastes or materials on or adjacent to
AHTD's property, which wastes or materials are or
were owned, placed or operated by the FOC.
(16) APPLICABLE STATE LAWS AND ENCUMBRANCES: At no time during
this Agreement shall the FOC place, install or deposit any hazardous waste or
hazardous substance in the AHTD Airspace. This does not include, however, those
hazardous substances which are
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lawfully and properly contained within the FOC's equipment or structures. If the
FOC causes, allows or permits a spill of a hazardous waste or substance within
AHTD Airspace, or on property immediately adjacent thereto, then the FOC shall
remain solely liable.
(17) INSURANCE:
(A) Liability Insurance: The FOC shall obtain
sufficient liability insurance to protect itself
and AHTD from tort liability, due to the
construction, installation, operation, maintenance
and repair of the Fiber Optic Cable System on
AHTD's right-of-way. At a minimum, the FOC shall
obtain the following insurance coverage:
1. The FOC shall obtain commercial general
liability insurance, having minimum liability
limits of one million dollars for each bodily
injury or property damage occurrence, combined
single limit, one million dollars aggregate;
and one million dollars product/completed
operations aggregate. Each such policy shall be
endorsed so as to cover liability arising from
underground property damage.
2. The FOC shall obtain commercial automobile
liability insurance for all vehicles owned or
used by the FOC in any phase of the
construction, installation, operation,
maintenance and repair of the Fiber Optic Cable
System on AHTD's right-of-way. The minimum
limits of liability of such insurance shall be
one million dollars combined single limit.
(B) Workers' Compensation: Workers' compensation
insurance shall be maintained at all times by the
FOC in amounts sufficient to comply with all the
obligations of the FOC under the laws of the State
of Arkansas relating to workers compensation.
(C) Subcontractors: The FOC shall be responsible to see
that its subcontractors possess at least the same
minimum extent of liability insurance at such times
that they are constructing, installing, operating,
maintaining or repairing any portion of the Fiber
Optic Cable System on AHTD's right-of-way.
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(D) Proof of Insurance: The FOC shall provide proof of
insurance to AHTD within seven (7) business days
upon receipt of a written request for same from an
authorized representative of AHTD. The FOC shall
also provide proof of insurance to AHTD of any
subcontractor, or require that subcontractor to do
so, within seven (7) business days upon receipt of
a written request for same from an authorized
representative of AHTD.
(18) LIABILITIES, RIGHTS AND REMEDIES: The FOC agrees that
AHTD shall not be responsible for any liability incurred by the FOC or its
employees arising out of the ownership, selection, possession, leasing, renting,
operation, control, use, maintenance, delivery, return and/or installation of
equipment provided by the FOC except as otherwise provided in this Agreement. No
provision of this Agreement shall be construed expressly or implied as a waiver
by AHTD of any existing or future right and/or remedy available by law in the
event of any claim made by, or default in or breach of contract of the FOC.
Notwithstanding the above, the FOC shall not be liable for any damages incurred
by AHTD or its subordinate department and employees, due to causes beyond the
reasonable control of the FOC, attributable to any service, products or actions
of any person other than the FOC, its employees, subcontractors and agents.
(19) FOC'S LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS: The FOC
shall be responsible for any and all injury or damage as a result of any
negligent acts or omissions in the services rendered under the terms and
conditions of this Agreement. In addition to the liability imposed upon the FOC
on account of personal injury, bodily injury (including death) or property
damage suffered as a result of the FOC's negligence, the FOC assumes the
obligation to save harmless AHTD, including its employees and assigns, from
every expense, liability or cost arising out of such negligent act or omission.
The FOC also agrees to hold harmless AHTD, its employees and assigns for any
negligent act or omission committed by any subcontractor or other person
employed by or under the supervision of the FOC under the terms of this
Agreement.
(20) LIMITATION OF LIABILITY AND WARRANTY: In no event shall
either party be liable to the other or any other person, firm or entity in any
respect, including, without limitation, for any damages, either direct,
indirect, consequential, special, incidental, actual, punitive, or any other
damages, or any lost profits of any kind or nature whatsoever, caused by
mistakes, accidents, errors, omissions, interruptions, delays, or defects in
transmission, including those which may be caused by the regulatory or judicial
authorities, arising out of or related to this agreement or the obligations of
such party pursuant to this agreement. Neither party makes any warranty, whether
express,
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implied, or statutory, as to the description, quality, merchantability,
completeness or fitness for any purpose of the services, or as to any other
matter, all of which warranties are hereby excluded and disclaimed.
(21) AMENDMENTS: No modification of any provision of the
Agreement shall be made or construed to have been made unless such modification
is mutually agreed to in writing by the FOC and AHTD and incorporated in a
written amendment to the Agreement and approved by AHTD prior to the effective
date of such modification.
(22) COMMUNICATIONS AND NOTICES: Any notices required or
permitted to be delivered under this Agreement shall be in writing and shall be
deemed to be delivered on the earliest to occur of (a) actual receipt; or (b)
three (3) business days after having been deposited with the United States
Postal Service, postage prepaid, certified mail, return receipt requested; or
(c) one (1) business day after having been deposited with a overnight express
mail service that provides tracking and proof of receipt of items mailed. All
notices shall be addressed to AHTD or the FOC, as the case may be, at the
address or addresses set forth below, or such other addresses as the parties may
designate in a notice similarly sent:
If to AHTD, address to:
Arkansas State Highway and Transportation Department
X.X. Xxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Utilities Section
and if to Fiber Optic Contractor:
Digital Teleport, Inc.
00000 Xxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Chief Executive Officer
(23) AHTD REPRESENTATIVE: The Director of Highways and
Transportation shall designate AHTD's representative for the purpose of
administering the provisions of this Agreement. Until further notice from that
Director, the AHTD's representative shall be the AHTD's Chief-Utility Section.
That Director may designate additional representatives, generally or for
specific purposes, as deemed appropriate by such Director.
(24) FIBER OPTIC CONTRACTOR'S REPRESENTATIVE: The Chief
Executive Officer, is designated as the FOC's representative for the purpose of
administering the provisions of this Agreement.
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(25) LAW OF ARKANSAS TO GOVERN: The Agreement shall be
construed according to the laws of the state of Arkansas. The FOC shall comply
with all local, state and federal laws and regulations relating to the
performance of the Agreement.
(26) CONFIDENTIALITY: With the exception of the contents of
this Agreement neither the FOC nor AHTD shall disclose to third parties
confidential factual matter provided by either party, except as may be required
by federal or state code provisions, laws, regulations, or statutes, or by court
order, or as authorized by the provider of that confidential information.
(27) NONSOLICITATION: The FOC warrants that it has not
employed or retained any company or person, other than a bona fide employee
working for the FOC, to solicit or secure this Agreement, and that it has not
paid or agreed to pay any company or person, other than a bona fide employee,
any fee, commission, percentage, brokerage fee, gifts, or any other
consideration, contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty, AHTD shall have the right
to terminate this Agreement without liability, or in its discretion, to deduct
from the Agreement price or consideration, or otherwise recover, the full amount
of such fee, commission, percentage, brokerage fee, gifts, or contingent fees.
(28) WAGE LAWS: This contract is a service contract, and not a
public works contract.
(29) SEVERABILITY: To the extent that a provision of this
Agreement is contrary to the constitution or the laws of the State of Arkansas
or of the United States, that provision shall be void and unenforceable.
However, the balance of the Agreement shall remain in full force and effect
between AHTD and the FOC.
IN WITNESS WHEREOF, the parties have entered into this
Agreement on the date last written below.
Executed by Digital Teleport, Inc. this 28th day of May, 1997.
Executed by the Arkansas State Highway and Transportation
Department this 29th day of May, 1997.
ARKANSAS STATE HIGHWAY AND DIGITAL TELEPORT, INC.
TRANSPORTATION DEPARTMENT
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx, Pres.
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