EXHIBIT 10.4
UNIT REDEMPTION, RELEASE, AND SALE AGREEMENT
This Unit Redemption, Release, and Sale Agreement ("Agreement") is
entered into by and among Touch America, Inc., a Montana corporation ("TA");
Sierra Pacific Communications, a Nevada corporation ("SPC"); and Sierra Touch
America LLC, a Nevada limited liability company ("STA"), as of the 9th day of
September, 2002, to be effective on the "Closing Date," as defined below.
Capitalized terms used but not otherwise defined herein shall have the meanings
given them in the Operating Agreement of STA, dated April 25, 2000 (the
"Operating Agreement"). Each party may be referred to individually as a "Party"
and collectively as the "Parties" in this Agreement.
WHEREAS, SPC desires to purchase from STA certain of the
telecommunications assets and rights of STA, as described on Exhibit A (the
"Assets"), together with all necessary occupancy rights and rights of access to
and operation of the Assets (the "Related Rights"), in connection with the
following business elements
(i) The redemption of the SPC membership interest in STA,
effecting the relinquishment of and abandonment by
SPC of its ownership interest in STA;
(ii) Delivery of SPC's secured promissory note to STA;
(iii) STA's covenant to SPC to promptly complete the fiber optic
conduit system, which extends from Sacramento, California to
Salt Lake City, Utah (the "System"); and
(iv) STA's provision of collocation space to SPC, and STA's
maintenance of the System, as set forth in this Agreement, its
Exhibits and Attachments.
WHEREAS, each Party to this Agreement acknowledges that the purchase
and conveyance of the Assets and redemption of the SPC membership interest in
STA shall not be consummated until the date that SPC has entered into a binding
and enforceable agreement to sell the First Conduit extending the entire System
route from Sacramento, California to Salt Lake City, Utah (the "First Conduit"),
which date shall be not more than sixty (60) days following the date of this
Agreement (the "Closing" or "Closing Date").
WHEREAS, each Party to this Agreement acknowledges that SPC has been
and is currently negotiating with Qwest Communications Corporation for the sale
of the First Conduit to Qwest.
NOW, THEREFORE, in consideration of the promises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, and intending to be legally
bound hereby, the Parties agree as follows:
I. PURCHASE PRICE
The total purchase price for the Assets is Forty-Eight Million Five Hundred
Thousand Dollars ($48,500,000), as adjusted in Section II below, and payable as
set forth in Section III below (the "Purchase Price").
SPC shall be entitled to retain, free and clear of all material encumbrances,
any third-party deposits and other consideration previously received by it in
connection with the marketing of the First Conduit.
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II. REDEMPTION OF SPC'S MEMBERSHIP INTEREST
STA, SPC, and TA shall take all necessary limited liability company action to
redeem the SPC membership interest in STA, causing SPC to relinquish and abandon
its ownership units in STA. Such redemption shall be effected pursuant to the
terms and conditions of the Redemption Agreement in substantially the form of
Appendix A hereto. The Parties agree that the redemption price shall be Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) (the "Redemption Price"),
which is equivalent to SPC's present cash investment in STA. The Redemption
Price shall be offset against the Purchase Price. At the Closing, STA and TA
shall execute an amendment to the Operating Agreement to reflect that SPC is no
longer a member of STA. SPC shall execute and deliver to TA and STA such
documentation, in addition to the Redemption Agreement, as may be reasonably
requested by TA or STA to evidence that the SPC membership interest has been
redeemed by STA as of the Closing Date.
III. PAYMENT OF PURCHASE PRICE
After offset of the Redemption Price described in Section II, the Purchase Price
in the amount of Thirty-Five Million Dollars ($35,000,000) shall be evidenced by
a secured promissory note made by SPC to STA and is attached hereto as Appendix
B (the "Note"). Payment and performance of the Note shall be secured by a
security agreement wherein SPC shall grant to STA a security interest in all of
the Assets conveyed and transferred to SPC at Closing. The Security Agreement is
attached hereto as Appendix C (the "Security Agreement"). STA agrees to release
its security interest in specific Assets or rights conveyed or sold by SPC
promptly upon STA's receipt of payment equal to the full proceeds less directly
related transaction fees and expenses ("Net Proceeds") received by SPC from any
such sale. Any sale and release of security shall be in accordance with the
terms of the Security Agreement. The Note and Security Agreement shall be
executed and delivered at Closing.
SPC shall directly assign any and all payments it receives from the sale of the
First Conduit it intends to sell to Qwest Communications including but not
limited to the (i)Second Payment of Five Million Dollars ($5,000,000) payment
due on execution of the Amended and Restated Agreement for the Construction and
Sale of Conduit between SPC and Qwest, net payable to STA of $4,375,000; and
(ii) Final Payment, of $10,000,000 net of transaction fees of $750,000 for
$9,250,000. SPC agrees to appoint STA as its agent for the purpose of directly
collecting any payment due to STA from Qwest with full authority to direct the
manner in which any payment is made. SPC will be responsible for transaction
fees and only those proceeds actually received by STA will be deducted from
SPC's balance due under the Note.
IV. ALLOCATION OF PURCHASE PRICE
The Purchase Price shall be allocated among the Assets in the manner set forth
in Exhibit A.
V. TRANSFER AND CONVEYANCE OF ASSETS BY STA
1. ASSETS TO BE TRANSFERRED
At the Closing, STA shall convey, transfer, and distribute to SPC the
following:
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(a) the First Conduit; and
(b) the Reno Metro Conduit; and
(c) the Related Rights for (a) and (b) above
Additionally at the Closing, STA shall convey, transfer, and distribute
to SPC the following assets, by conveying to SPC an indefeasible right of use
("IRU") for the useful life of such assets ("useful life" of an asset is defined
in Section 1.13 of the Conduit and Dark Fiber IRU and Sale Agreement, Appendix
E):
(d) Sixty (60) strands of fiber extending between
Sacramento, California and Salt Lake City, Utah
(e) Two (2) conduits extending between Reno, Nevada and
Spanish Fork, Utah ("IRU Conduits").
2. CONDUITS, AND RELATED RIGHTS
At the Closing, STA shall convey to SPC ownership of the First Conduit
and transfer the Related Rights, by an assignment and ▇▇▇▇ of sale which is
attached hereto as Appendix D (the "Assignment and ▇▇▇▇ of Sale"). STA shall
partially assign to SPC the Related Rights owned or secured by STA. Such partial
assignment of rights shall be of the same quality of title and duration as such
rights are vested in STA. If STA is unable to directly assign to SPC any Related
Right, then STA shall grant access rights to SPC - to the extent that such
rights are legally transferable - through license, IRU, or otherwise, so that
SPC has full rights of occupancy and access to the First Conduit. STA shall
cooperate with SPC in obtaining any required consents to such transfers from
private entities or governmental authorities, and each Party shall be
responsible for any annual recurring fees it is assessed or charged in
connection with its occupancy rights. If a governmental entity requires SPC or
its permitted assigns to obtain a separate license or permit, then SPC shall be
responsible to obtain such license or permit at SPC's sole cost and expense. STA
agrees to use commercially reasonable efforts in cooperating with SPC with
respect to SPC's efforts to secure such licenses or permits.
STA shall assign to SPC all assignable contract, easement, and
other occupancy rights held by STA and necessary for SPC to occupy any Union
Pacific Railroad ("UPR") right of way along the entire System route. If the UPR
requires a separate agreement and additional compensation specific to the
placement of SPC's fiber in the First Conduit or the IRU Conduits, then SPC
shall be solely responsible to secure an agreement with the UPR and to pay any
additional compensation required by the UPR.
3. OP-AMP ("OA") SITES
STA shall convey to SPC interests in real property on which STA's OA
Sites are situated. Such real property interests shall be of the same quality of
title as possessed by STA. The size and location of each parcel of real property
conveyed to SPC is set forth with particularity on Exhibit B attached hereto.
SPC understands and agrees that STA shall not convey to SPC any real property at
or near STA's OA Sites in Provo, UT, Auburn, CA; Blue Canyon, CA; or Truckee,
CA. SPC shall be solely responsible for all costs and expenses associated with
constructing SPC's OA facilities, including, but not limited to, costs and
expenses relating to site preparation, construction, and placement of conduit
and fiber.
Notwithstanding any provision of this Agreement or any other agreement
entered into by
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the Parties to the contrary, SPC specifically understands and agrees that STA's
obligation to deliver executed and transferable conveyance documents relating to
the First Conduit shall not arise until SPC pays to STA Thirteen Million Six
Hundred Twenty Five Thousand Dollars ($13,625,000) toward satisfaction and
reduction of the Purchase Price.
The IRU Agreement shall also include provision for a Collocation
Agreement substantially in the form of Appendix G allowing SPC to purchase or
lease access to and space in Op-Amp sites owned by STA.
The IRU will be delivered free and clear of all material liens,
security interests, pledges, easements, claims, conditions, covenants, and
restrictions that may have a material adverse effect on SPC's rights to use and
occupy the property conveyed by the IRU, subject to immaterial exceptions that
SPC approves and the security interest granted to STA in the Security Agreement.
VI. SPC TRANSFER AND CONVEYANCE OF ASSETS
In addition to execution of the Note and Security Agreement, at Closing, SPC
shall transfer and convey by IRU to STA an interest in twelve (12) fibers from
the Reno metropolitan network and in four (4) fibers from the Las Vegas
metropolitan network The Parties shall execute a separate IRU Agreement (the
"Metro IRU Agreement"), Appendix K, to convey the above fibers. Such Metro IRU
shall be freely assignable by STA. SPC shall also provide to STA a detailed
route map, including, without limitation, streets and point-of-presence ("POP")
locations, and a detailed list showing the collocation space, POP space,
equipment, and related facilities needed for the use, operate, and maintenance
of such Metro fibers that relate to each fiber network.
VII. STA COVENANTS
1. SYSTEM COMPLETION.
STA acknowledges that SPC will negotiate the sale of the First Conduit
to Qwest Communications Corporation, substantially in the form of Appendix M
hereto (the "Qwest Agreement"). STA shall use its commercial best efforts to
promptly complete the System according to the schedule set forth on Exhibit E of
the Qwest Agreement, including without limitation, the construction, testing,
and maintenance thereof (including the maintenance and retention of all
licenses, permits, authorizations, and other rights, in whatever form necessary,
to access, operate, and maintain the System) and the payment of operational
costs related thereto, and shall perform such other obligations related thereto
and existing at the Effective Date. STA further agrees to promptly and in good
faith cooperate with SPC in the timely discharge of SPC's obligations under the
Qwest Agreement, where the character and time of performance of such obligations
require the assistance, collaboration, support, or consent of STA.
2. SUBSTITUTE BUILDER.
STA agrees that if STA becomes unable to comply with its obligation to
complete the System described in section VII.1 above, or if SPC receives a
notice of default under section 4.01(a) of the Qwest Agreement and such default
is caused by STA's failure or inability to complete the System in accordance
with the Specifications and within the time period described therein, or if STA
does not send SPC a Notice of Completion on or before May 1, 2002, SPC shall
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have the right, following notice to STA and without prejudice to any other
right or remedy, to cause the System to be completed in accordance with the
Specifications. In such event STA will recognize SPC or SPC's agent, designee,
or transferee (the "Substitute Builder") and will promptly consent to the
pledge and collateral assignment of STA's right, title and interest in, to, and
under any System construction or professional services agreements to the
Substitute Builder, and will acknowledge the right of the Substitute Builder to
make all demands, give all notices, take all actions and exercise all rights of
STA under such agreements; and will further undertake and assign, as necessary,
all actions required to permit the Substitute Builder to fully perform. It is
specifically agreed that all costs incurred by SPC as a result of causing the
system to be completed pursuant to this Section VII.2, which shall include but
not be limited to all gearing-up costs, labor, materials, handling and storage
costs, capital costs, contractors, administrative and general costs, related
overhead costs, penalties and other assessments, shall operate to reduce SPC's
indebtedness to STA under the Note.
3. APPROVAL OF STA TRANSACTIONS.
STA agrees to hold meetings of its respective members and Management
Committee not later than September 10, 2002, for the purpose of approving the
terms of this Agreement, the Exhibits and Appendices, and the transactions
contemplated hereby and thereby.
VIII. SPC COVENANTS
1. APPROVAL OF STA TRANSACTIONS.
SPC, as a member of the Management Committee, shall undertake such
action and vote for the approval of such resolutions that may be presented to
the Management Committee to authorize, adopt, and approve the transactions
contemplated by this Agreement and the Appendices hereto.
2. OCCUPANCY AND ACCESS RIGHTS.
At the Closing, SPC shall execute such instruments of conveyance,
assignment, and transfer necessary to convey or assign to STA all private and
public easements, licenses, government authorizations, permits (including
environmental permits), and access rights (collectively, "occupancy rights")
held by SPC for the System, to the extent such occupancy rights are legally
transferable. SPC shall, at its own cost and expense, obtain all necessary
"consents to assign" any occupancy rights to STA and use its commercial best
efforts to cause the occupancy rights held by SPC to be validly transferred to
STA.
3. SALE OF SPC ASSETS OR SALE OF SPC CAPITAL STOCK.
As long as an outstanding balance remains on the Note, SPC shall
provide or cause to be provided to STA prompt written notice of any change in
control of all or substantially all of SPC assets. SPC shall make no cash or
other distributions to its parent company, Sierra Pacific Resources, a Nevada
corporation ("SPR"), or any other related entity prior to fully satisfying its
obligations under this Note, provided, however, that this prohibition shall not
act to prohibit SPC from raising additional capital necessary to build or
maintain SPC's business, including, without limitation, the receipt of
investment funds from SPR or a non-affiliated entity, the entering into of a
joint venture arrangement affecting SPC, or the entering into of a transaction
that dilutes SPR's ownership interest in SPC in exchange for cash associated
with SPC's operating or capital expenditure requirements, provided, further,
that SPC shall provide STA with at least thirty (30)
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days' written notice of the intent to raise such additional capital. In the
event that any stock or equity interest in SPC is sold, conveyed, or transferred
by SPC's present owner, SPC covenants, and agrees that this Note shall be paid
in full before the transaction is consummated. SPC shall cause a legend to be
placed on the existing stock certificate of SPC held by SPR evidencing this
restriction. Until this note is paid in full, SPC shall provide on a quarterly
basis, financial statements including income statements, balance sheets, and
cash flow reports; and annually audited balance sheet and income statement
accurately and completely showing the financial condition of SPC.
IX. TA COVENANTS
1. APPROVAL OF STA TRANSACTIONS.
TA, as a member of the Management Committee, shall undertake such
action and vote for the approval of such resolutions that may be presented to
the Management Committee to authorize, adopt, and approve the transactions
contemplated by this Agreement and the Appendices hereto.
2. APPROVAL OF STA PERFORMANCE.
TA, as the sole member and manager of STA after the Closing, shall
cause STA to perform its obligations set forth in the Agreement.
X. ADDITIONAL AGREEMENTS
In addition to the Note to be executed by SPC at the Closing, Appendix B, and
the Security Agreement to be executed by SPC at Closing, Appendix C, SPC and STA
shall execute, at the Closing, the following documents except the Collocation
Agreement that will be executed when collocation services are ordered:
1. IRU AGREEMENT.
A definitive IRU agreement, Appendix E, will be executed at the Closing
and which shall govern the Parties' rights and obligations relating to the sixty
(60) strands of fiber extending from Sacramento, CA to Salt Lake City, UT and
two (2) conduits extending from Reno, NV to Spanish Fork, UT. The Agreement
shall provide that, beginning on August 1, 2003, SPC shall pay to STA Twenty
Dollars ($20.00) per month, per route mile, for the entire System route from
Sacramento, CA to Salt Lake City, UT, for maintenance of the backbone route.
2. COLLOCATION AGREEMENT.
A collocation agreement in substantially the form of Appendix G (the
"Collocation Agreement") shall establish the rights and responsibilities of the
Parties regarding collocation and interconnection of the Parties' facilities.
This sample agreement reflects current pricing available but is subject to
change. Collocation fees for space and services are set forth in the
Collocation Agreement. Such collocation fees are not part of the consideration
for this Agreement and are in addition to SPC's obligation to repay the Note.
3. MEMBERSHIP REDEMPTION AGREEMENT.
A Membership Redemption Agreement, Appendix A (the "Membership
Interest
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Redemption Agreement"), will be executed at Closing and shall establish the
rights and responsibilities of TA and SPC with respect to the redemption of
SPC's membership interest in STA and SPC's relinquishment and abandonment
thereof.
4. QUITCLAIM DEED.
A definitive quitclaim deed, Appendix I (the "QuitClaim Deed Metro
Conduit"), will be executed at Closing and shall reflect the distribution of the
real-property portion of the Metro Conduit to SPC.
5. ASSIGNMENT AND ▇▇▇▇ OF SALE.
A definitive assignment and ▇▇▇▇ of sale, Appendix J (the "Metro
Conduit Assignment and ▇▇▇▇ of Sale"), will be executed at Closing and shall
reflect the distribution of the personal-property portion of the Metro Conduit
to SPC.
6. METRO IRU AGREEMENT.
A definitive IRU agreement, Appendix K, (the "Metro IRU Agreement"),
will be executed at Closing and shall establish the Parties' rights and
obligations with respect to twelve (12) fibers from the Reno metropolitan
network and four (4) fibers from the Las Vegas metropolitan network, shall be
executed by the Parties at Closing.
XI. REPRESENTATIONS AND WARRANTIES
EACH of STA, SPC, and TA represents and warrants to each other (except with
respect to Item 6) as of the date hereof and shall represent and warrant on the
Closing Date that:
1. It has the full right and authority to enter into, execute,
deliver, and perform its obligations under this Agreement.
2. It has taken all requisite corporate action to approve the
execution, delivery, and performance of this Agreement.
3. This Agreement shall constitute a legal, valid, and binding
obligation enforceable against such party in accordance with
its terms, except as the enforceability thereof may be
affected by (i) applicable bankruptcy, insolvency,
reorganization, or other laws of general application relating
to or affecting the enforcement of creditors' rights
generally, and (ii) the effect of rules of law governing the
availability of equitable remedies.
4. Execution, delivery, and performance of this Agreement shall
not violate any of the organizational documents of such party,
applicable existing regulations, rules, statutes, or court
orders or any local, state, or federal government agency,
court or body or any agreement, document, indenture, or
instrument to which it is a party.
5. Except as set forth on Schedule I, there are no actions,
suits, claims, demands, or other proceedings or
investigations, either administrative or judicial, pending or
threatened, affecting the Assets or the transactions
contemplated by this Agreement, at law or in equity, before or
by any federal, state, municipal, or other governmental
department, that can reasonably be expected to result in any
materially adverse change (in the aggregate) in the condition
of the Assets.
6. STA shall represent and warrant to SPC that, as of the Closing
Sale, (i) STA, to its
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knowledge, has good and marketable title to all of the Assets,
and except as otherwise disclosed on Schedule II, the Assets
are subject to no material liens, security interests, claims,
leases, or encumbrances; and (ii) STA has duly and validly
redeemed the SPC membership interest pursuant to applicable
Nevada law. STA agrees to pass on and assign to SPC or its
asigns any assignable warranties gven to STA by third party
vendors, supplies, contractors or manufacturers that relate
to construction of the System.
XII. LIABILITIES
Except as otherwise expressly provided herein, and subject to the provisions of
Article XIII, SPC shall not assume or otherwise be responsible for any liability
or obligation previously disclosed by SPC relating to the System or claims of
such liability or obligation, matured or unmatured, liquidated or unliquidated,
fixed or contingent, or known or unknown, whether arising out of occurrences
prior to, at or after the date hereof. STA will retain all liabilities that are
not specifically assumed by SPC.
XIII. INDEMNIFICATION
1. INDEMNIFICATION BY STA.
STA shall indemnify, defend, and hold harmless SPC and SPC's successors
and assigns from and against any claim, demand, obligation, liability, loss,
cost, damage, or expense, including interest, penalties, and reasonable
attorneys' fees, caused by or arising out of (i) any breach or default in the
performance by STA of any obligation of STA contained in this Agreement; or (ii)
any liability arising out of the construction, management, ownership, or
operation of the System or otherwise asserted against STA as of, or arising
after, the Closing Date; provided, however, that if SPC shall have failed to
disclose to TA in writing any such claim, demand, obligation, liability, loss,
cost, damage or expense of which it had actual knowledge prior to the execution
of this Agreement, then SPC shall remain liable for fifty percent (50%) of the
total cost and expense (including attorneys fees) of defending and satisfying
such non-disclosed liability.
2. INDEMNIFICATION BY SPC.
SPC shall indemnify, defend, and hold harmless STA and STA's successors
and assigns from and against any claim, demand, obligation, liability, loss,
cost, damage, or expense, including interest, penalties, and reasonable
attorneys' fees, caused by or arising out of (i) any breach or default in the
performance by SPC of any obligation of SPC contained in this Agreement; (ii)
the assumption in writing by SPC on or before the Closing Date of any liability;
(iii) any liability arising after the Closing date with respect to its ownership
and operation of the Assets or Related Rights; or (iv) any sale or transfer of
System, Assets or rights in the System by SPC to any third party including, but
not limited to, Qwest Communications Corporation.
3. COOPERATION BY SPC.
SPC agrees, at its own cost and expense, to promptly and in good faith
cooperate with STA
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in the defense and prosecution of any litigation whether currently pending or
arising in the future that relates to the System. This obligation includes, but
is not limited to, making available employees or persons under the control of
SPC or its affiliates available for testimony at depositions or at trials, the
production of documents and consultation with STA and its attorneys.
Additionally, should STA require support or assistance in further negotiations
or resolution of issues arising from SPC's activities associated with the
construction of the Assets, SPC shall at its own cost and expense promptly and
in good faith cooperate with STA in the resolution of said issues.
XIV. CONDITION TO OBLIGATIONS OF TA AND STA
Notwithstanding anything to the contrary in this Agreement or in any Appendix
hereto, SPC agrees that a condition to the obligations of TA and STA to proceed
with the redemption of SPC's membership interest and to the other performance
obligations of TA and STA described herein are contingent on the payment by SPC
to STA of Four Million Three Hundred Seventy Five Thousand Dollars ($4,375,000),
paid promptly following the execution of the Qwest Agreement substantially in
the form of Exhibit M hereto. If SPC fails to make the above payment or fails to
reach a binding agreement with Qwest, or Qwest fails to perform such agreement,
TA and STA shall have the absolute right to terminate this Agreement or to
insist on specific performance of this Agreement.
XV. MISCELLANEOUS
1. MUTUAL COOPERATION.
The Parties agree and covenant to execute all documents and to take all
actions necessary to effectuate this Agreement in a prompt and timely manner, to
fully cooperate with each other to complete transactions with third parties
related to this Agreement, and to perform all other acts required hereby or
thereby.
2. CONFIDENTIALITY.
EXCEPT in any filing required to be made by either Party, or as may be
required in connection with the submission or approvals by the Parties to any
regulatory agency or third party whose prior consent is required to effect the
proposed transaction, no Party shall make or cause to be made, any press release
or public announcement with respect to the proposed transaction or the execution
of this Agreement or otherwise communicate with any news media in respect
thereof without the prior written consent of the other Party, and the Parties
shall cooperate as to the timing and contents of any such press release or
public announcement.
3. ENTIRE AGREEMENT; INAPPLICABILITY OF "DEADLOCKS" PROVISIONS OF
OPERATING AGREEMENT OF STA.
This Agreement, and all exhibits, constitute the only agreement among
the Parties with respect to the acquisition of SPC's interest in STA by TA, and
the related transactions described herein. This Agreement, and all exhibits,
supersede all prior oral and written agreements with respect to the subject
matter hereof. This Agreement, and all exhibits, may not be modified except by a
written instrument executed by all of the Parties. No dispute arising out of or
relating to this Agreement, the Note, the Security Agreement, any related
agreements or instruments, or brought
URRS Agreement Page 9 Dated: September 9, 2002
under applicable law, shall be subject to the provisions of Article X
("Deadlocks"), or any other provisions, of the Operating Agreement of STA dated
as of April 25, 2000.
4. LIMITATION OF LIABILITY.
In no event shall either Party be liable for any punitive,
consequential, incidental, indirect, or special damages or lost profits incurred
or alleged to have to been incurred by anyone whether arising out of tort,
breach of contract, breach of warranty, strict liability, or any other claim.
5. JOINT WORK PRODUCT.
This Agreement is the joint work of the Parties; accordingly, in the
event of an ambiguity, no presumption shall be imposed against any Party for
reason of document preparation.
6. NOTICES.
Any notice or other communication required or which may be given
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed or telecopied, or sent by certified, registered mail, postage prepaid,
and shall be deemed given when so delivered personally, telegraphed, telexed, or
telecopied (with a confirming telephone call) or if mailed, four days after the
date of mailing, as follows (or to such successor entity or such new address as
a party may notify to the other):
SPC:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
President Attorney
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: ▇▇▇.▇▇▇.▇▇▇▇ Tele: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇ Fax: ▇▇▇.▇▇▇.▇▇▇▇
TA:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Vice President Attorney
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: ▇▇▇-▇▇▇-▇▇▇▇ Tele: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
7. APPLICABLE LAW; JURISDICTION AND VENUE.
This Agreement shall be governed and construed in accordance with the
laws of the State of Nevada.
8. NO ASSIGNMENT.
This Agreement and any right hereunder may not assigned by any Party
without the prior written consent of the other Parties, except by operation of
law.
9. NO THIRD PARTY RIGHTS.
This Agreement is not intended and shall not be construed to create any
rights in any parties
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other than SPC and TA and STA, and no person shall assert any rights as
third-party beneficiary hereunder.
10. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected, impaired, or invalidated thereby.
11. COUNTERPARTS AND FACSIMILE COPIES.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute on
and the same instrument. The Parties agree that facsimile copies may be accepted
as original signatures.
12. HEADINGS.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the interpretation of this Agreement.
13. APPENDICES.
Terms of appendices referenced or attached hereto govern the rights and
responsibilities of the Parties with respect to the subject matter thereof.
14. EXPENSES.
Each Party will bear its own costs and expenses with respect to this
Agreement and any other transactions contemplated herein including, without
limitation, legal fees and fees of other advisors.
URRS Agreement Page 11 Dated: September 9, 2002
IN WITNESS WHEREOF, and intending to be bound hereby, the Parties have caused
this Agreement to be executed by their duly authorized representatives as of the
date set forth above.
SIERRA PACIFIC COMMUNICATIONS,
A NEVADA CORPORATION
By: ________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its President
TOUCH AMERICA, INC.,
A MONTANA CORPORATION
By: ________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its President
SIERRA TOUCH AMERICA LLC,
A NEVADA LIMITED LIABILITY COMPANY
By: _______________________ By: ___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, MANAGER ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, MANAGER
By: _______________________ By: ___________________________
▇▇▇▇▇ ▇▇▇▇▇▇, MANAGER ▇▇▇▇▇ ▇▇▇▇▇▇▇, MANAGER
URRS Agreement Page 12 Dated: September 9, 2002
EXHIBIT A
ASSETS AND ALLOCATION OF PURCHASE PRICE
1. One (1) of the original six (6) conduits installed for the
System and which extends the full length of the System route as
follows:
(i) one (1) one-and-one-quarter inch (1.25") conduit of
approximately one hundred forty-six (146) miles in
length between Sacramento, California and Reno,
Nevada ("Leg One");
(ii) one (1) two inch (2") conduit of approximately three
hundred fifty (350) miles in length between Reno,
Nevada and Ely, Nevada ("Leg Two");
(iii) one (1) two inch (2"") conduit of approximately
three hundred sixteen (316) miles in length between
Ely, Nevada and Salt Lake City, Utah ("Leg Three").
for Twenty Million Dollars ($20,000,000).
2. An Indefeasible Right of Use (IRU) for the useful life of the
asset in two (2) additional conduits in excess of the original six (6)
conduits installed for the System and which extend in that segment of
the System route from Reno, Nevada to Spanish Fork, Utah, for Seven
Million Dollars ($7,000,000).
3. All Reno metropolitan area conduits in the System route in
excess of the original six (6) conduits installed for the System, for
Ten Million Five Hundred Thousand Dollars ($10,500,000).
4. An IRU for the useful life of the asset in sixty (60) strands
of System fiber, which extend the full length of the System route from
Sacramento, California to Salt Lake City, Utah, for Nine Million
Dollars ($9,000,000).
5. One full, equally sized quadrant at each OA site on the real
property on which STA's OA sites are situated, as well as easements
through the remaining quadrants as set forth on Exhibit B (and subject
to the qualifications therein and herein), for a one-time fee of Two
Million Dollars ($2,000,000). STA will be under no obligation to convey
land for OA sites in the following locations at or near: Provo, Utah;
Auburn, California; Blue Canyon, California; and Truckee, California.
URRS Agreement Page 13 Dated: September 9, 2002
Exhibit A
EXHIBIT B
DESCRIPTION OF REAL PROPERTY
TO BE CONVEYED TO SPC
VERDI, NEVADA TO SACRAMENTO, CALIFORNIA
This portion of the route consists of approximately 131 miles
(691,680') in length. The telecommunications system along the route from the
Union Pacific Railroad milepost 227, approximately 8/10 of a mile east of the
California - Nevada State Line near Verdi Nevada to Hirshdale Road UPRR MP
218.3, approximately 11 miles (58,080'). From Hirshdale Road to West Truckee,
approximately 16.5 miles (87,120'). West Truckee to Soda Spring, approximately
6.8 miles (35,904'). Soda Springs to Cisco Grove approximately 9.1 miles
(48,048'). Cisco Grove to Blue Canyon approximately 12 miles (63,360'). Blue
Canyon to Colfax UPRR MP 142, approximately 21 miles (110,880'). UPRR MP 142 to
Sacramento UPRR MP 89 approximately 53.7 mile (283,536'). Sacramento UPRR MP 89
to ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ approximately 1 mile (5280').
RENO METRO
The fiber optic cable line will start .8 of a mile from the California
border into Nevada and ties in with a ▇▇▇▇▇▇▇▇ handhole between UPRR and 1-80
and ends at the ▇▇▇▇▇ Fargo building at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Phase II
begins at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Fargo building, and ends at South
▇▇▇▇▇▇▇ Parkway.
LONG HAUL
The fiber optic cable line will start at the intersection of South
▇▇▇▇▇▇▇ Parkway and South Virginia Street in Reno and follow the highway
right-of-way south from Reno along U.S. highway 395 to East Lake Boulevard. From
East Lake Boulevard, the cable will continue southward along a corridor to Goni
Road and then to Arrowhead Drive in ▇▇▇▇▇▇ City. At Arrowhead Drive it will head
eastward to US Highway 50 and continue east crossing the rest of Nevada, passing
through the cities of Fallon, Austin, Eureka, and Ely and continuing into Delta
Utah. At Delta the route would follow US Highway 6 northeastward to State Route
132 In Lynndyl, Utah. At State Route 132 the cable would continue northeast to
just west of Nephi, Utah, where it would intersect ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇ the fiber optic cable would continue northward through ▇▇▇▇ to
Santaquin, Utah. The cable would then head northeast, following side roads and a
portion of State Route 115 on the west side of Interstate 15 (1-15). Just north
of Spanish Fork the fiber optic cable would cross under 1-15 and tie in with
another fiber optic cable system on 4800 South, approximately 0.2 miles east of
1-15. The route would then continue north on I-15 to Provo, UT, run along city
streets into the Provo POP located at the corner of East 100 and North 100, then
along city streets to I-15, then north on I-15 to the vicinity of the ▇▇▇▇▇▇▇▇▇
Highway, north to west 700 south, along city streets to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, north
on Regent Street to the termination point at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
CALIFORNIA
- Verdi Nevada on UPRR MP 227 to MP 218.3 at Hirshdale Rd. spread 5.1.
- Hirshdale Rd. to West Truckee, spread 5.2.
- West Truckee to Soda Springs, spread 5.3
- Soda Springs to Cisco Grove, spread 5.4
- Cisco Grove to Blue Canyon, spread 5.5
- Blue Canyon to Colfax UPRR MP 142, spread 5.6
- Colfax UPRR MP 142 to Sacramento UPRR 89, spread 6
URRS Agreement Page 14 Dated: September 9, 2002
Exhibit B
- Sacramento UPRR 89 to ▇▇▇▇ ▇▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇, spread 7
NEVADA
- Reno Metro, Phase 1 is approximately 74,406 feet
- Phase 2 is approximately 51,069 feet.
- Spread ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Lyon County line Is approximately
321,496 feet.
- Spread 2, ▇▇▇▇▇▇▇▇▇ County line to the Lander County line is
approximately 567,791 feet.
- Spread 3, Lender County line to the White Pine County line is
approximately 578,458 feet.
- Spread 4, White Pine County to Utah border is approximately 702,319
feet.
UTAH
- Spread 5, ▇▇▇▇▇▇▇ County at the Nevada/Utah border to Juab County line
is approximately 616,238 feet.
- Spread 6, Juab County line to north of Spanish Fork approximately 0.2
miles east of 1-15 end is approximately 355,097 feet.
- Spanish Fork to Provo, UT approximately 7.95 miles (42,000 feet).
- Provo north to Salt Lake City, UT approximately 59.14 miles (312,265
feet).
URRS Agreement Page 15 Dated: September 9, 2002
Exhibit B
MAP OF THE RIGHT-OF-WAY
[GRAPHIC]
URRS Agreement Page 16 Dated: September 9, 2002
Exhibit B
SCHEDULE I
LITIGATION
1. Bayport Pipeline, Inc. v. STA and Mastec North America, Inc.;
Case No. CV-02-0187-HDM (VPC); United States District Court
for the District of Nevada; alleged breach of contract
action.
2. Cleveland Inspection Services, Inc. v. Sierra Pacific
Communications and Touch America, Inc.; Cause ▇▇. ▇▇▇▇▇▇▇▇▇▇;
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇; lien foreclosure action.
3. ▇▇▇▇▇▇▇▇ Construction, Inc. v. STA; Cause ▇▇. ▇▇▇▇▇▇▇▇▇; ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇; lien foreclosure action.
URRS Agreement Page 17 Dated: September 9, 2002
Schedule I
SCHEDULE II
MATERIAL LIENS, ENCUMBRANCES AND CLAIMS
1. Bayport Pipeline, Inc. obtained a Writ of Attachment from the
Federal District Court in the amount of $793,000 on the fiber
optic system constructed by STA in ▇▇▇▇, ▇▇▇▇▇▇ City,
▇▇▇▇▇▇▇▇▇, and Washoe Counties in Nevada.
2. Cleveland Inspection Services, Inc. filed a lien in Salt Lake
City, Utah against property that STA has an interest pursuant
to a construction contract with Adesta, Inc. in the amount of
$663,723.75.
3. ▇▇▇▇▇▇▇▇ Construction, Inc. filed a lien in Salt Lake County,
Utah on property that STA has an interest pursuant to a
construction contract with America Fiber Systems, Inc. in
the amount of $415,945.00.
4. Master Construction, Inc. and Master Professional Services,
Inc. claim STA owes them approximately $5,000,000. STA
disputes these claims. No liens have been filed or legal
action taken to date.
5. STA entered into a contract with Adesta Communications whereby
Adesta agreed to build install conduits and associated
facilities, along the Route. Adesta failed to fully perform
the contract and filed bankruptcy. STA paid Adesta $634,790
and would have owed Adesta $1,903,790 if the contract as
completed. Adesta rejected all of its contracts in Utah in
bankruptcy and no longer has an interest in the conduits.
The liens filed by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ resulted from
Adesta's nonpayment and failure to complete its project.
SPC Material Liens
Upon closing of this transaction, the only lien or security interest
SPC has granted will be the security interests granted to Qwest Communications
Corporation as set forth in Appendix M "Amended and Restated Agreement to
Purchase Conduit System" Section 2.05 subject to the default provisions set
forth in Section 4.01.
URRS Agreement Page 18 Dated: September 9, 2002
Schedule II
APPENDIX A
MEMBERSHIP INTEREST REDEMPTION AGREEMENT
This Membership Interest Redemption Agreement (the "Agreement") is
entered into and shall be effective as of September 9, 2002 by and among SIERRA
TOUCH AMERICA LLC, a Nevada limited liability company, (the "Company")], SIERRA
PACIFIC COMMUNICATIONS, a Nevada corporation (the "Withdrawing Member"), a
member of the Company, and TOUCH AMERICA, INC., a Montana corporation the
continuing member of the Company (the "Continuing Member). The Withdrawing
Member, the Continuing Member, and the Company are sometimes referred to
individually as a "Party" and collectively as the "Parties".
RECITALS
A. The Withdrawing Member and the Continuing Member formed the
Company under Chapter 86 of the Nevada Revised Statutes (the "Act") pursuant to
those certain Articles of Organization filed with the Nevada Secretary of State
on April 24, 2000, and the Operating Agreement of the Company dated April 25,
2000 (the "Operating Agreement").
B. The Parties have agreed that the Withdrawing Member's entire
right, title, and interest in the Company (the "Interest") shall be redeemed by
the Company and the Withdrawing Member shall withdraw from the Company, all as
set forth herein.
Based on the foregoing, and in consideration of the mutual agreements,
covenants, and conditions contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Parties hereby agree as follows:
1. REDEMPTION OF INTEREST
The Interest shall be redeemed by the Company effective as of the close
of business on September 9, 2002, (the "Effective Date"), all in accordance with
the provisions set forth in this Agreement. The Withdrawing Member shall sell,
assign, and transfer the entire Interest to the Company as of the close of
business on the Effective Date.
2. WITHDRAWAL
Upon completion of the sale, assignment, and transfer of the Interest
to the Company as set forth herein, the Withdrawing Member shall withdraw from
the Company as of the close of business on the Effective Date.
3. CONSIDERATION
In consideration for the redemption of the Interest, to which the
Parties have agreed has a value of $13,500,000.00, and other good and valuable
consideration to be received by the Company, the Company agrees to distribute to
the Withdrawing Member the Assets and Related Rights, each as defined in that
certain Unit Redemption, Release and Sale Agreement of even date herewith among
the Parties (the "Sale Agreement"). Upon consummation of the transactions
contemplated in the Sale Agreement, the Withdrawing Member shall not retain an
interest in, or be entitled to receive distributions of, any other assets of the
Company.
URRS Agreement Page 19 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ A
4. INDEMNIFICATION
The Parties hereto shall indemnify, defend and hold each other harmless
to the extent and pursuant to the provisions of Article XIII in the Sale
Agreement.
5. CONTINUATION OF COMPANY
The Parties hereby agree that the Company shall continue and shall not
be dissolved because of the redemption of the Interest or the withdrawal of the
Withdrawing Member.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS
6.1. REPRESENTATIONS AND WARRANTIES OF EACH PARTY
The Company, the Withdrawing Member, and the Continuing Member
each hereby represents and warrants to and covenants to each other
Party that:
(a) Neither the execution nor the delivery of this Agreement, the
incurrence of the obligations herein set forth, the consummation of the
transactions herein contemplated, nor the compliance with the terms of
this Agreement will conflict with, or result in a breach of, any of the
terms, conditions, or provisions of, or constitute a default under, any
bond, note, or other evidence or indebtedness or any contract,
indenture, mortgage, deed of trust, loan agreement, lease, or other
agreement or instrument to which such Party is a party or by which such
Party may be bound.
(b) Such Party has the right, power, legal capacity, and authority
to execute and enter into this Agreement and to execute all other
documents and perform all other acts as may be necessary in connection
with the performance of this Agreement.
(c) No approval or consent not heretofore obtained by any person
or entity is necessary in connection with the execution of this
Agreement by such Party or the performance of such Party's obligations
under this Agreement.
(d) Such Party has received independent tax and legal advice from
its attorneys with respect to the advisability of executing this
Agreement.
(e) Such Party has made such investigation of the facts pertaining
to this Agreement, and all of the matters pertaining thereto, as he
deems necessary.
(f) Except as expressly provided herein, no person has made any
statement or representation to such Party regarding any fact relied
upon by such Party in entering into this Agreement and each Party
specifically does not rely upon any statement, representation, or
promise of any other person in executing this Agreement.
(g) Such Party will not take any action which would interfere with
the performance of this Agreement by any other Party or which would
adversely affect any of the rights provided for herein.
6.2. TITLE TO INTEREST
The Withdrawing Member hereby represents and warrants to and
covenants to each other Party that the Withdrawing Member owns the
Interest free and clear of any and all liens, claims, encumbrances,
and adverse equities.
URRS Agreement Page 20 Dated: September 9, 2002
Appendix A
6.3. COMPANY ASSETS
The Parties have agreed to value the Withdrawing Member's
interest in the Company's assets at US $ 13,500,000.00
6.4. WITHDRAWING MEMBER'S DISTRIBUTIVE SHARE OF CURRENT COMPANY
INCOME
The Withdrawing Member's distributive share of the Company's
income,gain, loss, and deduction for taxable year of the Company that
includes the Effective Date shall be determined on the basis of an
interim closing of the books of the Company as of the close of
business on the Effective Date and shall not be based upon a
proration of such items for the entire taxable year. The Withdrawing
Member shall not be allocated a distributive share of any Company
items for any subsequent year except to the extent such allocations
are required by or are consistent with the provisions set forth in
this Agreement.
6.5. TAX RETURNS
The Parties shall each file all required Federal, state, and
local income tax returns and related returns and reports in a manner
consistent with the foregoing provisions of this Section 6. In the
event a Party does not comply with the preceding sentence, the
noncomplying Party shall indemnify and hold the other Parties wholly
and completely harmless from all cost, liability, and damage that such
other Parties may incur (including, without limitation, incremental tax
liabilities, legal fees, accounting fees, and other expenses) as a
consequence of such failure to comply.
6.6. FILINGS AND NOTICES
The Company may prepare and file fictitious business name
statements and such other statements or documents as the Continuing
Member deems appropriate to reflect the withdrawal of the Withdrawing
Member from the Company and the continuation of the business of the
Company.
7. MISCELLANEOUS
7.1. ATTORNEYS' FEES
In the event any Party shall maintain or commence any action,
proceeding, or motion against any other Party to enforce this Agreement
or any provision thereof, the prevailing Party therein shall be
entitled to recover his actual attorneys' fees and costs therein
incurred. Each Party agrees that if such Party hereafter commences,
joins in, or in any manner asserts against any other Party any of the
claims released hereunder, then it will pay to the other Party, in
addition to any other damages caused to the other Party thereby, all
actual attorneys' fees and costs incurred in defending or otherwise
responding to such suit or claim.
7.2. SURVIVAL
All of the terms, representations, warranties, and other
provisions of this Agreement shall survive and remain in effect after
the Effective Date.
URRS Agreement Page 21 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ A
7.3. EXECUTION OF DOCUMENTS
Each Party agrees to execute all documents necessary to carry
out the purpose of this Agreement and to cooperate with each other for
the expeditious filing of any and all documents and the fulfillment of
the terms of this Agreement.
7.4. SUCCESSORS AND ASSIGNS
This Agreement shall inure to the benefit of the transferees,
successors, assigns, heirs, beneficiaries, executors, administrators,
members, agents, employees, and representatives of each Party.
7.5. GOVERNING LAW
This Agreement has been entered into in the State of Nevada
and the Agreement, including any rights, remedies, or obligations
provided for thereunder, shall be construed and enforced in accordance
with the laws of the State of Nevada and the Act.
7.6. NOTICES
Any notice, payment, demand, or communication required or
permitted to be given by any provision of this Agreement shall be in
writing and shall be delivered personally to the Party or to an officer
of the Party to whom the same is directed, or sent by regular,
registered, or certified mail, addressed to the person to whom directed
at the following address, or to such other address as such Party may
from time to time specify by notice to the Parties:
(a) If to the Company or the Continuing Member:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Vice President Attorney
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: ▇▇▇-▇▇▇-▇▇▇▇ Tele: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to the Withdrawing Member:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
President Attorney
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: ▇▇▇.▇▇▇.▇▇▇▇ Tele: 702.367.5692
Fax: ▇▇▇.▇▇▇.▇▇▇▇ Fax: ▇▇▇.▇▇▇.▇▇▇▇
Any such notice shall be deemed to be delivered, given,
and received for all purposes as of the date so delivered, if delivered
personally or if sent by regular mail, or as of the date on which the
same was deposited in a regularly maintained receptacle for the deposit
of United States mail, if sent by registered or certified mail, postage
and charges prepaid. Any Party may from time to time specify a
different address by choice to the other Parties.
7.7. AMENDMENTS
URRS Agreement Page 22 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ A
Any amendment to this Agreement shall be in writing and
executed by each Party hereto.
7.8. ENTIRE AGREEMENT
This Agreement contains the entire understanding among the
Parties with respect to the subject matter hereof and supersedes any
prior written or oral agreements between them respecting the subject
matter of this Agreement. There are no representations, agreements,
arrangements, or understandings, oral or written, between the Parties
relating to the subject matter of this Agreement that are not fully set
forth herein. This Agreement amends and restates the Operating
Agreement with respect to the subject matter of this Agreement, and
shall be considered part of the Operating Agreement for all purposes
under the Act.
7.9. DESCRIPTIVE HEADINGS
The descriptive headings of the several sections contained in
this Agreement are included for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
URRS Agreement Page 23 Dated: September 9, 2002
Appendix A
IN WITNESS WHEREOF, the Parties hereto have approved and executed this
Agreement as of the date first set forth above.
THE COMPANY: THE WITHDRAWING MEMBER:
SIERRA TOUCH AMERICA LLC SIERRA PACIFIC COMMUNICATIONS, INC.
By: ________________________ By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Manager Title: President
THE CONTINUING MEMBER:
TOUCH AMERICA, INC.
By: _____________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
URRS Agreement Page 24 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇
SECURED PROMISSORY NOTE
$35,000,000.00 Butte, Montana
September 9, 2002
1. PROMISE TO PAY. The undersigned, Sierra Pacific Communications, a
Nevada corporation ("Maker"), hereby promises to pay to the order of Sierra
Touch America, LLC, a Nevada limited liability company, or its successors
("Holder"), at such place as the Holder may designate in writing, in lawful
money of the United States of America, the principal sum of Thirty-Five Million
Dollars ($35,000,000), with interest on the unpaid principal, on the terms and
conditions set forth herein. This Note and the rights and obligations of Maker
hereunder are subject to the terms and conditions of that certain Unit
Redemption, Release, and Sale Agreement among Maker, Holder, and Touch America,
Inc., a Montana corporation, dated as of September 9, 2002 (the "Agreement") and
that certain Security Agreement between Maker and Holder dated as of September
9, 2002 (the "Security Agreement").
2. INTEREST RATE. This Note shall bear interest at the rate of eight
percent (8%) per annum (the "Interest Rate"), calculated monthly on the
outstanding balance and beginning on the date hereof.
3. PAYMENT. Principal and interest shall be paid as follows:
If Maker makes no prepayments during the term of this Note, the
balance of all unpaid principal and interest on this Note shall be paid in
twelve (12) equal monthly installments of Three Million Two Hundred
Ninety-Seven Thousand Two Hundred Ninety-Five Dollars ($3,297,295) commencing
on July 31, 2003 and on the last day of each and every succeeding calendar
month thereafter until the unpaid principal and interest is paid in full, with
the twelfth (12th) and final payment due and owing on June 30, 2004. The
parties acknowledge and agree that this twelfth (12th) and final payment of the
unpaid balance of principal and interest shall be in an amount to retire all
indebtedness hereunder. If Maker makes prepayments during the term of this
Note, the parties acknowledge and agree that Maker shall not be in default as
long as Maker has made payments sufficient to reduce principal amounts
outstanding in accordance, at all times, with the amortization schedule
developed on Attachment A hereto that will fully amortize the remaining
indebtedness in equal monthly installments over the succeeding twelve (12)
month period beginning July 31, 2003. Any payments made in addition to such
installments after July 31, 2003 will operate to reduce the principal owed and
shorten the term of indebtedness, but shall not relieve Maker of making any
installment payments as provided in the amortization schedule. Maker and
Holder agree that, if Maker receives funds required to be applied toward
prepayment of this Note, the amortization schedule on Attachment A shall be
adjusted to reflect the outstanding balance owed as of July 31, 2003.
4. PREPAYMENT. Maker shall have the right to prepay, without penalty,
this Note in full or in part at any time, provided, however, that Maker
covenants and agrees that, during the term of this Note, it shall apply all net
proceeds derived from (a) sales of any assets held by Holder prior to Maker's
September 9, 2002 exit from Holder, (b) sales of any assets of Maker, including,
without limitation, Maker's metropolitan-area network, and (c) transactions
described in Paragraph 6 hereof, toward prepayment of the Note.
URRS Agreement Page 25 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
5. APPLICATION OF PAYMENTS. Payments made hereunder shall be applied first
to accrued interest, and then to principal.
6. COVENANTS OF MAKER AND MAKER'S PARENT COMPANY. Maker shall make no cash
or other distributions to its parent company, Sierra Pacific Resources, a Nevada
corporation ("SPR"), or any other related entity prior to fully satisfying its
obligations under this Note, provided, however, that this prohibition shall not
act to prohibit SPR or Maker from raising additional capital necessary to build
or maintain Maker's business, including, without limitation, the receipt of
investment funds from SPR or a non-affiliated entity, the entering into of a
joint venture arrangement affecting Maker, or the entering into of a transaction
that dilutes SPR's ownership interest in Maker in exchange for cash associated
with Maker's operating or capital expenditure requirements, provided, further,
that Holder shall be provided with at least thirty (30) days' written notice of
the intent of SPR or Maker, as applicable, to raise such additional capital, and
the raising of such additional capital shall be subject to Holder's sole and
absolute discretion. In the event that any stock or equity interest in Maker is
sold, conveyed, or transferred by Maker's present owner, Maker covenants, and
agrees that this Note shall be paid in full before the transaction is
consummated. SPC shall cause a legend to be placed on the existing stock
certificate of SPC held by SPR evidencing this restriction.
7. ACCELERATION; CROSS-DEFAULT; DEFAULT INTEREST RATE. This Note shall be
in default if payment of any installment is not made when due or if there occurs
any failure or default in Maker's observance or performance of any covenants,
terms, or provisions of (1) the Agreement, provided, however, that such failure
or default shall remain unremedied for fifteen (15) days after Maker has become
aware of such failure or default; (2) the Security Agreement; (3) any other
instruments relating to or securing this Note executed by Maker; or (4) any
instruments evidencing, securing, or relating to any other indebtedness of Maker
to Holder. Upon such default or at any time thereafter, the whole sum of
principal and accrued interest hereunder shall, at the option of Holder, become
immediately due and payable, anything herein or any instrument securing this
Note to the contrary notwithstanding, time being of the essence. As long as this
Note is in default, then, at the option of Holder, without prior notice, this
Note shall bear interest at a rate equal to the lesser of eighteen percent (18%)
per annum or the maximum rate permitted by applicable law (the "Default Interest
Rate").
8. CURING OF MONETARY DEFAULTS. A default in payment of any amount due
hereunder may be cured, at the sole and absolute discretion of Holder, only by
payment in full of the installment or installments in default, plus the
additional interest due at the Default Interest Rate, plus any late charges that
may be due hereunder or under any other instrument evidencing, securing, or
relating to Maker's debt to Holder, plus any reasonable attorneys' fees incurred
by Holder by reason of such default.
9. NONWAIVER. Failure to exercise any right Holder may have or be entitled
to in the event of any default hereunder shall not constitute a waiver of such
right or any other right in the event of any subsequent default. No dispute
arising out of or relating to this Note, the Security Agreement, the Agreement,
any related agreements or instruments, or brought under applicable law, shall be
subject to the provisions of Article X ("Deadlocks"), or any other provisions,
of the Operating Agreement of Holder dated as of April 25, 2000.
10. WAIVER OF PRESENTMENT. Maker waives presentment for payment, protest
and demand, notice of protest, demand, dishonor, or nonpayment of this Note, and
consents that Holder may extend the time of payment or otherwise modify the
terms of payment of any part or the whole of the debt evidenced by this Note, by
agreement between Holder and Maker, and such consent shall not
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alter or diminish the liability of Maker or the enforceability of this Note.
Except as otherwise provided, each and every party signing or endorsing this
Note binds itself as a principal and not as a surety. In any action or
proceeding to recover any sum herein provided for, no defense of adequacy of
security or that resort must first be had to security or to any other person
shall be asserted. Except as otherwise provided, this Note shall bind the
undersigned and its or their successors and assigns, jointly and severally.
11. SECURITY OF NOTE. This Note is secured by the Security Agreement,
which covers all of Maker's property including, without limitation, furniture,
fixtures, equipment, accounts receivable, contract rights, and general
intangibles. Maker understands and agrees that the Security Agreement provides
inspection rights for Holder with respect to Maker's books and records during
the term of this Note, and that it obligates Maker to provide financial and
operating certain reports to Holder.
12. COLLECTION COSTS. Maker agrees to pay all costs, including reasonable
attorneys' fees, incurred by Holder in any suit, action, or appeal therefrom,
with or without suit, in connection with collection hereof or foreclosure under
the Security Agreement.
13. DEFINITIONS. All capitalized terms used but not defined herein shall
have the meanings defined in the Agreement.
14. NOTICE. Any demand or notice to be made or given under the terms hereof
or any instrument now or hereafter securing this Note by Holder hereof to Maker
shall be effective when mailed or delivered in the manner specified in the
Agreement.
15. APPLICABLE LAW; JURISDICTION AND VENUE. This Note shall be governed by
the laws of the State of Nevada.
MAKER:
SIERRA PACIFIC COMMUNICATIONS,
a Nevada corporation
By: ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., PRESIDENT
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SECURED PROMISSORY NOTE
ATTACHMENT A
OUTSTANDING INTEREST OUTSTANDING PAYMENT OUTSTANDING
BALANCE ON OUTSTANDING BALANCE (P + I) MADE AT BALANCE
PAYMENT PAYMENT AT BEGINNING BALANCE FOR AT END END AT END
DUE DATE NUMBER OF PERIOD PERIOD OF PERIOD OF PERIOD OF PERIOD
-------- ------ --------- ------ --------- --------- ---------
07/31/02 - $ 35,000,000 $ 233,333 $ 35,233,333 - $ 35,233,333
08/31/02 - $ 35,233,333 $ 234,889 $ 35,468,222 - $ 35,468,222
09/30/02 - $ 35,468,222 $ 236,455 $ 35,704,677 - $ 35,704,677
10/31/02 - $ 35,704,677 $ 238,031 $ 35,942,708 - $ 35,942,708
11/30/02 - $ 35,942,708 $ 239,618 $ 36,182,326 - $ 36,182,326
12/31/02 - $ 36,182,326 $ 241,216 $ 36,423,542 - $ 36,423,542
01/31/03 - $ 36,423,542 $ 242,824 $ 36,666,365 - $ 36,666,365
02/28/03 - $ 36,666,365 $ 244,442 $ 36,910,808 - $ 36,910,808
03/31/03 - $ 36,910,808 $ 246,072 $ 37,156,880 - $ 37,156,880
04/30/03 - $ 37,156,880 $ 247,713 $ 37,404,592 - $ 37,404,592
05/31/03 - $ 37,404,592 $ 249,364 $ 37,653,956 - $ 37,653,956
06/30/03 - $ 37,653,956 $ 251,026 $ 37,904,983 - $ 37,904,983
07/31/03 1 $ 37,904,983 $ 252,700 $ 38,157,683 3,297,295 $ 34,860,388
08/31/03 2 $ 34,860,388 $ 232,403 $ 35,092,790 3,297,295 $ 31,795,495
09/30/03 3 $ 31,795,495 $ 211,970 $ 32,007,465 3,297,295 $ 28,710,170
10/31/03 4 $ 28,710,170 $ 191,401 $ 28,901,572 3,297,295 $ 25,604,277
11/30/03 5 $ 25,604,277 $ 170,695 $ 25,774,972 3,297,295 $ 22,477,677
12/31/03 6 $ 22,477,677 $ 149,851 $ 22,627,528 3,297,295 $ 19,330,233
01/31/04 7 $ 19,330,233 $ 128,868 $ 19,459,101 3,297,295 $ 16,161,807
02/28/04 8 $ 16,161,807 $ 107,745 $ 16,269,552 3,297,295 $ 12,972,257
03/31/04 9 $ 12,972,257 $ 86,482 $ 13,058,739 3,297,295 $ 9,761,444
04/30/04 10 $ 9,761,444 $ 65,076 $ 9,826,520 3,297,295 $ 6,529,225
05/31/04 11 $ 6,529,225 $ 43,528 $ 6,572,753 3,297,295 $ 3,275,459
06/30/04 12 $ 3,275,459 $ 21,836 $ 3,297,295 3,297,295 $ -
URRS Agreement Page 28 Dated: September 9, ▇▇▇▇
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APPENDIX C
SECURITY AGREEMENT
THE UNDERSIGNED, Sierra Pacific Communications, a Nevada corporation
(referred to as "Debtor"), hereby grants to Sierra Touch America, LLC, a Nevada
limited liability company (referred to as "Secured Party"), a security interest
in all right, title, and interest, whether now owned or hereafter acquired,
including the proceeds thereof, in and to the following property of Debtor:
(a) Subject to Section 9 herein, all of Debtor's right, title, and
interest in any property of whatever nature that was previously owned by Secured
Party and distributed to Debtor, (b) all property described on Exhibit A to the
Unit Redemption, Release, and Sale Agreement dated September 9, 2002 among
Debtor; Secured Party; and Touch America Inc., and (c) all property and property
rights that relate in any way to the telecommunications system being constructed
by Secured Party from Sacramento, CA to Salt Lake City, UT. The secured property
includes, without limitation, accounts, inventory, equipment, fixtures, contract
rights, general intangibles, instruments, documents, and other property.
All such collateral is collectively referred to herein as the
"Property".
This Security Agreement is given to secure the payment and performance
of all indebtedness, obligations, terms, and conditions imposed upon Debtor by
virtue of the following documents and agreements:
(i). the Unit Redemption, Release, and Sale Agreement dated as of
September 9, 2002 among Debtor, Secured Party, and Touch
America, Inc., a Montana corporation ("Agreement");
(ii). the Promissory Note from Debtor to Secured Party in the amount
of Thirty-Five Million Dollars ($35,000,000) dated September
9, 2002 ("Promissory Note"); and
(iii). this Security Agreement.
Default in the payment of any indebtedness or the performance of any
obligations under the above-referenced agreements shall constitute a default
under this Security Agreement.
DEBTOR REPRESENTS, COVENANTS, AND AGREES WITH SECURED PARTY AS FOLLOWS:
1. DEBTOR AND COLLATERAL LOCATION. The address appearing under Debtor's
signature below is the address of Debtor's chief executive office. If the
Property is not located at the Debtor's address appearing below, it shall be
located at the following locations:
In the states of California, Nevada, and Utah: In each and every county where
the fiber optic facilities subject to this Security Agreement are located.
Debtor shall give Secured Party prior written notice of any change in either the
Debtor's chief executive office or the location of the Property.
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2. NOTICES; APPOINTMENT OF AGENT; COLLECTION. The accounts receivable and
general intangibles which constitute the collateral under this Security
Agreement include accounts receivable, customer lists, supplier lists, computer
data, and other materials. In the event of a default, Secured Party is
authorized to notify the parties who have a relationship with the Debtor
represented by the collateral, and to effect direct collection of any amounts
due to Debtor pursuant to those relationships. At the request of Secured Party,
Debtor agrees to enter into appropriate notices to such parties. In the event of
default, Secured Party is irrevocably appointed Debtor's attorney-in-fact and
may in Debtor's name and place make demand, collect, receive, and give
acquittance for any and all amounts that may be or become due pursuant to those
relationships and in its discretion may file any claim, commence a proceeding,
or take any action to enforce or collect payment. Secured Party shall not be
obligated to perform any duty or obligation to such parties.
3. OWNERSHIP AND LIENS. Subject to Section 9 (Limited Release of Security
Interest on Sale of Property), Debtor owns the Property and the same is free and
clear of all security interests and encumbrances of every nature created by
Debtor. Debtor shall not create nor permit the existence of any lien or security
interest other than that created hereby on the Property without the prior
written consent of Secured Party, which consent can be withheld in Secured
Party's sole and absolute discretion.
4. ACCOUNTING AND INSPECTION OF BOOKS.
a. Debtor agrees to keep adequate records and books of account
covering the collateral and to deliver to Secured Party such books if so
requested by Secured Party after an event of default.
b. Debtor agrees to deliver to Secured Party on demand, or upon
the termination of the Debtor's authority to collect by Secured Party, all of
the papers in Debtor's possession relating to the collateral covered by this
Security Agreement which will facilitate collection or enforcement thereof by
Secured Party, including, but not limited to, correspondence, invoices, shipping
documents and records, sales slips, orders and order acknowledgements,
contracts, and all other instruments relating thereto.
c. Secured Party or its authorized agent may at reasonable times
and upon reasonable notice examine and make copies of and abstract from books of
account and other written records evidencing the collateral.
5. TAXES. Debtor shall pay before delinquency all taxes or other
governmental charges that are or may become a lien or charge on the Property and
shall pay any tax which may be levied on any obligation secured hereby (except
claims whose validity or amount is being contested in good faith by Debtor in
appropriate proceedings with provisions having been made to the satisfaction of
Secured Party for the payment thereof in the event the contest is determined
adversely to Secured Party).
6. REPAIRS AND INSPECTIONS. Debtor shall keep the Property in
reasonably good working order and condition, except ordinary wear and tear and
casualty losses, and will make needed repairs.
7. INSURANCE. Debtor shall keep the Property continuously insured by an
insurer approved by Secured Party against fire, theft, and other hazards
designated at any time by Secured Party, in an amount equal to the full
insurable value thereof or to all sums secured hereby. In the event of loss,
Secured Party shall have full power to collect any and all insurance upon the
Property and to apply the same at its option to any obligation secured hereby,
whether or not matured, or to the restoration
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or repair of the Property. Secured Party shall have no liability whatsoever for
any loss that may occur by reason of the omission or lack of coverage of any
such insurance.
8. REMOVAL OR SALE. Without the prior written consent of Secured Party,
which can be withheld in Secured Party's sole and absolute discretion, Debtor
shall not remove the Property from the locations described in Section 1 of this
Security Agreement, and Debtor will not sell or lease the Property or such
portion as constitutes, in the reasonable opinion of Secured Party, a
substantial portion. This restriction shall not apply to disposition or
replacement in the ordinary course of business.
9. LIMITED RELEASE OF SECURITY INTEREST ON SALE OF PROPERTY.
Notwithstanding any provision of this Security Agreement, the Agreement, the
Promissory Note, or any related agreements to the contrary, if the Debtor (after
obtaining the prior written consent of Secured Party, which consent can be
withheld in Secured Party's sole and absolute discretion) sells a portion of the
Property and remits the entire proceeds from such sale to Secured Party, Secured
Party shall release its security interest in the portion of the Property sold to
allow the purchaser to obtain clear title thereto. In such event, Secured Party
agrees to execute a lien release or other appropriate instrument to release its
security interest in the portion of the Property sold.
Debtor and Secured Party acknowledge that, contemporaneous with the
distribution and conveyance of the Property from STA to SPC, SPC will enter into
an agreement with Qwest Communications Corporation ("Qwest") for the sale of a
conduit from the Property of approximately eight hundred seventeen (817) miles
in length from Sacramento, California to Salt Lake City, Utah; such conduit is
described as the "First Conduit" in the Unit Redemption, Release, and Sale
Agreement. Upon (i) the consummation of such agreement between Debtor and Qwest
and (ii) SPC's payment of Four Million Three Hundred Seventy Five Thousand
Dollars ($4,375,000) to Secured Party promptly following the execution of such
agreement, Secured party shall remise and release its security interest in Legs
One and Two of the Conduit System.
As long as STA is not in default and completes construction of the
First Conduit, its security interest in Leg Three of the Conduit System will not
be released until SPC pays STA a total of Thirteen Million Six Hundred
Twenty-Five Thousand Dollars ($13,625,000) for the First Conduit on the Note.
10. EXPENSES INCURRED BY SECURED PARTY. Secured Party is not required to,
but may at its option, pay any tax or other charge or expense payable by Debtor
and any filing or recording fees and any amounts so paid shall be repayable by
Debtor upon demand. Debtor shall also repay upon demand all of Secured Party's
expenses incurred in collecting, insuring, conserving, or protecting the
collateral or in any inventories, audits, inspections, or other examinations by
Secured Party in respect of the collateral. All such sums shall bear interest at
the Default Interest Rate under the Promissory Note from the date of payment by
the Secured Party until repaid by Debtor and such sums and interest thereon
shall be secured hereby. The rights granted by this paragraph are not a waiver
of any other rights of Secured Party in the event of default.
11. WAIVERS. This Security Agreement shall not be qualified or supplemented
by course of dealing. No waiver or modification by Secured Party of any of the
terms or conditions hereof shall be effective unless in writing signed by
Secured Party. No waiver nor indulgence by Secured Party as to any required
performance by Debtor shall constitute a waiver as to any subsequent required
performance or other obligations of Debtor hereunder.
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12. DEFAULT. Time is of the essence in this Security Agreement, and any of
the following events shall constitute "Events of Default":
a. Any failure to pay when due principal, interest, or taxes
under the Promissory Note; or
b. Any default or breach under this Security Agreement or the
Agreement, provided, however, that such default or breach shall remain
unremedied for fifteen (15) days after Debtor has become aware of such default
or breach after Debtor has received notice of such failure or default from
Secured Party; or
c. The falsity in any material respect of any representation by
Debtor in this Security Agreement, the Agreement, or in any financial statement
given by Debtor to Secured Party as a basis for any extension of credit secured
hereby; or
d. If the Property should be seized or levied upon under any
legal or governmental process against Debtor or against the Property; or
e. If Debtor becomes insolvent or is the subject of a petition in
bankruptcy, either voluntary or involuntary, or in any other proceeding under
the federal bankruptcy laws, or makes an assignment for the benefit of
creditors, or if Debtor is named in or the Property is subjected to a suit for
the appointment of a receiver; or
f. Loss, substantial damage to, or destruction of any material
portion of the Property which is uninsured; or
g. Dissolution or liquidation of Debtor.
If any of such Events of Default are not remedied, the entire amount of
indebtedness secured hereby shall then or at any time thereafter, at the option
of Secured Party, become immediately due and payable without notice or demand,
and Secured Party shall have an immediate right to pursue the remedies set forth
in this Security Agreement.
13. REMEDIES. In the event of a default hereunder, Secured Party shall have
all remedies provided by law and, without limiting the generality of the
foregoing, shall be entitled as follows:
a. Debtor agrees to put Secured Party in possession of the
Property on demand; and
b. Secured Party is authorized to enter any premises where the
Property is situated and take possession of the Property without notice or
demand and without legal proceedings; and
c. At the request of Secured Party, Debtor will assemble the
Property and make it available to Secured Party at a place designated by Secured
Party which is reasonably convenient to both parties; and
d. Debtor agrees that a period of fifteen (15) days from the time
notice is sent, by first-class mail or otherwise, shall be a reasonable period
of notification of a sale or other disposition of Property;
e. Debtor agrees that any notice or other communication by
Secured Party to Debtor shall be sent to the address of the Debtor stated herein
or such other address as Debtor may notify Secured
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Party in writing; and
f. Debtor agrees to pay on demand the amount of all expenses
reasonably incurred by Secured Party in protecting or realizing on the Property
in the event that this Security Agreement or any obligation secured by it is
referred to an attorney for protecting or defending the priority of Secured
Party's interest or for collection or realization procedures. Debtor agrees to
pay reasonable attorneys' fees, including fees incurred in both trial and
appellate courts, or fees incurred without suit, and expenses of title search
and all court costs and costs of public officials. The sum agreed to be paid in
this subparagraph shall be secured hereby; and
g. If Secured Party disposes of the Property, Debtor agrees to
pay any deficiency remaining after application of net proceeds to any
indebtedness secured hereby.
h. No dispute arising out of or relating to this Security
Agreement, the Agreement, the Promissory Note, any related agreements or
instruments, or brought under applicable law, shall be subject to the provisions
of Article X ("Deadlocks"), or any other provisions, of the Operating Agreement
of Secured Party dated as of April 25, 2000.
14. CONSTRUCTION. This Security Agreement, with the Agreement, the
Promissory Note, and the associated Uniform Commercial Code Financing Statements
(the preparation and filing of which Debtor agrees to facilitate), represent the
entire agreement among the parties with respect to the transactions contemplated
thereby and supersede all prior agreements, written or oral, with respect
thereto. In the event of any conflict between this Security Agreement and the
Agreement, the latter shall control.
15. APPLICABLE LAW; JURISDICTION AND VENUE. This Security Agreement shall
be governed by the laws of the State of Nevada. Debtor hereby irrevocably
submits to the jurisdiction of the Secured Judicial District Court sitting in
Reno, Nevada and agrees that venue in any suit or action hereunder may, at the
election of any holder hereof, be in any court having jurisdiction and that
Debtor shall not claim that any such forum selected by Secured Party is an
inconvenient forum.
SIGNED this 9th day of September 2002.
SIERRA PACIFIC COMMUNICATIONS,
a Nevada corporation
By _______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., PRESIDENT
Address:
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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ASSIGNMENT AND ▇▇▇▇ OF SALE
SIERRA TOUCH AMERICA, LLC., a Nevada limited liability company (the
"Seller"), for good and valuable consideration paid to it by SIERRA PACIFIC
COMMUNICATIONS, a Nevada corporation (the "Purchaser"), pursuant to a Unit
Redemption, Release, and Sale Agreement dated as of September 9, 2002 between
Seller and Purchaser (the "Agreement"), and for other good and valuable
consideration, receipt and sufficiency of which are hereby mutually
acknowledged, does hereby sell, assign, transfer, convey, and deliver to
Purchaser, its successors and assigns, the following:
The property and assets described or identified in Section V.2 of the
Agreement, or on schedules relating thereto, free and clear of any and all
material claims, liens, and encumbrances except as specifically identified or
assumed by Purchaser as set forth in the Agreement.
Seller hereby covenants and agrees that it will warrant and defend the
sale of these assets against each and every person or persons whomsoever
claiming against any or all of the same.
This instrument shall be binding upon, inure to the benefit of, and be
enforceable by, Seller and Purchaser and their respective successors and
permitted assigns.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
▇▇▇▇ of Sale as of this 9th day of September 2002.
SELLER:
SIERRA TOUCH AMERICA LLC,
a Nevada limited liability company
By ____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Manager
PURCHASER:
SIERRA PACIFIC COMMUNICATIONS,
a Nevada corporation
By ___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., President
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CONDUIT AND DARK FIBER IRU AND SALE AGREEMENT
This CONDUIT AND DARK FIBER IRU AND SALE AGREEMENT (the "Agreement")
is made as of September 9, 2002, between SIERRA TOUCH AMERICA LLC, a Nevada
limited liability company, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Owner"), and SIERRA PACIFIC COMMUNICATIONS, LLC, a Nevada corporation, with
offices at ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇, ("SPC").
WHEREAS, Owner has commenced construction of a fiber optic
communication system along the route of Sacramento, California to Salt Lake
City, Utah via Reno, Nevada, including optical amplifier and regenerator sites,
described in Exhibit B hereto (the "Description of Real Property"), and
WHEREAS, upon the terms and conditions set forth below and set forth in
the Unit Redemption, Release, and Sale Agreement between Touch America, Inc.,
Sierra Pacific Communications, and Sierra Pacific Resources, and Sierra Touch
America LLC, dated September 9, 2002 (the "URRS Agreement"), SPC desires to
acquire from Owner and Owner desires to convey to SPC (a) legal title to one (1)
fiber optic conduit installed along the entire Route ("First Conduit"); (b) an
indefeasible right of use or IRU in two (2) additional fiber optic conduits
installed along the Route between Reno, Nevada and Spanish Fork, Utah (" IRU
Conduit"), (c) and an IRU in sixty (60) strands of dark fiber installed along
the entire length of the Route; and (d) an interest in Owner's occupancy rights
and Owner's OA Sites.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, the Parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement:
1.1. Authorized Use means a business purpose of SPC's optical
fiber telecommunications network for telecommunication traffic of SPC
or SPC's Customers.
1.2. Fiber Optic Facilities means fiber optic cable and a number of
conduit.
1.3. Strands means individual fiber optic strands within the Fiber
Optic Facilities.
1.4. Dark Fiber means one or more Strands subject to this Agreement
through which an associated light, signal or light communication
transmission must be provided to furnish service.
1.5. SPC Conduit means the (a) one (1) fiber optic conduit
installed along the entire Route ("First Conduit") and (b) two (2)
additional fiber optic conduits installed along the Route between Reno,
Nevada and Spanish Fork, Utah ("IRU Conduit"), as designated by Owner.
1.6. SPC Strands means sixty (60) strands, as designated by Owner,
of Dark Fiber of the Fiber Optic Facilities.
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1.7. Indefeasible Right of Use or IRU means an exclusive right to
use SPC's Strands and Conduit.
1.8. Environmental, Health, or Safety Complaint means any
complaint, summons, citation, notice, directive, order, claim,
litigation, investigation, proceeding, judgment, letter or
communication from any federal, state, or municipal authority or any
other private party involving a Hazardous Discharge from, in or at or
along Owner's Route or Owner's facilities installed in the Route or any
violation related to Owner's Route or its facilities installed in the
Route of any order, permit, or Environmental, Health and Safety Law.
1.9. Environmental, Health and Safety Laws means any federal,
state, or local statute, regulation, rule, ordinance or applicable
governmental order, decree, or settlement agreement, or principle or
requirement of common law, regulating or protecting the environment
or human health or safety, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. Section 9601 et seq.), as amended, the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), as
amended, and the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as amended, and regulations promulgated
thereunder.
1.10. Hazardous Discharge means any release, spill, leak, pumping,
emission, discharge, injection, leaching, pouring, disposing or
dumping of a Hazardous Substance.
1.11. Hazardous Substance means any pollutant or contaminant or any
hazardous or toxic chemical, waste, material, or substance, including
without limitation any defined as such under Environmental, Health
and Safety Laws, and including without limitation asbestos, petroleum
products and wastes, polychlorinated biphenyl's, and radon gas.
1.12. Service Provider or SP means Owner and Service Recipient or SR
means SPC.
1.13. Useful Life means the period from the Acceptance Date of SPC's
Strands and SPC's Conduit until the date they are no longer capable
of producing commercial revenues.
2. SALE
Pursuant to the terms of the URRS Agreement, Owner has agreed to convey
to SPC ownership of the First Conduit.
3. GRANT OF IRU
3.1. Upon the terms, covenants and conditions contained in this
Agreement and subject to the terms and conditions contained in URRS
Agreement, Owner grants to SPC and SPC accepts from Owner an
Indefeasible Right of Use of SPC Strands and the IRU Conduit solely
for Authorized Use (the "IRU") during the term of the IRU as provided
in this Agreement. Except for an interest in the Occupancy Rights
and OA Sites as described herein and in the URRS Agreement, SPC shall
have no further right, title or other interest in Owner's Route, its
Fiber Optic Facilities or SPC's Strands. Owner shall have the right
to grant and renew rights to any entity to use Owner's Route, the
Fiber Optic Facilities or any other property of Owner (exclusive of
the SPC Strands and the
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SPC Conduit during the term of the IRU).
3.2. It is understood and agreed as between the Parties that the
grant of the IRUs shall be treated for federal and all applicable
state and local tax purposes as the sale and purchase of the SPC
Strands and the SPC Conduit, and that on or after the exercise of its
IRU, SPC shall be treated as the owner of the SPC Strands and the SPC
Conduit for such purposes. The parties agree to file their respective
income tax returns, property tax returns and other returns and
reports for their respective Assessments on such basis and, except as
otherwise required by law, not to take any positions inconsistent
therewith.
4. CONSTRUCTION
4.1. Owner shall use reasonable efforts to provide, construct and
install the Fiber Optic Facilities on or before May 1, 2003.
4.2. Owner shall test all SPC's Strands in accordance with the
procedures specified in Schedule C ("Fiber Cable Splicing, Testing,
and Acceptance Procedures ") to verify that SPC's Strands are
installed and operational in accordance with the specifications
described in Schedule C. Fiber Acceptance Testing shall progress span
by span along each segment as cable splicing progresses, so that test
results may be reviewed in a timely manner. Owner shall provide SPC
reasonable advance notice of the date and time of each Fiber
Acceptance Testing such that SPC shall have the opportunity to have a
person or persons present to observe Owner's Fiber Acceptance
Testing. When Owner has determined that the results of the Fiber
Acceptance Testing with respect to a particular span show that the
SPC's Strands so tested are installed and operating in conformity
with the applicable specifications as set forth in Schedules B and C,
Owner shall promptly provide SPC with a copy of such test result.
4.3. If and when Owner gives written notice to SPC that the test
results of the Fiber Acceptance Testing are within parameters of the
specifications in Schedules B and C with respect to an entire
segment, SPC shall provide Owner with written notice accepting (or
rejecting by specifying the defect or failure in the Fiber Acceptance
Testing that is the basis for such rejection) SPC's Strands. If SPC
fails to notify Owner of its acceptance or rejection of the final
test results with respect to SPC's Strands comprising a segment
within twenty (20) days after SPC's receipt of notice of such test
results, SPC shall be deemed to have accepted such segment. If,
during the course of such construction, installation and testing, any
material deviation from the specifications set forth in Schedules B
and C is discovered, the construction or installation of the affected
portion of the segment shall be repaired to such specification by
Owner at Owner's sole cost and expense. The date of such notice of
acceptance (or deemed acceptance) of SPC's Strands for all segments
along the Route shall be the "Acceptance Date" for the Route.
5. CONSIDERATION
5.1. As consideration for the SPC Conduit and the SPC Strands, SPC
shall pay to Owner the sums set forth in the URRS Agreement and in
accordance with the provisions of the URRS Agreement, and related
documents.
5.2. Beginning on August 1, 2003, SPC shall pay to Owner an annual
maintenance fee
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of Two Hundred Forty dollars ($240.00) per route mile
each year during the term of this Agreement for maintenance of the
SPC's Strands and the SPC Conduit. Thereafter, SPC shall pay the annual
maintenance fee on or before the anniversary date of this Agreement
each year. This amount shall be adjusted annually to reflect changes in
the U.S. Producer Price Index (Bureau of Labor Standards "All Finished
Goods" Series ID WPUSOP3000), but in no event shall such amount be less
than $20 per actual route mile per month.
5.3. Except as otherwise specifically provided, SPC shall pay all
applicable fees and charges provided for in this Agreement, within
thirty (30) days after receipt of invoice.
5.4. All payments not made within thirty (30) days of the due date
shall bear a late payment charge of one (1%) percent per month of the
unpaid balance or the highest lawful rate, whichever is less.
5.5. The parties acknowledge that pursuant to the URRS Agreement,
SPC has granted Owner a security interest in the SPC Strands and the
SPC Conduit and any proceeds thereof.
6. TERM.
6.1. As to the SPC Strands and the IRU Conduit, the Term of this
Agreement shall begin on the date first above written and shall end
upon the expiration of the Useful Life of the SPC Strands and the IRU
Conduits.
6.2. Upon the expiration of the Term of this Agreement, SPC's IRU
in the SPC Strands and the IRU Conduit shall immediately terminate
and all rights of SPC to use the SPC Strands and the IRU Conduit, or
any part thereof, shall cease and Owner shall owe SPC no additional
duties or consideration.
7. OCCUPANCY RIGHTS.
OCCUPANCY RIGHTS FOR THE FIRST CONDUIT.
7.1. Owner has obtained certain easements, leases, licenses, fee
interests, rights-of-way, permits, authorizations and other rights
necessary to allow Owner to install and operate the Fiber Optic
Facilities ("Occupancy Rights"). Subject to the terms of the URRS
agreement and as provided therein, Owner shall partially assign to
SPC the Occupancy Rights it owns or has secured for SPC's use in
accessing the First Conduit. If Owner is unable to directly assign
to SPC Occupancy Rights, then Owner shall grant, to the extent it is
able, access rights to SPC through license, IRU, or otherwise. If a
governmental entity requires SPC or its permitted assigns to obtain a
separate license or permit, then SPC shall be responsible to obtain
such license or permit at its sole cost and expense. Owner agrees to
use commercially reasonable efforts in cooperating with SPC with
respect to SPC's efforts to secure such licenses or permits.
7.2. Owner shall assign to SPC the Occupancy Rights for the First
Conduit held by Owner to occupy any Union Pacific Railroad
right-of-way.
7.3. For those Occupancy Rights for the First Conduit that Owner
is unable to partially assign to SPC, Owner shall use commercially
reasonable efforts to cause the Occupancy rights to remain effective
throughout the term of this IRU. Owner's failure to cause
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Occupancy Rights to remain effective does not constitute a breach of
any warranty, representation or covenant of Owner.
7.4. SPC shall pay Owner SPC's proportionate share of any recurring
fees, including but limited to any renewal or extension
fees, related to the Owner Occupancy Rights that Owner cannot
partially assign to SPC. SPC's proportionate share shall be
determined as provided in Section 8.14. SPC is responsible directly
to third parties for any recurring fees, including but not limited to
renewal or extension fees, associated with the Occupancy Rights that
Owner partially assigns to SPC.
OCCUPANCY RIGHTS FOR THE IRU CONDUITS AND SPC FIBER.
7.5. Owner shall provide the right of access to IRU Conduits and
SPC Fiber as set forth herein and in the attached Schedule D. SPC shall
comply with provisions and procedures set forth in the Maintenance
Agreement as a condition to the access provided in this Section 7.5.
7.5.1. SPC shall have the exclusive right of use of the
IRU Conduit, including the exclusive right to have SPC
Facilities installed within the IRU Conduit, and to use such
SPC Facilities in the conduct of the SPC's business, which
shall include without limitation sub-leasing or otherwise
allowing use by third parties of any or all of the SPC's
Facilities
7.5.2 SPC shall have the right to replace the SPC
Facilities at SPC's cost and expense. SPC shall request, in
writing, permission from Owner before attempting to access the
IRU Conduit and SPC Fiber or SPC Facilities within the Route,
which request shall be granted by Owner in its sole
discretion, reasonably exercised. SPC shall have the right to
have the IRU Conduits connected to other facilities owned or
controlled by SPC at any location approved by Owner along the
SPC Route.
8. MAINTENANCE AND OPERATION
8.1. Owner shall maintain the SPC Strands and the SPC Conduit in
accordance with the requirements and procedures set forth in Schedule
D ("Maintenance Specifications and Procedures"). SPC shall cooperate
with and assist, as may be reasonably required, Owner in performing
said maintenance.
8.2. In the event of service outages, Owner agrees to use
commercially diligent efforts to respond promptly and restore SPC's
Strands within the parameters of the specifications in Schedule B;
provided however, that SPC shall solely be responsible, at its own
expense, for restoring an outage caused by a failure of light, signal
or light communication transmission. SPC shall also be solely
responsible, at its own expense, for the operation, maintenance and
repair of all terminal equipment and facilities required in
connection with the use of SPC's Strands.
8.3. Owner shall provide SPC access to SPC's Strands by cable
stub taken by Owner from the Fiber Optic Facilities and delivered to
SPC at a splice point or, as mutually agreed to by the parties, in
selected Owner OA Sites at the fiber distribution panel. SPC
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shall designate in writing within 30 days of the Acceptance Date of
the SPC's Strands, all splice points along the Route through which it
wants access to the SPC Strands. If a splice point is not located at
an Owner manhole/handhole, Owner shall, if mutually agreed,
construct, at SPC's expense, a manhole/handhole for SPC. All other
splice points shall be located at an Owner manhole/handhole. SPC is
permitted to request access to additional splice points in the
future, provided SPC reimburses Owner for any costs it incurs in
providing access to such additional splice points.
8.3.1. Owner shall accomplish sheath opening and stub out of
SPC's Strands at the splice points in SPC's and Owner's
manholes/handholes. SPC may splice its own fiber optic cable to SPC's
Strands only in SPC's manholes/handholes. Owner shall splice SPC's
fiber optic cable to SPC's Strands in Owner's manhole/handholes.
8.3.2. The parties may enter into a Collocation Agreement
pursuant to which Owner may sell or lease collocation space to SPC at
Owner's OA Sites along the Route, such space and related services to
be specifically defined in the Collocation Agreement. Should SPC
subsequently request additional space in Owner facilities along the
Route not identified in the Collocation Agreement, Owner agrees to
provide such space if it is available at the time SPC requests such
additional space. All ▇▇▇▇▇▇▇▇ for collocation space shall be made
under the Collocation Agreement, and not this Agreement.
8.4. Within thirty (30) days after the Acceptance Date, Owner
shall provide to SPC as-built drawings for the Route. The drawings
shall contain ROW detail, splice locations, manhole/handhole
locations.
8.5. In exercising its rights under this Agreement, both parties
shall at their own expense comply with all applicable Environmental,
Health and Safety Laws; the requirements and specifications of the
National Electrical Code and the National Electrical Safety Code (all
of the foregoing collectively referred to as "EHS Requirements");
other applicable governmental laws, regulations, ordinances, rules,
codes, orders, guidance, permits, and approvals; and applicable
easement or license conditions. Any notice, report, correspondence,
or submissions made by SPC to federal, state, or municipal
environmental, safety, or health authorities related to the Owner's
Route or Fiber Optic Facilities shall be provided by SPC to Owner
promptly, and in no case later than twenty-four (24) hours. SPC also
shall promptly provide to Owner a copy of any Environmental, Health
or Safety Complaint received by SPC, and in no case late than three
(3) business days after SPC's receipt of same. SPC shall ensure that
its employees are trained in the proper procedures for entering and
operating in the Owner's Route and in its Fiber Optic Facilities,
optical amplifier sites and regenerator sites.
8.6. SPC agrees to reimburse Owner the reasonable cost of Owner (i)
constructing manholes/handholes for SPC; (ii) accomplishing all sheath
openings and stub out of SPC's Strands; and (iii) splicing SPC's fiber
optic cable to SPC's Strands. Such charges shall be at Owner's fully
loaded labor rates then in effect and Owner's cost of material plus
fifteen (15%) per cent.
8.7. Should SPC's splices or other work not be placed and
maintained in accordance with the provisions of this Agreement, Owner
may at its option correct said condition. Owner shall notify SPC in
writing prior to performing such work whenever practicable. However,
when such conditions pose an immediate safety threat, interfere with
the
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(performance of Owner's service obligations, or pose an immediate
threat to the physical integrity of Owner's facilities, Owner, may
perform such work and take such action that it deems necessary without
first giving notice to SPC. As soon as practicable thereafter, Owner
shall advise SPC of the work performed and the action taken and shall
endeavor to arrange for re-accommodation of SPC's Strands so affected.
SPC shall promptly reimburse Owner for all reasonable costs incurred
by Owner for all such work, action, and re-accommodation performed by
Owner.
8.8. In the event a Hazardous Discharge or other conditions are
discovered or created at or near work being performed by SPC in on or
around Owner's Route that may require (i) investigation or
remediation or (ii) unforeseen measures to protect the environment,
health or safety (collectively "Adverse EH&S Conditions"), the party
discovering the condition shall immediately notify the other party.
The party in the best position to do so (or, if the parties are
equally situated, SPC) shall then immediately take reasonable
measures to temporarily contain or otherwise avoid exacerbation of or
exposure to the Adverse EH&S Conditions. Unless Owner affirmatively
notifies SPC otherwise, SPC shall also take such other actions as
applicable EH&S Requirements prescribe.
8.9. SPC shall be responsible for obtaining and maintaining, at its
sole expense, from the appropriate public or quasi-public authority,
any franchises, licenses, permits or other similar authorizations
required to enter upon the property where Owner's Route is located and
to operate and maintain the SPC Strands and the SPC Conduit in the
Owner's Route.
8.10. SPC, at its sole cost and expense, shall (i) use SPC's Strands
and (ii) conduct all work in or around Owner's Route in a safe
condition and in a manner reasonably acceptable to Owner, so as not to
physically, electronically or inductively conflict or interfere or
otherwise adversely affect Owner's Route or the facilities placed
therein by Owner, joint users, or other authorized SPC's. Owner agrees
to operate its facilities in the Owner's Route in a similar manner.
8.11. SPC must obtain prior written authorization from Owner
approving any future work and the party performing such work before
SPC shall perform any work in or around Owner's Route.
8.12. In the event SPC receives information that Owner's Route or
the Fiber Optic Facilities are damaged, it shall notify Owner of said
damage by phone at: ▇▇▇-▇▇▇-▇▇▇▇.
This is a 24 hour, 7 day per week notification number. In the event
Owner receives information that SPC's Strands are damaged, Owner will
notify SPC of said damage by phone at SPC's emergency telephone
number. The call shall be directed to the Supervisor on Duty, and the
caller shall provide the following information.
8.12.1. Name of Company making report.
8.12.2. Location reporting problem.
8.12.3. Name of contact person reporting problem.
8.12.4. Telephone number to call back with progress report.
8.12.5. Description of the problem in as much detail as
possible.
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8.12.6. Time and date the problem occurred or began.
8.12.7. State whether or not the problem presents a jeopardy
situation to Owner's Route, the Fiber Optic Facilities or SPC's Strands
8.13. Owner shall designate the particular Strands of Dark Fiber
that will constitute the SPC Strands and the particular conduits that
will constitute the SPC Conduit and the location and manner in which
they will enter and exit Owner's Route
8.14. If Owner moves, replaces or changes the location, alignment
or grade of Owner's Route ("Relocation"), Owner shall concurrently
relocate the SPC Strands and the IRU Conduit. If the Relocation is
because of an event of Force Majeure, pursuant to Section 26.2, or of
any governmental or third party authority, including a Taking by right
of eminent domain, SPC shall reimburse Owner for SPC's proportionate
share of the costs of the Relocation of Owner's Route. To the extent
Owner receives reimbursement from a third party which is allocable to
a Relocation of Owner's Route, it will credit or reimburse SPC for its
proportionate share of the reimbursement. SPC's proportionate share
shall be based first on the ratio of the number of IRU Conduit
relative to the total number of conduits relocated, then on the number
of SPC Strands relative to the total fiber count in the affected
conduit. SPC shall be responsible for all costs associated with
Relocation of the Sale Conduit.
8.15. SPC shall be deemed the generator of all waste associated with
its work related to Owner's Route and shall both remove that waste
from the area and dispose of or otherwise manage it at its own expense
in compliance with all applicable laws. "Waste" shall include without
limitation, any manmade materials (including asbestos) and any soil or
other environmental media that may be removed or excavated by SPC, and
all hazardous and non-hazardous substances and materials associated
with the work that are intended to be discarded, scrapped, or
recycled. It shall be presumed that all the substances and material
brought to the area of that work that are not incorporated into the
work (including without limitation damaged components or tools,
leftovers, containers, garbage, scrap, residues, or byproducts),
except for substances and materials that SPC intends to use in their
original form in connection with similar work, are waste to which the
above SPC obligations apply.
9. OWNERSHIP.
9.1. Legal title to the SPC Strands and the IRU Conduit shall at
all times be vested in Owner. Neither the provision of the use of the
SPC Strands and the IRU Conduit by Owner to SPC hereunder, nor the
payments by SPC contemplated hereby, shall create or vest in SPC any
easement, interest, or any other ownership or property right of any
nature in the SPC Strands or the IRU Conduit, except as granted in
Section 3 and Section 7 hereof. Except as provided in the URRS
Agreement, SPC shall not grant any security interest in the SPC
Strands, the SPC Conduit or any part or component or proceeds thereof.
9.2. Owner may use or permit the use of Owner's Route, the Fiber
Optic Facilities and the telecommunications capacity thereof for any
lawful purpose. Nothing in this Agreement shall be construed or
interpreted to prohibit Owner from leasing or licensing the Fiber
Optic Facilities or otherwise providing capacity to others or from
installing
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additional fibers or capacity, including without limitation, fiber
optic capacity, within Owner's Route (other than the SPC Strands and
the SPC Conduit during the term of the IRU) or to prohibit Owner from
operating such Fiber Optic Facilities (alone or in combination with
others) in competition with SPC.
10. EMINENT DOMAIN.
If there is a taking of the SPC Strands or the IRU Conduit by right of
eminent domain (a "Taking") which results in the remainder of the SPC Strands or
the IRU Conduit being unable to be restored to a condition suitable for SPC's
business needs within ninety (90) days from the date of the Taking ("Substantial
Taking"), SPC will be permitted to participate, to the extent of its interest
and at its expense, in such eminent domain proceeding, and this Agreement may be
terminated as a result of such proceedings. In such event the IRU fee and
maintenance fee shall ▇▇▇▇▇ from the date of Taking and any previously paid IRU
fee and/or maintenance fee attributable for any period beyond such date shall be
returned to SPC. If there shall be a Taking which does not constitute a
Substantial Taking, this Agreement shall not terminate but Owner shall, with due
diligence, restore SPC's Strands and IRU Conduit as speedily as practical to its
condition before the Taking in accordance with the provisions of Section 8.14.
11. INDEMNIFICATION.
11.1. SPC will indemnify, defend, and hold harmless Owner and
Owner's agents, officers and employees, from any and all losses,
damages, costs, expenses (including reasonable attorneys fees),
statutory fines or penalties, actions, or claims for personal injury
(including death), damage to property, or other damage in any way
arising from SPC's activities undertaken pursuant to this Agreement
(including, without limitation, the installation, construction,
operation or maintenance of the SPC Strands and SPC Conduit), except
to the extent caused by the negligence or willful misconduct on the
part of Owner or Owner's agents, officers or employees.
11.2. Without limiting the foregoing, SPC specifically will
indemnify, defend, and hold harmless Owner and Owner's agents,
officers and employees from any and all claims asserted by SPC's
customers in any way arising out of or in connection with this
Agreement, the SPC Strands or the SPC Conduit, except to the extent
caused by the negligence or willful misconduct on the part of Owner
or Owner's agents, officers or employees.
11.3. Owner will indemnify, defend, and hold harmless SPC and SPC's
agents, officers and employees, from any and all losses, damages,
costs, expenses (including reasonable attorneys fees), statutory fines
or penalties, actions, or claims for personal injury (including
death), damage to property, or other damage in any way arising from
Owner's activities undertaken pursuant to this Agreement (including,
without limitation, the installation, construction, operation or
maintenance of the Route), except to the extent caused by the
negligence or willful misconduct on the part of SPC or SPC's agents,
officers or employees.
11.4. Except for personal injury and property damage as provided
above, in no event shall either party be liable to the other party for
any special, consequential or indirect
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(including by way of illustration, lost revenues and lost profits),
punitive or exemplary damages arising out of this Agreement or any
obligation arising thereunder, whether in an action for or arising out
of breach of contract, tort or otherwise.
12. INSURANCE.
During the term of this Agreement, each party shall obtain and maintain
and shall require any of its permitted contractors to obtain and maintain not
less than the following insurance:
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TYPE OF COVERAGE AMOUNT OF COVERAGE
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Worker's Compensation Insurance Statutory Amount
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Employer's Liability Occupational Disease and Bodily $1 million each accident
Injury Insurance $1 million disease each employee
$1 million disease-policy limit
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Commercial General Liability Insurance, including Combined single limit personal injury and
premises-operations, products/completed property damage on an occurrence policy form with policy
operations, independent contractors, contractual amounts of (i) not less than $5 million per occurrence
(blanket), broad form property damage, with (without a limitation on aggregate amount); or (ii) not
umbrella excess liability (collectively, less than $5 million per occurrence with an aggregate annual
"Comprehensive Coverage") amount of not less than $5 million
-----------------------------------------------------------------------------------------------------------------------
Automobile Liability Insurance for owned, hired and $2 million combined single limit bodily injury/property
non-owned autos ("Automobile Liability Coverage") damage
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The limits set forth above are minimum limits and will not be construed
to limit either party" liability.
This insurance shall cover the amounts and types of liability listed
above with respect to each party's obligations under this Agreement.
Each policy evidencing the insurance described in this Section 10 must
contain a provision that the insurance policy, and the coverage it provides,
shall be primary and noncontributing with respect to any policies carried by the
party and its affiliates, and that any policies carried by the party and its
affiliates shall be excess insurance.
The comprehensive general liability policies and umbrella excess
liability policies of the party and its subcontractors each shall contain a
provision including the other party, its parent, subsidiaries and affiliates,
and each of their respective officers, directors, employees and agents, as
additional insureds.
Prior to commencement of any work under this Agreement, each party must
furnish to the other certificates of insurance stating that the insurer will use
best efforts to notify the other part at least thirty (30) days prior to
cancellation of, or any material change in, the coverage provided.
Either party is entitled to self-insure coverages under this Agreement
through programs adopted by their respective risk management departments.
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13. COMPLIANCE WITH LAWS.
Notwithstanding anything to the contrary in this Agreement, each Party
shall ensure that any and all activities it performs pursuant to this Agreement
shall comply with all applicable laws. Without limiting the generality of the
foregoing, each Party shall comply with all applicable provisions of i)
workmen's compensation laws, ii) unemployment compensation laws, iii) the
Federal Social Security Law, iv) the Fair Labor Standards Act, and v)
Environmental, Health and Safety Laws.
14. DISCLAIMER OF WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, OWNER MAKES NO
WARRANTIES REGARDING THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT
AND MAKES NO WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, AS TO THE INSTALLATION,
DESCRIPTION, QUALITY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
15. OWNER SALES OR DISPOSITIONS.
Nothing in this Agreement shall prevent or be construed to prevent
Owner from, selling or otherwise disposing of any portion of Owner's Route or
Fiber Optic Facilities or other property of Owner used for the SPC Strands or
the IRU Conduit, provided, however, that in the event of a sale or other
disposition, Owner shall condition such sale or other disposition subject to
the rights of SPC under this Agreement.
16. LIENS.
SPC shall keep Owner's Route and the Fiber Optic Facilities and other
property of Owner free from all mechanic's, artisan's, material-man's,
architect's, or similar services' liens which arise in any way from or as a
result of its activities and cause any such liens which may arise to be
discharged or released.
17. DEFAULT PROVISIONS AND REMEDIES.
17.1. Each of the following shall be deemed an Event of Default by
SPC under this Agreement:
17.1.1. Failure of SPC to pay the any sum required to
be paid under the terms of this Agreement or the URRS Agreement, Note,
Security Agreement or any related agreement and such default continues
for a period of thirty (30) days after written notice thereof to SPC;
17.1.2. Failure by SPC to perform or observe any
other terms, covenant, agreement or condition of this Agreement on the
part of SPC to be performed and such default continues for a period of
thirty (30) days after written notice thereof from Owner (provided
that if such default cannot be cured within such thirty (30) day
period, this period will be extended if SPC commences to cure such
default within such thirty (30) day period and proceeds diligently
thereafter to effect such cure);
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17.1.3. The filing of a tax or mechanic's lien against
Owner's Route or Fiber Optic Facilities or other property of Owner
which is not bonded or discharged within thirty (30) days of the date
SPC receives notice that such lien is filed.
17.2. Upon the occurrence of an Event of Default, Owner, without
further notice to SPC in any instance (except where expressly provided
for below or by applicable law) may do any one or more of the
following:
17.2.1. Perform, on behalf and at the expense of SPC, any
obligation of SPC under this Agreement which SPC has failed to perform
and of which Owner shall have given SPC notice, the cost of which
performance by Owner shall be payable by SPC to Owner upon demand;
17.2.2. Exercise any other legal or equitable right or
remedy which it may have, including suspension or termination of
maintenance services Owner provides to SPC hereunder, including any
rights and remedies available to Owner pursuant to the URRS Agreement.
17.3. The following events or occurrences shall constitute a default
by Owner under this Agreement:
17.3.1. Failure by Owner to perform or observe any other
terms, covenant, agreement or condition of this Agreement on the part
of Owner to be performed and such default continues for a period of
thirty (30) days after written notice thereof from SPC (provided that
if such default cannot be cured within such thirty (30) day period,
this period will be extended if Owner commences to cure such default
within such thirty (30) day period and proceeds diligently thereafter
to effect such cure.
17.4. Upon the occurrence of an Event of Default, SPC, without
further notice to Owner in any instance (except where expressly
provided for below or by applicable law) may do any one or more of the
following:
17.4.1. Perform, on behalf and at the expense of Owner, any
obligation of Owner under this Agreement which Owner has failed to
perform and of which SPC shall have given Owner notice, the cost of
which performance by SPC shall be payable by Owner to SPC upon demand;
17.4.2. Exercise any other legal or equitable right or remedy
which it may have.
17.5. All rights and remedies of either party set forth in this
Agreement shall be cumulative, and none shall exclude any other right
or remedy, now or hereafter allowed by or available under any statute,
ordinance, rule of court, or the common law, either at law or in
equity, or both.
18. FORCE MAJEURE.
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Neither Owner nor SPC shall be in default under this Agreement with
respect to any delay in its performance caused by any of the following
conditions (each a "Force Majeure Event"): (1) act of God; (2) fire; (3) flood;
(4) material shortage or unavailability not resulting from the responsible
party's failure to timely place orders or take other necessary actions therefor;
(5) government codes, ordinances, laws, rules, regulations or restrictions
(collectively, "Regulations"); (6) war or civil disorder; (7) failure of a third
party to grant or recognize an Owner Occupancy Right; or (8) any other cause
beyond the reasonable control of such party; provided, however, that this
Section 20 shall not apply to the payment of money. The party claiming relief
under this Section 20 shall promptly notify the other in writing of the
existence of the Force Majeure Event relied on, the expected duration of the
Force Majeure Event, and the cessation or termination of the Force Majeure
Event. The party claiming relief under this Section 20 shall exercise
commercially reasonable efforts to minimize the time for any such delay.
19. TAXES AND USE OF PUBLIC RIGHTS-OF-WAY, LICENSE AND PERMIT FEES.
19.1. Subject to Section 19.4, SPC shall be responsible for any and
all sales, use, income, gross receipts, excise, transfer, ad valorem
or other taxes, and any and all franchise fees or similar fees
("Assessments") assessed against it due to its ownership of an IRU,
its use of the SPC Strands and the SPC Conduit, including the
providing of services over the SPC Strands or SPC Conduit, or its
ownership or use of facilities connected to the SPC Strands or the SPC
Conduit.
19.2. Subject to Section 19.1, Owner shall be responsible for any
and all Assessments assessed against it due to its construction,
ownership or use of the Owner Route or Fiber Optic Facilities,
including providing of services over the Owner Route or its ownership
or use of facilities connected to the Owner Route.
19.3. Notwithstanding Sections 19.1 and 19.2 above, if Owner is
assessed annual fees for use of public rights-or-way, SPC shall pay
its proportionate share of such fees, its proportionate share being
determined as provide in Section 8.14.
19.4. In the event that Owner is assessed for any Assessments
related to SPC's ownership of an IRU or SPC's use of the SPC Strands
or SPC Conduit which may not feasibly be separately assessed, Owner
within thirty (30) days of receipt of an invoice therefor, shall
provide information and documentation to SPC sufficient to
demonstrate the basis for the Assessments and the amount and due date
for payment of the Assessments. In addition, Owner shall provide SPC
with all information reasonably requested by SPC with respect to any
such Assessments. After such thirty (30) day period, Owner, in it
sole discretion, may pay such Assessment and invoice SPC for
reimbursement. SPC shall reimburse Owner for such payment within ten
(10) days of receipt of Owner's invoice. Notwithstanding such
payment by Owner, SPC, at its option, shall have the right at its
sole cost to contest any such Assessments and Owner will reasonably
cooperate with SPC in pursuing any such contest; provided that SPC
shall have reimbursed Owner for such Assessments. In the event
Owner, in its sole discretion, elects to not pay such tax or fee, it
shall so notify SPC. SPC, at its option, may pay the Assessments, or
contest the payment; provided that SPC shall indemnify and hold
harmless Owner for the payment of such Assessments and all interest
and penalties related thereto; and provided further, that such
contest shall be resolved or such
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Assessments shall be paid so as to prevent any forfeiture of
rights or property or the imposition of any lien on the Owner's Route
or Owner's Fiber Optic Facilities.
20. SUCCESSION, ASSIGNABILITY.
20.1. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective permitted successors or
assigns.
20.2. Except as provided in this Section 22, a party ("Transferring
Party") shall not assign, encumber or otherwise transfer this
Agreement or all or any portion of its rights or obligations hereunder
to any party without the prior written consent of the other party
("Other Party"), which consent will not be unreasonably withheld or
delayed. Notwithstanding the foregoing, Transferring Party shall have
the right, without Other Party's consent, to (i) subcontract any of
its construction or maintenance obligations hereunder or (ii) assign
or otherwise transfer this Agreement in whole or in party (a) to any
parent, subsidiary or affiliate of Transferring Party, or (b) any
corporation or other entity which Transferring Party may be merged or
consolidated or which purchases all or substantially all of the stock
or assets of Transferring Party; provided that the assignee or
transferee in any such circumstance shall be subject to all of the
provisions of this Agreement, including without limitation, this
Section 22 and provided further that promptly following any such
assignment or transfer, Transferring Party shall give Other Party
written notice identifying the assignee or transferee. In the event
of any permitted partial assignment of any rights hereunder,
Transferring Party shall remain the sole point of contact with Other
Party. When Other Party's consent to assign is required, Other Party
will have the right to withhold consent if, in its judgment reasonably
exercised, the proposed assignee cannot adequately assume the
obligations of this Agreement. In no event will any assignment by
Other Party be permitted without the delivery to Other Party of a
binding agreement in writing from the proposed assignee that (i)
states that the proposed assignee will assume all current, future and
outstanding past obligations under this Agreement as if such assignee
had originally executed this Agreement and (ii) evidence proof
satisfactory to Other Party that he proposed assignee has insurance
coverage comparable to the described in Section 12 or other assurances
that the proposed assignee can adequately perform the obligations it
will assume under this Agreement.
20.3. Notwithstanding the Provisions of Section 20, without the
prior written consent of Owner, SPC shall have the right to lease,
license, grant an IRU with respect to, or otherwise in any manner
transfer or make available in any manner to, any of SPC's rights in
the SPC Strands or the IRU Conduit and such lessee, licensee or other
transferee shall have the ability to grant leases, licenses and grant
an IRU with respect to, or otherwise in any manner transfer or make
available in any manner to, any of such party's rights in the strands
or conduit such party receives.
20.4. Neither party shall attempt to circumvent any of its
obligations under this Agreement, or deprive the Other Party of any
anticipated benefit under this Agreement, through the use of ownership
changes, reorganizations, creation of new entities, or other
artificial devices.
20.5. Neither this Agreement, nor any term or provision hereof, nor
any inclusion by reference shall be construed as being for the benefit
of any person or entity not a signatory
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hereto.
21. NOTICES.
Any demand, notice or other communication to be given to a party in
connection with this Agreement shall be given in writing and shall be given by
personal delivery, by registered or certified mail, return receipt requested,
by Tele-copy or commercial over night delivery service addressed to the
recipient as set forth as follows or to such other address, individual or
Tele-copy number as may be designated by notice given by the party to the
other:
OWNER:
Sierra Touch America, LLC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Contracts Officer
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: same
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Sierra Touch America, LLC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: same
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
SPC:
Sierra Pacific Communications, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇. ▇, ▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Facilities
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: same
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
General Counsel
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tele: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
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Any demand, notice or other communication given by personal delivery
shall be conclusively deemed to have been given on the day of actual delivery
thereof and, if given by registered or certified mail, return receipt requested
on the date of receipt thereof and, if given by telecopy, on the day of
transmittal thereof if given during the normal business hours of the recipient
and on the next business day if not given during normal business hours.
22. NON-WAIVER.
No course of dealing, course of performance or failure of either party
strictly to enforce any term, right or condition of this Agreement shall be
construed as a waiver of any term, right or condition.
23. CHOICE OF LAW
The construction, interpretation and performance of this Agreement
shall be as governed by the law of the state of Nevada.
24. HEADINGS.
All headings contained in this Agreement are inserted for convenience
only and are not intended to affect the meaning or interpretation of this
Agreement or any clause.
25. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
25.1. In connection with this Agreement, either party may furnish
to the other certain information that is marked or otherwise
specifically identified as proprietary or confidential ("Confidential
Information"). This Confidential Information may include, among other
things, private easements, licenses, utility agreements, permits,
other right-of-way granting documents, specifications, designs,
plans, drawings, data, prototypes, and other technical and/or
business information. For purposes of this Section 25, the party that
discloses Confidential Information is referred to as the "Disclosing
Party", and the party that receives Information is referred to as the
"Receiving Party".
25.2. When Confidential Information is furnished in tangible form,
the Disclosing Party shall ▇▇▇▇ it as proprietary or confidential.
When Confidential Information is provided orally, the Disclosing Party
shall, at the time of disclosure or promptly thereafter, identify the
Confidential Information as being proprietary or confidential.
25.3. With respect to Confidential Information disclosed under this
Agreement, the Receiving Party and its employees shall:
25.3.1. hold the Confidential Information in confidence,
exercising a degree of care not less than the care used by the
Receiving Party to protect its own proprietary or confidential
information that it does not wish to disclose.
25.3.2. restrict disclosure of the Confidential Information
solely to those of its employees who have a need to know in connection
with the performance of this Agreement, and not disclose the
Confidential Information to any other person or entity without the
prior written consent of the Disclosing Party;
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25.3.3. advise those employees of their obligations with
respect to the Confidential Information; and
25.3.4. use the Confidential Information only in connection
with the performance of this Agreement, except as the Disclosing
Party may otherwise agree in writing.
25.4. Confidential Information shall be deemed the property of the
Disclosing Party. Upon written request of the Disclosing Party, the
Receiving Party shall return all Confidential Information received in
tangible form, except that each party's legal counsel may retain one
copy in its files solely to provide a record of such Confidential
Information for archival purposes. If the Receiving Party loses or
makes an unauthorized disclosure of Confidential Information, it
shall notify the Disclosing Party and use reasonable efforts to
retrieve the Confidential Information.
25.5. The Receiving Party shall have no obligation to preserve the
proprietary nature of Confidential Information which:
25.5.1. was previously known to the Receiving Party free of
any obligation to keep it confidential; or
25.5.2. is or becomes publicly available by means other than
unauthorized disclosure; or
25.5.3. is developed by or on behalf of the Receiving Party
independently of any Confidential Information furnished under this
Agreement; or
25.5.4. is received from a third party whose disclosure does
not violate any confidentiality obligation.
25.6. The existence of this Agreement, and all information that may
be disclosed to Receiving Party pertaining to the identities,
locations, and requirements of the Disclosing Party's SPCs, is
Confidential Information of Disclosing Party.
25.7. Under no circumstances shall either party disclose the other
party's SPC Confidential Information to any third party (even if
under contract to that party) or to any personnel of the party
responsible for publicity or for end user sales or marketing.
25.8. If the Receiving Party is required to disclose the Disclosing
Party's Confidential Information by an order or a lawful process of a
court or governmental body, the Receiving Party shall promptly notify
the Disclosing Party, and shall cooperate with the Disclosing Party in
seeking reasonable protective arrangements before the Confidential
Information is produced.
25.9. Each party agrees that a breach of this Section 25 by the
Receiving Party or its representatives will result in irreparable harm
for which there is no adequate remedy at law, and in the event of any
such breach the Disclosing Party may, notwithstanding the default
provisions in Section 17, seek a preliminary or permanent injunction
and/or specific performance which shall be granted upon a finding of a
breach (or substantial likelihood of a breach in the case of a
preliminary injunction). Such remedies shall not be
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deemed to be the exclusive remedies for a breach of this Section 25
but shall be in addition to all other remedies available at law or in
equity.
26. PUBLICITY AND ADVERTISING.
26.1. Neither party shall publish or use any advertising, sales
promotions, or other publicity materials that use the other party's
logo, trademarks, or service marks without the prior written approval
of the other party.
26.2. Each party shall have the right to review and approve any
publicity material, press releases, or other public statements by
the other that refer to such party or that describe any aspect of
this Agreement. Each party agrees not to issue any such publicity
materials, press releases, or public statements without the prior
written approval of the other party.
26.3. Nothing in this Agreement establishes a license for either
party to use any of the other party's brands, marks, or logos without
prior written approval of the other party.
27. REPRESENTATIONS AND WARRANTIES,
Each party represents and warrants that:
27.1. it has full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
27.2. this Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with its
terms, subject to bankruptcy, insolvency, creditors' rights and
general equitable principles; and
27.3. its execution of and performance under this Agreement shall
not violate any applicable existing regulations, rules, statutes or
court orders of any local, state or federal government agency, court,
or body.
28. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire and final agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes all prior oral and written communications, understandings and
agreements relating to the subject matter hereof, which are of no further force
or effect. The Exhibits and/or Schedules referred to herein are integral parts
hereof and are hereby made a part of this Agreement. This Agreement may only be
modified or supplemented by an instrument in writing executed by a duly
authorized representative of each party.
29. NO THIRD PARTY BENEFICIARIES.
Except as set forth in Section 31, this Agreement does not provide and
is not intended to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
30. NO PERSONAL LIABILITY.
Each action or claim against any party arising under or relating to
this Agreement shall be
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made only against such party as a corporation, and any liability relating
thereto shall be enforceable only against the corporate assets of such party.
No party shall seek to ▇▇▇▇▇▇ the corporate veil or otherwise seek to impose
any liability relating to, or arising from, this Agreement against any
shareholder, employee, officer or director of the other party. Each of such
persons is an intended beneficiary of the mutual promises set forth in this
Section 32 and shall be entitled to enforce the obligations of this Section 30.
31. RELATIONSHIP OF THE PARTIES.
The relationship between the parties shall not be that of partners,
agents or joint venturers for one another, and nothing contained in this
Agreement shall be deemed to constitute a partnership or agency agreement
between them for any purposes, including, but not limited to federal income tax
purposes. The parties, in performing any of their obligations hereunder, shall
be independent contractors or independent parties and shall discharge their
contractual obligations at their own risk.
32. SUCCESSORS AND ASSIGNS.
This Agreement and each of the parties' respective rights and
obligations under this Agreement shall be binding upon and shall inure to the
benefit of the parties and each of their respective permitted successors and
assigns.
33. UNENFORCEABLE PROVISIONS.
No provision of this Agreement shall be interpreted to require any
unlawful action by either party. If any section or clause of this Agreement is
held to be invalid or unenforceable, then the meaning of that section or clause
shall be construed so as to render it enforceable to the extent feasible. If no
feasible interpretation would save the section or clause, it shall be severed
from this Agreement with respect to the matter in question, and the remainder
of the Agreement shall remain in full force and effect. However, in the event
such a section or clause is an essential element of the Agreement, the parties
shall promptly negotiate a replacement that will achieve the intent of such
unenforceable section or clause to the extent permitted by law.
34. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their duly authorized representatives on the date first above written.
SIERRA TOUCH AMERICA, LLC.
By: ______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Manager
SIERRA PACIFIC COMMUNICATIONS, INC.
By: ______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: President
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EXHIBIT B
DESCRIPTION OF REAL PROPERTY
TO BE CONVEYED TO SPC
VERDI, NEVADA TO SACRAMENTO, CALIFORNIA
This portion of the route consists of approximately 131 miles
(691,680') in length. The telecommunications system along the route from the
Union Pacific Railroad milepost 227, approximately 8/10 of a mile east of the
California - Nevada State Line near Verdi Nevada to Hirshdale Road UPRR MP
218.3, approximately 11 miles (58,080'). From Hirshdale Road to West Truckee,
approximately 16.5 miles (87,120'). West Truckee to Soda Spring, approximately
6.8 miles (35,904'). Soda Springs to Cisco Grove approximately 9.1 miles
(48,048'). Cisco Grove to Blue Canyon approximately 12 miles (63,360'). Blue
Canyon to Colfax UPRR MP 142, approximately 21 miles (110,880'). UPRR MP 142 to
Sacramento UPRR MP 89 approximately 53.7 mile (283,536'). Sacramento UPRR MP 89
to ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ approximately 1 mile (5280').
RENO METRO
The fiber optic cable line will start .8 of a mile from the California
border into Nevada and ties in with a ▇▇▇▇▇▇▇▇ handhole between UPRR and 1-80
and ends at the ▇▇▇▇▇ Fargo building at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Phase II
begins at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Fargo building, and ends at South
▇▇▇▇▇▇▇ Parkway.
LONG HAUL
The fiber optic cable line will start at the intersection of South
▇▇▇▇▇▇▇ Parkway and South Virginia Street in Reno and follow the highway
right-of-way south from Reno along U.S. highway 395 to East Lake Boulevard.
From East Lake Boulevard, the cable will continue southward along a corridor to
Goni Road and then to Arrowhead Drive in ▇▇▇▇▇▇ City. At Arrowhead Drive it
will head eastward to US Highway 50 and continue east crossing the rest of
Nevada, passing through the cities of Fallon, Austin, Eureka, and Ely and
continuing into Delta Utah. At Delta the route would follow US Highway 6
northeastward to State Route 132 In Lynndyl, Utah. At State Route 132 the cable
would continue northeast to just west of Nephi, Utah, where it would intersect
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ the fiber optic cable would continue
northward through ▇▇▇▇ to Santaquin, Utah. The cable would then head northeast,
following side roads and a portion of State Route 115 on the west side of
Interstate 15 (1-15). Just north of Spanish Fork the fiber optic cable would
cross under 1-15 and tie in with another fiber optic cable system on 4800
South, approximately 0.2 miles east of 1-15. The route would then continue
north on I-15 to Provo, UT, run along city streets into the Provo POP located
at the corner of East 100 and North 100, then along city streets to I-15, then
north on I-15 to the vicinity of the ▇▇▇▇▇▇▇▇▇ Highway, north to west 700
south, along city streets to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, north on Regent Street to the
termination point at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
CALIFORNIA
- Verdi Nevada on UPRR MP 227 to MP 218.3 at Hirshdale Rd. spread 5.1.
- Hirshdale Rd. to West Truckee, spread 5.2.
- West Truckee to Soda Springs, spread 5.3
- Soda Springs to Cisco Grove, spread 5.4
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- Cisco Grove to Blue Canyon, spread 5.5
- Blue Canyon to Colfax UPRR MP 142, spread 5.6
- Colfax UPRR MP 142 to Sacramento UPRR 89, spread 6
- Sacramento UPRR 89 to ▇▇▇▇ ▇▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇, spread 7
NEVADA
- Reno Metro, Phase 1 is approximately 74,406 feet
- Phase 2 is approximately 51,069 feet.
- Spread ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Lyon County line Is approximately
321,496 feet.
- Spread 2, ▇▇▇▇▇▇▇▇▇ County line to the Lander County line is
approximately 567,791 feet.
- Spread 3, Lender County line to the White Pine County line is
approximately 578,458 feet.
- Spread 4, White Pine County to Utah border is approximately 702,319
feet.
UTAH
- Spread 5, ▇▇▇▇▇▇▇ County at the Nevada/Utah border to Juab County line
is approximately 616,238 feet.
- Spread 6, Juab County line to north of Spanish Fork approximately 0.2
miles east of 1-15 end is approximately 355,097 feet.
- Spanish Fork to Provo, UT approximately 7.95 miles (42,000 feet).
- Provo north to Salt Lake City, UT approximately 59.14 miles (312,265
feet).
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▇▇▇▇▇▇▇▇ ▇
SCHEDULE B
STANDARD ENGINEERING, CONSTRUCTION AND FIBER SPECIFICATIONS
DIVISION 100: GENERAL REQUIREMENTS
SECTION 101 - DEFINITION OF TERMS
101.01. DESCRIPTION
This section covers the definition of terms used in various portions of the
Specifications.
101.02. DEFINITIONS
1. Whenever the words "he" and "him", occur in these Specifications no
particular gender is intended by use of such words.
2. Words beginning with capital letters are generally defined in Section
101.02
3. Wherever the following terms are used, the intent and meaning shall be
interpreted as follows:
4. Abbreviations: Wherever the following abbreviations are used in these
Specifications or on the Drawings, they shall be construed the same as
the respective expressions represented.
AASHTO American Association of State Highway and Transportation
Officials
ACI: American Concrete Institute
AGC: Associated General Contractors
ANSI: American National Standards Institute, Inc.
APWA: American Public Works Association
ASTM: American Society for Testing and Measurements
AWPA: American Wood Preservers Association
AWPB: American Wood Preservers Bureau
AWS: American Welding Society
ETL: Electrical Testing Laboratories
FM: Factory Mutual Research Corporation
HDPE: High Density Polyethylene
ICEA: Insulated Cable Engineer's Association
IEEE: Institute of Electrical and Electronic Engineers
LIU: Lightguide Interconnect Unit
NBFU: National Board of Fire Underwriters
NEC: National Electrical Code
NEMA: National Electric Manufacturer's Association
NESC: National Electrical Safety Code
NFPA: National Fire Protection Association
OSHA: Occupational Safety and Health Act
OSHA: The Occupational Safety and Health Administration
PE: Polyethylene
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PVC: Polyvinyl Chloride
UBC: Uniform Building Code
SDR: Size Dimension Ratio
UL: Underwriter's Laboratories
5. As-Built Records: The final updated version of Drawings reflecting
how the plant was actually constructed.
6. TOUCH AMERICA Furnished Materials: Materials that are furnished
directly by TOUCH AMERICA for the project which is listed in the
Contract.
7. Casing Pipe: A section of continuous pipe installed under a road,
railroad, stream, or over or under other utilities or obstruction
through which the cable, conduit, and other system components shall be
placed.
8. Codes: Regulations, ordinances, or statutory requirements of, or
meant for adoption by, governmental units relating to building
construction and occupancy, adopted and administered for the
protection of the public health, safety, and welfare.
9. Competent Person: One who is capable of identifying existing and
predictable hazards in the surroundings, or working conditions which
are hazardous, unsanitary, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.
10. Conduit: A tube especially constructed for the purpose of placing and
enclosing fiber optic cable.
11. Depth/Depth of cover: Trench depth or depth of cover is defined as the
cover over the cable, conduit, pipe, duct or plant placed, or the
distance from the top of the plant to finish grade.
12. Drawings: The approved plans, profiles, working drawings, and
supplemental drawings, or exact reproductions thereof, which show the
location, character, dimensions, and details of work to be done,
except for shop drawings provided by the Builder.
13. Final Inspection: An inspection of prior to Builder Completion Date at
which time a Punch List may developed.
14. Innerduct: A high density polyethylene (HDPE) or polyvinyl chloride
(PVC) tubing placed inside a pipe or conduit through which fiber
optic cable or other system components can be pulled for installation.
15. Lightguide Cable: Fiber Optic Cable.
16. Limits of Construction: The physical area within which the Builder is
to perform work according to the Documents.
17. On-Site Work Force (OSWF): Local TOUCH AMERICA OSP personnel, or
authorized TOUCH AMERICA representatives, responsible for the
operation, maintenance, and protection of operating TOUCH AMERICA
Plant.
18. Plant Protection: A cooperative effort involving all parties to ensure
the integrity of service for all utilities during construction
activities near buried or aerial plant.
19. Plant: Cables, wires, manholes, vaults, poles, markers, signs, ducts,
pipes, and other appurtenances owned by TOUCH AMERICA or other
utility companies.
20. Point of Presence (POP): A physical point of access to the TOUCH
AMERICA Network.
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21. Punch List: A list of items or deficiencies to be corrected or
completed as a result of the final inspection of work.
22. Quality: Conformance to Specifications or permit requirements.
23. Reasonable Care: A degree of care, precaution, or diligence as may
fairly and properly be expected or required, having regard to the
nature of the action, or of the subject matter and the surrounding
circumstances of the action.
24. Regenerator or Optical Amplifier Building: A building or structure
along a fiber optic cable route housing transmission equipment.
SECTION 102 - PLANT PROTECTION
102.01. DESCRIPTION
This section covers plant protection to ensure the integrity of service for
utilities during construction activities near underground, buried or aerial
facilities.
102.02. GENERAL
1. Plant protection is absolutely essential to ensure the integrity of
TOUCH AMERICA's networks and networks of other utilities. Strict
plant protection practices shall be understood and adhered to by all
persons working near buried, or aerial utilities.
2. The Builder shall be solely responsible for locating and identifying
all existing utilities or structures within the construction limits
of work and elsewhere where construction operations may subject the
utilities or structures to damage. This shall be done prior to the
performance of work. All information relative to the above shall be
recorded and incorporated into the records in a manner accepted by
the TOUCH AMERICA Representative.
3. The Builder shall be fully responsible for locating existing utilities
and for compliance with the requirements of statewide or local area
"One-Call" program or agency including, but not limited to:
A. Notify owners of existing utilities as required by local
regulations or at least 48 hours in advance of excavation
work, whichever is most restrictive and request them to
locate such facilities. Documentation which includes date,
time, and verification number shall be submitted to the
TOUCH AMERICA Representative showing notification to owners
of buried utilities or contact with the proper "One-Call"
agency.
B. Exercising all reasonable precautions necessary to prevent
damage to existing utilities.
C. Being fully responsible for proper notifications to utility
owners for repair, replacement, or restoration of damage
caused by the Builder's construction operations.
4. Conduit may go over, under, or around various existing facilities
encountered underground as long as there is a minimal separation of
twelve (12) inches and the minimum trench depth requirements are met,
unless greater separation is required by the permitting agency. In the
event a twelve (12) inch separation is not possible, the TOUCH AMERICA
Representative shall be notified. If approved by the TOUCH AMERICA
Representative, TOUCH AMERICA Plant may be protected by utilizing
mechanical protection as detailed elsewhere
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in this document (i.e. split pipe, concrete encasement, etc.).
Pothole excavations required to expose existing facilities are
considered incidental to the work.
5. Except where the damaged party desires to conduct his own repair and
restoration work, the Builder shall repair and fully restore facilities
damaged during the construction period to a condition equal to that
which existed just prior to the time of damage. All repair and
restoration work shall be done at the Builder's expense to the
reasonable satisfaction of the facility owner. The Builder shall
immediately notify the TOUCH AMERICA of any facility damage.
6. The Builder shall make his own arrangements with the jurisdictional
authority requiring inspection of repaired or reconditioned facilities.
All applicable inspection fees shall be paid by the Builder.
7. Where the facility owner desires to conduct his own repair and
restoration work, the Builder shall render all assistance to facilitate
this corrective work. The Builder shall assume all reasonable expenses
incurred by the facility owner. Reasonable expenses will be that
required to repair or restore to the condition which existed before at
a cost that the Builder could have done itself.
102.03. GUIDELINES FOR WORKING NEAR TOUCH AMERICA OWNED AND OPERATED PLANT
1. Excavation: Excavation within or around TOUCH AMERICA Core Network
cable right-of-way will not be permitted unless the cables are
located, the locate is confirmed, and the cable is protected during
all activity. Working TOUCH AMERICA cables will be located by TOUCH
AMERICA personnel per the guidelines in Exhibit C.
2. Pipe Pushing/Boring: In general, for either pipe push/bore
perpendicular or parallel to in-service cables, the cables shall be
uncovered near where the push/bore is started and where it is
expected to end. If necessary, split steel pipe or equivalent
protection shall be placed around the cables to protect them at
push/bore points of entry and exit.
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SECTION 103 - CONSTRUCTION CONDITIONS
103.01. DESCRIPTION
1. INSPECTION, REJECTION OF WORK AND MATERIALS: TOUCH AMERICA's
Representative shall have free access to work performed and materials
furnished by the Builder under this Contract for the purpose of
inspection thereof. The Builder shall provide safe and proper
facilities for such inspection.
2. SUPERVISION: The Builder shall keep on work Site a competent
Superintendent and if required, any necessary assistants to supervise
engineering and construction.
3. CONTROL OF WORK: The Builder shall have full responsibility over the
mode and manner of doing work, of its personnel, and compliance with
the specifications.
103.02. SAFETY
1. The Builder shall be responsible for initiating, maintaining and
supervising all safety precautions and programs. The Builder shall
take all standard precautions for the safety of, and shall provide
reasonable protection to prevent damage, injury or loss to:
A. The Public
B. All persons on work site or who may be affected by work, and
C. Work and materials and equipment to be incorporated therein,
whether in storage on or off the site.
2. The Builder shall comply with all applicable Laws and Regulations of
any public body having jurisdiction for safety of persons or property
or to protect them from damage, injury or loss; and shall erect and
maintain all necessary safeguards for such safety and protection.
3. OCCUPATIONAL SAFETY AND HEALTH ACT: The Builder shall be responsible
for the safety of work it performs. In discharging that
responsibility, it shall comply with the requirements of the
Occupational Safety and Health Act and any other state or local act
or other requirement of law affecting safety and health. It shall
maintain all lights, guards, signs, temporary passages and other
necessary protection and precautions for the safety of work. The
Builder agrees that it and its subcontractors will give access to any
authorized representative of Secretary of Labor or any state or local
official for the purpose of inspecting or investigating or for the
performance of any of the duties under the Occupational Safety and
Health Act or under any state or local act affecting safety and
health. The Builder shall be responsible for any Builder violation
of any safety or health standards issued thereunder. The Builder
also agrees to promptly remedy any condition giving rise to such
violations, and shall defend and hold TOUCH AMERICA harmless from any
penalty, fine or liability in connection therewith, subject to
"Limitations of Liability" as stated in the Contract.
4. For work or near operating tracks of any railway company, the Builder
shall attend a railroad safety meeting for each railroad involved.
This meeting will be coordinated with railroad
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personnel. All personnel working within the Railroad Right-of Way
shall attend any railroad safety training and satisfactorily complete
any required tests. The Builder and all personnel working on railroad
property shall adhere to all railroad rules and regulations.
103.03. MAINTENANCE OF TRAFFIC
1. Maintenance of traffic shall be in accordance with the permits as may
be required by the permitting authority.
2. The Builder shall conduct work to interfere as little as possible
with public travel, whether vehicular or pedestrian. Whenever it is
necessary to cross, obstruct, or close roads, driveways, or walks,
whether public or private, the Builder shall, at his own expense,
provide and maintain suitable and safe bridges, detours, or other
temporary expedients for the accommodation of public and private
travel, and shall give reasonable notice to owners of private drives
before interfering with them. Such maintenance of traffic will not
be required when the Builder has obtained written permission from the
owner and tenant of private property or from the authority having
jurisdiction over public property involved, to obstruct traffic at
the designated point.
3. In making open-cut street crossings, the Builder shall not block more
than 1/2 of the street at a time. When required by the local permit
authority, the Builder shall widen the shoulder on the opposite side
to facilitate traffic flow. Temporary surfacing shall be provided as
necessary on shoulders as required by the local permit authority.
4. Materials stored upon or alongside public streets and highways shall
be so placed, and work at all times shall be so conducted, as to
cause the minimum obstruction and inconvenience to the traveling
public.
5. At times it will be necessary to divert vehicular or pedestrian
traffic around construction areas. The Builder shall furnish and
place all signs, barricades, cones, drums, warning lights, flag
persons, or other devices as required in the "Manual on Uniform
Traffic Control Devices", or as required by state and local
governments. The Builder shall research and obtain all necessary
approvals.
103.04. BARRICADES AND LIGHTS
1. Barricades and lights shall be provided in accordance with the permits.
2. All streets, roads, highways, and other public thoroughfares which
are closed to traffic shall be protected by effective barricades on
which shall be placed acceptable warning signs. Barricades shall be
located at the nearest intersecting public highway or street on each
side of the blocked section.
3. All open trenches and other excavations shall be provided with
suitable barriers, signs, and lights to the extent that adequate
protection is provided to the public. Obstructions, such as material
piles and equipment, shall be provided with similar warning signs and
lights.
4. All barricades and obstructions shall be illuminated by means of
warning lights from sunset to sunrise or in cases of low visibility.
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5. All barricades, signs, lights, and other protective devices shall be
installed and maintained in accordance with applicable statutory
requirements and, where within railroad and highway rights-of-way, as
required by the authority having jurisdiction.
103.05. FIRE PROTECTION
1. Only work procedures which minimize fire hazards to the extent
practicable shall be used. Combustible debris and waste materials
shall be collected and removed from the right-of-way or site each
day, as specified in Article 103.11 - Cleanliness. Fuels, solvents,
and other volatile or flammable materials shall be stored away from
the construction and storage areas in well marked, safe containers.
Good housekeeping is essential to fire prevention and shall be
practiced by the Builder throughout the construction period. The
Builder shall follow the recommendations of the AGC "Manual of
Accident Prevention in Construction" regarding fire hazards and
prevention, as well as the requirements of the local department of
forestry and fire protection.
2. The Builder's supervisory personnel and a sufficient number of
workmen shall be instructed in proper methods for extinguishing fires
and shall be assigned specific fire protection duties. When trained
personnel leave the job, new personnel shall be trained in their
duties. All workmen shall be instructed in the selection and
operation of each type of fire extinguisher for each type of fire
which might be encountered.
3. The Builder shall provide adequate fire protection equipment in each
temporary structure and in each work area he is occupying. Suitable
fire extinguishers shall be provided in enclosed areas.
103.06. PROTECTION OF PROPERTY AND PUBLIC LIABILITY
1. The Builder shall be accountable for damages directly resulting from
his negligence. The Builder shall provide standard and reasonable
protection of all persons including members of the public, employees
of TOUCH AMERICA, employees of other contractors or subcontractors,
and all public and private property including structures, sewers and
utilities, above and below ground.
2. The Builder shall also make all reasonable efforts to protect all
other structures, utilities and work of any kind against damage or
interruption of service and shall preserve and protect all trees,
shrubs, grass, or other vegetation on or adjacent to the right of way
or work site which do not unreasonably interfere with work. Unless
otherwise required, the Builder shall restore all property which may
be disturbed in the execution of work to its former visible condition.
3. The Builder shall furnish and maintain all necessary safety equipment,
such as barriers, signs, warning lights, and guards to provide
adequate protection of persons and property.
4. Upon completion of work, the Builder shall be responsible for the
complete removal from work site of all his temporary facilities, of
whatever nature, to the satisfaction of TOUCH AMERICA's
Representative.
5. The Builder shall give reasonable notice to the owners of public or
private property and utilities when such property and utilities are
liable to injury or damage throughout the performance of work, and
shall make all necessary arrangements with such owners relative to
the removal and
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replacement or protection of such property or utilities per the
reasonable judgment of the TOUCH AMERICA Representative.
6. During the progress of work, construction materials shall be so
stored or stockpiled as to cause as little obstruction as possible
and still be readily accessible for use. No material shall be stored
within two (2) feet of trees or buildings, nor within five (5) feet
of fire hydrants; fire hydrants shall remain ready for immediate use
by fire departments.
7. Claims made by property owners: The Builder agrees it will maintain
records of communications with all interested parties relating to
unsettled damage claims or other disputes resulting from the
Builder's construction activities.
8. The Builder agrees to furnish TOUCH AMERICA copies of all damage
releases and receipts for damage payments made to property owners,
and all records of communications as referred to above.
103.07. PROTECTION OF PUBLIC AND PRIVATE PROPERTY
1. The Builder shall protect, shore, brace, support, and maintain all
underground pipes, conduits, drains, and other underground
construction uncovered or otherwise affected by the construction
work. All pavement, surfacing, driveways, curbs, walks, buildings,
utility poles, guy wires, fences, and other surface structures
affected by construction operations, together with all sod and shrubs
in yards and parking areas, shall be restored to their original
condition, whether within or outside the easement. All replacements
shall be made with new materials.
2. The Builder shall be responsible for all damage to streets, roads,
highways, shoulders, ditches, embankments, culverts, bridges, and
other public or private property, regardless of location or
character, which may be negligently caused by its transporting
equipment, materials, or men to or from work or any part or site
thereof. The Builder shall make reasonably satisfactory and
acceptable arrangements with the owner of, or the agency or authority
having jurisdiction over, the damaged property concerning its repair
or replacement, or payment of costs incurred in connection with the
damage caused by Builder or its Subcontractors.
3. All fire hydrants and water control valves shall be kept free from
obstruction and available for use at all times.
4. Street signs, mailboxes, and other items which conflict with
construction shall be removed, stored, and reinstalled in a condition
comparable to the condition prior to removal.
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103.08. REPAIR OF DAMAGES
The Builder shall promptly repair damage which results from the construction or
acts of the Builder, including damage done to existing facilities. All such
repair work shall be acceptable to the TOUCH AMERICA Representative.
103.09. FIREARM RESTRICTIONS
The Builder shall not have firearms in its possession within the limits of the
designated work areas along the route.
103.010. TEMPORARY LIGHTING
All temporary lights required by law or ordinance, or necessary for the proper
protection of the public and workmen, or for the proper execution and
inspection of the Builder's work, shall be furnished, placed, and maintained by
the Builder at its expense.
103.011. CLEANLINESS
The Builder shall give special attention to keeping the site clean and free
from trash and debris.
103.012. AS-BUILT DRAWINGS
The Builder will provide to TOUCH AMERICA engineering and as-built drawings,
per the Graphic Guidelines for TOUCH AMERICA Cable Route Engineering Drawings
Handbook within ninety (90) days after Acceptance.
103.013. CABLE DAMAGE DURING INSTALLATION
1. If the cable becomes damaged during installation due to the Builder's
operations, the Builder shall stop its operations and notify the
TOUCH AMERICA Representative immediately. TOUCH AMERICA, at its sole
discretion will within four (4) hours, decide whether to repair the
sheath, replace the entire reel of cable, if necessary, or to install
a splice at the damaged section. Builder shall document the event,
the resolution and steps taken to prevent recurrence and provide to
TOUCH AMERICA, if requested. Builder shall pay for the materials and
labor to perform the additional splice.
2. If TOUCH AMERICA decides to replace the entire reel of cable, the
Builder shall begin the installation at the last designated splice
point and replace the new cable in the same location. The damaged
cable between these points shall be removed from the ground coiled,
tagged, and given to TOUCH AMERICA. Builder shall pay for the
materials and labor to replace the cable.
3. If TOUCH AMERICA decides a splice is required at the damaged point,
the Builder shall carefully excavate from the damaged point a
distance along the cable as directed by TOUCH AMERICA and expose the
cable. A splice box shall be installed at this point. A minimum of 75
feet on both ends of the cable shall be coiled in the splice vault
for TOUCH AMERICA's use during splicing. Builder shall pay for the
materials and labor to perform such splices.
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4. If damaged cable appears during installation, such as a manufacturing
defect, the Builder shall stop the installation of the cable
immediately and notify the TOUCH AMERICA Representative. The TOUCH
AMERICA Representative shall facilitate the determination of the
cause of the cable defect and the decision on replacement of the
cable, if necessary
103.014. ENVIRONMENTAL PROTECTION
1. All requirements of Section 114 of the Clean Air Act (42 U.S.C.
Section 1857) and Section 308 of the Federal Water Pollution Control
Act (33 U.S.C. Section 1251), relating to inspection, monitoring,
entry, reports, and information as well as all other requirements
specified in said sections, and all other regulations and guidelines
issued thereunder, plus applicable requirements of environmental
protection regulations and governmental agencies shall be complied
with by the Builder.
2. The Builder will properly dispose of all scrap, debris, etc., in
accordance with applicable requirements of environmental protection
regulations and governmental agencies.
103.015. ARCHAEOLOGICAL SITES
1. Known archaeological sites along the route have been indicated on the
TOUCH AMERICA as-built drawings on existing routes.
2. Builder shall check the National Register of the State Historic
Preservation Office for known archeological sites.
3. If historical or scientific artifacts are encountered during
construction anywhere along the route, construction at that location
shall stop and the TOUCH AMERICA Representative shall be notified.
The Builder shall immediately notify TOUCH AMERICA of such discovery
and shall not harm or disturb such artifacts until evaluated by the
appropriate controlling authority. If an extended delay is
anticipated, the Builder may elect to move to another location.
103.016. INDEPENDENT TESTING LABORATORY
1. Except as otherwise specified, laboratory testing required by these
Specifications shall be done by an independent testing laboratory
retained by the Builder and acceptable to the TOUCH AMERICA
Representative. Laboratory services will be performed as required by
the permitting authority. Such costs will be borne by the Builder.
2. If tests performed by the independent laboratory indicate that Builder
furnished workmanship or materials are not in accordance with the
Contractor permit specifications, all re-testing required will be at
the Builder's expense.
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DIVISION 200: MATERIALS
SECTION 201 - MATERIALS - GENERAL
201.01. DESCRIPTION
1. This section covers materials required for the work as specified in
these Specifications.
2. All materials not furnished by TOUCH AMERICA necessary to complete the
work shall be furnished by the Builder.
3. All materials not specifically described shall meet ASTM or other
construction industry standards appropriate to the type of work being
performed.
4. All materials intended for use in the work shall be stored by the
Builder in a manner that will prevent damage by exposure to the
elements, or from other causes.
5. The Builder shall move all materials furnished by either TOUCH AMERICA
or the Builder as required in the course of construction to each site.
All materials removed from the TOUCH AMERICA designated storage yard
immediately become the responsibility of the Builder subject to the
Terms and Conditions of the Contract.
6. The Builder shall furnish and transport all the necessary tools,
equipment and labor, unless otherwise provided, and all the materials
necessary to perform all the work, and shall complete all work to the
reasonable satisfaction of TOUCH AMERICA's Representative.
7. The Builder warrants to TOUCH AMERICA that all materials furnished
shall be new, unless otherwise approved by the TOUCH AMERICA Project
Representative prior to use.
201.02. CODES AND STANDARDS
Materials and devices furnished shall be in accordance with applicable
standards of ANSI, ASTM, NEMA, UL, all local codes, and requirements of the
permits. In case of conflict between the requirements of the above referenced
codes and standards and the requirements of these Specifications, the most
stringent requirements shall govern. All materials, devices, and practices
shall be in accordance with the applicable requirements of the Federal
"Occupational Safety and Health Standards."
201.03. DOMESTIC MATERIALS
1. The Builder shall agree that preference will be given to domestic
construction materials in the performance of the Contract.
2. All steel materials and products permanently incorporated in the work
shall be manufactured in the United States. Manufactured products
include those which are rolled, formed, shaped, drawn, extruded,
forged, cast, or fabricated. The United States includes all
territories subject to the
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jurisdiction of the Untied States of America. Steel products produced
in the United States shall not be modified in a foreign country.
201.04. CORRECTION OF MANUFACTURING ERRORS
Except for materials provided by TOUCH AMERICA, materials shall be complete in
all respects within the limits specified herein. All manufacturing errors or
omissions required to be corrected in the field shall be performed by the
Builder at its expense, or if the errors are corrected by TOUCH AMERICA after
first having given written notice and reasonable opportunity to the Builder to
correct the defect, the cost for making the corrections will be adjusted per
the Terms and Conditions of the Contract.
201.05. TOUCH AMERICA FURNISHED MATERIALS
1. Unless provided otherwise herein, TOUCH AMERICA will provide The Cable
and splice enclosures as specified in the Contract. The Builder shall
furnish all other materials required and as specified in the Contract.
2. The Builder will notify TOUCH AMERICA with a ship to address for The
Cable at least ten (10) weeks prior to the desired material on site
date or as mutually agreed upon per the Contract. The notification
process can utilize electronic mail or other means suitable to the
TOUCH AMERICA Representative.
3. All material furnished by TOUCH AMERICA shall be delivered to the
Builder at points to be mutually agreed upon by Builder and TOUCH
AMERICA, and the Builder shall have charge of, and be responsible
for, all the material upon and after its delivery to the Builder and
shall return to TOUCH AMERICA all the material not required for the
completion of the work. The Builder shall deliver Maintenance
Restoral Reels to the designated location.
4. TOUCH AMERICA Furnished Material will be shipped to the Builder by
TOUCH AMERICA. Transportation costs will be as per the Contract. The
Builder shall examine all shipments of TOUCH AMERICA Furnished
Material for shortages, discrepancies or readily apparent damage. The
Builder shall furnish all trucks, lifting equipment, and labor
required to receive and inspect the TOUCH AMERICA Furnished Material.
The risk of loss for TOUCH AMERICA Furnished Material belongs to the
Builder from the time of receipt until Acceptance, Beneficial
Occupancy or documented return to TOUCH AMERICA. The Builder shall
maintain a current, accurate inventory and record of the location of
all TOUCH AMERICA Furnished Material in its custody.
5. The Builder shall replace all TOUCH AMERICA Furnished Materials which
are lost or damaged while in the custody of the Builder. Replacement
materials shall be of a type and quality equal to the original
materials, acceptable to the TOUCH AMERICA Representative, and shall
be obtained expeditiously to prevent delay of the work.
6. The Builder shall re-handle and reload, if required, all TOUCH AMERICA
furnished materials and equipment which have been rejected.
7. Upon completion of construction, the Builder shall return all excess
TOUCH AMERICA furnished materials to the TOUCH AMERICA storage
facilities and unload the material as directed by
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TOUCH AMERICA. Material shall be inventoried, boxed, crated, or
otherwise organized as directed by TOUCH AMERICA. If there are excess
materials which TOUCH AMERICA does not want returned, they shall be
disposed of by the Builder.
SECTION 202 - FIBER OPTIC CABLE, REELS AND FIBER APPARATUS
202.01. DESCRIPTION
This section covers fiber optic cable, reels and associated fiber apparatus.
TOUCH AMERICA will provide fiber optic cable and fiber apparatus in the
quantities required per the engineered Drawings and associated Bills of
Materials.
OUTSIDE PLANT CABLES
The standard fiber optic cable sheath is a metallic armored design. The cable
will be a ribbon cable.
202.02. REEL LENGTHS
Standard reel lengths for outside plant cable will be three (3) to eight (8)
kilometers with the majority (70%) between six (6) to eight (8) kilometers.
202.03. DELIVERY AND HANDLING
Cable shall be handled and delivered in accordance with the requirements for
TOUCH AMERICA Furnished Material as specified in Section 201 - Materials -
General.
202.04. EXCESS MATERIAL
1. The Builder shall tag excess cable with a non-deteriorating tag stamped
with the following information:
---------------------------------------------------------------------------------------
TAG INFORMATION REEL NUMBER "1A" NUMBER LENGTH
---------------------------------------------------------------------------------------
EXAMPLE: 272645 1A153621 859 feet
---------------------------------------------------------------------------------------
2. If the length of excess cable exceeds 3000 feet, the cable shall be
tagged as specified above and left on the reel until further directed.
3. If the length of the excess cable is less than or equal to 3000 feet,
the excess cable shall be removed from the reels, and disposed of by
the Builder.
4. The Builder shall record the excess cable data information and supply
it to the TOUCH AMERICA Representative or as required per the Contract.
5. Costs associated with transporting, handling, and loading excess TOUCH
AMERICA furnished material shall be considered incidental to other
work performed and will not be paid as a separate item, unless
otherwise stated in the Contract
202.05. RETURNING REELS
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1. Empty steel cable reels for cable provided by Lucent Technologies shall
be transported to a designated storage yard to be returned to Lucent
Technologies. Empty steel cable reels for cable provided by Siecor
shall be transported to a designated storage yard to be returned to
Siecor. Cable reels to be returned shall not contain cable, rope, or
other material. The Builder shall be responsible for bent or damaged
reels due to its negligence.
2. To return empty reels to Lucent Technologies, call ▇-▇▇▇-▇▇▇-▇▇▇▇,
notify them of the following:
- The number of reels
- The size of the reels
- The address and phone number of the yard
3. To return empty reels to Siecor, call ▇-▇▇▇-▇▇▇-▇▇▇▇, notify them of
the following:
- The number of reels
- The size of the reels
- The address and phone number of the yard
4. The Builder shall handle and load all returnable cable reels and shall
prepare shipping papers therefor. Costs associated with transporting,
handling, and loading returnable cable reels shall be considered
incidental to other work performed and will not be paid as a separate
item.
5. Cable reel returns shall be scheduled as soon as possible.
202.07. RESTORATION REELS
1. For Route Sections to be maintained by TOUCH AMERICA, restoration reels
are to be ordered to meet the following requirements:
A. Restoration reels are to placed four hours apart.
B. Fiber count must be equal to or greater than the highest fiber
count in the area. Note: non-zero dispersion shifted fiber
can only be used to restore non-zero dispersion shifted fiber.
C. Restoration reels are to be a minimum length of five thousand
(5000) feet unless there is a physical obstruction that
requires a longer reel.
D. The cable is installed on butterfly reels so both ends are
accessible.
E. Both ends must be prepared for restoration. This includes
installing a UCB-1 closure and separating the ribbons so the
fibers can be spliced individually.
2. For Route Sections to be maintained by Builder, restoration reels are
to be ordered to meet Builder requirements.
SECTION 203 - FIBER OPTIC CABLE SPLICE AND GROUNDING CLOSURES
202.08. DESCRIPTION
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This section covers fiber apparatus required for splice enclosures.
The party performing the splicing (TOUCH AMERICA, unless otherwise agreed upon)
is responsible for providing all equipment, consumables, splice closures and
encapsulant, as required for performing the splicing.
203.02. SPLICE CLOSURES
Unless otherwise agreed upon, splice and grounding closures will be:
1. SIECOR:
A. UCA3-6-6AWG: Universal splice closure with #6 AWG ground
straps. This is used to ground the OSP cable where it enters
a building.
B. SCF-6C22-ORS: Advanced splice closure with open ribbon system
up to 288 fibers, 6" x 22" length, 6 cable entries.
C. SCF-6C28-ORS: Advanced splice closure with open ribbon system
up to 432 fibers, 6" x 28" length, 6 cable entries
D. SCF-8C28-ORS: Advanced splice closure with open ribbon system
up to 864 fibers, 8" x 28" length, 8 cable entries
2. LUCENT:
A. 2400-4070 Bonding and Grounding Closure: Complete grounding
closure assembly for use with 0.40 inch to 0.70 inch metallic
cables. Comcode: 107 085 987. This is used to ground the OSP
cable where it enters a building.
B. 2400-7010 Bonding and Grounding Closure: Complete grounding
closure assembly for use with 0.70 inch to 1.0 inch metallic
cables. Comcode: 107 085 995. This is used to ground the OSP
cable where it enters a building.
C. 2600 LG/SC6 Closure Kit (Comcode 107 706 079): Contains
- one 2600LG/SC Base Closure (Comcode 107 395 493);
- one 0.40 to 0.85 inch UT Grommet and Grip Kit
(Comcode107 111 882)
- two Mass Splice Trays (107 396 095)
- If the fiber count exceeds 288, additional splice
trays will be required. The trays hold 12 mass fusion
or 12 mass mechanical splices. The 2600 can hold up to
576 fibers. Each 2600 closure requires 1900 grams of
encapsulant.
D. UCB4 Closure Kit (Comcode 107 667 743) Contains: one UCB Base
Closure (includes all necessary components to splice two unit
tube cables from .4" to .96" (11 mm to 24.4 mm) outer
diameter. It contains two ribbon organizers which each
accommodate up to 12 mass ribbon fusion splices for a total
of 288 fibers and two single 24 fiber splice fusion
organizers for a total of 48 single fiber fusion splices.)
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▇. ▇▇▇▇-▇▇▇ ▇▇▇▇▇ Closure; (Comcode 103 921 938) This closure is
required in all buried or underground applications with the
UCB Closure. Grommets and encapsulant must be ordered
separately.
F. Reentry Kit for 51D3-LG2 Closure (Comcode 104 228 424)
Required when accessing an encapsulated 51D3 outer closure.
203.03. ENCAPSULANT:
Unless agreed upon otherwise, approved encapsulants are:
- 3M - 4442 High Gel - packaged in 750, 1500 & 3000 gram
kits
- CasChem - System 165 (low tear strength) - packaged in
5000 gram kits
- CasChem - System 126 - packaged in 5000 gram kits
SECTION 204 - BUILDER PROVIDED MATERIAL
204.01. Description
1. This section covers fiber optic cable, reels and associated fiber
apparatus. TOUCH AMERICA will provide fiber optic cable and fiber
apparatus in the quantities required per the engineered Drawings and
associated Bills of Materials.
2. All steel hardware including nails, lags, and other hardware shall be
hot-dip galvanized in accordance with ASTM A153, unless otherwise
specified.
204.3. MARKER POLES
1. PVC: PVC marker poles shall be Schedule 40, UV stabilized PVC pipe.
2. HDPE: High density polyethylene (HDPE) marker poles shall be UV
stabilized.
3. Fiberglass: Fiberglass marker poles shall be 4 inches by 4 inches, with
a weight of 1.8 pounds per foot, and a minimum tensile strength of
65,000 psi as measured in accordance with ASTM D638.
204.4. Cable Route Signs
1. Marker signs are categorized by number and shall be provided as
indicated on the Drawings. Signs shall be manufactured from aluminum
and use a thermoset polyester powder coating applied at a thickness of
2.0 mils. The signs shall have a smooth, hard, high gloss finish free
from runs or sags.
2. The aerial sign frame shall be "No. ▇▇▇▇ (▇, ▇▇, ▇▇, ▇▇) ▇▇▇▇ ▇▇▇▇▇▇"
for 1, 2, 3, or 4 digit sign numbers respectively. Sign numbers shall
be "No. 6F Special" 6 inch by 12 inch aluminum aerial marker plate
with a thermoset polyester powder coating applied at a thickness of 2.0
mils, orange background with black numbers.
3. Specialty Markers shall be as follows:
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A. Flush Mounted Markers are reverse printed polycarbonate, 6
inches round and are driven into the soil with a 12 1/2 inch
flared stake.
B. Curb and Sidewalk Markers are cast aluminum or bronze for
marking cable paths on concrete sidewalks, curbs and streets.
C. Retrofit Curb Markers are an alternative to signs with posts
by adhering to the surface with an industrial adhesive.
204.5. MARKER POLE NUMBERS
1. PVC, Fiberglass Marker Poles: The marker pole numbers shall be 3-inch
block style, self-adhesive black vinyl.
2. HDPE, Concrete Marker Poles: The marker pole numbers shall be as
indicated on the Drawings and as specified in the Supplementary
Specifications.
204.6. MARKER TAPE
1. Marker tape shall be six (6) inches wide, seven (7) mils thick,
non-detectable stretch marking ribbon, orange with bold black
lettering, alkali resistant, non-fading in sunlight or soil. The
following lettering shall be continuously imprinted every 30 inches:
CAUTION BEFORE DIGGING CALL
(800) XXX-XXXX MAINTAINING PARTY; BURIED BELOW
If TOUCH AMERICA maintains the cable, then imprint:
(▇▇▇) ▇▇▇-▇▇▇▇ TOUCH AMERICA CABLE BURIED BELOW
If Builder maintains the cable, then imprint:
(800) XXX-XXXX BUILDER CABLE BURIED BELOW
2. Marker tape shall conform to the following minimum physical properties.
--------------------------------------------------------------------------------------------
PROPERTY METHOD VALUE UNITS
--------------------------------------------------------------------------------------------
Thickness, overall ASTM D2103 7.0 mils
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3 inch Tensile, longitudinal ASTM D882 4,000 psi
--------------------------------------------------------------------------------------------
3 inch Tensile, transverse ASTM D882 3,500 psi
--------------------------------------------------------------------------------------------
Elongation, longitudinal ASTM D882 500 percent
--------------------------------------------------------------------------------------------
Elongation, transverse ASTM D882 400 percent
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PPT Tear ASTM D2582 18 pounds
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Tongue Tear ASTM D1938 2 pounds
--------------------------------------------------------------------------------------------
Sulfide Stain ASTM D1712 pass 48 hours
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3. Marker tape shall be "Extra Stretch" as manufactured by Reef
Industries or "Mega Stretch" as manufactured by Thor Enterprises.
204.7. ELECTRONIC BALL MARKERS
Electronic ball markers shall be "ScotchMark" 4-inch ball markers, EMS Model
1401, manufactured by 3M Test & Measurement Systems without exception.
204.8. CABLE LABELS
1. For use in manholes and buildings, the cable shall be labeled with an
orange snap-on cable marker. The snap-on cable marker will identify
the cable as an TOUCH AMERICA fiber optic cable, identify the cable
route and direction (N-W-S-E), i.e. ▇▇▇▇▇▇▇▇ to Fargo: East.
2. Cable labels shall be manufactured of calendered vinyl in the following
thicknesses:
---------------------------------------
CABLE DIAMETER LABEL
(INCHES) THICKNESS
(MILS)
---------------------------------------
1/2 10
---------------------------------------
1 20
---------------------------------------
3. Cable labels shall be as manufactured by ACP International, Thor, or
▇▇▇▇▇ USA.
204.9. PIPE AND INNERDUCT PLUGS
1. Pipe: Compression type duct plugs shall be used for sealing all pipes
up to 6 inches in diameter. Vacant pipes shall be sealed with solid
duct plugs equivalent to those manufactured by Jackmoon USA, (818)
854-1670. Pipes with innerducts shall be sealed with duct plug or-
ganizers equivalent to those manufactured by Jackmoon USA All duct
plugs shall be fabricated with metal backing plates and stainless steel
nuts, bolts, and fasteners.
2. Multicell Duct: Plugs for multicell duct shall be provided by the duct
manufacturer.
3. Innerduct: Plugs for vacant innerducts shall be solid compression
plugs. Plugs for innerducts containing cable shall be split compression
plugs. Innerduct plugs shall be simplex duct plugs equivalent to those
manufactured by Jackmoon USA
4. Building Cable Vaults: Voids between the pipe and core bores in
entrance vaults shall be sealed with "Model CSL Linx" mechanical seal
as manufactured by Calpico. Vault seals shall use stainless steel
bolts, nuts, washers, and pressure plates, and shall be capable of
developing a hydrostatic seal of up to 40 feet of head.
204.10. SEALING FOAM
Sealing foam shall be expanding, non-degradable urethane foam, with a density
of 1.75.
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204.11. EXPANSION JOINTS
1. Steel Pipe: Expansion joints shall be pre-manufactured, hot-dip
galvanized, and UL listed. All expansion joints shall be provided with
external bonding jumpers. Expansion joints shall be "Type AX" or
"Type AX8" as manufactured by O-Z/▇▇▇▇▇▇ or "Type XJ" as manufactured
by ▇▇▇▇▇▇-▇▇▇▇▇.
2. Multicell Duct: Expansion joints shall be pre-manufactured units
provided by the manufacturer of the multicell duct.
3. Expansion joints, couplings, or devices for other types of pipe or duct
shall be provided by the particular pipe or duct manufacturer.
204.12. RECTANGULAR VAULTS/HANDHOLES
1. This section covers material requirements for splice and pull vaults.
Splice and pull vaults shall be the type and size indicated on the
Drawings and provided in accordance with the following requirements.
2. The vaults (handholes) to be utilized for cable splice and pull
locations shall be a minimum of thirty (30) inches wide by forty eight
(48) inches long by twenty four (24) inches high. Lids shall be one
piece, nest securely and shall be bolted in place. The vault shall
be constructed of polymer concrete material, fiber reinforced
plastic, or a combination thereof and shall have a minimum rating of
5,000 pounds over a 10-inch square area. Vaults/handholes placed in
traffic areas shall have lids rated to support anticipated traffic
loads. Material compressive strength shall be a minimum of 11,000
psi. The lid shall have a 3M full range marker with telephone
frequency molded into the lid with the word "LOCATOR" molded in the
top. The other shall have "TOUCH AMERICA" molded in the top.
204.13. PRECAST CONCRETE MANHOLES
This section covers fabrication and transportation requirements for precast
concrete manholes. The manholes shall be furnished in the shapes and sizes as
required complete with all embedments and accessories required for handling and
installation. Manholes typically shall be precast concrete 2-piece manhole, The
fabricator shall assume full structural design responsibility. Precast concrete
manholes shall be adequately reinforced to resist the stresses resulting from
the specified loading conditions. Special reinforcing shall be provided at
openings in the manhole. Precast concrete manholes and necks shall be designed
to resist all design loads. Design loads shall consist of dead loads, live
loads, and impact loads. The dead load shall consist of soil surcharge and
structure weight. Live and impact loads shall be equivalent to H-20 or HS-20
loads in accordance with the latest revision of AASHTO Standard Specifications
for Highway Bridges. The combination of loads that produces the maximum shear
and moment shall be used to design the manhole.
204.14. CABLE INSTALLATION MATERIALS
1. BREAK-AWAY SWIVEL CONNECTOR
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Machine roller bearing swivel shall allow cable rotation during cable pulling
operations. Swivel connector shall incorporates a fusible link or internal
shear pin to limit cable tension to a maximum of 600 pounds or to match cable
manufacturers recommendations. Swivels shall be "Part No. 15370A" as
manufactured by General Machine Products.
2. TIE WRAPS
Tie wraps for fastening cable to racking shall be 1/4-inch by 18-inch black
nylon cable ties with 50 pounds minimum loop tensile strength.
3. CABLE LUBRICANT
A. A high-efficiency cable lubricant compatible with the cable
and innerduct, such as "Green 80" as manufactured by ▇▇▇▇▇▇▇▇
Tool; "Polywater F" as manufactured by American Polywater; or
"Hydro-Lube F-100" as manufactured by Rancho shall be used
when pulling cable and innerduct through long pipe sections.
Lubricants used shall be compatible with the conditions at
the time of the pull.
B. Clean mineral oil or polymer shall be used as a cable
lubricant when the "cable-air system" installation
procedures are used.
204.15. BONDING AND GROUNDING MATERIALS
1. All connections to ground rods and other connections indicated as
exothermic type welds shall use "Cadweld" materials as manufactured by
Erico Products. Connections made from this process shall be in
accordance with IEEE Standards 80 and 837. The welds shall be the
proper size and configuration for the application.
2. Ground rods shall be copper-clad steel rods minimum 5/8 inch diameter
and minimum eight (8) feet long.
All grounding wire shall be insulated No. 6 solid copper wire.
3. FILTER PROTECTOR/ARRESTOR
A. The party maintaining the route is responsible to purchase the
filter protector/arrestor compatable with their locating
requirements and provide the filter protector/arrestor to the
Builder in a timely manner to allow the connection of the
ground lead to the ground rod by the Builder.
B. The voltage suppressor/arrestor for routes maintained by TOUCH
AMERICA shall be without exception Norscan 2716 SGU. The
filter/arrestor for routes maintained by the Builder shall be
provided by the Builder.
204.16. MISCELLANEOUS MATERIALS
Upon request of the Builder, for his use or reference, TOUCH AMERICA can provide
detail
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specifications for the following items, which may be required during
construction of the System.
1. Erosion Control and Restoration Materials
- Seeding Mixtures, Sod and Mulch
- Gabions
- Filter Fabric
- Erosion Control Matting and Soil Reinforcing Grid
- Mulch Tackifier
- Posts
- Baffle Boards
- Fabric Bags and Soil-Cement Fabric Bags
- Packaged Materials for Concrete
2. Rocks and Aggregates
- Riprap
- Gabions
- Coarse and Fine Aggregate
- Ballast Rock and Road Rock or Gravel
- Drain Rock
3. Portand Cement Concrete
4. Asphaltic Concrete
5. Fencing Materials and Hardware, Including Gates
- Barbed Wire Fence
- Link Fence
DIVISION 300: CONDUIT PLACEMENT
SECTION - 301 GENERAL REQUIREMENTS
301.01. DESCRIPTION:
This section covers the work associated with excavation for and
placement of conduit.
301.02. MINIMUM DEPTH OF COVER
1. Normal trench depth refers to the minimum nominal trench depth of cover
indicated on the Drawings. Actual trench depth during construction can
be expected to vary. Trench depth shall be sufficient to attain a
minimum depth of cover of forty-two inches (42") unless otherwise
required by the granting authority or except in the following
instances:
A. The Minimum depth of cover in ditches adjacent to roads,
highways, railroads, and interstates is forty-eight inches
(48") below the clean out line or existing grade, whichever
is greater.
B. The minimum depth of cover in streams, river washes and other
waterways is six feet (6') below the flow line of the channel
bottom or existing grade, whichever is greater.
C. If rock is encountered, mechanical protection of the conduit
shall be as follows for the given minimums of cover:
(i.) Eighteen inches (18") to twenty-four inches (24")
conduit shall be concrete encased
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(ii.) Twenty-four inches (24") to thirty-six inches (36")
conduit shall be encased in steel pipe
D. The minimum allowable depth of cover beneath railroads shall
be four (4) feet below the toe of the slope for the tracks.
Minimum allowable depth of cover beneath highways and roadways
shall be four (4) feet beneath the crown of the pavement. In
all cases the most stringent between these minimum depths of
cover and the depths of cover specified by the railroad or
local permitting agency shall be adhered to.
2. Buried Warning Tape Placement: Cable warning tape shall be placed
twelve (12) to eighteen (18) inches directly above the conduit, but
never at a depth of cover shallower than eighteen inches (18") below
final grade. Care must be taken during plowing of multiple conduits
that the warning tape does not fall in the rip line to a vertical
separation from the conduit of less than twelve inches (12").
3. Underground Obstructions: The Builder shall protect all existing buried
facilities. Conduit may go over, under, or around various existing
facilities encountered underground as long as there is a minimum
separation of twelve (12) inches and the minimum trench depth
requirements are met, unless greater separation is required by the
permitting agency. If the cable running line varies, the Builder shall
place buried cable markers at direction changes. If the minimum
separation requirements cannot be met, mechanical protection shall be
placed surrounding the TOUCH AMERICA plant.
4. In the case of use or conversion of existing steel pipelines or
existing conduit systems, the Builder shall provide a summary of the
conduit depth to the TOUCH AMERICA Project Representative for review
and acceptance.
301.03. CONDUIT REQUIREMENTS - GENERAL
1. DESCRIPTION
A. This section covers the installation of flexible (HDPE) and
rigid (PVC, and steel) conduit /duct systems for housing
innerduct and/or fiber optic cable.
B. Trench excavation and backfill shall be as specified below.
2. MATERIAL REQUIREMENTS
A. Pipe shall be clearly marked with type, class, and thickness
as applicable. Lettering shall be legible and permanent under
normal conditions of handling and storage. All pipe placed
shall be in good condition with no splits, cracks, or other
physical irregularities.
B. PVC pipe and fittings shall be polyvinyl chloride (PVC)
manufactured from a PVC compound meeting the requirements of
Type 1, Grade 1 PVC in accordance with ASTM D1784, D1785, and
D2241. The PVC pipe shall be orange, ▇▇▇▇, or white in color
and shall be equal to Schedule 40 in wall thickness. PVC pipe
exposed to sunlight shall be UV stabilized. The pipe shall
have a long ▇▇▇▇ on one (1) end and be plain on the other
end. Pipe shall be in accordance with ASTM D1785. Pipe
fittings shall be in accordance with ASTM D2466.
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C. HDPE Conduit and fittings shall be smooth wall SDR 11,
high-density polyethylene (HDPE), manufactured in accordance
with standards established by the Plastic Pipe Institute for
fiber optic innerducts. TOUCH AMERICA and Builder Conduit
shall be the color specified in Exhibit B. Fittings, such as
couplers and plastic caps, shall be as recommended by the
manufacturer of the conduit. Only external couplings shall
be used. All couplings shall provide an airtight seal
capable of withstanding 110 psi, two (2) to five (5)
minutes, as measured by static pressure test.
D. Black iron steel pipe to be trenched or bored shall be
resistance welded or seamless, structural grade, with an
average minimum wall thickness of Schedule 40 pipe, and
threaded and coupled or plain end. The inside walls shall
be free of burrs or splits. Threaded pipe shall have ends
prepared with NPT threads in accordance with ANSI B2.1 and
shall be in accordance with ASTM ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ 40.
E. Rigid galvanized steel conduit shall be in accordance with
Federal Specification WW-C-581d. Minimum wall thickness
shall conform to Schedule 40. Pipe shall be threaded and
coupled with NPT threads in accordance with ANSI B2.1 Pipe
shall be thoroughly hot-dip galvanized both inside and
outside including threads.
F. Conduits and casings shall be sized as follows:
(i.) The preferred TOUCH AMERICA Conduit and First
Conduit is two (2) inch inner diameter (ID) HDPE
(SDR-11) conduit.
(ii.) Casing pipes shall be sized appropriate to the
number of conduits placed.
3. CONDUIT HANDLING
A. Reels shall be placed on a level area and securely blocked to
prevent accidental movement. Reels left overnight shall be
protected with safety flashers on all sides as required or
other suitable means as approved by the local authorities
having jurisdiction.
B. Empty reels shall be returned to the Builder's yard or
disposed of at the end of each day after Conduit placement.
C. Protective coating on steel pipe that has been scratched,
scraped, gouged, or damaged in any manner shall be repaired
in accordance with the pipe coating manufacturer's
specifications prior to placement of the pipe.
D. Defective conduit, pipe or duct shall not be installed and
shall be tagged as defective and removed from the site in a
timely manner.
4. CONDUIT JOINING/SPLICING
A. Conduit jointing shall be completed before or as the pipe is
installed. All joints shall be made secure. Splices shall
be capable of withstanding 110 psi air pressure, two (2) to
two (5) minutes as measured by static pressure test.
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Pipe joints shall be as specified below.
B. Rigid Galvanized Steel Pipe: The pipe ends shall be threaded
with fittings that are hot-dip galvanized both inside and
outside including threads.
C. Black Steel Pipe: The pipe ends shall be threaded or plain
end. Plain end pipe shall have ends prepared for welding.
Welding shall be performed full-circle and in accordance
with ANSI/AWS D1.1-92.
D. PVC Pipe: PVC joints shall be joined with PVC solvent cement
as recommended by the pipe manufacturer. The joint shall be
allowed to cure before handling. Care shall be taken to
prevent twisting or pulling the joint. Joints to be bent,
pushed, or pulled shall be allowed to set up for a minimum
of 24 hours after joining.
E. HDPE Splicing: HDPE conduit shall be spliced together with
manufactured mechanical external couplings compatible with
the type of innerduct being placed and with the method of
cable placement to be used. HDPE duct ends shall be cut
square to provide flush butting surfaces when spliced. The
inside edge shall be free of burrs that could impede the
cable pulling operations.
5. CONDUIT BENDS
Where directional changes are required, the conduit shall be bent in
smooth, uniform bends. Bends shall be made to the minimum radius as required to
place the cable and to meet the cable manufacturer's recommendation and shall
not result in a reduced cross-sectional area.
A. The Builder shall provide equipment to bend pipe when the
radius of bends is less than the radius of allowable
material design stress. Bends shall be made with approved
pipe bending tools and pipe manufacturer's approved methods
of procedure. Bends shall be made to the minimum radius as
required to place the cable and to meet the cable
manufacturer's recommendation and shall not result in a
reduced cross-sectional area.
B. PVC Conduit: Cold bending of PVC pipe will not be allowed.
Heat bending of PVC Conduit is allowed when the minimum
radius is less than the radius of allowable material design
stress. Heat bending shall be accomplished with a heating
box or blanket recommended by the manufacturer. When heat
bending of PVC conduit is not recommended by the
manufacturer, prefabricated conduit/pipe bends shall be used.
C. HDPE Conduit: HDPE conduit bends shall be gradual and not
cause any kinks in the conduit.
D. Field pipe bends shall have a minimum 10-foot radius for steel
and PVC pipe unless otherwise accepted by the TOUCH AMERICA
Representative. Where a radius less than the allowable
field bend is required, factory sweeps and bends with a
minimum radius of three (3) feet shall be used.
E. For Steel Pipe: Applying heat to steel pipe to facilitate
making pipe bends will not be allowed. Bending pipe around
portions of construction equipment and vehicles will not be
allowed.
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Only approved mechanical pipe benders with properly sized
bending shoes will be allowed. Pipe bending will not be
allowed after jointing.
F. For PVC Pipe: Cold bending of PVC pipe will not be allowed.
Heat bending of PVC pipe is allowed when the minimum radius
is less than the radius of allowable material design stress.
Heat bending shall be accomplished with a heating box or
blanket recommended by the manufacturer. When heat bending
of PVC pipe is not recommended by the manufacturer,
prefabricated pipe bends shall be used.
6. CONDUIT SEALING
A. When connections are not being made to additional pipe or
innerducts, the Builder shall seal ends of conduits to keep
dirt and debris from entering conduits, casing pipes or
innerducts. Manufactured compression plugs or other approved
duct seals shall be used in sealing conduit and casing pipe
ends. Plugs shall accommodate innerducts or cable if they
are placed concurrently. Innerducts and/or voids between
cable and surrounding ducts shall also be sealed if placed
concurrently.
B. Casing pipe ends larger than six (6) inches shall be sealed.
All conduits or pipes terminating in buildings, vaults, or manholes
shall be sealed around the outside of the pipe .
301.04. DRAIN TILE RESTORATION
The Builder shall use best efforts to avoid damage to known drain tile by not
ripping or plowing in the immediate area of drain tiles. The Builder shall
restore all drain tile damaged during construction, to a condition as good or
better than prior to damage.
301.05. CONCRETE ENCASEMENT
1. DESCRIPTION: This section covers the preparation, forming, placing,
curing, and all other work incidental to the placement of concrete
encasement of conduit.
2. MATERIAL REQUIREMENTS: The concrete shall be a Portland Cement
Concrete, minimum of five (5) sacks of cement per cubic yard, minimum
28 day compressive strength of 3000 psi.
3. FORMING: The Builder shall form the side walls of all concrete
encasement sections with removable wood or steel forming for sections
to be placed in noncohesive material. The forming may be omitted in
sections where stiff clay, rock, or firm silty clays permit the shaping
of vertical sides for the excavation to the top surface of the concrete
encasement.
4. Placing: CONCRETE ENCASEMENT SHALL BE PLACED AS FOLLOWS:
A. THE SIDES OF TRENCHES ABOVE THE TOP OF THE CONCRETE SHALL BE
SLOPED, SHEETED, OR OTHERWISE STABILIZED TO PREVENT DIRT,
BALLAST, OR OTHER FOREIGN MATERIAL FROM FALLING INTO AND
CONTAMINATING THE CONCRETE DURING PLACEMENT.
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B. The concrete shall be placed as near the final placement
point as practicable. The concrete shall be placed after the
pipe or individual ducts are rigidly supported within the
trench to avoid flotation or sag. Care shall be taken in
placing the concrete to prevent the pipe or ducts from being
damaged or displaced, either in grade or alignment.
C. Concrete shall not be deposited in water or exposed to the
action of water before setting.
D. The fresh concrete shall be leveled and consolidated by
rodding or spading only. Mechanical vibrators shall not be
used unless accepted by the TOUCH AMERICA Representative.
The top surface of the concrete shall be screeded only; no
floating or troweling of the surface is required unless the
concrete encasement will have exposed surfaces. Particular
care shall be taken to keep concrete or other substances
from the inside of the pipe or ducts during construction.
5. After the initial set of the concrete, backfill material shall be
placed and compacted in a manner that will not crack or damage the
concrete. Forming, when required, shall be removed as soon as the
concrete can support itself for backfilling the trench to grade.
6. In locations where railroad ballast rock is the only permitted
backfill, concrete encasement shall be covered with a plastic
sheathing.
7. In cases where the pipe or ducts pass above or below an underground
obstruction such as a utility line, a minimum clearance of six (6)
inches shall be maintained between the concrete and the utility. A
minimum of 12 inches of clearance shall be maintained between the
concrete encasement and a paralleling utility. No utility shall be
contained within the concrete encasement.
301.06. RIGHT-OF-WAY RESTORATION
1. Areas disturbed by construction activity will be repaired to a
condition equal to or better than prior to construction activities per
Section XXX.
2. Damage to banks, ditches, driveways and roads caused by the equipment
shall be immediately repaired to the satisfaction of the Builder and
public authorities having jurisdiction over highway and road ROW.
301.07. DEPTH VERIFICATION
1. TOUCH AMERICA and the Builder are constructing the System which will
benefit both parties. The Builder is responsible to ensure his
contractors and their subcontractors adhere to the specifications.
TOUCH AMERICA has the right, but not the responsibility, verify
placement.
2. At any time requested by the TOUCH AMERICA Representative, the Builder
shall demonstrate that the warning tape and conduit, pipe, duct or
handholes, etc. is being placed to the specified depth by excavating
and observing. Shoring and dewatering shall be included in the work of
excavating observation pits if required to accurately verify the
conduit, pipe or duct and marker tape depths. If the excavation reveals
the construction to have met the specifications, then TOUCH AMERICA
shall pay the actual costs of the excavation. If the excavation reveals
the
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construction does not meet the specifications, the Builder shall
excavate in each direction until the facility is found in compliance at
Builder's cost.
3. If the marker tape, conduit, pipe or duct measures less than the
specified minimum depth, sufficient additional excavations shall be
made in each direction away from the original excavation to determine
the length of conduit, pipe, duct and/or marker tape that requires
lowering.
SECTION 302 - CONDUIT PLACEMENT - TRENCH
302.01. DESCRIPTION
1. This section covers the work associated with trench excavation. Work
consists of the trench excavation necessary to install underground
pipe, duct, or cable. Trenching shall also include those excavations
necessary to set manholes, splice and pull vaults, bore pits, and other
miscellaneous excavations required throughout the performance of the
work.
2. Trench depth is defined as the cover over the cable, conduit, pipe,
duct or plant placed, or the distance from the top of the plant to
finish grade.
302.02. EXCAVATION FOR CONDUIT PLACEMENT
1. Trench width and depth of cover shall be as specified herein. Trench
excavation shall be accomplished by hand digging, mechanical trencher,
or backhoe at the discretion of the Builder depending on locations of
nearby existing utilities or obstructions.
2. Any grade transition shall be gradual.
3. During trench excavations, materials suitable for backfilling shall be
stockpiled in an orderly manner a sufficient distance from the banks of
the trench to avoid overloading and to prevent slides or cave-ins. All
material not suitable for backfill shall be removed and disposed of.
4. Wherever possible, the trench shall be excavated to permit the pipe,
duct, or cable to rest on undisturbed earth or rock. Where it is
necessary to trench through fill areas, the earth shall be well
compacted before the pipe, duct, or cable is installed. Care shall be
taken not to excavate below the depths indicated. Unauthorized over-
excavation shall be backfilled with suitable bedding material and
thoroughly compacted. Care shall be taken not to exceed the limits
imposed by permits, right-of-way limits, or easement descriptions.
5. No trench or excavation shall be allowed to remain unattended at any
time or left open overnight in public or private right-of-way unless
said excavation is fenced or barricaded A trench shall not remain open
overnight on railroad right-of-way unless approved in writing by the
railroad representative. The written approval shall be site and date
specific.
302.03. SHEETING AND SHORING
The Builder shall comply with all current and applicable Occupational
Safety and Health
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Administration (OSHA), federal, state, and local rules and regulations
governing the safety of men and material during excavation, installation, and
backfilling operations.
302.04. TRENCH WIDTH
All trenches shall be wide enough to provide ample room for proper
installation of the plant. Where it is necessary to reduce the earth load on
trench banks to prevent sliding or caving, trench banks may be back back cut
back on slopes which shall not extend lower than twelve (12) inches above the
top of the pipe, duct, or cable.
302.05. SUBGRADE PREPARATION AND STABILIZATION
1. Subgrade soil shall be firm and compact. Should the subgrade or the
bottom of trench in any area become mucky or should it work into mud
under feet of the workers, the Builder shall remove the soft soil to
firm ground and replace it with compacted layers of dry soil, crushed
rock or gravel. The subgrade shall be brought to the proper level by
means of a thin layer of sand tamped or rolled into the reinforced
subsoil. Pipe, duct, or cable shall not be laid under unsuitable
weather or trench conditions.
2. The finished elevation of stabilized subgrades for manholes shall not
be above the subgrade elevations indicated on the Drawings. Subgrades
for manholes and vaults shall be firm and free from all loose
materials, shall be free from mud and muck, and shall be sufficiently
stable to remain firm and intact under the feet of the workers. In
addition, the subgrade shall be compacted to a minimum of ninety (90)
percent of maximum dry density in accordance with ASTM D698 at plus or
minus five (5) percent of optimum moisture content as determined by
ASTM D698. Subgrades which are otherwise solid which become mucky on
top due to construction operations shall be reinforced with one (1) or
more layers of crushed rock or gravel.
302.06. GROUNDWATER, DEWATERING
1. When groundwater is encountered in the trench excavation, the Builder
shall ▇▇▇▇▇▇▇ as required to provide for stability and firmness of the
cable trench or foundation.
2. Dewatering of trenches shall be performed as needed for placement
inspections, measurement, and backfilling operations before and during
installation of the work. The lowered water level shall be maintained
until such time as backfill has been properly placed and compacted to
an elevation equal to the surrounding groundwater level.
3. Dewatering methods shall adequately prevent trench and foundation
instability.
302.07. DRAINAGE
1. The Builder shall control the grading in the vicinity of trenches so
that the ground surface is properly sloped to prevent water from
running into the excavated areas.
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2. Water which has accumulated in the excavation from rainfall, surface
runoff, or from other causes, shall be removed by the Builder and the
subsurface shall be restored to suitable condition for conduit or cable
installation.
3. Damage to adjacent works or property caused by surface runoff or
dewatering, and as a result of construction operations, shall be the
Builder's responsibility and shall be corrected and restored as soon as
conditions permit by the Builder.
4. The Builder shall prevent silt discharge from the site and shall
maintain compliance with construction stormwater discharge
requirements.
302.08. CONDUIT PLACEMENT (TRENCH)
1. Conduit shall be placed in the center of the bottom of the trench with
the entire length of conduit, pipe or duct bearing on the trench
bottom. The trench bottom shall be re-graded if the conduit does not
have full bearing.
2. After final placement, non-rigid conduit shall rest on the bottom of
the trench in a straight line under slight tension and rigid conduit
shall rest on the bottom of the trench in a straight line. A check
shall be made that proper depth is obtained and the conduit is in a
straight line and under tension during backfilling.
3. Warning marker tape shall be installed per Paragraph 301.02.2.
Electronic ball markers shall be placed above each end of the
pipe casing pipe at major river and road crossings four (4) lanes or
wider at a minimum depth of eighteen (18) inches to a maximum forty-two
(42) inch depth below finish ground level.
302.09. BACKFILL AND COMPACTION
1. Backfilling and compaction shall begin as soon as the corresponding
trenching work is complete. All excavations shall be backfilled at
the end of each working day. Backfill shall be compacted and shaped to
the original contour and drainage.
2. On finished areas including road surfaces, road shoulders, parking
areas, lawns, and public right-of-way, backfill and compaction shall be
in accordance with the authority having jurisdiction thereover.
3. Material for backfill shall be composed of earth only and shall not
contain logs, stumps, frozen debris, wood, grass, roots, broken
concrete, stones, trash, organic material, or other debris.
4. All backfill material shall consist of loose earth having a moisture
content such that the required density of the compacted soil will be
obtained with the compaction method used. Moisture content shall be
distributed uniformly and water for correction of moisture content
shall be be added sufficiently in advance so that proper moisture
distribution and compaction will be obtained. Granular material shall
be wet, not just damp, when compacted.
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5. Backfill material shall be similar to the material upon and adjacent to
those which it is placed. The placement of alternate layers of cohesive
and noncohesive backfill material shall be thoroughly mixed prior to
compaction, except as required for surfacing material.
6. No backfill material shall be deposited in standing water.
7. Backfill material shall be placed and compacted in uniform layers not
exceeding 8 inches in uncompacted thickness. Moisture content shall be
adjusted as required to obtain the specified density with the
compaction equipment used. Compaction equipment shall be appropriate to
the material being compacted. (i.e. Vibratory equipment for granular
materials)
8. All trenches that have not been acceptably filled and compacted, or
which settle after backfilling, shall be reopened to the depth of
satisfactory compaction and refilled and recompacted as specified in
these Specifications.
9. Warning marker tape shall be installed per Paragraph 301.02.2.
10. Extreme caution shall be used while compacting over installed Plant,
drain tile and other utilities to avoid damage or collapse.
11. When a trench is located under asphalt surfaces, cold-mix patch shall
be placed as a temporary surface restoration as soon as possible after
the completion of compaction. Permanent hot mix repairs shall be made
as soon as possible per Section 803.03.
SECTION 303 - CONDUIT PLACEMENT - PLOW
303.01. DESCRIPTION
1. This section covers the installation of HDPE, and PVC duct systems for
housing innerduct and cable by the use of a utility plow or railroad
plow.
2. The simultaneous placement of split HDPE duct and cable will be
prohibited.
303.02. RIPPING
The Builder may make pre-rip passes prior to plow operations by making ripping
passes be made to condition the route to a depth which exceeds the pipe or duct
burial depth. The final ripping pass shall be in the same direction as pipe or
duct plowing.
303.03. CONDUIT PLACEMENT
1. Before a plowing operation is started, the route surface shall be
prepared to eliminate abrupt changes such that the pipe or duct
alignment and grade shall be smooth and uniform. However, every effort
shall be made to minimize the damage to the environment by grading only
where abrupt changes in grade would adversely affect the placement.
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2. Where large rocks, large amounts of fill, and other debris have been
placed over the cable route, the Builder shall blade the areas to
natural grade before plowing. After the pipe or duct has been
installed, the material shall be placed back to its original position.
3. Pipe or duct shall be placed directly in the ground with plowing
equipment and delivery chutes designed to accommodate the pipe or duct
material being installed without damaging or overstressing the conduit.
Conduit shall be installed at the minimum depth of cover per 301.02.
Warning marker tape shall be installed per paragraph 3.01.02.2.
4. The plow shank shall not be raised, lowered, or have its attitude
changed unless the prime mover is moving forward and any changes in
attitude shall be gradual. The plow shall not be set at extreme forward
rake angles. All changes in depth shall be gradual with the vertical
curve having a minimum 4-foot radius. The prime mover shall never be
backed up with the plow in the ground.
5. Pipe or duct jointing shall be completed as the pipe or duct is
installed per Paragraph 301.03.4
6. Connections shall be made to pushed or bored pipes and bridge
attachment pipes.
7. Pipe or duct placement in a free-water environment shall be
accomplished to prevent the pipe or duct from floating. Dewatering,
anchoring, or weighing of the pipe or duct shall be accomplished
without causing damage to the pipe or duct. If requested by the TOUCH
AMERICA Representative, the Builder shall submit and demonstrate his
plan for placing pipe or duct in a free-water environment prior to
construction.
SECTION 304 - BORE
304.01. This section covers the pushing, boring, or simultaneously boring and
pushing of casing pipes under roads, railroads, drives, sidewalks, trees, and
other items.
304.02. This section refers to conventional horizontal boring and does not
pertain to directional guided bores.
304.03. CONDUIT PLACEMENT
1. Minimum depth of cover shall be per paragraph 301.02 or as required by
the permitting agency.
2. Multiple pipes or conduits placed in a single bore hole shall be cased
or the voids around the pipes pressure grouted.
3. Conduit shall be placed through an augured hole or shall be advanced by
jacking as the soil is removed by the auger or by jacking directly
through soil. Boring without the concurrent installation of the casing
pipe will not be permitted. The installation shall be performed in a
manner that will not unreasonably disrupt traffic nor damage the
subgrade, and will provide accurate alignment and grade of the pipe.
Removal of material from an augured hole by washing will not be
permitted. Small amounts of water may be used as a lubricant in the
boring or jacking operation.
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4. Prior to boring, all existing underground facilities shall be located
and marked or exposed as necessary for safety and for protection of the
existing facility.
5. Voids outside casings which exceed 1-1/2 inches shall be pressure
grouted. If a pipe casing cannot be completed but has to be abandoned,
the pipe shall be either removed and the void filled or the pipe
completely filled as indicated by the Engineer unless required
otherwise by the permit.
6. Electronic ball markers shall be placed above each end of the casing
pipe at pipe at major river and road crossings four (4) lanes or wider
at a minimum depth of 18 inches to a maximum 42-inch depth below
ground.
304.04. RIVER AND STREAM CROSSINGS
1. This section covers the installation of casing pipe across water
courses.
2. Stream bank protection, shall be as specified Right-of-Way Restoration.
3. Horizontally directional bored pipe placement required for some river
and stream crossings shall be as specified in Conduit Placement -
Directional Bore.
4. Pipe Placement
A. The casing pipe shall be installed at a minimum of six (6)
feet of depth across the flow line of the channel bottom or
to the minimum depths indicated on the Drawings.
B. The method of placement shall be by open trench, boring,
plowing, or pushing, or a combination of these methods at
the Builder's option, provided the methods do not conflict
with permit requirements.
C. The Builder shall be responsible for dewatering, diverting
water, and controlling downstream water turbidity as
required for the site conditions and per permit requirements.
D. The installation of the casing pipe shall include shaping of
the banks and stream bed back to original contours and
compacting as necessary to accomplish the crossing and
restoration of the areas. Placement of erosion control
devices is also included.
E. Pipe jointing shall be completed before or as the pipe is
installed, per Paragraph 301.03.4.
F. Pipe placement in trenched sections shall be as specified
above..
G. Pipe placed in a trench across a flowing stream or below
normal water level shall be secured and stabilized to ensure
required depth as indicated on the Drawings.
H. During bore pit backfill operations, warning marker tape
shall be installed per 302.02.2..
I. Electronic ball markers shall be placed above each end of the
casing pipe at major river and road crossings four (4) lanes
or wider at a minimum depth of 18 inches to a maximum 42-inch
depth below ground.
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J. Casing pipe across some shallow flowing streams and most dry
watercourses may be installed by plowing. Such stream or
watercourse shall require sloped banks that tracked
construction equipment may readily negotiate either
unassisted or with a powered winch. Plowed casing pipe shall
be accomplished by pulling pre-assembled pipe lengths
attached to the plow shank at full placing depth by using
either a sled or a tracked tractor mounted plow shank. Such
crossing shall be made without exceeding the minimum
allowable bending radius that will exceed the maximum
allowable material design stress.
K. Smaller streams may be pushed or bored with guided boring
equipment as an option to open-cut trenching of the stream
or portions of the stream. Guided boring systems using fluid
other than water shall be as specified in the Section 305 -
Pipe Placement - Directional Bore. The location including
depth of the pipe placed by using this equipment shall be
verifiable using sensors, locating equipment, and test pits
at stream banks and points along the pipe. All requirements
of a minimum radius, stress limitations, and detrimental
effects shall be observed.
SECTION 305 - DIRECTIONAL BORE
305.01. DESCRIPTION
This section covers the installation of a river or other crossing
utilizing casing pipe placed by horizontal directional boring methods, as
required. The crossing to be cased shall be installed by horizontal directional
boring which requires a directionally drilled hole going from one side of the
crossing to an exit on the other side, without disturbing the stream banks or
flowline. The directional boring shall be guided by guidance equipment that
gives continuous, accurate monitoring of the drill bit position.
305.02. CONDUIT PLACEMENT
1. The casing pipe shall be installed to the line and minimum depths
indicated. The method of placement shall be by horizontal directional
boring.
2. Minimum depth of cover shall be per Paragraph 3.02.2
3. The Builder shall determine the types of subsurface materials which
will be found and shall determine their effect on the bore
installation. If available, soil boring logs and geophysical
investigations obtained by TOUCH AMERICA are indicated on the Drawings.
Interpretation of this information and the subsurface conditions
between the locations of the soil borings shall be the responsibility
of the Builder. Additional subsurface investigations required at bore
locations shall be the responsibility of the Builder.
4. The Builder shall be responsible for dewatering, diverting water, and
controlling downstream water turbidity as required for the site
conditions. The construction work shall be in accordance with all
applicable safety and environmental regulations.
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5. At request of a permitting agency, the Builder shall include a plan for
containing and handling drilling fluid which may upwell to the surface.
An emergency procedure shall be included for containing fluids which
may be discharged into a body of water, and shall include a complete
list of the appropriate governmental agencies which shall be
immediately notified of the discharge. Alternatives shall be proposed
which could be implemented to maintain or reestablish return of fluid
to the entry pit. Builder is responsible for all clean-ups required by
environmental or regulatory agencies.
6. All water use permits shall be obtained by the Builder prior to
beginning work. Water sources shall be in accordance with the governing
water control agency.
7. An emergency contact list to be used in the event of a drilling fluid
spill spill will be included with the list of permits. The Builder
shall notify the TOUCH AMERICA Representative immediately of drilling
fluid spills.
8. Casing pipe entry and exit points shall be allowed no more than five
(5) feet of deviation from the staked cable centerline. Entry and exit
points normally will not be allowed closer to the banks of a waterway
being crossed.
9. The exit hole for any bore exit to the surface other than for the final
casing location shall be plugged and stabilized before proceeding with
the bore.
10. Bentonite or other drilling fluids discharged at an exit location shall
be contained and removed, and the exit site shall be restored to its
original condition.
11. Protective coating on steel pipe that has been scratched, scraped,
gouged, or damaged in any manner shall be repaired in accordance with
the pipe coating manufacturer's specifications prior to placement of
the pipe in the bored hole.
12. When boring requires the use of drilling mud, such as bentonite, no
discharge of excess material or site runoff will be allowed into
waterways. Mud tank capacities shall be sized to hold excess material
completely by containing mud quantities without spillage. If required
by the permitting agency, the casing pipe entry point shall be
appropriately enclosed and equipped with a sump pump to reclaim or
discharge excess mud to a reuse or disposal tank. Earth spoiled by
drilling mud shall be removed and disposed of by the Builder and the
site refilled with clean material. The site shall be restored to a
condition equal to or better than its original condition.
13. All personnel, equipment, and materials required to contain drilling
fluid which upwells to the surface or is discharged into a body of
water shall be onsite during all drilling operations.
14. Drilling fluids shall be disposed of in an acceptable manner.
15. After testing and cleaning have been completed, both ends of the steel
pipe shall be terminated and sealed. Innerduct, as indicated on the
Drawings, shall be installed and extend a minimum of fifteen (15) feet
past the ends of the bore pipe. Both ends of the bore pipe shall then
be sealed with manufactured duct plug organizers. Bore pipes larger
than six (6) inches shall be sealed as indicated on the Drawings. Pipe
ends shall be clearly marked with a surface marker or the pipe ends
shall be fenced.
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16. Electronic ball markers shall be placed above each end of the casing
pipe at pipe at major river and road crossings four (4) lanes or wider
at a minimum depth of 18 inches to a maximum 42-inch depth below
ground.
SECTION 306 - BRIDGE ATTACHMENT
306.01. DESCRIPTION
This section covers the attachment of pipe to concrete box culverts, and to
road, railroad, and other types of bridges which may be constructed of steel,
concrete, or arch stone. Work includes coring of abutments, diaphragms, or
retaining walls as required.
306.02. CONDUIT PLACEMENT: BRIDGE ATTACHMENT
1. Pipe shall be attached to bridge. Work on any bridge shall not disrupt
road or railroad traffic on or below the bridge unless approved in the
permit obtained for the particular bridge. The bridge owner will be
allowed to inspect the work at any time during construction. The
Builder shall supply all equipment and materials to drill, punch,
drive, weld, or otherwise fix the attachments and hangers.
2. If required, bridge abutments shall be cored to allow passage of the
conduit onto the bridge. After placement of the conduit, the remaining
space between the outside of the pipe and the cored hole shall be
filled with non-shrink grout or other approved material.
3. The nuts on bolts or hanger rods shall be secured prevent the nuts
from vibrating loose.
4. Pipe shall extend outside the bridge abutments into the ground with
bends.
5. All conduits placed on bridges shall have expansion joints placed at
each structural (bridge) expansion joint or at least every 300 feet,
whichever is the shorter distance. For bridges under 100 feet, at least
one conduit expansion joint will be placed, even if there is no bridge
expansion joint.
6. If required, electronic ball markers shall be placed above each end of
the pipe at pipe at major river and road crossings four (4) lanes or
wider at a minimum depth of 18 inches to a maximum 42-inch depth below
ground.
SECTION 307 - INNERDUCT PLACEMENT
307.01. Description: This section covers the installation of one (1) or more
new innerducts or conduits in an existing or newly placed conduit or casing.
307.02. If the Conduit does not have a pull line already installed, it shall be
installed by the Builder .
307.03. All of the innerducts being placed in a conduit or casing shall be
pulled in simultaneously. Innerducts shall be of one (1) continuous length
between pull points. Before placement, the leading end
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of each innerduct shall be sealed. In the event splicing of innerduct is
allowed, and multiple innerducts are spliced, the splices shall be staggered.
Innerducts may be lubricated in quantities as recommended by the lubricant
manufacturer.
307.04. The pulling force on the innerduct shall not exceed the tensile yield
strength of the innerduct or the rated pull strength established by the
manufacturer.
307.05. On completion of the innerduct placing, the innerduct shall rest freely
in the conduit and splice vaults or manholes without tension. Racking of the
innerduct in manholes shall be completed after the cable is placed and as a part
of cable placing.
307.06. The ends of innerducts shall be sealed to keep dirt and debris from
entering the innerduct. Manufactured compression plugs or other approved duct
seals shall be used in sealing innerduct ends. Plugs shall accommodate the cable
if cable is placed concurrently.
DIVISION 400: CABLE PLACEMENT
401.01. DESCRIPTION
This section covers the installation of cable in pipe or duct through manholes
or pull vaults.
401.02. GENERAL
1. The Builder shall not damage equipment items including cables,
apparatus cases, and load coil cases when working in manholes. Per
joint use agreement(s), a representative of an other utility (or other
utilities) may need to be present before entering their manholes.
2. When working in manholes, the Builder shall follow all applicable OSHA
confined space requirements as well as any environmental agency
requirements for water removal.
3. Smoking and open flames are not allowed in manholes. There will be no
fusion splicing done in manholes.
401.03. MATERIAL REQUIREMENTS
1. Cable and fiber apparatus (splice closures) shall be furnished by TOUCH
AMERICA. The Builder shall provide TOUCH AMERICA, a minimum of 12
weeks, or as otherwise agreed upon prior to the date that the cable is
required on the job, the cable required for the project.
2. Break-away swivel connectors, pull line for fiber optic cable pulling,
cable labels, tie wraps, lubricant, all other materials and equipment
required to place the fiber optic cable shall be furnished by the
Builder.
3. All other equipment items and tools such as manhole bridging, pulling
grips, and bending shoes shall be provided by the Builder.
401.04. CABLE PLACING PLAN
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At least two (2) weeks prior to beginning cable placing operations, the Builder
shall schedule a meeting with the TOUCH AMERICA Project Representative to
discuss the cable placing plan. This proposed plan shall outline plan of action
for each reel to be placed, and the sequence of cable placement. Cable shall be
placed continuously in Route Sections between A&T Sites. This meeting will
allow TOUCH AMERICA to schedule splicing crews.
The Builder shall follow the approved cable placing plan. Deviations from the
cable placing plan will not be allowed without the acceptance of the TOUCH
AMERICA. Deviations from the scheduled placing plan, may extend the completion
date, by delaying the splice activity.
Cable shall be installed in the lowest available duct.
Placing cable will only be allowed during daylight hours which will be 1/2 hour
before sunrise to 1/2 hour after sunset unless otherwise required by the
permitting agency
401.05. CABLE HANDLING
1. Cable reels shall be delivered to the designated address supplied by
the Builder.
2. Cable reels shall be placed upright on a level area and securely
blocked to prevent accidental movement. Partially placed cable reels to
be left on the right-of-way overnight or for an extended period of time
shall be covered with a heavy steel box accepted by the TOUCH AMERICA
Project Representative. Full unused reels shall not be left overnight
on the right-of-way.
3. TOUCH AMERICA assumes that cable provided by the fiber optic cable
manufacturer to be as specified and as per the test results supplied by
the Cable Manufacturer. The Builder shall visually inspect each reel
for damage upon receipt of the cable. Damages are to be recorded on
the transportation company's ▇▇▇▇ of lading and reported to TOUCH
AMERICA in writing as soon as received. The Builder, may at his own
expense test fiber on a end-to-end basis while such fiber cable is
still on the reel. Any defective fibers discovered in the on-reel test
will be brought to the attention of the Engineer in writing for further
action. The Builder will not be responsible for fiber cable found to be
defective due to manufacturing or transportation, provided such defects
are discovered prior to cable placement and TOUCH AMERICA is notified.
Failure to make the on-reel test and to notify TOUCH AMERICA of such
defects prior to placing the cable will be at the Builder's own risk.
TOUCH AMERICA will deem such cable to have been free of defects prior
to placement, and the Builder will be required to replace or repair
such defective cable at TOUCH AMERICA's option and at the Builder's
expense. Such replacement will include the cost of materials, labor and
incidentals.
4. If damage is observed to the interior of the cable reel during
placement of the cable, placement should stop and TOUCH AMERICA shall
be immediately notified.
5. The Builder shall visually inspect the cable prior to and during
placement and immediately notify the TOUCH AMERICA Representative of
any damage. Reels with damage observed after the Transportation company
has left the site which were not noted and recorded at the time of
unloading, will be placed at the Builder's own risk. Builder will be
required to replace or repair
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such defective cable at TOUCH AMERICA's option and at the Builder's
expense. Such replacement will include the cost of materials, labor and
incidentals.
6. The cable shall not be subjected to rough treatment or sharp bending
that could cause crushing or kinking.
7. The minimum fiber cable bend radius for mechanical equipment and manual
handling in duct and in underground installations under load shall be
20 times the fiber cable diameter or 12 inches, whichever is the
greater or as specified by the manufacturer. The minimum fiber cable
bend radius for mechanical equipment and manual handling in duct and
in underground installations under no load shall be 10 times the fiber
cable diameter or as specified by the manufacturer.
8. The maximum pulling force on the cable shall be 600 pounds or as
specified by the manufacturer of the cable.
401.06. PLACEMENT LENGTH OF FIBER OPTIC CABLE
Prior to beginning operations, the Builder shall examine each manhole in each
underground section or each buried pipe or duct section. The Builder shall
decide, if cable will be placed from splice location to splice location or if
assists such as an mid-span winch will be required at intermediate locations.
401.07. MANHOLE, SPLICE AND PULL VAULT/HAND HOLE PREPARATION
1. Splice and pull vaults or hand holes utilized for cable placement shall
be prepared and rigged for cable placement using pulling methods as
follows:
2. All rigging in the manholes shall ensure that the cable will never be
bent to less than a 12-inch bend radius or 20 times the fiber cable
diameter or whichever is the greater.
3. Manholes With Innerduct: In intermediate manholes without continuous
innerduct, previously placed innerduct installed with pull line shall
be overlapped at the midpoint of the manhole with the ends of the
innerduct securely joined together to provide a continuous duct
arrangement. If the opposing ducts do not line up, approved bending
shoes or pulley wheels and bracing shall be used maintaining the
minimum allowable bending radius. Lubrication points shall be
provided as required. When cable placement is to be performed via
pneumatic/tracktive force methods, intermediate manholes shall be
bridged and sealed to equipment manufacturers recommendations. using
airtight couplers.
4. Manholes Without Innerduct: All intermediate manholes shall be bridged
to provide a smooth cable path and transfer of lubricant. For manholes
with a large offset or a change in direction, sheaves or quadrant
blocks shall be used as required and shall be securely tied in position
to guide the cable into the duct to prevent cable sheath abrasion at
the duct entrance.
5. Feed Manholes: The feed manhole shall have a smooth cable feeder
extended out of the manhole. The cable feed apparatus shall be securely
fastened to ensure that specified minimum bends are not exceeded. The
feed manhole shall be rigged to ensure that the cable passes directly
and freely into
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the manhole, over a sheave or quadrant block, and directly into the
duct or innerduct entrance without rubbing against parts of the manhole
rigging.
6. Pull Manhole: The pull manhole for both the placement of the pull line
and cable shall be rigged to ensure that the pull line passes directly
and freely from the duct or innerduct entrance into the manhole, around
a snatch block, up the manhole chimney, over a manhole sheave or
quadrant block, and directly to the capstan winch without rubbing
against parts of the manhole rigging.
7. Cable Air System Placement: Cable entry, intermediate and exit manholes
shall be prepared per the equipment manufacturers recommendations. All
rigging in the manholes shall ensure that the cable will never be bent
to less than a twelve (12) inch bend radius or twenty (20) times the
fiber cable diameter or whichever is the greater.
401.08. CABLE PLACEMENT
1. When possible, the entire length of cable shall be placed in one
uninterrupted operation without intermediate assistance.
2. Radios and cellular telephones shall not be used in telecommunications
rooms or central offices.
3. In the event cable is placed utilizing air methods, the Builder shall
provide personnel at all manholes where conduit/duct is not sealed
through.
4. The Builder shall calibrate all cable placing equipment before cable
placement begins, as required during placement operations.
5. Lubrication shall be provided as recommended by the equipment
manufacturer to minimize tension on the cable.
6. For cable placed utilizing pulling methods, the cable shall be
installed using a winch equipped with a running line dynamometer to
measure the pulling tension. If tensions at the running line
dynamometer approach or exceed the allowable tensile limit, the pull
shall be stopped and the winch moved closer to the pulling end of the
cable. When a mid-point assist cable winch is used in a pull length,
the cable winch shall also have a running line dynamometer. Cable
pulling winches shall meet the following requirements:
A. Pulling force is maximum of 1,000 pounds
B. Minimum capstan radius of 12 inches or to meet cable
manufacturer's specifications.
7. The maximum pulling force on the cable shall be 600 pounds or per cable
manufacturer's recommendations. An approved cable grip with pulling eye
shall be attached to the cable end. The pulling eye on the cable grip
shall be connected to the pulling line using a break-away swivel
connector. The break-away swivel connector shall be calibrated to 600
pounds tension or as per the cable manufacturer's recommendations. The
cable shall be pulled off the top of the cable reel by hand during
cable placement to maintain cable slack and to prevent reverse bends.
The cable reel shall be tended for the entire pull. The running line
dynamometer shall monitor the pull line tension just ahead of the
capstan.
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8. Cable can be placed using pneumatic methods provided the equipment is
appropriate to the allowable tensile forces, the diameter of the cable
and the conduit utilized. Care is to be exercised during the blowing
operation, to feed the cable in the equipment loosely and with no
tensile force.
9. The cable shall be placed with sufficient control of speed to prevent
cable damage.
10. In the event that that a cable pull becomes too difficult in a buried
sections, excavation of the conduit may be required. The pipe or duct
shall be exposed, cut and the cable pulled through. After the cable is
placed, the pipe or duct shall be repaired and the backfill replaced.
11. In the event that that cable placement utilizing air driven placement
stops, buried sections may require excavation of the conduit. The
pipe or duct shall be exposed, cut and repaired or the site used as
an intermediate assist point. After the cable is placed, the pipe or
duct shall be repaired and the backfill replaced.
12. When cable placement is completed, unless agreed to otherwise, there
shall be cable coiled in manholes, handholes or vaults as follows:
(i.) A minimum of fifty (50) feet of cable shall be coiled at all
intermediate handholes.
(ii.) A minimum of seventy-five (75) feet of cable shall be coiled
at each end of the cable for splicing purposes.
These measurements are minimums referenced to the point at
which the cable would exit the manhole lid for the purpose of
splicing. These measurements may be modified during
engineering to reflect the actual distance from the splice
handhole or manhole to an adjacent splicing van.
13. Empty cable reels shall be removed from the work site promptly.
Returnable reels are to be handled per 202.06 - Returning Reels.
14. Excess fiber optic cable shall be handled per 202.05 - Excess
Material.
401.09. CABLE CUTTING
The Builder shall not cut the cable unless approved by the TOUCH
AMERICA Representative.
401.10. CABLE RACKING - MANHOLES
1. After cable placement, all pulling hardware and lubricant shall be
removed
2. Cable racking in manholes shall proceed as follows:
A. Racking shall be started at the center manhole and proceed in
each direction simultaneously towards the cable ends.
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B. The necessary cable slack shall be pulled by hand. Use
caution when pulling cable to prevent damage.
C. The cable shall be covered with split innerduct, if bare, and
laid on the racking shelves along the side walls at the same
height as it enters and exits the manhole or as indicated by
the Engineer. All bends shall be gently formed to the
greater of a minimum 24-inch diameter or 20 times the cable
diameter.
D. Innerduct with cable shall be secured to the manhole hardware
using lightweight plastic tie wraps.
E. Intermediate manholes with cable in coils shall be gently
formed to a minimum 24-inch diameter and secured to the
manhole hardware in a safe location using plastic tie wraps.
Cable coils shall not be covered with split innerduct.
401.11. CABLE STORAGE - HANDHOLES
1. Excess cable in the splice handholes shall be coiled by hand while
maintaining a minimum 24-inch diameter coil. The cable shall be
coiled from the cable end toward the conduit face of the handhole.
Bundle the turns of the coil together with loosely applied plastic
tie wraps or electrical tape at several locations on the
circumference of the coil.
2. The ends of the innerduct occupied by the cable shall be sealed at
building entrances with split rubber plugs and compression bands.
The ends of the innerduct occupied by the cable shall be sealed with
an industry standard duct seal at handholes, manholes or vaults to
prevent animal intrusion (for example, gophers).. Spare innerducts
shall be sealed with standard fitting plugs.
3. Cable labels shall be placed on the cable.
4. Construction debris shall be removed from manholes upon completion of
cable installation. All manhole hardware shall be installed and
secured. The manhole lid shall be replaced and bolted in place, if
applicable.
DIVISION 500: BONDING AND GROUNDING
1. This section covers bonding and grounding work to be performed to
increase the electrical protection against stray voltages (lightning
and induced 60 hertz voltage) to minimize personal injury, equipment
damage, and service interruptions.
2. Periodic paths to ground for the currents producing these voltages in
the cable sheaths metallic members shall be provided in such a manner
that do not jeopardize the effectiveness of the cable locating
equipment which uses the sheath's metallic members as the "tone"
conductor.
3. Filter-protectors are to be placed at each and every splice for Routes
maintained by TOUCH AMERICA, at every other splice for Routes
maintained by Builder. Additional units may be required at the
following locations:
A. Metallic pipe or lead cable sheath road bores
B. Bridge Crossings
C. Proximity to other well-grounded structures
D. Plant transitions (i.e. underground to buried)
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4. All sheath metallic members will be bonded together at all splices and
facility entrances. Sheath metallic members include the crossply, LXE
and B-oversheath, but not wire armor. Wire armor is not to be bonded
to metallic sheath members, but must be independently grounded.
5. All connections wire to ground rods are to be exothermic (CAD Welds or
equivalent). Area to be exothermic welded shall be cleaned with steel
wool or sandpaper prior to setting and igniting charge.
6. During handhole placement at splice locations, a ground rod shall be
installed. The ground rod may be installed adjacent to and outside of
the handhole or inside the handhole, adjacent to a corner of the
handhole. The top of the ground rod shall no extend above the conduct
Insulated number six (6) AWG solid copper ground wire shall be placed
through the side of the handhole and exothermic welded to the ground
rod. A hand coil of ten (10) feet of wire shall be coiled inside the
handhole for use by the splicers.
7. If required the additional general bonding and grounding may be
required:
- Racking hardware in precast concrete manholes shall be bonded
to the manhole reinforcing steel.
- Steel pipe conduit entering a manhole shall be bonded to the
racking ▇▇▇▇▇▇▇▇.▇▇ attaching a No. 6 AWG insulated solid
copper conductor to the steel pipe with a grounding pipe
clamp. The other end of the conductor shall be bolted to the
hardware with a 2-hole connector attached to the other end
of the conductor by an exothermic type weld. The connector
shall be bolted to the hardware using a stainless steel bolt.
- Steel pipe casing locations, the Supplier shall furnish and
install a ground rod and a No. 6 AWG insulated solid copper
conductor.
DIVISION 600 - MARKER PLACEMENT
601.01. DESCRIPTION
This section covers the installation of cable route markers with warning and
information signs identifying the cable route.
601.02. INSTALLATION
1. Cable markers shall be installed along the route as follows:
- All sign posts shall include the phone number of the local
One-Call Agency and if required, the maintaining company's
"800-" phone number.
- Markers should be placed at line-of-sight intervals so the
direction of the route is clearly indicated by placing at
points where the route changes direction, at each splice, at
handholes and manholes , at both sides of street, highway or
railroad crossings, and at other points where they will be
helpful in identifying the plant.
- An adjacent marker should be visible each way from an
adjoining marker but at no time shall any markers be spaced
more than five hundred feet (500) apart in metro areas or
one thousand feet (1000) in non-metro areas, land use
permitting. Placing of markers in cultivated areas or at
locations likely to be objectionable to property owners
should be avoided.
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- Markers shall be positioned so that they can be seen from the
location of the cable and generally set facing perpendicular
to the cable running line.
- Splices and pull boxes shall be marked on the cable marker
post.
2. Marker posts shall be plumb, with signs level and correctly positioned.
Markers shall be set concurrently with other work such as trenching,
plowing, boring or attaching to bridges
3. Markers will be set prior to installation of the cable.
4. Holes for posts shall not be excavated with a backhoe. Power augers or
manual post hole diggers shall be used. Posts set directly in the
ground shall be backfilled in maximum lifts of six (6) inches loose
measurement with suitable material. Each lift shall be thoroughly
compacted by the use of mechanical tampers to the density of the
surrounding soil so that posts are firmly set.
5. Driven posts shall be held in alignment while being driven. The post
top shall be protected during driving by means of a cap or other
approved device to prevent damage. All damaged posts shall be removed
and replaced.
6. Warning signs not requiring stamping shall be installed at the time the
post is set.
DIVISION 700 - PULL/SPLICE VAULT AND PULL/SPLICE MANHOLE PLACEMENT
701.01. DESCRIPTION
This section covers the installation of vaults and manholes for housing conduit,
innerduct, or cable.
701.02. PULL AND SPLICE VAULT PLACEMENT
1. Pull and splice vaults shall be set per the attached detail. The
maximum spacing between handholes shall be 4,000 plus or minus 200
feet.
2. The excavation shall be a minimum of two (2) feet larger than the
vault in circumference. A layer of coarse, free draining aggregate a
minimum of 12 inches thick shall be used to obtain a level subgrade
and to provide full base support prior to vault placement. Each vault
shall be installed during cable placement operation. Pull/splice
vaults shall be buried and placed with the minimum cover of 18 inches.
3. Splice vaults for a basic straight through cable placement shall have
the conduit openings made in diagonally opposite corners to
facilitate cable coiling and splice case housing placement. Pull or
splice vault openings shall be enlarged, if necessary, by drilling to
accept the diameter of conduit being installed. A core type bit
shall be used to make the opening. The finished diameter of the
enlarged opening shall not exceed the outside diameter of the conduit
by more than 1/2 inch. The conduit shall terminate three (3) to six
(6) inches inside of the vault. The space between the conduit and
the opening shall be filled with nonshrink epoxy grout or silicone
sealant. Do not damage conduit to splice vault connection during the
placement of backfill material.
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4. The spare TOUCH AMERICA Conduits are to express through the handhole.
The Builder Conduits are to route outside of the TOUCH AMERICA
handhole. In the event the Builder is to access The Cable, a Builder
handhole is to be set adjacent to the TOUCH AMERICA handhole, and a
conduit placed between the handholes.
5. In the event the vault is to be buried, after the vault has been set,
the Builder shall install two (2) or more extension units, if
required, which will bring the top of the extension units to a point
near the surrounding ground surface. After the cable has been coiled
and placed inside the vault, the cover shall be securely bolted in
place on the upper extension unit and the excavation backfilled. A
stake shall be placed at the surface to ▇▇▇▇ the vault location. Upon
completion of cable placing, splicing and testing, and with the
approval of the TOUCH AMERICA Splicing Representative, the extension
units will be removed, the cover securely bolted in place and the
excavation backfilled.
6. The Builder shall furnish and install conduit duct seals, innerduct
cable seals, and spare innerduct plugs.
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TYPICAL HANDHOLE PLACEMENT:
PLAIN VIEW (N.T.S.)
[GRAPHIC]
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TYPICAL HANDHOLE PLACEMENT:
ELEVATION VIEW (N.T.S.)
[GRAPHIC]
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7. The Builder shall furnish and install the cable labels. Cable labels
shall be attached to each cable in the vault.
701.03. PULL AND SPLICE MANHOLE PLACEMENT
1. Manhole excavation and placement shall be at the designated locations.
Manhole excavation shall be large enough to accommodate compaction
equipment for backfill operations. Manholes shall be installed to
provide the proper manhole lid elevation and shall be set level and
plumb. A 12-inch pad of coarse aggregate shall be placed to obtain a
level subgrade prior to manhole placement.
2. The precast base section shall be carefully placed on the prepared
bedding so as to be fully and uniformly supported in true alignment.
All joints between precast elements shall be sealed with sealant
material. The sealant material shall be placed in accordance with the
manufacturer's specifications.
3. Castings placed on concrete or masonry surface shall be set in full
bituminous mastic beds.
4. Grade adjustment of the manhole frame and lid of three (3) inches and
over shall be accomplished with precast concrete grade rings.
Adjustments less than three (3) inches shall be made with concrete
dresser blocks, sealed with nonshrink grout.
5. Manholes with frame, TOUCH AMERICA locking lid, riser casting, and
grade rings shall be placed to provide a final finish grade elevation
as follows:
A. Street Concrete or Asphalt Pavement: The frame and lid shall
be placed flush with the existing or proposed finish
pavement grade to prevent a rough or uneven driving surface.
Unless specified differently by local authorities, final
pavement placement shall be flush with the top of the
manhole frame.
B. Off-Street Concrete or Asphalt Pavement: The frame and lid
shall be placed two (2) inches higher than the existing or
proposed finish grade to prevent surface run-off water from
entering the manhole. Final pavement placement shall be
flush with the top of the manhole frame by tapering the
pavement to the finish grade for ten (10) feet in all
directions from the manhole frame. Manhole frame shall be
set level.
C. Residential Lawns: The frame and lid shall be placed two (2)
inches higher than the existing finish grade to prevent
surface run-off water from entering the manhole. Final
sodding or topsoil for seeding shall be placed to the top of
the manhole frame and graded to taper the lawn areas to the
existing contour and provide drainage for ten (10) feet in
all directions from the manhole frame. Manhole frames shall
normally be set level, but may be set out of level to match
the existing grade only with the acceptance of the TOUCH
AMERICA Representative.
D. Undeveloped or Rural Areas: The frame and lid shall be placed
two (2) inches higher than the existing finish grade to
prevent surface run-off water from entering the manhole,
upon approval of landowners. Final soil grading shall be to
the top of the manhole frame and tapered to existing contour
and provide drainage for five (5) feet in all directions
from the manhole frame. Manhole frames shall be set level.
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6. Extra care shall be taken to avoid plugging the unused duct terminators
when placing encasement concrete for protecting the conduit.
7. Manhole hardware shall be installed by the Builder in accordance with
the manhole fabricator's drawings. All hardware shall be installed
prior to cable pulling.
8. The Builder shall install bonding ribbon and connectors in the manhole
to bond the racking hardware to the manhole reinforcing steel in each
manhole section as indicated on the Drawings. All bonding shall be in
place prior to cable placement.
9. Backfilling shall start immediately after placing the manhole and
conduits entering the structure. In paved areas, the backfill shall
consist of the material and compaction specified for use in street
excavation up to the base required for pavement, per the permitting
agencies requirements. In unpaved areas, select backfill material
shall be placed up to the roof of the structure followed by the
material removed during the pit excavation. The graded surface shall
be prepared for seeding or sodding.
10. The Builder shall furnish and install conduit/pipe, duct seals,
innerduct cable seals, and spare innerduct plugs.
11. The Builder shall furnish and install the cable labels. Cable labels
shall be attached to each cable in the manhole.
DIVISION 800 - RESTORATION & EROSION CONTROL
SECTION 801 - EROSION CONTROL
Description
This section covers the furnishing and placing of materials for erosion
protection along trench lines, streams, steep ground areas, and road ditches, as
well as measures for water course channel grade stabilization.
801.01. GENERAL
1. Trench plugs shall be constructed with fabric bags, filled 2/3 full
with clean soil.
2. Terraces shall be constructed with native soil. If available, terrace
material shall be cohesive soil.
3. Baffles shall be constructed with new boards and posts.
4. Soil-cement bags shall consist of fabric bags filled 2/3 full with
soil-cement.
5. Gabions shall be as specified by the permitting authority.
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6. Hay bale checks shall consist of straw or hay ▇▇▇▇▇, filter fabric, and
anchoring stakes.
801.02. CONSTRUCTION METHODS
1. Trench plugs shall be installed at locations as required. The
soil-filled bags shall be placed in the trench in a manner which will
produce a compact mass with a minimum percentage of voids. A minimum
of two (2) rows of bags shall be arranged so that the long dimension
of bags is parallel to the cable in one (1) layer and perpendicular
to it in the next layer.
2. Terraces shall be constructed at locations as required. Terraces shall
be placed so that the terrace flow line is unobstructed and has a
grade of between two (2) and five (5) percent. Terraces shall extend
the full width of the area disturbed by construction and shall
discharge to the down slope side of the right-of-way into an
undisturbed area. Terraces shall be compacted. Terrace construction
shall begin immediately following backfill operations.
3. Baffles shall be installed at locations as required. Baffles shall be
placed so that the flow line is unobstructed and has a grade of
between 2 and 5 percent. Baffles shall extend the full width of the
area disturbed by construction and shall discharge to the down slope
side of the right-of-way into an undisturbed area. The posts shall
be set or driven into the soil to the depth indicated on the
Drawings. Care shall be taken not to damage the posts or boards
during installation. All damaged posts and boards shall be replaced
by the Builder. The boards shall be securely attached to the posts
with galvanized nails or bolts. A trench plug shall be constructed
directly beneath each baffle. Backfill around the baffle and trench
plug shall be compacted to a minimum of 85 percent of maximum dry
density as determined by ASTM D698 or local right-of-way or permit
requirements, whichever is more stringent.
4. Soil-cement filled fabric bags shall be installed as required. The
bags shall be placed in a manner which will produce a compact mass
with a minimum percentage of voids.
5. The soil-cement shall be made by mixing ten (10) percent by weight of
cement with soil. Water shall be added to create a moist mixture. All
mixing shall be done in a concrete mixer acceptable to the TOUCH
AMERICA Representative. The mixing time shall be that which is
required to produce a uniform mixture of the soil, cement, and water.
Mixing will not be permitted when the soil is frozen, or when the air
temperature is below 40 degrees F, unless the temperature is at least
35 degrees F and rising.
6. The soil-cement mixture shall be transported from the mixer to the
placement location in clean equipment. The total elapsed time between
the addition of water to the mixture and placement of the soil-cement
filled bags shall not exceed two (2) hours. The mixture shall not be
left undisturbed for longer than 30 minutes during this period. Water
shall be sprayed on the soil-cement as required after mixing to keep
it moist.
7. The fabric bags shall be filled 2/3 full of soil-cement, loosely packed
to leave room for folding or tying at the top. Immediately after
filling, the bags shall be placed as required and compacted to
conform with the earth subgrade and with adjacent bags in place. All
dirt and debris shall be removed from the top of the bags before the
next course is laid thereon. The subgrade and each course of bags
shall be pre-moistened by spraying with water prior to placement of
later courses.
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To ensure a proper bond between successive courses, the bags shall be
placed as specified in a continuous manner. Voluntary delays will not
be permitted during placement operations.
8. Riprap shall be placed as required.
9. Gabions shall be placed as required . Stone shall be placed in close
contact in the unit so that maximum fill is obtained. The units may
be filled by machine with sufficient hand work to accomplish the
requirements of these Specifications. The exposed face or faces shall
be hand-placed using selected stones to prevent bulging of the gabion
cell and to improve appearance. Each cell shall be filled in three
(3) lifts. Connecting tie wires shall be placed in accordance with
the manufacturer's recommendations between each lift in each cell.
Care shall be taken to protect the vertical panels and diaphragms
from being bent during filling operations.
10. The last lift of stone in each cell shall be level with the top of the
gabion to properly close the lid and provide an even surface for the
next course.
11. All gabion units shall be tied together along all contacting edges in
order to form a continuous connecting structure. Empty gabions
stacked on filled gabions shall be laced to the filled gabion at the
front, side, and back.
12. Hay bale checks shall be as required. The installation shall be
perpendicular to the flow of the water. The filter fabric shall be
placed on the bottom and along the downstream vertical side of the
excavation made for placing the ▇▇▇▇▇ and extend downstream a minimum
of 2 feet as indicated on the Drawings. The fabric shall be pinned to
the bottom of the trench and at the downstream edge of the fabric.
▇▇▇▇▇ shall be placed with the tied surfaces parallel to the sides of
the trench. The top surface of the bale shall project above the
adjacent ground not less than two (2) inches nor more than four (4)
inches. The backfill around the bale shall be firmly compacted and
the bale staked in position with two each 2-inch by 2-inch by 36-inch
wood stakes driven vertically through the bale. as required, Builder
shall reshape the surrounding disturbed areas and reseed by hand
methods.
SECTION 802 - RESTORATION AND REVEGETATION
802.01. DESCRIPTION
This section covers the clean-up, repair, protection, and revegetation of the
right-of-way after installation of pipe, duct, or cable.
802.02. RESTORATION
1. Areas disturbed by construction shall be restored within two (2) weeks
of construction completion. This includes, but is not limited to:
A. Removal of excess excavation spoils from the construction
area.
B. Removal of trash and construction debris.
C. Filling, repairing, and stabilizing ground surfaces disturbed
by construction.
D. Regrading, hand raking, or manipulating the finished ground
surface to the level of smoothness necessary for seeding or
sodding.
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E. Treating, repairing, or replacing, trees and shrubs specified
for preservation but damaged by construction activity.
2. Natural grades shall be reestablished to the extent practical. Care
shall be taken so as not to disturb natural surface drainage patterns.
802.03. PREPARATION OF SOIL
1. The area to be planted shall be thoroughly tilled to a depth of at
least three (3) inches by discing, harrowing, or other acceptable
methods until the soil is well pulverized. After completion of the
tilling operation, the surface shall be cleared of all stones,
stumps, or other objects larger than 1-1/2 inches in thickness or
diameter, and of roots, wire, grade stakes, and other objects that
might be a hindrance to maintenance operations. Undisturbed areas
with a satisfactory cover of native grasses shall be left untilled
and unplanted.
2. The spreading of topsoil, when required, shall be completed over the
entire area before the beginning of soil preparation.
3. Soil preparation shall be performed only during periods when
satisfactory results are likely to be obtained. When results are not
satisfactory because of drought, excessive moisture, or other causes,
the work shall be stopped until such conditions have been corrected.
802.04. FERTILIZING
1. Fertilizer shall be applied at rates specified by the local permit
authority. The fertilizer shall be applied uniformly with a
fertilizer spreader before the beginning of the seeding operation.
The first application of fertilizer shall become a part of the bed
preparation.
2. If seed is to be applied by hydraulic application, the fertilizer may
be mixed with the seed and mulch and applied as a slurry as specified.
802.05. SEEDING AND SODDING
1. The Builder shall seed all disturbed areas, if required, except
croplands and areas to receive sod.
2. Seed shall be applied uniformly over the disturbed area with the seed
mix and application rates as specified by the local permit authority.
3. In general, turfed areas within commercial and residential areas shall
be sodded. Areas where sodding is required will determined by the
granting authority.
4. The soil to be sodded shall be loosened to a depth of not less than two
(2) inches by discing, harrowing, raking, or other approved means.
The resulting sodbed shall be free of debris, waste materials, and
vegetation. The sodbed shall be graded to allow for the thickness of
sod and to match abutting vegetation. Sod shall be placed only during
seasons when satisfactory results can be expected. All soil surfaces
shall be moist when the sod is placed. Sod shall be placed when the
ground is in a workable condition and temperatures are less than 90
degrees F. Sod shall not be placed when the sod or ground surface is
frozen.
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5. The sod shall be placed on the prepared surface with the edges in close
contact and alternate courses staggered. In ditches, the sod shall be
placed with the longer dimension perpendicular to the flow of water
in the ditch. On slopes, starting at the bottom of the slope, the sod
shall be placed with the longer dimension parallel to the contours of
the ground. The exposed edges of sod shall be buried flush with the
adjacent soil. Sod edges shall be filled to present a smooth surface.
The sod shall be rolled, tamped, and thoroughly watered to ensure
good root contact and tie to the prepared subgrade.
6. The sod shall be staked on all slopes of two to one (2:1) or steeper.
Sod shall be staked with not less than four (4) stakes per square
yard with at least one (1) stake for each piece of sod. Stakes shall
be a minimum of six (6) inches long. Stakes shall be installed so
that they hold the sod firmly in place yet present no danger to
pedestrians or mowing crews. The type of stake and the method of
installation shall meet the approval of the TOUCH AMERICA
Representative.
7. The Builder shall keep all sodded areas, including the subgrade,
thoroughly moist until the newly laid sod is firmly established as
indicated by at least 1 inch of new growth developed after the sod is
laid.
802.06. MULCHING
1. Mulch shall be applied to all areas that have been seeded, if required.
Seeded areas shall be mulched within 24 hours of seeding.
2. Straw mulch shall be applied with a mulch blowing machine or other
approved method, and shall be evenly applied to obtain a uniform
cover. Straw mulch shall be applied at a rate of 2.25 tons per acre.
3. Hydromulching shall be performed with hydroseeding operations.
Cellulose fiber mulch shall be spray applied uniformly to the seedbed
at a rate of 1,500 pounds per acre.
802.07. VEGETATION LIMITS
All earth surface disturbed by the Builder's construction activities except
croplands shall be revegetated by seeding or sodding, as required. Seeding and
sodding operations shall take place only during seasons when satisfactory
results can be expected. The Builder may be required to return after completion
of construction to meet above specified seeding limits.
802.08. MATTING AND NETTING PLACEMENT
1. Erosion control matting shall consist of excelsior blankets, mulch
blankets, jute blankets, synthetic blankets, as required.
2. Matting and netting shall be placed on steep or highly erosion
susceptible soil areas for erosion control at locations indicated on
the Drawings and as determined by the TOUCH AMERICA Representative or
Engineer. Matting shall be placed on the graded and prepared surface
after the seeding operation. The ground surface shall be free of
rocks, soil clumps, sticks, or other imperfections which would
prevent the matting from laying flat with the ground. The material
shall
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be pinned or anchored to the ground as recommended by the
manufacturer. In areas of watercourses, pin spacing shall not exceed
two (2) feet between rows and two (2) feet on centers in a row.
802.09. CONTACT WITH LANDOWNERS
All restoration and revegetation work shall be performed to the satisfaction of
the landowner. The Builder shall work with the landowner during construction to
ensure that landowner concerns are being addressed. Restoration and revegetation
work which is not satisfactory to the landowner shall be corrected within ten
(10) days from the notice of deficiency. In the event that the Builder has
obtained right-of-way access from any "off right-of-way" landowners, the Builder
shall obtain written releases from said landowners.
802.10. PLOW LINE RESTORATION
Restoration for plowing operations not involving railroad right-of-way shall be
as follows:
A. The plow furrow shall be compacted by a minimum 15-ton
tracked tractor that shall be driven with 1 track parallel
and on 1 side of the furrow, then on the other side, and
then over the plow furrow. A minimum 5-ton vibratory roller,
4 to 6 feet in width, or other heavy construction equipment
accepted by the TOUCH AMERICA Representative may be used
instead of the tracked tractor.
B. The track-mounted plow furrow shall be graded to original
contour with track-mounted equipment.
802.11. RAILROAD ROW
A. The Builder shall repair or restore railroad right-of-way
disturbed by his operations to a condition equal to or
better than its pre-existing condition and to the
satisfaction of the railroad company representative. work
shall include, but not be limited to, retrieving and
compacting displaced material on steep slopes or high
embankments, grading and compacting backfill in the plow
furrow to prevent settlement, and grading and shaping of the
railroad ballast disturbed during work operations.
B. The work of providing and placing railroad ballast shall be
as specified in the applicable railroad agreement.
SECTION 803 - PAVEMENT, GRAVEL SURFACES, AND SIDEWALKS
803.01. DESCRIPTION
1. This section covers the removal and replacement of pavement, gravel
surfaces, and sidewalks along the route at locations as required.
2. Temporary patching material shall be in accordance with the
appropriate city, county, or state specifications for asphaltic mixed
materials for roadway patching.
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803.02. REMOVAL
1. Pavement removal shall be in accordance with the local permit
authority.
2. Cuts in concrete or asphalt pavement shall be no larger than necessary
to provide adequate working space. Cutting shall be started with a
concrete saw in a manner which will provide a clean vertical groove
at least four (4) inches deep along each side of the trench.
803.03. REPLACEMENT
1. Asphalt and concrete paving shall be in accordance with the applicable
state highway department or local permit authority standards and as
specified in these Specifications.
2. Pavement replacement shall match existing pavement in type, appearance,
wearing surface, and durability to the maximum extent practical.
Pavement thickness shall be as required by applicable permits; or
shall match existing thickness, whichever is greater.
3. Base and subbase material shall be compacted, graded, and prepared as
required by applicable permits, or shall match existing thickness,
whichever is greater.
4. Cut edges of asphalt pavement shall be thoroughly cleaned and a tack
coat shall be uniformly applied to cut edges before pavement repair.
5. Gravel surface replacement shall be in accordance with all applicable
permits. The replacement surface material shall match existing
surface material in type, thickness, and appearances to the maximum
extent practical.
6. Sidewalk and curb and gutter replacement shall be in accordance with
all applicable permits. Sidewalks and curb and gutter shall be placed
to the lines and grades indicated on the Drawings or shall match
adjacent existing sections. Reinforcement for sidewalks and curb and
gutter shall be in accordance with all applicable permits. As a
minimum, one (1) layer of 6X6X6 welded wire fabric shall be used for
sidewalk reinforcement and two (2) longitudinal No. 4 reinforcing
bars shall be used for curb and gutter reinforcement.
DIVISION 900 - SITE PREPARATION
The Builder shall perform the following for site preparation:
1. Ground surfaces within the site easement limits shall be cleared of
all trees, brush, and debris. Surface irregularities such as mounds
or low spots shall be graded to provide uniformly sloping surfaces
which drain from the site.
2. All combustible and other waste materials, including trash and junk,
shall be removed from the construction areas and disposed of.
3. The Builder shall at the installation of the electrical service
connection in accordance with the local electric utility, governing
inspection agencies, and as specified herein. The Builder shall
ensure that
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a licensed electrician performs all electrical work on the site and
that all local electrical permits and inspections are obtained.
Detailed requirements will be available upon request.
4. Power requirements for OA and regen sites is 200 Amp, three (3) phase,
where available.
SECTION 1000 - OUTSIDE PLANT DIVERSITY
1000.1. DESCRIPTION
The following guidelines address physical diversity from the cable
vault/headwall of the Primary or Intermediate City terminal A office to the
cable vault/headwall of the terminal Z office as defined in Exhibit B. The new
Route must be reviewed at with respect to:
(i) In-place parallel cable or Routes built on existing TOUCH AMERICA ROW
(For example, the new Denver to Salt Lake Route does not need to be
diverse from the existing Denver to Salt Lake Route.);
(ii) In-place cable on Routes which are "non-parallel" Routes; (For example
in Denver, the new Denver to Salt Lake Route must be diverse from both
the new and existing Chicago to Denver Routes.); and
(iii) Route intersections
1000.2. DIVERSITY GUIDELINES: NEW BUILD AND EXISTING PARALLEL ROUTES
1. New Routes constructed between Primary and/or Intermediate Cities as
listed in Exhibit B do not have to be diverse from the existing
parallel Routes connecting the same two Primary and/or Intermediate
Cities.
2. At regenerator, optical amplifier and terminal locations, a minimum
horizontal separation of twenty (20) feet is required between
entrance points. It is preferred that the separate building entrances
be on different (preferably opposite) walls for each Route installed.
The twenty (20) foot separation must be maintained for one-half mile
from the building. Beyond one-half mile, a minimum separation of one
hundred (100) feet must be maintained.
1000.3. DIVERSITY GUIDELINES: NEW BUILD AND EXISTING NON-PARALLEL ROUTES
New Routes constructed between Primary and/or Intermediate Cities as listed in
Exhibit B must be diverse from existing Routes and new non-parallel Routes built
under this contract. Cables connecting such city pairs must meet the following
guidelines:
1. At regenerator, optical amplifier and terminal locations, a minimum
horizontal separation of twenty (20) feet is required between
entrance points. It is preferred that the separate building entrances
be on different (preferably opposite) walls for each cable installed.
The twenty (20) foot separation must be maintained for one-half mile
from the building. Beyond one-half mile, a minimum separation of one
hundred (100) feet must be maintained.
2. Two Route should not share the same right-of-way. Routes must be at
least one hundred (100) feet apart horizontally, unless the
regenerator/terminal guidelines above apply.
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3. Two Route cannot share the same conduit system.
4. River crossings for two Routes must maintain a separation of one
hundred (100) feet.
5. No two Route can be placed on the same bridge crossing.
1000.4. DIVERSITY GUIDELINES: CABLE INTERSECTIONS
In the event, cables from different routes intersect; both cables shall be
protected with pipe, either split or solid. The material used for the pipe
shall meet the requirements of Division 200. The length of the protection
should be ten (10) feet on either side of the intersection point on both
cables. There shall be a minimum of two (2) feet of vertical separation between
the cables.
1000.5. DIVERSITY GUIDELINES: OPTICAL GROUND WIRE (OPGW)
Two routes can share the same power ROW, but they cannot be on the same
structure. The structures must be far enough apart so they cannot damage the
adjacent OPGW, if the structure fails. Buried and OPGW cables sharing the same
ROW are considered diverse from on another.
1000.6. DIVERSITY GUIDELINES: WAIVERS
In circumstances where the new construction cannot meet the guidelines above,
the Builder shall notify the TOUCH AMERICA Representative and provide the
following information:
1. Describe the diversity violation
2. Describe diverse solutions, if available
TOUCH AMERICA will review the information and respond within seven (7) days
either by providing a waiver, or requesting an alternate route be developed.
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SCHEDULE C
FIBER CABLE SPLICING, TESTING AND ACCEPTANCE PROCEDURES
(Note: Service Provider = SP shall be Touch America, Inc. and Service
Recipient = SR shall be Sierra Pacific Communications, LLC.)
1.0 The cable sheath will be an armored sheath, ribbon cable manufactured
with the fibers shown by:
- Lucent Technologies (LXE-ME) comprised of standard single
mode and non-zero dispersion shifted (TrueWave-Reduced Slope)
fibers.
- Siecor (Armored) comprised of standard single mode and
non-zero dispersion shifted fibers (Enhanced Leaf).
2.0 The fiber optic cable shall be installed per the specifications in
Schedule B.
3.0 All splices shall be contained in a hand-hole or manhole when in the
underground or buried environment. Splices will be in enclosures or
splice cabinets when inside an office.
4.0 Each cable shall be distinguishable from other telecommunications
cables (this will consist of a unique tag at each manhole, hand-hole,
and street marker).
5.0 Splice closures which facilitate taut sheath entry and which are
designed to seal, bond, anchor and protect various types of cable and
splices shall be used. Metal aerial closures shall be encapsulated in
outer closures if the plant is in a corrosive atmosphere or saltwater
environment.
6.0 The entire fiber optic cable system shall be properly protected from
foreign voltage and grounded with an industry-accepted system. Foreign
voltage on the cable system shall not exceed 50 VAC.
7.0 All splices will be made with a fusion-splicing machine on new fiber
route installations. Temporary maintenance splices shall be low
reflectance mechanical splices such as Fiberlock as manufactured by 3M.
8.0 The Service Provider ("SP") will perform directional span testing once
end-to-end continuity, from fiber distribution panel (FDP) to fiber
distribution panel (FDP), is established. End-to-end loss measurements
at the required wavelength will be measured and recorded using an
industry accepted laser source and power meter at the required
wavelength(s). (Note: An OTDR is not considered an acceptable measuring
device for end-to-end loss measurements.) Standard single mode
conventional fiber and non-zero dispersion shifted fibers will be
tested at 1550 nm only. The end-to-end loss measurements, as well as,
bi-directional OTDR readings shall be made between SR's Outside Plant
Fiber Distribution Panels (FDP), commonly referred to as "High-Speed
LGXs" (HSLGX). These measurements must be made after the splice
manholes or hand-holes are closed to check for macro-bending problems.
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9.0 Route Splicing Criteria
Although no single maximum splice loss limit is placed on individual
splices, the System shall be designed utilizing the following design
criteria: (i)0.05 dB engineering loss for each single fusion splice
(ii) 0.08 dB engineering loss for mass fusion splices. (iii) 0.25 dB
engineered loss per transition splice (Standard Single Mode fiber
spliced to Non-zero Dispersion Shifted fiber) (iv) 1.0 dB engineered
loss per "through" office (fibers connected through an office with
jumpers, includes connector loss). The end-to-end loss value as
measured with an industry-accepted laser source and power meter
includes the fiber loss, splice loss, and connections in "through"
offices. The end-to-end loss must meet the design loss value of 0.25
dB/km at 1550nm (plus engineered splice loss and "through" office loss)
for conventional single mode fiber and 0.25 dB/km at 1550 nm (plus
engineered splice loss, transition splice loss and "through" office
loss) for non-zero dispersion shifted fiber.
Example 1:
- Route is 50 km conventional single mode fiber
- Ten mass fusion splices
- One "through" office
The engineered loss will be calculated as follows:
Step 1. Conventional Single Mode Fiber @ 1550 nm = 50 km x 0.25 =
12.5 dB
Step 2. Mass fusion splice loss for 10 splices x 0.08 dB = 0.8 dB
Step 3. "Through" office loss =1 @ 1.0 dB each
Step 4. Engineered Loss from FDP to FDP is:
@ 1550 nm = 12.5 dB+0.8 dB +1.0 dB = 14.3 dB
Example 2:
- Route is 50 km non zero dispersion shifted fiber
- Ten mass fusion splices
- Two transition splices
- One "through" office
The engineered loss will be calculated as follows:
Step 1. Non-zero Dispersion Shifted Fiber @ 1550 nm = 50 km x 0.25 =
12.5 dB
Step 2. Engineered mass fusion splice loss for 10 splices x 0.08 dB =
0.8 dB
Step 3. Transition splice loss = 2 @ 0.25 dB = 0.5 dB
Step 4. "Through" offices = 1 @ 1.0 dB each
Step 5. Engineered Loss from FDP to FDP is:
@ 1550 nm = 12.5 dB+0.8 dB + 0.5 dB +1.0 dB = 14.3 dB
10.0 SP will record end to end loss on testing documentation or in an
electronic format acceptable to the SR and supply a copy to the SR.
11.0 If the SR's fibers terminate in the SP's office, the fibers shall be
terminated in a FDP equipped with "positive contact" type connectors.
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12.0 The SP will record bi-directional OTDR test data, including traces, on
diskette or CD and supply a copy to the SR.
13.0 SR fiber assignments will be as provided in an electronic format
acceptable to the SR.
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SCHEDULE D
MAINTENANCE SPECIFICATIONS AND PROCEDURES
TABLE OF CONTENTS:
1. DEFINITIONS:.................................................................................... 117
2. MAINTENANCE ACTIVITIES.......................................................................... 118
2.1. Preventative Maintenance................................................................. 118
2.1.1. Cable and Conduit Damage Prevention............................................ 119
2.1.2. Route Patrol................................................................... 119
2.1.3. Signs.......................................................................... 119
2.1.4. Right Of Way Maintenance....................................................... 119
2.1.5. Voltage Suppressor/Arrestor.................................................... 120
2.2. Planned Cable Activity................................................................... 120
2.2.1. Intrusive PCAs................................................................. 120
2.2.2. Non-Intrusive PCAs............................................................. 120
2.2.3. Responsibilities of SP and SR.................................................. 120
2.3. Cable and Conduit Restoration............................................................ 121
2.3.1. Types of Restorations.......................................................... 121
2.3.1.1. Total Restoration.................................................. 121
2.3.1.2. Partial Restoration................................................ 123
2.3.1.3. Conduit Damage and Restoration..................................... 123
2.4. Hazardous Conditions/Service Precautions................................................. 124
2.5. Disaster Recovery........................................................................ 124
3. OPERATIONS/NETWORK CONTROL CENTER(S)............................................................ 124
3.1.1. Operations/Network Control Centers....................................................... 124
4. ESCALATION LIST................................................................................. 125
5. FACILITIES...................................................................................... 125
6. COVERAGE PERIOD................................................................................. 125
7. SUBCONTRACTING.................................................................................. 125
8. FEES AND COSTS.................................................................................. 126
ATTACHMENT 1......................................................................................... 127
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1. DEFINITIONS:
Terms used in this exhibit are defined in the Agreement and as follows:
Agreement: The Conduit and Dark Fiber IRU and Sale Agreement between Touch
America and Customer.
Cable Relocation: The physical relocation of the System which may be required
by public (e.g., city or state government) or private entities.
Facilities: All physical building spaces, including but not limited to
regenerator huts, terminal offices, terminal huts, and manholes, where the
System is present along the Route.
Fiber, Dark (Dark Fiber): A fiber within The Cable that has no electronics at
the Terminating ends, or has electronics at the Terminating Ends but carries no
service. The opposite of this is Lit Fiber.
Fiber, Lit (Lit Fiber): A fiber within The Cable that has electronics at the
Terminating ends and carries service. The opposite of this is Dark Fiber.
Maintenance Activity: All work activities as defined in Section 2 of this
Schedule D.
Method of Procedure (MOP): The plan developed by the SP, which details the
activities, required to be followed during work activities near or on the
System.
One-Call Agency: Each state has a state run agency established by the state for
anyone (including but not limited to contractors) to call a pre-designated
phone number to report potential intrusions to the System. Every state has its
own One-Call Agency.
Operations Center (OC): The facility or facilities, along with the personnel
and other assets required to monitor, communicate, coordinate, restore, repair,
and perform all Maintenance Activity.
Planned Cable Activity (PCA): Any planned cable activity, including activities
that do not impair the Cable as well as activities that do impair the Cable,
that could potentially affect SR's service of the System.
Planned System Work Period (PSWP): A pre-arranged period of time reserved for
performing certain work on the System that may potentially impact traffic.
Generally, this will be restricted to weekends, avoiding the first and last
weekend of each month and high-traffic weekends. The PSWP shall be agreed upon
per this Exhibit C of this Agreement.
Restoration, Partial. (Partial Restoration): A condition whereby one or more
fibers, but not all fibers in a cable, cannot carry service along one or more
Route Segment(s) or Route Section(s) on a Link(s). An example of this condition
could be a lightning strike or ice damage that impacts a cable but does not
affect all the fibers in the cable.
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Restoration, Total (Total Restoration): A condition whereby all fibers in a
cable cannot carry service along one or more Route Segment(s) or Route
Section(s) on a Link(s). An example of this condition is a backhoe severing the
cable.
Service Acceptance Date: The date that the SR accepts the System and requires
service on the System.
Service Provider ("SP"): The party responsible for providing maintenance for
the System.
Service Recipient ("SR"): The party receiving maintenance for the System.
2. MAINTENANCE ACTIVITIES
The following subsections describe the types of Maintenance Activities that
must be performed. All Maintenance Activity types described below shall be
performed by or under the direction of the SP.
For all Maintenance Activities, SR may contact SP at any time to discuss fiber
status or to notify SP of changes in fiber status, (example, Lit Fibers vs.
Dark Fibers), fiber problems, or any other fiber issues or anomalies for SR's
fibers which require action by the SP. However, no other party, including but
not limited to a lessee of the SR's fibers (i.e. SR subleases its fibers to a
third party), shall call the SP for anything related to SR's fibers without the
written agreement of both the SR's and SP's escalation lists (Attachment 2)
Tier 3 representative. It is the intention of this Agreement that any lessee of
fibers in The Cable coordinate all problems and issues solely with the
originating party of the Disposition.
Parties have the right to review each other's maintenance standards, which
include preventative maintenance procedures, Planned Cable Activity procedures,
and cable restoration procedures.
SP shall notify SR at least ten (10) business days prior to the date in
connection with any Planned System Work Period (PSWP) of any Maintenance
Activity and as soon as possible after becoming aware of the need for
unscheduled maintenance. SR shall have the right to be present during the
performance of any Maintenance Activity or unscheduled maintenance so long as
this requirement does not interfere with SP's ability to perform its
obligations under this Agreement. In the event that Maintenance Activity is
canceled or delayed for whatever reason as previously notified, SP shall notify
SR at SP's earliest opportunity, and will comply with the provisions of the
first sentence of this paragraph to reschedule any delayed activity.
2.1. Preventative Maintenance
Preventative maintenance will be performed according to the SP's standards. Each
SP's maintenance standards must include the following:
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2.1.1. Cable and Conduit Damage Prevention
2.1.1.A. Consistent with Transportation Equity Act 21 (TEA21) Best practices,
the SP will:
- Subscribe to each and all One-Call Agencies that govern Route
Segment(s), Route Section(s) or Link(s) they maintain.
- Abide by all state One-Call Agency laws
- Respond to all locate requests.
- Analyze, assign, and dispatch locate request to SP's
qualified technicians
2.1.1.B. The SP will positively respond to excavation activity notifications
as follows:
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Locate and ▇▇▇▇ ▇▇▇▇▇ Within fifty (50) feet of System
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Locate, ▇▇▇▇, and Standby to protect Cable Within ten (10) feet of System
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Positive confirmation of the location of the Within eighteen (18) inches either side
SP's cable will be done through various means of System
e.g. of System Potholing) to ensure that SP's cable
is not damaged
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2.1.1.C. Positively respond to boring operations as follows:
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Standby and monitor the boring operation to ensure Within one hundred (100) feet of
the cable is not damaged. (Potholing, etc. as System
required)
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2.1.2. Route Patrol
Patrol the route by a qualified technician in accordance with the current SP's
procedures for maintenance a minimum of four (4) times a year. This "patrol"
will consist of riding the route to identify potential maintenance issues (e.g.
erosion, encroachments, damaged or missing signs, etc.).
2.1.3. Signs
The SP will routinely replace signs that are damaged.
2.1.4. Right Of Way Maintenance
Brush, trees and/or other vegetation should be trimmed to the edge of the ROW
as required to support ROW accessibility and worker safety. Under no
circumstances should prevailing growth exceed 30 inches in height or lower if
it obstructs signage visibility. Ongoing trimming of the ROW communicates a
message to others that the underground plant exists in the right of way and
that the SP cares about it. As such, ROW-clearing and trimming serves as a
crucial part of the overall right-of-way maintenance effort to enhance plant
protection.
At a minimum ROW maintenance must comply with local, state, and federal
requirements.
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2.1.5. Voltage Suppressor / Arrestor
Wherever the cable sheath voltage exceeds 50v AC, voltage suppressers or
arrestors shall be installed at the splice points and regenerator locations.
2.2. Planned Cable Activity
A Planned Cable Activity (PCA) is any activity, which can be planned in advance
(i.e., not an emergency) that will cause maintenance personnel to physically
move the cable, or will affect the sheath and/or the fiber. There are two types
of PCAs: intrusive and non-intrusive.
2.2.1. Intrusive PCAs
An intrusive PCA is an activity where the SP will expose the buffer tube and/or
the fibers.
Examples:
- installation of insulating joints / isolation closures,
- reroutes / cutovers / hot cuts,
- repairing damaged fibers at splice locations,
- repairing sheath faults.
Intrusive PCAs must be performed from 6pm to 6am local time Monday through
Friday or any time during the weekends, excluding holidays. If exceptions are
required to these times, including holidays, utilize the escalation list.
2.2.2. Non-Intrusive PCAs
Examples of non-intrusive PCAs are as follows:
- cable lowering, cable rearrangements
- conduit or manhole rearrangements
Non-intrusive PCAs can be performed anytime.
2.2.3. Responsibilities of SP and SR
For ALL PCAs, the SP must notify the SR at least fourteen (14) calendar days
prior to the activity.
For PCA activity that will result in signal discontinuity, the following
process will be performed:
- AT LEAST FOURTEEN (14) CALENDAR DAYS IN ADVANCE: SP shall
provide a copy of its Method of Procedure (MOP) in writing
to SR and will notify SR of this PCA per escalation list.
- AT LEAST TEN (10) CALENDAR DAYS IN ADVANCE: After receipt of
SP's MOP, SR then will provide a copy of its MOP to the SP
that incorporates the switching, verification,
identification, and testing of SR's fibers.
- AT THE TIME OF THE PCA: The SP and SR shall maintain
communication via phone for the entire execution of the
event. SR shall coordinate the execution of SR's MOP with
SP. SP shall comply with the splicing specifications as set
forth in the Fiber Cable Splicing, Testing, and Acceptance
Procedures (Schedule C).
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- SP shall provide written approval to SR for any modifications
to these specifications as may be necessary or appropriate
in any particular instance for SR's approval, which approval
shall not be unreasonably withheld.
- For all Intrusive PCAs, SP shall ensure all fibers meet
overall span loss per fiber specifications outlined in the
Fiber Cable Splicing, Testing, and Acceptance Procedures
(Schedule C).
- If for any reason any PCA is canceled or delayed, then SP
shall notify SR as soon as SP is aware of the change, and SP
will reschedule the activity.
2.3. Cable and Conduit Restoration
A cable restoration occurs whenever service has affected one or more fibers and
restoration of the fiber(s) is needed. The fiber(s) may or may not have service
on them.
The SP will respond to all SR's notifications indicating any failure, any
interruption, or any impairment to the SR's Cable System.
2.3.1. Types of Restorations
2.3.1.1. Total Restoration
A Total Restoration (total cable cut) occurs when ALL fibers in the cable sheath
are affected.
The SP shall notify SR of the cable cut, per the escalation list, including the
time of the cable cut, and the Route Section as soon as possible, but no later
than 15 minutes from the time the cut occurs. Once this information is provided
to the SR, the SP shall establish a communications bridge with the SR and stay
in constant communication throughout the cable cut.
In the event the SP's fibers are Dark Fibers (no service on the fibers), the SR
shall notify the SP.
The SP shall notify the SR of the physical location of the cable cut as soon as
possible but no later than 90 minutes from the time the cable cut occurs.
Restoration Priorities
1. SP's out of service Lit Fibers will be restored first then
rotating to the SR restoration sequence.
2. SR's will be restored in a general SR sequence (priority),
which will rotate after each incident.
3. Within the general SR sequence, out of service Lit Fibers
will always be restored first.
4. In the event a SR has re-established its traffic through
other means, its fibers will be skipped in the SR sequence
rotation for the splicing of Lit Fibers.
5. Each SR's Dark (spare) Fiber will be addressed in the SR
sequence priority during the repair of the remainder of the
fibers in the cable.
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Example:
Four SR's have traffic on a Route Section. They are initially listed
in the SR sequence as A, B, C, and D. After SP's Lit Fibers are
restored, SR "A" is first priority and "D" is last.
The first time the cable in that Route Section is damaged, SP will
contact SR "A" first, followed by each SR in sequence. Each SR will
declare which of its Lit Fibers are not in service as result of the
damage.
SR "A" out of service Lit Fibers will be restored first followed by
each SR's out of service Lit Fibers, in the SR sequence order.
After all out of service Lit Fibers are restored, this same sequence
will be followed in the repair of the Dark (spare) Fibers. All fibers
will be restored before securing the site.
The SP will notify the SR when each fiber has been repaired, and then
the SR will verify that continuity exists from end-to-end on the
affected Cable(s) and/or fiber(s).
Verification of continuity of Dark Fibers shall be the responsibility
of the SP or SR depending on whoever has the capability to verify
service.
In the event of a second cable cut in this particular Route Section of
fiber optic cable, the SR sequence will rotate such that SR "B" will be
first priority, "C" second, "D" third, and "A" fourth.
For every total cable cut, SP shall respond immediately after
receiving notification with a goal of restoring SR's service-carrying
Lit Fiber in six (6) hours from the time of the cable cut. The only
exception to this response time is when an uncontrolled incident,
such as a flood, a chemical spill, a fire, a bridge collapse, a riot,
or other circumstance prevents access to the damage area.
To accomplish this cable restoration, it is acknowledged that
the repairs so effected may be temporary in nature. In such
event, within twenty-four (24) hours after completion of all
temporary Restoration activity, SP shall commence its
planning for permanent repair, and thereafter promptly shall
notify SR of such plans. If the SP informs the SR that the
temporary fiber repair cannot be made permanent immediately,
then the permanent repair shall be mutually agreed upon by
both parties.
The parties agree to mutually support each other during restoration
activities. Examples of support may include providing fault locating,
splicing, or running cable. All support is at the discretion of the
SP - meaning that the SP shall have its restoration crew working on
the restoration and may accept and direct the support from the SR if
the SR offers such support.
In the event the restoration cable is exposed above ground, the SP
must provide on-site personnel for cable protection.
Refer to Section 2.2 to accomplish permanent repairs.
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2.3.1.2. Partial Restoration
A Partial Restoration (partial cable cut) occurs when less than ALL fibers in
the cable sheath are affected.
For partial cable cuts, if and where possible, SP will loan to SR spare fibers
to implement temporary repair.
The SP shall notify SR of the partial cable cut, per the escalation list,
including the time of the cable cut, and the Route Section as soon as possible,
but no later than 15 minutes from the time the cut occurs. Once this information
is provided to the SR, the SP shall establish a communications bridge with the
SR to stay in constant communication throughout the partial cable cut.
The SP shall notify the SR of the physical location of the cable cut as soon as
possible but no later than 90 minutes from the time the cable cut occurs.
In the event the SP's fibers are not affected, the SR shall notify the SP of
such event. If the SR cannot restore service via its own Dark Fiber, SR shall
have the right to utilize SP's unaffected Dark Fiber. The SR will offer the SP
the same unaffected Dark Fiber in the event the SP cannot restore its service.
Restoration prioritization will be the same as that outlined in Section 2.3.1.1
Total Cable Cut.
The SP will notify the SR when each fiber has been repaired, and then the SR
will verify that continuity exists from end-to-end on the affected Cable(s)
and/or fiber(s).
2.3.1.3. Conduit Damage and Restoration
The SP will respond to all notifications indicating any damage to the Conduits
in the System. The SR will effect repairs to the conduit immediately in occupied
conduit or as soon as commercially reasonable and practical in the case of
damaged empty conduit. The trench will be back filled using approved materials
appropriate to the field conditions. Restoration standards will be at least as
found prior to the excavation or better.
Verification of continuity of Dark Fibers shall be the responsibility of the SP
or SR depending on whoever has the capability to verify service.
For every partial cable cut, SP shall respond immediately after receiving
notification with a goal of restoring SR's service-carrying Lit Fiber in six (6)
hours from the time of the partial cable cut. The only exception to this
response time is when an uncontrolled incident, such as a flood, a chemical
spill, a fire, a bridge collapse, a riot, or other circumstance prevents access
to the damage area.
To accomplish this partial restoration, it is acknowledged that the repairs so
affected may be
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temporary in nature. In such event, within twenty-four (24) hours after
completion of all temporary restoration activity, SP shall commence its planning
for permanent repair, and thereafter promptly shall notify SR of such plans. If
the SP informs the SR that the temporary fiber repair cannot be made permanent
immediately, then the permanent repair shall be mutually agreed upon by both
parties.
For all temporary repairs, the SP will maintain an on-site personnel for all
exposed cables.
Refer to Section 2.2 to accomplish permanent repairs.
2.4. Hazardous Conditions / Service Precautions
A hazardous condition or service precaution is when an event, such as flooding,
fire, street collapse, cable wash-out or a man-made event such as a train
derailment occurs, and there is an increased probability that the System may be
damaged, and maintenance activity is needed to prevent any potential damage.
For these events SP shall notify SR, per escalation list, as soon as the SP
knows of such event. The SP shall establish a communications bridge for these
events and stay in constant communication.
2.5. Disaster Recovery
Disaster recovery is any event that affects service on the System and involves
significantly more maintenance activity than just a cable restoration. Examples
of disaster recovery are as follows:
- train derailment occurs, which by itself would be a hazardous
condition, but for this example it destroys a regeneration
site, or
- the cable at a bridge is washed out and restoration involves
deploying several miles of cable to restore service.
For these events SP shall notify SR, per escalation list, as soon as the SP
knows of such event. The SP shall establish a communications bridge for these
events and stay in constant communication.
The parties agree to mutually support each other during disaster recovery
activities. Examples of support may include providing fault locating, splicing,
or running cable. All support is at the discretion of the SP -- meaning that the
SP shall have its crew performing disaster recovery and may accept and direct
the support from the SR if the SR offers such support.
3. OPERATIONS / NETWORK CONTROL CENTER(S)
3.1.1. Operations / Network Control Centers
The terms Operations Center and Network Control Center are synonymous, and will
be called Operations Centers for the remainder of this Schedule.
SP shall operate and maintain an Operations Center (OC) staffed twenty-four (24)
hours a day, seven (7) days a week including all holidays. The OC shall be
staffed by trained and qualified
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personnel. SP's maintenance personnel shall be available for dispatch
twenty-four (24) hours a day, seven (7) days a week.
4. ESCALATION LIST
An escalation list (Attachment 1) will be shared between the parties. This list
shall provide for coordination between SP and SR for day-to-day issues,
coordination of all Maintenance Activity communication and coordination, as well
as escalation personnel in the event agreement cannot be reached at the lowest
level of the escalation list.
This escalation list may be modified by either party at any time if the party
making the change notifies the other party in writing twenty-four (24) hours in
advance of the change.
The escalation's Tier 1 contact shall be the day-to-day working level, which
shall address daily maintenance operations activities.
5. FACILITIES
Except to the extent otherwise expressly provided in the Agreement, SR will be
solely responsible for providing and paying for any and all maintenance of all
electronic, optical, and any other equipment, materials and facilities used by
SR in connection with the operation of the Dark Fibers, none of which is
included in the maintenance services to be provided hereunder.
Each party agrees that the Facilities shall be placed and maintained in
accordance with the requirements and specifications of current editions of the
National Electrical Code and the National Electrical Safety Code, the applicable
rules and regulations of the Occupational Safety and Health Act (including those
of 29 C.F.R. Section 1910.268(a) et seq.) and the requirements of any other
authority having jurisdiction. Each party shall promptly furnish to each other,
but in no case later than twenty-four (24) hours, copies of all notices,
reports, correspondence, submissions, made by either party to federal, state, or
municipal environmental, safety, or health authorities. Each party agrees that
Facilities shall not physically, electronically or inductively interfere with
those of facilities in place.
6. COVERAGE PERIOD
Maintenance will be performed for agreed upon Route Segment(s) or Route
Section(s) on a Link(s) commencing upon the Service Acceptance Date, and
conclude upon expiration or termination of the Agreement.
7. SUBCONTRACTING
Upon mutual agreement between Touch America and the Customer, the SP may
subcontract any Maintenance Activities herein, provided the SP shall require the
subcontractor(s) to perform in accordance with the Agreement. The use of any
such subcontractor shall not relieve SP of any of its obligations herein.
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8. FEES AND COSTS
During any time after the Acceptance Date for any Route Segment(s) or Route
Section(s) on a Link(s), but subject to the Term section of the Agreement, the
SP shall provide for all Maintenance Activity for all Cable Systems that are the
responsibility of the SP. Customer shall pay Touch America an annual fee as
defined in Article 4.2 of the Dark Fiber IRU Agreement.
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ATTACHMENT 1
SCHEDULE D
ESCALATION LISTS
[TOUCHAMERICA LOGO]
.14.1.1.1 Escalation List
1. Touch America 24 by 7 NOC ▇▇▇-▇▇▇-▇▇▇▇
2. Transport Manager - ▇▇▇ ▇▇▇▇
3. NOC Director - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4. Director, Field Operations - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
5. Vice President, Networks - ▇▇▇▇▇ ▇▇▇▇▇▇▇
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APPENDIX F
INTENTIONALLY OMITTED
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▇▇▇▇▇▇▇▇ G
FORM OF COLLOCATION AGREEMENT
THIS COLLOCATION AGREEMENT is made and entered into as of December 18,
2001 between Touch America, Inc. ("TA") and XXX, LLC ("Customer"). TA and
Customer are hereinafter individually referred to as a "Party" and collectively
as the "Parties".
RECITALS
WHEREAS, TA is constructing or has constructed a fiber optic cable
system along a route from A, to B. (the "TA System").
WHEREAS, TA has certain facilities in which it provides collocation
space to third parties, and
WHEREAS, the Parties have entered into a Dark Fiber IRU Agreement
whereby Customer has acquired from TA and TA granted to Customer an Indefeasible
Right of Use ("IRU") in twelve (12) IRU fibers within the TA System, and
WHEREAS, Customer desires to collocate certain Customer equipment
within such TA facilities at the rates and in accordance with the specifications
set forth herein; and
WHEREAS, TA desires to provide to Customer collocation space within
certain TA facilities at the rates and in accordance with the specifications set
forth herein;
NOW, THEREFORE, for valuable consideration, TA and Customer agree as
follows:
1. Collocation.
a. Collocation Space. During the term of this Agreement Customer
shall have a non-exclusive license to locate, install, maintain and
operate Customer equipment ("Customer Equipment") in the TA
collocation facilities ("Facilities") at the sites ("Selected Sites")
set out on service orders ("Service Order") executed from time to time
by the Parties. The term ("Site Term"), and the amount of floor space
and number and description of racks and cabinets, as applicable,
("Customer Space") at each Selected Site are set out on the Service
Order for each Selected Site. No use of the Selected Sites, Facilities
or Customer Space shall create or vest in Customer any easements or
other ownership rights in TA's real or personal property. TA shall
construct, install and operate the Selected Sites, Facilities and
Customer Space, as provided in this Agreement.
b. Rent. The monthly rent ("Rent") for the Customer Space at each
Selected Site shall be $750 per 19 inch rack space. Customer shall pay
the Rent on or before the first day of each calendar month during the
Site Term. Payments shall be prorated, as necessary, for the first and
last months of the Site Term. The Rent
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shall begin on the Commencement Date for the Site Term. The Rent shall
be adjusted once annually on the anniversary date of the commencement
of this Agreement and in an amount not to exceed the cumulative
changes in the U.S. Producer Price Index (Bureau of Labor Statistics
"Finished Goods" Series - ID WPUSOP3000) since the Commencement Date.
c. Except as otherwise specifically provided, Customer shall pay
all applicable fees and charges provided for in this Agreement, within
thirty (30) days after receipt of invoice.
d. All payments not made when due shall bear a late payment
charge of one and one-half (1 1/2%) percent per month of the unpaid
balance or the highest lawful rate, whichever is less.
e. Basic Services. TA shall provide HVAC, AC power, lighting and
escorted entry to the Site, Facilities and, if applicable, the
Customer Space ("Basic Services") for each Selected Site.
f. Additional Services. Customer may request in writing
installation services, additional AC power or DC power, additional
back-up power, technical assistance, additional space, racks or
cabinets, assistance in establishing an Interconnect Facility
(collectively referred to as the "Additional Services") at any
Selected Site. Within forty-five (45) business days after receiving
such written request, TA shall notify Customer in writing whether the
Additional Services are available, and, if they are, specify TA's
standard rates for the Additional Services and the costs of any
upgrades or expansions needed in order to accommodate Customer's
request. Customer shall provide written notice to TA confirming its
acceptance of such Additional Services at the quoted rates and costs
within fifteen (15) days after receipt of TA's notice with respect to
the availability of the Additional Services.
g. Payment for Additional Services. If Customer chooses to
receive the Additional Services, Customer shall pay TA the amounts
due within thirty (30) days of receipt of an invoice from TA. Once
each calendar year, upon at least thirty (30) days' prior notice to
Customer, TA may adjust its standard rates for the Additional Services
to reflect its then-current standard charges. If the adjustment by TA
exceeds five percent (5%) in any given calendar year, Customer shall
have the right to reduce or discontinue the Additional Services at the
Selected Site without liability or penalty.
h. Installation of Customer Equipment. Customer shall, at its
expense, cause the Customer Equipment to be delivered, installed,
operated and maintained in a safe condition, meeting or exceeding
telecommunications industry standards and the provisions set forth in
this Agreement.
i. Interface. Customer may connect Customer Equipment with the
equipment of TA customers who are collocated, have service termination
at or have interconnection facilities at a Selected Site. Customer will
pay TA's then current charges for any cross-connections. The TA Fiber
Patch Panel ("FPP") or fiber termination point is the TA demarcation
for such connection. Interface
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points for the Customer's Equipment shall be at the fiber patch panel
located in the TA area of each Selected Site. Such panels shall be the
demarcation to establish each Party's operational and maintenance
responsibilities. All cables for interface shall be provided by
Customer at its cost and expense and shall conform to all applicable
TA standards. TA shall install all such interface cables at the
expense of Customer. After successful and complete installation by TA,
TA will not monitor or take responsibility for such cabling, which
shall be the sole responsibility of Customer.
j. Alarms. TA shall continuously monitor security, environmental
and power alarms for the Selected Sites at one or more manned
monitoring centers. At Customer's request, TA shall establish
procedures to allow Customer at Customer's expense to share or receive
alarm information.
2. Interconnection Off-Site.
a. Interconnect. Customer shall have the right to connect its
fiber to the Facility at any Selected Site. The fiber and related
conduit, and the connection or entrance facilities shall extend from
the property parcel adjacent to the Selected Site to the Facility, and
are referred to herein as the "Interconnect Facility." TA will, at its
option, either provide to Customer, at the rates and charges set out
in the Service Order, the Interconnect Facility to allow Customer to
connect its fiber to the Facility , or provide to Customer, at
Customer's expense and subject to any requirements or restrictions
applicable to TA, access, including existing building entrance
facilities from any third party, necessary to allow Customer to
install Interconnect Facilities; provided, however, that in the case
of Selected Sites or Facilities not owned by TA, TA's duty to provide
such access shall be limited to providing all reasonable assistance to
Customer in obtaining such access from said third parties.
b. Construction and Installation. If Customer installs an
Interconnect Facility, Customer shall provide at its expense all
necessary equipment and TA-approved materials including, but not
limited to, cables and conduit, building and similar permits, and any
FTP's and labor to construct and install such Interconnect Facility;
provided however that TA shall provide reasonable assistance to
Customer in obtaining any such permits. Customer shall provide the FPP
for Interconnect Facilities. TA will, at its option, either install
the Customer-provided FPP or allow Customer to install FPP at the
Selected Site.
b. Demarcation. The demarcation point for Interconnect
Facilities shall be at the FPP in each Selected Site.
c. Ownership. During the Site Term, TA shall retain ownership of
any portion of each Interconnect Facility that is installed on
Selected Sites; provided, however, that title to any part of the
Interconnect Facility within Selected Sites shall be
transferred to TA upon expiration or termination of the Site Term or
this Agreement.
e. Limitation on Interconnection with TA Customers. Except as
provided in Section 1.h., Customer shall not use any Interconnect
Facility to allow TA
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customers, other carriers or any other parties to interconnect directly
with Customer or each other at a Selected Site.
e. Maintenance and Changes. TA shall provide all maintenance and
repair of any Interconnect Facility installed by Customer, or fiber
installed by Customer in any Interconnect Facility provided by TA, on
Customer's side of the point of demarcation. Customer shall not make
any improvement, modification, or addition to, or relocate or remove
any Interconnect Facility provided by TA. Any improvement,
modification, addition to, relocation, or removal of any Interconnect
Facility installed by Customer shall be subject to TA's prior review
and written approval, which will not be unreasonably withheld or
delayed. If Customer requests and TA undertakes or approves any
improvement, modification, addition to, relocation, or removal of any
Interconnect Facility installed by Customer, Customer shall pay the
cost thereof.
3. Selected Site Delivery and Termination.
a. Delivery of Selected Site. TA shall provide Customer with a
tentative schedule of availability of each Selected Site and any
changes to the tentative schedule. TA shall notify Customer in writing
when a Selected Site is available for delivery and installation of
Customer Equipment ("Commencement Date") and will provide reasonable
access to Customer for installation of the Customer Equipment.
b. Selected Site Termination and Termination Charges. Customer
may terminate a Selected Site at any time before the Commencement Date
without any liability by giving written notice thereof to TA. Customer
may terminate a Selected Site following the Commencement Date but
before Customer installs any Customer Equipment or Interconnect
Facility or equipment or material related to any Interconnect Facility
upon not less than ten (10) days advance written notice to TA and
payment of liquidated damages of three (3) months Rent and any
non-recurring charges for such Selected Site. Customer may terminate a
Selected Site after Customer installs any Customer Equipment or
Interconnect Facility or equipment or material related to any
Interconnect Facility upon not less than twenty (20) days advance
written notice to TA and payment of liquidated damages in the amount
of the Rent for the remainder of the Site Term and any other recurring
and non-recurring charges for the remainder of the Site Term unless
TA, upon use of reasonable efforts, finds another party to occupy said
space including reclaiming said space for its own purposes.
Termination of a Selected Site will not affect any other Selected Site.
4. Notice to Collocate or Interconnect.
a. Collocate. Not less than ten (10) days prior to Customer's
planned installation of its Customer Equipment at a Selected Site,
Customer shall provide a notice to TA (the "Collocation Notice"). The
Collocation Notice shall include notice of Customer's desire to
collocate in the particular Selected Site, a copy of Customer's design
drawings meeting CAD requirements and an installation schedule. The
Collocation Notice shall also include: (a) Customer's requested
installation date(s); (b) any excess cable storage requirements; (c)
identification
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of all Customer Equipment to be installed; (d) a diagram of the
desired location of the Customer Equipment; (e) the space, power,
environmental and other requirements for the Customer Equipment; and
(f) the estimated date to commence and complete the installation.
Customer shall provide to TA all other information reasonably required
by TA. Within ten (10) days of receiving the Collocation Notice, TA
shall respond to Customer's Collocation Notice with its acceptance or
objections to Customer's proposal.
b. Interconnect. Not less than forty-five (45) days prior to
Customer's planned installation of its Interconnect Facilities at any
Selected Site Customer shall provide a notice to TA (the "Interconnect
Notice"). The Interconnect Notice shall include notice of Customer's
desire to install the Interconnect Facilities at the particular
Selected Site, a copy of Customer's construction design drawings
meeting CAD requirements and an installation schedule. The
Interconnect Notice shall also include: (a) Customer's requested
installation date(s); (b) any excess cable storage requirements; (c)
identification of all Interconnect Facilities to be installed; (d) a
diagram of the desired location of the Interconnect Facilities; (e)
the space, power, environmental and other requirements for the
Interconnect Facilities; and (f) the estimated date to commence and
complete the installation. Customer shall provide to TA all other
information reasonably required by TA. Within thirty (30) days of
receiving the Interconnect Notice, TA shall respond to Customer's
Interconnect Notice with its acceptance or objections to Customer's
proposal.
5. Access to Selected Site.
a. Access. Unless otherwise provided in this Agreement access to
Customer's Space shall consist of the following: TA shall provide
Customer with secure, separate, unescorted twenty-four (24) hour access
to Customer's assigned Customer Space ("Unescorted Access"). Upon
providing a sixty (60) day written notice to Customer, TA at its sole
discretion may terminate Unescorted Access. Upon termination of
Unescorted Access, TA shall provide Customer with escorted twenty-four
(24) hour access to Customer's assigned Customer Space (Escorted
Access). Under the Escorted Access plan, for routine maintenance
issues, Customer must notify TA's Change Management group at
▇▇▇-▇▇▇-▇▇▇▇ between 8 am and 9 pm., or at ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. For
emergency maintenance issues, Customer must notify TA's Change
Management group at ▇▇▇-▇▇▇-▇▇▇▇ between 8 am and 8 pm, or TA's 24/7
Network Operations Center at ▇▇▇-▇▇▇-▇▇▇▇. Customer agrees to pay TA's
charges for emergency escort services, which charges shall be based on
a rate of Ninety Dollars per hour ($90.00/hr). If Customer requires
access to TA's common space, it shall provide TA with reasonable
advance notice and TA shall provide escorted access. Customer shall pay
TA's charges for such escorted access. In no case shall Customer enter
TA's common space without a TA escort, unless authorized by TA in
writing in advance.
b. Security. Customer shall abide by TA's reasonable security
requirements. When deemed appropriate by TA, Customer employees or
representatives shall be issued passes or visitor identification cards
which must be presented upon request before entry to Selected Sites and
surrendered upon demand or upon
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termination of this Agreement. Such passes or other identification
shall be issued only to persons meeting any reasonable security
criteria applicable at the relevant Selected Site for such purpose.
Any individual entering a Selected Site will be required to notify (by
telephone) the TA Network Operations Center. TA shall provide Customer
with a toll free number to reach the Network Operations Center. Upon
leaving the Selected Site, the individual shall notify the Network
Operations Center to confirm exiting the space and lock the entrance
gate.
c. Right to Terminate Individual's Access. Notwithstanding any
other provision of this Agreement, TA shall, without threat of
liability, have the right to immediately terminate the right of access
of any Customer personnel, agent or representative should it determine
in the reasonable exercise of the discretion that such access is or
poses an immediate and serious threat to persons or property located
at the Selected Site or the integrity of the TA network. TA shall
promptly notify Customer of any such termination, and Customer shall
have a reasonable opportunity to demonstrate that the individual
access rights should be reinstated. Any termination of an individual's
access shall remain in effect pending such demonstration and TA's
determination as to the advisability of such reinstatement. This
determination shall not be unreasonably withheld or delayed. Any
determination by TA shall be final.
6. Use of Customer Equipment and Interconnect Facilities.
a. Power Use. Customer shall not install any Customer Equipment
or other equipment that overloads any electrical circuits or
associated hardware that uses greater than 20 AMPs of power.
b. Standards. Customer shall ensure that the Customer Equipment
and any Interconnect Facilities are installed, operated, and
maintained to meet or exceed any reasonable requirements of TA, any
reasonable requirements of TA's building management or insurance
underwriters, and any applicable local, state and federal codes and
public health and safety laws and regulations (including fire
regulations and the National Electric Code).
c. Intervention. If any part of Customer's fiber, Interconnect
Facilities or Customer Equipment is not placed and maintained in
accordance with the terms and conditions of this Agreement and Customer
fails to correct the violation within fifteen (15) business days from
receipt of written notice thereof from TA, then TA may, at its option,
without further notice to Customer, correct the deficiency at
Customer's expense without liability for damages, except to the extent
caused by TA's gross negligence or willful misconduct, to any fiber,
Interconnect Facilities or Customer Equipment or for any interruption
of Customer's services. As soon as practicable thereafter, TA shall
advise Customer in writing of the work performed or the action taken.
Customer shall reimburse TA for all expenses reasonably incurred by TA
associated with any work or action performed by TA pursuant hereto.
Customer shall remit payment to TA within thirty (30) days from its
receipt of TA's invoice therefor.
d. Threat to Persons or Property. If TA determines that
Customer's actions or failure to fulfill an obligation of this
Agreement, or its Interconnect Facilities
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or Customer Equipment poses an immediate threat (i) to the safety of
TA's employees or the public, (ii) to the use by other parties of
their fiber or equipment, (iii) to the physical integrity of any
Selected Site, Facility or other TA's facilities, or the facilities of
the other parties, or (iv) materially interferes with the performance
of TA's service obligations for the Selected Site, TA shall give
notice to Customer, and in the event that Customer does not take
immediate action to cure such threat, TA may perform such work and/or
take such action that it deems necessary without notice to Customer
and without subjecting itself to any liability for damage to Customer
fiber, Interconnect Facilities or the Customer Equipment or for any
interruption of Customer's services, except to the extent caused by
TA's gross negligence or willful misconduct. As soon as practicable
thereafter, TA shall advise Customer in writing of the work performed
or the action taken. Customer shall reimburse TA for all expenses
reasonably incurred by TA associated with any work or action performed
by TA pursuant hereto. Customer shall remit payment to TA within
thirty (30) days from its receipt of TA's invoice therefor.
7. Liens and Encumbrances. Customer shall not create and, if created by
Customer, shall not permit any lien or encumbrance, including, without
limitation, tax liens, mechanics' liens, or other liens or encumbrances, on the
TA network, any Facilities, the Selected Sites, any equipment or property of TA
or any third party in the Facilities or Selected Sites or any Interconnect
Facility.
8. Taxes and Franchises, Licenses and Permit Fees. Customer shall be
responsible for payment of all sales, use, gross receipts, excise, access,
bypass, franchise or other local, state and Federal taxes, fees, charges or
surcharges however designated, imposed on or based upon the provision, sale or
use of the Cabinet or Interconnect Facility or any equipment or materials
related to the Cabinet or Interconnect Facility (the "Taxes"), except Taxes on
the income or property of TA.
9. Relocation of Customer Equipment and Interconnect Facilities. Customer
shall, at TA's sole expense, relocate its fiber, Interconnect Facilities and
Customer Equipment within a Selected Site upon TA's written request and in the
reasonable (under the circumstances) time frame requested by TA; provided, that
such relocated Facilities are substantially the same as the previously used
Facilities and such relocation can be performed without unreasonable
interruption of services by Customer.
10. Inspections. TA reserves the right to have an inspector present during
any delivery or installation of Customer Equipment or Interconnect Facility, and
to make periodic inspections of any part of a Selected Site, Facility,
Interconnect Facility, Cabinet or Customer Equipment. Customer shall have the
right to have one or more of its employees or representatives present during the
time of any such inspection involving Customer Equipment or Interconnect
Facilities. TA shall give Customer reasonable advance notice of such
inspections, except in those instances where TA determines that safety
considerations justify the need for such an inspection without the delay of
providing notice. The making of periodic inspections or the failure to do so
shall not operate to impose upon TA any liability of any kind whatsoever nor
relieve Customer of any responsibility, obligation, or liability in accordance
with this Agreement.
11. No Restrictions on TA. Except as otherwise specifically limited in
this
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Agreement, TA shall have the right to maintain and operate its facilities in a
manner meeting or exceeding standard telecommunications industry practice as
will best enable it to fulfill its own service requirements.
12. Term and Termination.
a. Term. The Term of this Agreement ("Term") shall commence on
execution by the Parties and shall continue in effect until the
earlier of (a) the expiration of all Site Terms or (b) the expiration
or termination of this Agreement in accordance with its terms.
Termination of this Agreement shall result in the immediate
termination of all Site Terms.
b. Termination by TA. TA may terminate this Agreement in the
following circumstances:
(i) at any time following Customer's termination of all
Site Terms in accordance with Section 3.b;
(ii) immediately upon the Customer becoming insolvent or
bankrupt or unable to pay its debts as they fall due or any bankruptcy,
reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law or any dissolution or liquidation
proceedings being instituted by or against the Customer and, if
instituted against the Customer and defended by the Customer, remaining
undismissed for thirty (30) days; or
(iii) immediately upon the appointment of a receiver or
receiver and manager or officer with similar powers over any part of
the Customer's property.
(v) upon thirty (30) days prior written notice, (or
immediately in the event of imminent danger to persons or property) if
TA, in its reasonable opinion, determines that continued operation of
the Customer Equipment at the Selected Site represents a danger to the
public or to TA personnel or the personnel of TA customers, or will
interfere with TA's network, equipment or facilities or the equipment
or facilities of TA's customers or will otherwise adversely affect the
provision of service by TA and Customer has not cured the condition
giving rise to the notice; provided that TA need for space in a
Selected Site shall not constitute interference with or be deemed to
adversely affect the provision of service by TA. TA may, at its option
and in lieu of termination, suspend any and all services and/or
facilities, including the furnishing of electrical power, to be
provided hereunder until such time as the perceived danger or
interference has been eliminated. Written notice of suspension shall be
given to Customer as far prior to suspension as practical, and
otherwise as soon as reasonably practical thereafter.
c. Termination by Customer. Customer may terminate this Agreement
in the following circumstances:
(i) at any time following Customer's termination of all
Site Terms in accordance with Section 3.b;
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(iii) immediately upon TA becoming insolvent or bankrupt or
unable to pay its debts as they fall due or any bankruptcy,
reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law or any dissolution or liquidation
proceedings being instituted by or against the Customer and, if
instituted against TA and defended by TA, remaining undismissed for
thirty (30) days;
(iv) immediately upon the appointment of a receiver or
receiver and manager or officer with similar powers over any part of
the Customer's property.
d. Termination Charges. In the event of termination of this
Agreement by TA for any of the reasons enumerated in paragraph b (ii)
and (iii) above, Customer shall pay, as liquidated damages and not as
a penalty, termination charges equal to the net present value of the
remaining Rent payments.
13. Default.
a. Default. Either Party may terminate this Agreement upon the
other Party's default and continuance after fifteen (15) days written
notice thereof in the observation or performance of any material term,
covenant or condition of this Agreement; provided, however, that where
such default cannot reasonably be cured within such fifteen (15) day
period, if the defaulting Party shall proceed promptly to cure the
same and prosecute such curing with due diligence, the time for curing
such default shall be extended for a period no longer than forty-five
(45) days from the date of the receipt of the default notice.
b. Remedies. In the event that TA terminates of this Agreement
pursuant to this Section 13, Customer shall pay to TA, as liquidated
damages and not as a penalty, an amount equal to the net present value
of the remaining Rent payments. In the event that Customer terminates
this Agreement pursuant to this Section 13 Customer, as its sole
remedy, may terminate this Agreement and seek such actual damages as
are available under law or equity; provided, however that the amount
of such damages shall be limited to the amount of Rent paid by
Customer during the twelve (12) months prior to such termination.
414 Removal of Customer Equipment. Customer shall,(and TA shall provide
access as necessary) within thirty (30) days after the termination or expiration
of a Site Term, remove all Customer Equipment and Customer Interconnect
Facilities from the Selected Site. Customer shall, (and TA shall provide access
as necessary) within sixty (60) days after termination or expiration of this
Agreement, remove all Customer Equipment and Customer Interconnect Facilities
from all Selected Sites. Removal shall be at Customer's sole cost under TA's
supervision. If Customer fails to remove the same within said periods it shall
deemed abandoned, and TA shall notify Customer in writing that TA will either:
(i) remove Customer's Equipment and Customer Interconnect
Facilities and issue an invoice to Customer for the cost of removal
and storage; or
(ii) thirty (30) days from the date of the notice take
ownership of such
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abandoned Customer Equipment and Customer Interconnect Facilities.
If TA provides the notice with respect to clause (i), Customer shall
pay the invoice within thirty (30) days of receipt thereof. If TA provides the
notice with respect to clause (ii), Customer shall remove the Customer Equipment
and Customer Interconnect Facilities within such thirty (30) day period or
thereafter upon TA's request execute a ▇▇▇▇ of sale or other document evidencing
TA's title to such Customer Equipment and Customer Interconnect Facilities.
15 Insurance.
a. Type. During the term of this Agreement, the Parties shall
each obtain and maintain, the following insurance:
(i) Commercial General Liability Insurance with a combined
single limit of $5,000,000 for bodily injury and property damage.
(ii) Worker's Compensation Insurance in amounts required by
applicable law and Employers Liability Insurance with limits of
$1,000,000 each accident.
(iii) Automobile Liability Insurance with a combined single
limit of $1,000,000 for bodily injury and property
damage, to include coverage for all owned, non-owned
and hired vehicles.
(iv) Excess or Umbrella Liability Insurance with a
combined single limit in excess of the amounts
required in (I,II,III) above of $5,000,000 for bodily
injury and property damage each occurrence and annual
aggregate.
b. The Customer shall also obtain and maintain All-Risk Property
insurance with standard extended coverage, replacement value, without
co insurance factor, for the full replacement value of Customer's
Equipment, any Improvements and Betterments to the building(s), and
until all Equipment has been removed from the Touch America Building.
b. Limits. The limits set forth above are minimum limits and
shall not be construed to limit the liability of either Party.
c. TA Insurers. TA insurance policies required above shall be
obtained and maintained with companies rated A or better by Best's Key
Rating Guide. All such insurance or shall, to the extent of TA's
indemnity obligation contained in this Agreement, be primary to any
other available coverage. TA shall provide Customer with an insurance
certificate confirming compliance with the insurance requirements in
this Section 14. The insurance certificate shall indicate that Touch
America shall endeavor to notify Customer not less than thirty (30)
days prior to any cancellation or material change in coverage.
d. Customer Insurers. Customer's insurance policies required
above shall be obtained and maintained with companies rated A or
better by Best's Key Rating Guide. All such insurance shall, to the
extent of Customer's indemnity obligation contained in this Agreement,
be primary to any other available coverage.
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Customer shall provide TA with an insurance certificate confirming
compliance with the insurance requirements in this Section 15. The
insurance certificate shall indicate that TA shall be notified not
less than thirty (30) days prior to any cancellation or material
change in coverage.
e. Denied Coverage. In the event coverage is denied or
reimbursement of a properly presented claim is disputed by the carrier
for insurance provided above, the Party carrying such coverage shall
make commercially reasonable efforts to pursue such claim with its
carrier.
f. Subrogation. Except for Worker's Compensation coverage, each
party shall obtain from the insurance companies providing the coverage
required by this Agreement a waiver of all rights of subrogation or
recovery against the other party and its parent corporation,
shareholders, affiliates, subsidiaries, assignees, officers,
directors, and employees or any other party entitled to indemnity
under this Agreement.
16 Indemnification and Limitation of Liability.
a. Customer. Customer hereby releases and agrees to indemnify,
defend, protect and hold harmless TA, its employees, officers,
directors, agents, contractors, shareholders and Affiliates
("Indemnified Persons"), from and against any third party claims,
suits, proceedings and actions ("Claims") for:
(i) Any injury, death, loss or damage to any person,
tangible property or facilities of any person or entity (including
reasonable attorney fees and costs at trial and appeal) to the extent
arising out of or resulting from the acts or omissions, negligent or
otherwise, of Customer, its officers, employees, servants, agents or
contractors in connection with its performance under this Agreement;
and
(ii) Any liabilities or damages (including reasonable
attorney fees and costs at trial and appeal) arising out of any
violation by Customer of regulations, rules, statutes or court orders
of any local, state or federal governmental agency, court or body in
connection with its performance under this Agreement.
b. TA. TA hereby releases and agrees to indemnify, defend,
protect and hold harmless Customer, and its Indemnified Persons from
and against any third party Claims for:
(i) Any injury, death, loss or damage to any person,
tangible property or facilities of any person or entity (including
reasonable attorney fees and costs at trial and appeal), to the extent
arising out of or resulting from the acts or omissions, negligent or
otherwise, of TA, its officers, employees, servants, agents or
contractors in connection with its performance under this Agreement;
and
(ii) Any liabilities or damages (including reasonable
attorney fees and costs at trial and appeal) arising out of any
violation by TA of regulations, rules, statutes or court orders of any
local, state or federal governmental agency, court or body in
connection with its performance under this Agreement.
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c. Survival. TA and Customer hereby expressly recognize and agree
that each Party's obligation to indemnify, defend, protect and save
harmless Indemnified Persons is a material obligation to the
continuing performance of the Parties' other obligations, if any,
hereunder. The obligations of this Section 16 shall survive the
expiration or earlier termination of this Agreement. TA and Customer
each affirmatively state and warrant to the other that its indemnity
obligation will be supported by liability insurance to be furnished by
it, as set forth in Section 14 above; provided that recovery under or
in respect of this indemnity shall not be limited to the proceeds of
any such insurance.
d. Limitation. Notwithstanding any other provision of this
Agreement, TA AND CUSTOMER HEREBY EXPRESSLY AGREE THAT IN NO EVENT
SHALL EITHER OF THEM BE LIABLE TO THE OTHER FOR ANY LOST OR
PROSPECTIVE PROFITS OR ANY OTHER SPECIAL PUNITIVE, EXEMPLARY,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES (IN TORT,
CONTRACT OR OTHERWISE) UNDER OR IN RESPECT OF THIS AGREEMENT OR FOR
ANY FAILURE OF PERFORMANCE RELATED HERETO HOWSOEVER CAUSED, WHETHER OR
NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE.
17. Subordination. Customer's rights under this Agreement shall be totally
subordinate to any bona fide mortgages, loans, deeds of trust, or any other
encumbrance upon the Selected Site, Facility or other real or personal property
of TA which may be incurred by TA; provided, however, that TA shall use
reasonable efforts to assure Customer's rights under this Agreement are not
disturbed. Customer shall sign any such reasonable documents as are necessary to
satisfy any lender, private or institutional, to reflect said subordination.
18 Assignment.
a. By Customer. Customer may not assign or otherwise transfer
this Agreement or any rights or obligations hereunder to any other
party without the prior written consent of TA, which consent shall not
be unreasonably withheld; provided, however, any such assignee or
transferee shall agree in writing to be bound and abide by this
Agreement. Customer shall have the right, without TA's consent, to
assign or otherwise transfer this Agreement, or to any entities
controlling, controlled by or under common control with Customer,
("Affiliates") or to any corporation that purchases all of the stock
or all or substantially all of the assets of Customer, or as
collateral to any lender; provided, however, that: (a) any such
assignment or transfer shall be subject to TA's rights under this
Agreement and any assignee or transferee shall continue to perform
Customer's obligations to TA under the terms and conditions of this
Agreement; and (b) such assignee or transferee shall agree in writing
to be bound and abide by this Agreement. In the event of any permitted
partial assignment of any rights hereunder Customer shall remain the
sole point of contact with TA.
b. By TA. TA may not assign or otherwise transfer this Agreement
or any rights or obligations hereunder to any other party without the
prior written consent of Customer, which consent shall not be
unreasonably withheld;
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provided, however, any such assignee or transferee shall agree in
writing to be bound and abide by this Agreement. TA shall have the
right, without Customer's consent, to assign or otherwise transfer
this Agreement to any Affiliate of Customer, or to any corporation
that purchases all of the stock or all or substantially all of the
assets of Customer, or as collateral to any lender; provided, however,
that: (a) any such assignment or transfer shall be subject to
Customer's rights under this Agreement and any assignee or transferee
shall continue to perform TA's obligations to Customer under the terms
and conditions of this Agreement; and (b) such assignee or transferee
shall agree in writing to be bound and abide by this Agreement. In the
event of any permitted partial assignment of any rights hereunder TA
shall remain the sole point of contact with Customer.
19 Confidentiality.
a. Separate Agreement. If the Parties have entered into (or later
enter into) a confidentiality agreement, the terms of such an
agreement shall control and Section 19 (b) below shall not apply;
provided, however, that if any such confidentiality agreement expires
or is no longer effective at any time when this Agreement is
effective, Section 19 (b) below shall be in effect for such periods.
b. Agreement. In the absence of a separate confidentiality
agreement between the Parties, if either Party provides confidential
information to the other in writing and identified as such or if in
the course of performing under this Agreement a Party learns
confidential information regarding the facilities or plans of the
other, the receiving Party shall protect the confidential information
from disclosure to third parties with the same degree of care accorded
its own confidential and proprietary information; provided, however,
that the Parties shall each be entitled to provide such confidential
information to their respective directors, officers, members,
managers, employees, agents, and contractors ("Representatives"),
Affiliates, or the Representatives of such Affiliates, in each case
whose access is reasonably necessary; provided, however, that neither
the Party nor its Affiliates nor their respective Representative shall
use such confidential information for any marketing, competitive or
sales purpose. Each such recipient of confidential information shall
be informed by the Party disclosing confidential information of its
confidential nature, and shall be directed to treat such information
confidentially and shall agree to abide by these provisions. In any
event, each Party shall be responsible for any breach of this
provision by any person to whom that Party discloses confidential
information. Neither TA nor Customer shall be required to hold
confidential any information that: (a) becomes publicly available
other than through the recipient; (b) is independently developed by
the disclosing Party; or (c) becomes available to the disclosing Party
without restriction from a third party. These obligations shall
survive expiration or termination of this Agreement for a period of
two (2) years.
c. Limitation. Notwithstanding clauses (a) and (b) above,
confidential information shall not include information disclosed by
the receiving Party as required by applicable law or regulation;
provided, however, that the disclosing Party uses reasonable efforts
to provide the other Party with written notice of such potential
disclosure, prevent such disclosure, and provide the other Party with
a reasonable opportunity to secure the confidential protections
thereof.
URRS Agreement Page 141 Dated: September 9, ▇▇▇▇
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Notwithstanding the foregoing, this Agreement may be provided to any
governmental agency or court of competent jurisdiction to the extent
required by applicable law.
d. Trademarks. Neither Party shall use the name, tradename,
servicemark or trademark of the other, nor issue any press releases
regarding this Agreement or the terms and conditions of this Agreement
or use the other Party's name in any promotional or advertising
material without the prior written consent of such Party.
20 REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that
it has full power and authority to execute, deliver and perform its obligations
under this Agreement, that it has duly executed and delivered this Agreement and
that this Agreement constitutes the legal valid and binding obligation of such
Party enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws affecting creditors'
rights generally. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT,
TA MAKES NO WARRANTY TO CUSTOMER OR 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 SELECTED SITE
CABINET OR INTO INTERCONNECT FACILITY OR ANY OTHER EQUIPMENT FACILITY OR SERVICE
PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH
WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
21 Independent Parties. The Parties are independent contractors and
nothing herein, including the presence of a TA or Customer employee or
representative (as an inspector or otherwise) while an employee or
representative of the other Party at any Facilities or any Selected Site or
performing work pursuant to this Agreement, shall make a Party an agent, partner
or joint venturer of the other Party; make a Party liable for the actions of the
other Party or relieve a Party of the responsibility to perform its obligations
hereunder in a safe and workmanlike manner.
22 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without reference to
its choice of law principles.
23 Notice. Any notices required or permitted to be given under this
Agreement will be deemed sufficiently given if in writing, and if delivered by
hand, by courier, by confirmed facsimile or sent by registered or certified
mail, postage and fees prepaid, addressed to the party to be notified at its
address shown below, or at such other address as may be furnished in writing to
the notifying party.
TOUCH AMERICA, INC. CUSTOMER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ XXXX
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ XXXX
Attention:
Copies to:
URRS Agreement Page 142 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.
Legal Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
24. Miscellaneous.
a. Amendment. This Agreement may not be amended or modified
except in writing signed by both Parties.
b. Severability. In the event that any one or more of the
clauses, covenants or provisions contained in this Agreement should be
held unenforceable under any federal, state or local government law,
statute, code, or regulatory rule, such invalidity or unenforceability
shall not affect the remainder of this Agreement, which remains in
full force and effect.
c. Waiver. Any failure of a Party to insist upon the strict
observance or performance by the other Party of the provisions of this
Agreement shall not be deemed a waiver by such Party of any such
provision, a modification of such provision or a release by such Party
of its right to claim a breach by reason of such failure.
d. Entire Agreement. This Agreement and any referenced
attachments constitute the complete agreement between the Parties
related to the subject matter hereof, and supersedes any prior or
contemporaneous agreements, whether written or oral.
e. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which when so executed and
delivered shall be taken to be an original, but such counterparts
shall together constitute but one and the same document.
f. Facsimile Delivery. This Agreement may be delivered by
facsimile transmission of an executed counterpart signature page
hereof, and after attachment of such transmitted signature page to a
copy of this Agreement, such copy shall have the same effect and
evidentiary value as copies delivered with original signatures. Any
Party delivering this Agreement by facsimile transmission shall
deliver to the other Party, as soon as practicable after such
delivery, an original executed counterpart signature page of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of
URRS Agreement Page 143 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
the date first written above.
Touch America, Inc. ("TA") XXX, LLC ("Customer")
_______________________________________________________________________________
Name: Name
_______________________________________________________________________________
Title: Title:
URRS Agreement Page 144 Dated: September 9, 2002
Appendix G
APPENDIX H
INTENTIONALLY OMITTED
URRS Agreement page 145 Dated: September 9, 2002
Appendix H
APPENDIX I
QUITCLAIM DEED
METRO CONDUIT
SIERRA TOUCH AMERICA, LLC., a Nevada limited liability company (the
"Grantor"), for good and valuable consideration paid to it by SIERRA PACIFIC
COMMUNICATIONS, a Nevada corporation (the "Grantee"), pursuant to a Unit
Redemption, Release, and Sale Agreement dated as of September 9, 2002 between
Grantor and Grantee (the "Agreement"), and for other good and valuable
consideration, receipt and sufficiency of which are hereby mutually
acknowledged, does hereby remise, release and quitclaim unto Grantee forever,
all the right, title, interest and claim which Grantor has in and to the
following:
The land, improvements and appurtenances upon, over, across, above, and
along which is placed, and occupied thereby, the personal property and assets
described or identified as the "Metro Conduit" in Section V of the Agreement or
on schedules relating thereto, in the Counties of Washoe, Storey, Churchill,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, in the State of Nevada.
This instrument shall be binding upon, inure to the benefit of, and be
enforceable by, Grantee and its successors and assigns.
IN WITNESS WHEREOF, the undersigned Grantor has executed this Quitclaim
Deed as of the 9th day of September, 2002.
GRANTOR:
SIERRA TOUCH AMERICA LLC,
a Nevada limited liability company
By _________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Manager
STATE OF MONTANA )
COUNTY OF SILVER BOW )
The foregoing instrument was acknowledged before me this ___ day of
_______, 2002, by _________________________, known to be the individual
described in and who executed this instrument.
________________________________
NOTARY PUBLIC
My Commission Expires: _________________________
URRS Agreement Page 146 Dated: September 9, 2002
Appendix I
APPENDIX J
METRO CONDUIT
ASSIGNMENT AND ▇▇▇▇ OF SALE
SIERRA TOUCH AMERICA, LLC., a Nevada limited liability company (the
"Seller"), for good and valuable consideration paid to it by SIERRA PACIFIC
COMMUNICATIONS, a Nevada corporation (the "Purchaser"), pursuant to a Unit
Redemption, Release, and Sale Agreement dated as of September 9, 2002 between
Seller and Purchaser (the "Agreement"), and for other good and valuable
consideration, receipt and sufficiency of which are hereby mutually
acknowledged, does hereby sell, assign, transfer, convey, and deliver to
Purchaser, its successors and assigns, the following:
The personal property and assets described or identified as the "Metro
Conduit" in Section V of the Agreement or on schedules relating thereto, free
and clear of any and all material claims, liens, and encumbrances except as
specifically identified or assumed by Purchaser as set forth in Schedule II of
the Agreement.
Seller hereby covenants and agrees that it will warrant and defend the
sale of these assets against each and every person or persons whomsoever
claiming against any or all of the same. This instrument shall be binding upon,
inure to the benefit of, and be enforceable by, Seller and Purchaser and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
▇▇▇▇ of Sale as of this 9th day of September 2002.
SELLER:
SIERRA TOUCH AMERICA LLC,
a Nevada limited liability company
By ___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
PURCHASER:
SIERRA PACIFIC COMMUNICATIONS,
a Nevada corporation
By ___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
URRS Agreement Page 147 Dated: September 9, 2002
Appendix J
APPENDIX K
METRO IRU AGREEMENT
This METRO IRU AGREEMENT (the "Agreement") is made as of September 9,
2002, between SIERRA TOUCH AMERICA LLC, a Nevada limited liability company,
with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SPC"), and SIERRA
PACIFIC COMMUNICATIONS, a Nevada corporation, with offices at ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇. ▇, ▇▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SPC") (each individually a "Party",
and collectively the "Parties").
WHEREAS, SPC has commenced construction of a fiber optic communication
system consisting of dark fiber strands and other fiber optic facilities within
the Reno and Las Vegas metropolitan areas (collectively, the "Metro Network")
described in Attachment 1 hereto, and
WHEREAS, upon the terms and conditions set forth below and set forth in
the Unit Redemption, Release, and Sale Agreement between Touch America, Inc.,
STA, and SPC of even date herewith (the "URRS Agreement"), and the April 25,
2000 Operating Agreement of Sierra Touch America LLC between SPC and Touch
America, Inc., STA desires to acquire from SPC and SPC desires to convey to STA
an indefeasible right of use in twelve strands of dark fiber from the Reno
metropolitan network and four (4) strands of dark fiber from the Las Vegas
metropolitan network.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, the Parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement:
1.1 "Authorized Use" means a business purpose of STA's optical fiber
telecommunications network for telecommunication traffic of STA or STA's
Customers.
1.2 "Strands" individual fiber optic strands within the Network.
1.3 "Dark Fiber" means one or more Strands subject to this Agreement
through which an associated light, signal or light communication transmission
must be provided to furnish service. 1.4 "Indefeasible Right Of Use" or "IRU"
means an irrevocable and exclusive right to use SPC's Dark Fiber as described
in this Agreement.
1.5 "Environmental, Health, or Safety Complaint" means any complaint,
summons, citation, notice, directive, order, claim, litigation, investigation,
proceeding, judgment, letter or communication from any federal, state, or
municipal authority or any other private party involving a Hazardous Discharge
from, in or at or along SPC's Network or SPC's facilities installed in the
Network or any violation related to SPC's Route or its facilities installed in
the Route of any order, permit, or Environmental, Health and Safety Law.
1.6 "Environmental, Health and Safety Laws" means any federal, state, or
local statute, regulation, rule, ordinance or applicable governmental order,
decree, or settlement agreement, or principle or requirement of common law,
regulating or protecting the environment or human health or safety, including
without limitation the Comprehensive Environmental
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Appendix K
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), as
amended, the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), as amended, and the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), as amended, and regulations promulgated thereunder.
1.7 "Hazardous Discharge" means any release, spill, leak, pumping,
emission, discharge, injection, leaching, pouring, disposing or dumping of a
Hazardous Substance.
1.8 "Hazardous Substance" means any pollutant or contaminant or any
hazardous or toxic chemical, waste, material, or substance, including without
limitation any defined as such under Environmental, Health and Safety Laws, and
including without limitation asbestos, petroleum products and wastes,
polychlorinated biphenyl's, and radon gas.
1.9 "Metro Network" or "Network" means SPC's fiber optic facilities within
the Reno and Las Vegas metropolitan areas.
1.10 "STA Strands" means twelve (12) strands of dark fiber from the Reno
metropolitan network and four (4) strands of dark fiber from the Las Vegas
metropolitan network, as designated by SPC.
1.11 "Useful Life" means the period from the Acceptance Date of STA's
Strands until the date they are no longer capable of producing commercial
revenues.
2. GRANT OF IRU
2.1 Upon the terms, covenants and conditions contained in this Agreement
and subject to the terms and conditions contained in URRS Agreement, SPC grants
to STA and STA accepts from SPC an Indefeasible Right of Use of the STA Strands
solely for Authorized Use (the "IRU") during the Term of the IRU as provided in
this Agreement. STA shall have no further right, title or other interest in
SPC's Network, its fiber optic facilities or SPC's Strands. SPC shall have the
right to grant and renew rights to any entity to use SPC's Network, its fiber
optic facilities or any other property of SPC (exclusive of the STA Strands
during the term of the IRU).
2.2 It is understood and agreed as between the Parties that the grant of
the IRU shall be treated for federal and all applicable state and local tax
purposes as the sale and purchase of the STA Strands, and that on or after the
exercise of its IRU, STA shall be treated as the owner of the STA Strands for
such purposes. The Parties agree to file their respective income tax returns,
property tax returns and other returns and reports for their respective
Assessments on such basis and, except as otherwise required by law, not to take
any positions inconsistent therewith.
3. TESTING AND ACCEPTANCE
3.1 SPC shall test all STA's Strands in accordance with the procedures
specified in Schedule C ("Fiber Cable Splicing, Testing, and Acceptance
Standards and Procedures") to verify that STA's Strands are installed and
operational in accordance with the specifications described in Schedule C. SPC
shall provide STA reasonable advance notice of the date and time of each Fiber
Acceptance Testing such that STA shall have the opportunity to have a person or
persons present to observe SPC's Fiber Acceptance Testing. When SPC has
determined that the results of the Fiber Acceptance
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Testing with respect to a particular segment show that the STA's Strands so
tested are installed and operating in conformity with the applicable
specifications as set forth in Schedule C, SPC shall promptly provide STA with
a copy of such test result.
3.2 If and when SPC gives written notice to STA that the test results of
the Fiber Acceptance Testing are within parameters of the specifications in
Schedule C with respect to an entire segment, STA shall provide SPC with
written notice accepting (or rejecting by specifying the defect or failure in
the Fiber Acceptance Testing that is the basis for such rejection) STA's
Strands. If STA fails to notify SPC of its acceptance or rejection of the final
test results with respect to STA's Strands comprising a segment within twenty
(20) days after STA's receipt of notice of such test results, STA shall be
deemed to have accepted such segment. If, during the course of such testing,
any material deviation from the specifications set forth in Schedule C is
discovered, the construction or installation of the affected portion of the
segment shall be repaired to such specification by SPC at SPC's sole cost and
expense. The date of such notice of acceptance (or deemed acceptance) of STA's
Strands for all segments along the Route shall be the "Acceptance Date" for the
Route.
4. CONSIDERATION
4.1 Consideration for the STA Strands shall be as set forth in the URRS
Agreement, the STA Operating Agreement, and related documents.
4.2 Beginning on August 1, 2003, STA shall pay to SPC an annual
maintenance fee of Two Hundred Forty dollars ($240.00) per Network mile each
year during the term of this Agreement for maintenance of the STA Strands.
Thereafter, STA shall pay the annual maintenance fee on or before the
anniversary date of this Agreement each year. This amount shall be adjusted
annually to reflect changes in the U.S. Producer Price Index (Bureau of Labor
Standards "All Finished Goods" Series ID WPUSOP3000), but in no event shall
such amount be less than $20 per actual route mile per month.
4.3 Except as otherwise specifically provided, STA shall pay all
applicable fees and charges provided for in this Agreement, within thirty (30)
days after receipt of invoice.
4.4 All payments not made within thirty (30) days of the due date shall
bear a late payment charge of one (1%) percent per month of the unpaid balance
or the highest lawful rate, whichever is less.
5. TERM.
5.1 The Term of this Agreement shall begin on the date first above written
and shall end upon the expiration of the Useful Life of the STA Strands.
6. TERMINATION
6.1 Upon the expiration of the Term of this Agreement, STA's IRU in the
STA Strands shall immediately terminate and all rights of STA to use the STA
Strands, or any part thereof, shall cease and SPC shall owe STA no additional
duties or consideration.
7. AUTHORIZATIONS
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7.1 SPC has obtained certain easements, leases, licenses, fee interests,
rights of- way, permits, authorizations and other rights necessary to allow SPC
to install and operate the Network. If a governmental entity requires STA or
its permitted assigns to obtain a separate license or permit for the STA
Strands, then SPC shall be responsible to obtain such license or permit at its
sole cost and expense. SPC agrees to use commercially reasonable efforts in
cooperating with STA with respect to STA's efforts to secure such licenses or
permits.
8. MAINTENANCE AND OPERATION
8.1 SPC shall maintain the STA Strands in accordance with the requirements
and procedures set forth in Schedule D ("Maintenance and Operations
Specifications and Procedures"). STA shall cooperate with and assist, as may be
reasonably required, SPC in performing said maintenance.
8.2 In the event of service outages, SPC agrees to use commercially
diligent efforts to respond promptly and restore STA's Strands within the
parameters of the specifications in Schedule C; provided however, that STA
shall solely be responsible, at its own expense, for restoring an outage caused
by a failure of light, signal or light communication transmission. STA shall
also be solely responsible, at its own expense, for the routine surveillance of
the STA Strands, and the operation, maintenance and repair of all terminal
equipment and facilities required in connection with the use of the STA Strands.
8.3 SPC shall provide STA access to STA's Strands by cable stub taken by
SPC from the Network Facilities and delivered to STA at a splice point or, as
mutually agreed to by the parties, in selected SPC OA Sites at the fiber
distribution panel. If a splice point is not located at an SPC
manhole/handhole/overhead splice enclosure, SPC shall, if mutually agreed,
obtain all necessary permissions (if possible) and construct, at STA's expense,
a manhole/handhole/overhead splice enclosure for STA. STA shall, if necessary,
obtain the permissions outlined in the preceding sentence. All other splice
points shall be located at an SPC manhole/handhole/overhead splice enclosure.
STA is permitted to request access to splice points in the future, provided STA
reimburses SPC for any costs it incurs in providing access to such splice
points.
8.3.1 SPC shall accomplish sheath opening and stub out of STA's
Strands at the splice points in STA's and SPC's manholes/handholes/
overhead splice enclosures. STA may splice its own fiber optic cable
to STA's Strands only in STA's manholes/handholes/overhead splice
enclosures. SPC shall splice STA's fiber optic cable to STA's Strands
in SPC's manhole/handhole/overhead splice enclosures.
8.3.2 The parties shall enter into a Collocation Agreement pursuant
to which SPC shall provide collocation space to STA at SPC's Sites
along the Route, such space and related services to be specifically
defined in the Collocation Agreement. Should STA subsequently request
additional space in SPC facilities along the Route not identified in
the Collocation Agreement, SPC agrees to provide such space if it is
available at the time STA requests such additional space. All ▇▇▇▇▇▇▇▇
for collocation space shall be made under the Collocation Agreement,
and not this Agreement.
8.4 Within thirty (30) days after the Acceptance Date, SPC shall provide
to STA as-built drawings for the Route. The drawings shall contain ROW detail,
splice locations, manhole/handhole/overhead splice enclosure locations and STA
fiber count detail.
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8.5 In exercising its rights under this Agreement, both parties shall at
their own expense comply with all applicable Environmental, Health and Safety
Laws; the requirements and specifications of the National Electrical Code and
the National Electrical Safety Code (all of the foregoing collectively referred
to as "EHS Requirements"); other applicable governmental laws, regulations,
ordinances, rules, codes, orders, guidance, permits, and approvals; and
applicable easement or license conditions. Any notice, report, correspondence,
or submissions made by STA to federal, state, or municipal environmental,
safety, or health authorities related to the SPC's Route or Network shall be
provided by STA to SPC promptly, and in no case later than twenty-four (24)
hours. STA also shall promptly provide to SPC a copy of any Environmental,
Health or Safety Complaint received by STA, and in no case late than three (3)
business days after STA's receipt of same. STA shall ensure that its employees
are trained in the proper procedures for entering and operating in the SPC's
Route and in its Network, optical amplifier sites and regenerator sites.
8.6 STA agrees to reimburse SPC the reasonable cost of SPC (i)
constructing manholes/handholes/overhead splice enclosures for STA; (ii)
accomplishing all sheath openings and stub out of STA's Strands; and (iii)
splicing STA's fiber optic cable to STA's Strands. Such charges shall be at
SPC's fully loaded labor rates then in effect and SPC's cost of material plus
fifteen (15%) per cent.
8.7 Should STA's splices or other work not be placed and maintained in
accordance with the provisions of this Agreement, SPC may at its option correct
said condition. SPC shall notify STA in writing prior to performing such work
whenever practicable. However, when such conditions pose an immediate safety
threat, interfere with the performance of SPC's service obligations, or pose an
immediate threat to the physical integrity of SPC's facilities, SPC, may
perform such work and take such action that it deems necessary without first
giving notice to STA. As soon as practicable thereafter, SPC shall advise STA
of the work performed and the action taken and shall endeavor to arrange for
re-accommodation of STA's Strands so affected. STA shall promptly reimburse SPC
for all reasonable costs incurred by SPC for all such work, action, and
re-accommodation performed by SPC.
8.8 In the event a Hazardous Discharge or other conditions are discovered
or created at or near work being performed by STA in on or around SPC's Route
that may require (i) investigation or remediation or (ii) unforeseen measures
to protect the environment, health or safety (collectively "Adverse EH&S
Conditions"), the party discovering the condition shall immediately notify the
other party. The party in the best position to do so (or, if the parties are
equally situated, STA) shall then immediately take reasonable measures to
temporarily contain or otherwise avoid exacerbation of or exposure to the
Adverse EH&S Conditions. Unless SPC affirmatively notifies STA otherwise, STA
shall also take such other actions as applicable EH&S Requirements prescribe.
8.9 STA shall be responsible for obtaining and maintaining, at its sole
expense, from the appropriate public or quasi-public authority, any franchises,
licenses, permits or other similar authorizations required to enter upon the
property where SPC's Route is located and to operate and maintain the STA
Strands and the STA Conduit in the SPC's Route.
8.10 STA, at its sole cost and expense, shall (i) use STA's Strands and
(ii) conduct all work in or around SPC's Route in a safe condition and in a
manner reasonably acceptable to SPC, so as not to physically, electronically or
inductively conflict or interfere or otherwise adversely affect SPC's Route or
the facilities placed therein by SPC, joint users, or other authorized STA's.
SPC
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agrees to operate its facilities in the SPC's Route in a similar manner.
8.11 STA must obtain prior written authorization from SPC approving any
future work and the party performing such work before STA shall perform any
work in or around SPC's Route.
8.12 In the event STA receives information that SPC's Network or the fiber
optic facilities are damaged, it shall notify STA of said damage by phone at:
____________.
This is a 24 hour, 7 day per week notification number. In the event SPC
receives information that STA's Strands are damaged, SPC will notify STA of
said damage by phone at SPC's emergency telephone number. The call shall be
directed to the Supervisor on Duty, and the caller shall provide the following
information.
1. Name of Company making report.
2. Location reporting problem
3. Name of contact person reporting problem.
4. Telephone number to call back with progress report.
5. Description of the problem in as much detail as possible.
6. Time and date the problem occurred or began.
7. State whether or not the problem presents a jeopardy situation
to SPC's Network, the fiber optic facilities or STA's Strands.
8.13 SPC shall designate and notify STA of the particular Strands of Dark
Fiber that will constitute the STA Strands with thirty (30) days of the signing
of this Agreement.
8.14 If SPC moves, replaces or changes the location, alignment or grade of
SPC's Network ("Relocation"), SPC shall provide STA sixty (60) calendar days'
prior notice of any such relocation, if possible, and shall proceed
concurrently to relocate the STA Strands. If the Relocation is because of an
event of Force Majeure, pursuant to Section 26.2, or of any governmental or
third party authority, including a Taking by right of eminent domain, STA shall
reimburse SPC for SPC's proportionate share of the costs of the Relocation of
SPC's Route. To the extent SPC receives reimbursement from such governmental
or third party, which is allocable to a Relocation of SPC's Network, SPC will
credit or reimburse STA for its proportionate share of the reimbursement. STA's
proportionate share shall be based on the number of SPC Strands relative to the
total fiber count in the affected conduit.
9. OWNERSHIP
Legal title to the STA Strands shall at all times be vested in SPC. Neither the
provision of the use of the STA Strands by SPC to STA hereunder, nor any
payments by STA in connection therewith, shall create or vest in STA any
easement, interest, or any other ownership or property right of any nature in
the STA Strands, except as granted in specifically herein. 9.2 SPC may use or
permit the use of SPC's Network, the fiber optic facilities therein and the
telecommunications capacity thereof for any lawful purpose. Nothing in this
Agreement shall be construed or interpreted to prohibit SPC from leasing or
licensing the Network or otherwise providing capacity to others or from
installing additional fibers or capacity, including without limitation, fiber
optic capacity, within SPC's Network (other than the STA Strands during the
term of the IRU) or to prohibit SPC from operating such Network (alone or in
combination with others) in competition with STA.
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10. EMINENT DOMAIN
If there is a taking of the STA Strands by right of eminent domain (a "Taking")
which results in the remainder of the STA Strands being unable to be restored
to a condition suitable for STA's business needs within ninety (90) days from
the date of the Taking ("Substantial Taking"), STA will be permitted to
participate, to the extent of its interest and at its expense, in such eminent
domain proceeding, and this Agreement may be terminated as a result of such
proceedings. In such event the IRU fee and maintenance fee shall ▇▇▇▇▇ from the
date of Taking and any previously paid IRU fee and/or maintenance fee
attributable for any period beyond such date shall be returned to STA. If there
shall be a Taking which does not constitute a Substantial Taking, this
Agreement shall not terminate but SPC shall, with due diligence, restore STA's
Strands as speedily as practical to its condition before the Taking in
accordance with the provisions herein.
11. INDEMNIFICATION
11.1 STA will indemnify, defend, and hold harmless SPC and SPC's agents,
officers and employees, from any and all losses, damages, costs, expenses
(including reasonable attorneys fees), statutory fines or penalties, actions,
or claims for personal injury (including death), damage to property, or other
damage in any way arising from STA's activities undertaken pursuant to this
Agreement (including, without limitation, the installation, construction,
operation or maintenance of the STA Strands), except to the extent caused by
the negligence or willful misconduct on the part of SPC or SPC's agents,
officers or employees.
11.2 Without limiting the foregoing, STA specifically will indemnify,
defend, and hold harmless SPC and SPC's agents, officers and employees from any
and all claims asserted by STA's customers in any way arising out of or in
connection with this Agreement or the STA Strands, except to the extent caused
by the negligence or willful misconduct on the part of SPC or SPC's agents,
officers or employees.
11.3 SPC will indemnify, defend, and hold harmless STA and STA's agents,
officers and employees, from any and all losses, damages, costs, expenses
(including reasonable attorneys fees), statutory fines or penalties, actions,
or claims for personal injury (including death), damage to property, or other
damage in any way arising from SPC's activities undertaken pursuant to this
Agreement (including, without limitation, the installation, construction,
operation or maintenance of the Route), except to the extent caused by the
negligence or willful misconduct on the part of STA or STA's agents, officers
or employees.
11.4 EXCEPT FOR PERSONAL INJURY AND PROPERTY DAMAGE AS PROVIDED ABOVE, IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL OR INDIRECT (INCLUDING BY WAY OF ILLUSTRATION, LOST REVENUES AND
LOST PROFITS), PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT OR
ANY OBLIGATION ARISING THEREUNDER, WHETHER IN AN ACTION FOR OR ARISING OUT OF
BREACH OF CONTRACT, TORT OR OTHERWISE.
12. INSURANCE
During the term of this Agreement, each party shall obtain and maintain and
shall require any of its permitted contractors to obtain and maintain not less
than the following insurance:
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TYPE OF COVERAGE AMOUNT OF COVERAGE
--------------------------------------------------------------------------------------------------
Worker's Compensation Insurance Statutory Amount
--------------------------------------------------------------------------------------------------
Employer's Liability Occupational Disease $1 million each accident
and Bodily Injury Insurance $1 million disease each employee
$1 million disease-policy limit
--------------------------------------------------------------------------------------------------
Commercial General Liability Insurance, Combined single limit personal injury and
including premises-operations, property damage on an occurrence policy form
products/completed operations, independent with policy amounts of (i) not less than $5
contractors, contractual (blanket), broad form million per occurrence (without a limitation on
property damage, with umbrella excess liability aggregate amount); or (ii) not less than $5
(collectively, "Comprehensive Coverage") million per occurrence with an aggregate
annual amount of not less than $5 million
--------------------------------------------------------------------------------------------------
Automobile Liability Insurance for owned, $2 million
hired and non-owned autos ("Automobile combined single limit bodily injury/property
Liability Coverage") damage
--------------------------------------------------------------------------------------------------
The limits set forth above are minimum limits and will not be
construed to limit either party's liability.
This insurance shall cover the amounts and types of liability listed above with
respect to each party's obligations under this Agreement.
Each policy evidencing the insurance described in this Section 10 must contain
a provision that the insurance policy, and the coverage it provides, shall be
primary and noncontributing with respect to any policies carried by the party
and its affiliates, and that any policies carried by the party and its
affiliates shall be excess insurance.
The comprehensive general liability policies and umbrella excess liability
policies of the party and its subcontractors each shall contain a provision
including the other party, its parent, subsidiaries and affiliates, and each of
their respective officers, directors, employees and agents, as additional
insureds.
Prior to commencement of any work under this Agreement, each party must furnish
to the other certificates of insurance stating that the insurer will use best
efforts to notify the other part at least thirty (30) days prior to
cancellation of, or any material change in, the coverage provided.
Either party is entitled to self-insure coverages under this Agreement through
programs adopted by their respective risk management departments.
13. COMPLIANCE WITH LAWS
Notwithstanding anything to the contrary in this Agreement, each Party shall
ensure that any and all activities it performs pursuant to this Agreement shall
comply with all applicable laws. Without limiting the generality of the
foregoing, each Party shall comply with all applicable provisions of i)
workmen's compensation laws, ii) unemployment compensation laws, iii) the
Federal Social Security Law, iv) the Fair Labor Standards Act, and v)
Environmental, Health and Safety Laws.
14. DISCLAIMER OF WARRANTIES
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Appendix K
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SPC MAKES NO
WARRANTIES REGARDING THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT
AND MAKES NO WARRANTIES EXPRESS, IMPLIED, OR SPCTUTORY, AS TO THE INSTALLATION,
DESCRIPTION, QUALITY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
15. SPC SALES OR DISPOSITIONS
Nothing in this Agreement shall prevent or be construed to prevent SPC from,
selling or otherwise disposing of any portion of SPC's Network or fiber optic
facilities or other property of SPC used for the STA Strands, provided,
however, that in the event of a sale or other disposition, SPC shall condition
such sale or other disposition subject to the rights of STA under this
Agreement.
16. LIENS
STA shall not cause or permit SPC's Network and the fiber optic facilities and
other property of SPC to become subject to any mechanic's, artisan's,
material-man's, architect's, or similar services' liens, which arise in any way
from or as a result of STA's activities, and shall cause any such liens which
may arise to be discharged or released.
17. DEFAULT PROVISIONS AND REMEDIES
17.1 Each of the following shall be deemed an Event of Default by STA under
this Agreement:
17.1.1 Failure by STA to perform or observe any other material
terms, covenant, agreement or condition of this Agreement on the part of STA to
be performed and such default continues for a period of thirty (30) days after
written notice thereof from SPC (provided that if such default cannot be cured
within such thirty (30) day period, this period will be extended if STA
commences to cure such default within such thirty (30) day period and proceeds
diligently thereafter to effect such cure);
17.1.2 The filing of a tax or mechanic's lien caused by STA against
SPC's Network or fiber optic facilities or other property of SPC which is not
bonded or discharged within thirty (30) days of the date SPC receives notice
that such lien is filed.
17.2 Upon the occurrence of an Event of Default, SPC, without further
notice to STA in any instance (except where expressly provided for below or by
applicable law) may do any one or more of the following:
17.2.1 Perform, on behalf and at the expense of STA, any obligation
of STA under this Agreement which STA has failed to perform and of which SPC
shall have given STA notice, the cost of which performance by SPC shall be
payable by STA to SPC upon demand;
17.2.2 Exercise any other legal or equitable right or remedy which
it may have, including suspension or termination of maintenance services SPC
provides to STA hereunder.
17.3 The following events or occurrences shall constitute a default by SPC
under this Agreement:
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17.3.1 Failure by SPC to perform or observe any other terms,
covenant, agreement or condition of this Agreement on the part of SPC to be
performed and such default continues for a period of thirty (30) days after
written notice thereof from STA (provided that if such default cannot be cured
within such thirty (30) day period, this period will be extended if SPC
commences to cure such default within such thirty (30) day period and proceeds
diligently thereafter to effect such cure).
17.4 Upon the occurrence of an Event of Default, STA, without further
notice to SPC in any instance (except where expressly provided for below or by
applicable law) may do any one or more of the following:
17.4.1 Perform, on behalf and at the expense of SPC, any obligation
of SPC under this Agreement which SPC has failed to perform and of which STA
shall have given SPC notice, the cost of which performance by STA shall be
payable by SPC to STA upon demand;
17.4.2 Exercise any other legal or equitable right or remedy which
it may have.
17.5 All rights and remedies of either party set forth in this Agreement
shall be cumulative, and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule of court,
or the common law, either at law or in equity, or both.
18 FORCE MAJEURE
Neither SPC nor STA shall be in default under this Agreement with respect to
any delay in its performance caused by any of the following conditions (each a
"Force Majeure Event"): (1) act of God; (2) fire; (3) flood; (4) material
shortage or unavailability not resulting from the responsible party's failure
to timely place orders or take other necessary actions therefor; (5) government
codes, ordinances, laws, rules, regulations or restrictions (collectively,
"Regulations"); (6) war or civil disorder; (7) failure of a third party to
grant or recognize an SPC Occupancy Right; or (8) any other cause beyond the
reasonable control of such party; provided, however, that this Section 20 shall
not apply to the payment of money. The party claiming relief under this Section
20 shall promptly notify the other in writing of the existence of the Force
Majeure Event relied on, the expected duration of the Force Majeure Event, and
the cessation or termination of the Force Majeure Event. The party claiming
relief under this Section 20 shall exercise commercially reasonable efforts to
minimize the time for any such delay.
19 TAXES AND USE OF PUBLIC RIGHTS-OF-WAY, LICENSE AND PERMIT FEES
19.1 Subject to Section 19.4, STA shall be responsible for any and all
sales, use, income, gross receipts, excise, transfer, ad valorem or other
taxes, and any and all franchise fees or similar fees ("Assessments") assessed
against it due to its ownership of an IRU, and its use of the STA Strands,
including the providing of services over the STA Strands, or its ownership or
use of facilities connected to the STA Strands.
19.2 Subject to Section 19.1, SPC shall be responsible for any and all
Assessments assessed against it due to its construction, ownership or use of
the SPC Network or fiber optic facilities, including providing of services over
the SPC Network or its ownership or use of facilities connected to the SPC
Network.
19.3 Notwithstanding Sections 19.1 and 19.2 above, if STA is assessed
annual fees for use of public rights-or-way, STA shall pay its proportionate
share of such fees, its proportionate share
URRS Agreement Page 157 Dated: September 9, ▇▇▇▇
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being determined as provide in Section 8.14.
19.4 In the event that STA is assessed for any Assessments related to STA's
ownership of an IRU or use of the STA Strands which may not feasibly be
separately assessed, SPC within thirty (30) days of receipt of an invoice
therefor, shall provide information and documentation to STA sufficient to
demonstrate the basis for the Assessments and the amount and due date for
payment of the Assessments. In addition, STA shall provide SPC with all
information reasonably requested by SPC with respect to any such Assessments.
After such thirty (30) day period, SPC, in it sole discretion, may pay such
Assessment and invoice STA for reimbursement. STA shall reimburse SPC for such
payment within ten (10) days of receipt of SPC's invoice. Notwithstanding such
payment by SPC, STA, at its option, shall have the right at its sole cost to
contest any such Assessments and SPC will reasonably cooperate with STA in
pursuing any such contest; provided that STA shall have reimbursed SPC for such
Assessments. In the event STA, in its sole discretion, elects to not pay such
tax or fee, it shall so notify SPC. SPC, at its option, may pay the
Assessments, or contest the payment; provided that STA shall indemnify and hold
harmless SPC for the payment of such Assessments and all interest and penalties
related thereto; and provided further, that such contest shall be resolved or
such Assessments shall be paid so as to prevent any forfeiture of rights or
property or the imposition of any lien on the SPC's Network or SPC's fiber
optic facilities.
20. SUCCESSION, ASSIGNABILITY
20.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors or assigns.
20.2 Except as provided in this Section 20, a party ("Transferring Party")
shall not assign, encumber or otherwise transfer this Agreement or all or any
portion of its rights or obligations hereunder to any party without the prior
written consent of the other party ("Other Party"), which consent will not be
unreasonably withheld or delayed. Notwithstanding the foregoing, Transferring
Party shall have the right, without Other Party's consent, to (i) subcontract
any of its construction or maintenance obligations hereunder or (ii) assign or
otherwise transfer this Agreement in whole or in party (a) to any parent,
subsidiary or affiliate of Transferring Party, or (b) any corporation or other
entity which Transferring Party may be merged or consolidated or which
purchases all or substantially all of the stock or assets of Transferring
Party; provided that the assignee or transferee in any such circumstance shall
be subject to all of the provisions of this Agreement, including without
limitation, this Section 20 and provided further that promptly following any
such assignment or transfer, Transferring Party shall give Other Party written
notice identifying the assignee or transferee. In the event of any permitted
partial assignment of any rights hereunder, Transferring Party shall remain the
sole point of contact with Other Party. When Other Party's consent to assign is
required, Other Party will have the right to withhold consent if, in its
judgment reasonably exercised, the proposed assignee cannot adequately assume
the obligations of this Agreement. In no event will any assignment by Other
Party be permitted without the delivery to Other Party of a binding agreement
in writing from the proposed assignee that (i) states that the proposed
assignee will assume all current, future and outstanding past obligations under
this Agreement as if such assignee had originally executed this Agreement and
(ii) evidence proof satisfactory to Other Party that the proposed assignee has
insurance coverage comparable to the described in Section 10 or other
assurances that the proposed assignee can adequately perform the obligations it
will assume under this Agreement.
20.3 Notwithstanding the Provisions of this Section 20, without the prior
written consent of SPC, STA shall have the right to lease, license, grant an
IRU with respect to, or otherwise in any
URRS Agreement Page 158 Dated: September 9, ▇▇▇▇
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manner transfer or make available in any manner to, any of STA's rights in the
STA Strands and such lessee, licensee or other transferee shall have the
ability to grant leases, licenses and grant an IRU with respect to, or
otherwise in any manner transfer or make available in any manner to, any of
such party's rights in the strands or conduit such party receives.
20.4 Neither party shall attempt to circumvent any of its obligations under
this Agreement, or deprive the Other Party of any anticipated benefit under
this Agreement, through the use of ownership changes, reorganizations, creation
of new entities, or other artificial devices.
20.5 Neither this Agreement, nor any term or provision hereof, nor any
inclusion by reference shall be construed as being for the benefit of any
person or entity not a signatory hereto.
21. NOTICES
Any demand, notice or other communication to be given to a party in connection
with this Agreement shall be given in writing and shall be given by personal
delivery, by registered or certified mail, return receipt requested, by
Tele-copy or commercial over night delivery service addressed to the recipient
as set forth as follows or to such other address, individual or Tele-copy
number as may be designated by notice given by the party to the other:
STA:
Sierra Touch America, LLC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Contracts Officer
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: same
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Sierra Touch America, LLC.
▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: same
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
SPC:
Sierra Pacific Communications
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇. ▇, ▇▇▇. ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Facilities
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: Same
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FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Sierra Pacific Resources
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Emergency Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
FAX Number: ▇▇▇-▇▇▇-▇▇▇▇
Any demand, notice or other communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if given by registered or certified mail, return receipt requested on the
date of receipt thereof and, if given by telecopy, on the day of transmittal
thereof if given during the normal business hours of the recipient and on the
next business day if not given during normal business hours.
22. NON-WAIVER
No course of dealing, course of performance or failure of either party strictly
to enforce any term, right or condition of this Agreement shall be construed as
a waiver of any term, right or condition.
23. CHOICE OF LAW
The construction, interpretation and performance of this Agreement shall be as
governed by the law of the state ofNevada.
24. HEADINGS
All headings contained in this Agreement are inserted for convenience only and
are not intended to affect the meaning or interpretation of this Agreement or
any clause.
26. PUBLICITY AND ADVERTISING
26.1 Neither party shall publish or use any advertising, sales promotions,
or other publicity materials that use the other party's logo, trademarks, or
service marks without the prior written approval of the other party.
26.2 Each party shall have the right to review and approve any publicity
material, press releases, or other public statements by the other that refer to
such party or that describe any aspect of this Agreement. Each party agrees not
to issue any such publicity materials, press releases, or public statements
without the prior written approval of the other party.
26.3 Nothing in this Agreement establishes a license for either party to
use any of the other party's brands, marks, or logos without prior written
approval of the other party.
URRS Agreement Page 160 Dated: September 9, 2002
Appendix K
27. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that:
(i) it has full right and authority to enter into, execute, deliver and perform
its obligations under this Agreement;
(ii) this Agreement constitutes a legal, valid and binding obligation
enforceable against such party in accordance with its terms, subject to
bankruptcy, insolvency, creditors' rights and general equitable principles; and
(iii) its execution of and performance under this Agreement shall not violate
any applicable existing regulations, rules, statutes or court orders of any
local, state or federal government agency, court, or body.
28. ENTIRE AGREEMENT; AMENDMENT
This Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and supersedes
all prior oral and written communications, understandings and agreements
relating to the subject matter hereof, which are of no further force or effect.
The Exhibits and/or Schedules referred to herein are integral parts hereof and
are hereby made a part of this Agreement. This Agreement may only be modified
or supplemented by an instrument in writing executed by a duly authorized
representative of each party.
29. NO THIRD PARTY BENEFICIARIES
Except as set forth in Section 31, this Agreement does not provide and is not
intended to provide third parties with any remedy, claim, liability,
reimbursement, cause of action, or other privilege.
30. NO PERSONAL LIABILITY
Each action or claim against any party arising under or relating to this
Agreement shall be made only against such party as a corporation, and any
liability relating thereto shall be enforceable only against the corporate
assets of such party. No party shall seek to ▇▇▇▇▇▇ the corporate veil or
otherwise seek to impose any liability relating to, or arising from, this
Agreement against any shareholder, employee, officer or director of the other
party. Each of such persons is an intended beneficiary of the mutual promises
set forth in this Section 30 and shall be entitled to enforce the obligations
of this Section 30.
31. RELATIONSHIP OF THE PARTIES
The relationship between the parties shall not be that of partners, agents or
joint venturers for one another, and nothing contained in this Agreement shall
be deemed to constitute a partnership or agency agreement between them for any
purposes, including, but not limited to federal income tax purposes. The
parties, in performing any of their obligations hereunder, shall be independent
contractors or independent parties and shall discharge their contractual
obligations at their own risk.
URRS Agreement Page 161 Dated: September 9, 2002
Appendix K
32. SUCCESSORS AND ASSIGNS.
This Agreement and each of the parties' respective rights and obligations under
this Agreement shall be binding upon and shall inure to the benefit of the
parties and each of their respective permitted successors and assigns.
33. UNENFORCEABLE PROVISIONS
No provision of this Agreement shall be interpreted to require any unlawful
action by either party. If any section or clause of this Agreement is held to
be invalid or unenforceable, then the meaning of that section or clause shall
be construed so as to render it enforceable to the extent feasible. If no
feasible interpretation would save the section or clause, it shall be severed
from this Agreement with respect to the matter in question, and the remainder
of the Agreement shall remain in full force and effect. However, in the event
such a section or clause is an essential element of the Agreement, the parties
shall promptly negotiate a replacement that will achieve the intent of such
unenforceable section or clause to the extent permitted by law.
34. COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same instrument.
URRS Agreement Page 162 Dated: September 9, 2002
Appendix K
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized representatives on the date first above written.
Sierra Touch America, LLC.
By: ____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
Sierra Pacific Communications
By: ____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: President
URRS Agreement Page 163 Dated: September 9, 2002
Appendix K
APPENDIX K
ATTACHMENT 1
DESCRIPTION OF METRO NETWORK
[LAS VEGAS METRO]
[GRAPHIC]
URRS Agreement Page 164 Dated: September 9, ▇▇▇▇
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[RENO METRO]
[GRAPHIC]
URRS Agreement Page 165 Dated: September 9, 2002
Appendix K
APPENDIX K
SCHEDULE C
FIBER CABLE SPLICING, TESTING, AND ACCEPTANCE STANDARDS AND PROCEDURES
1. SPC will perform all tests, provide documentation, and meet the
standards identified in this Schedule C. Analysis of final
bi-directional Optical Time Domain Reflectometer ("OTDR") data will be
the tool used to support final acceptance of the fibers.
2. ACCEPTANCE STANDARDS
2.1 PIGTAIL TRACES
When pigtails are attached to the end of the cable, the
pigtail test will be performed for that site. A 1-km launch
reel that matches the backbone cable will be attached between
the OTDR and the pigtail. The loss of the pigtail splice and
connector will be measured and recorded at 1550 nm. SPC will
provide STA with a copy of the OTDR traces of all pigtail
splices stored on diskette.
The loss value of the pigtail connector and its associated
splice with matching mode field diameters will not exceed .5dB
at 1550 nm. The loss value of the pigtail connector and its
associated splice with mismatched mode field diameters should
not exceed .8 dB.
2.2 BI-DIRECTIONAL TRACES
Bi-directional OTDR traces will be taken without a launch
reel. OTDR traces should be taken in both directions at 1550
nm. Loss measurements for each splice point should be measured
and recorded in both directions. These loss values should then
be averaged. The traces for all fibers should be recorded on
diskette and provided to the STA.
NOTE: THESE MEASUREMENTS WILL BE MADE AFTER THE SPLICE
HANDHOLE OR MANHOLE IS CLOSED IN ORDER TO CHECK FOR
MACRO-BENDING PROBLEMS.
2.2.1 FIELD SPLICES
The objective for each splice is an averaged loss
value of 0.1 dB or less when measured
bi-directionally with an OTDR at 1550 nm. If after 3
attempts, SPC is not able to produce a loss value of
0.1 dB or less bi-directionally at
URRS Agreement Page 166 Dated: September 9, 2002
Appendix K
1550 nm, then 0.3 dB or less bi-directionally at 1550
nm will be acceptable. Fibers not meeting the 0.1 dB
or less specification will be identified as Out Of
Specification (OOS). Documentation of the three
attempts (reburns) to bring the OOS fiber within
specification will be provided.
2.3 LIGHT SOURCE AND POWER METER TEST
A bi-directional End to End test will be performed on
each fiber in a span at 1550 nm with a Light Source
and Power Meter. The purpose of this test is to
determine actual span loss and to prove there is a
one-to-one correspondence of all fibers. It is the
SPC's responsibility to insure proper continuity of
all fibers at the fiber level, not just the pigtail
level. Any "frogs" or fibers that cross in the route
will be remedied by SPC. The following span loss
calculation will be used:
(A * L) + (0.1 * N) + C = Acceptable Span Loss
A = Attenuation per KM at 1550 nm
L = Optical length of cable measured in kilometers
(from OTDR Trace)
N = Number of splices in a span
C = Connector loss. The connector loss will not
exceed .5dB. The section test will have (2)
pigtail connectors/splices under test, so 1.0dB
will be allowed for this loss.
NOTE: STA MAY PROVIDE AN EXCEL SPREADSHEET FORMATED ON DISK FOR
ENTRY OF TEST DATA. SPC WILL COMPLETE THE SPREADSHEET AND
FORWARD TO STA.
3. NAMING OF TRACES
OTDR traces taken for bi-directional testing and the OTDR traces of the
pigtail splice must be recorded on floppy diskette and provided to STA.
To name the traces, each party will provide alpha abbreviations for the
sites. The 8-character file name plus 3-character file extension name
should follow this example:
First four letters = source point
Letters 5, 6, 7 = Destination point
8th letter = wavelength
Extension = fiber number
Examples:
Springfield to Lebanon at 1550 nm, fiber 96 = sgfdlbn5.096
URRS Agreement Page 167 Dated: September 9, 2002
Appendix K
Springfield to Monett pigtail trace on fiber 1 = sgfdmntp.001
NOTE: ALL HEADER INFORMATION ON OTDR TRACE WILL BE COMPLETED.
4. OTDR SETUP
The OTDR that is acceptable for testing is the Hewlett Packard HPE6000B
or equivalent. This system must have a floppy disk drive for storing
the trace files. Again, it should be noted that it is vital that during
all tests (OTDR, power meter, etc.), that all connectors are clean.
This can dramatically affect test results. The following settings
should be used.
NOTE: BEFORE THE START OF ANY TESTING, ALL CONNECTORS WILL BE
CLEANED PURSUANT TO MANUFACTURER'S SPECIFICATIONS
5. TEST PACKAGES
SPC shall provide a package containing the following test data for each
fiber. All data provided should be saved on diskette.
A. OTDR span traces taken at 1550 nm.
B. Pigtail traces taken for each fiber.
C. An Excel spreadsheet containing the power meter and light
source data for both directions at 1550 nm.
D. A document identifying splice points with OOS test results.
6. TESTING AND ACCEPTANCE OF THE LEASED FIBERS
SPC shall test the Leased Fibers in accordance with the procedures
specified in this schedule C to verify that the Leased Fibers are
installed and operating in accordance with the specifications. SPC
shall provide such test data to STA in accordance with Section 3.1 of
the Metro IRU Agreement.
URRS Agreement Page 168 Dated: September 9, 2002
Appendix K
APPENDIX K
Schedule D
MAINTENANCE AND OPERATIONS SPECIFICATIONS AND PROCEDURES
"ROUTINE MAINTENANCE" is all preventive maintenance activities including
upgrades and repairs, including but not limited to those activities outlined in
this Metro IRU Agreement.
"NON-ROUTINE MAINTENANCE" is all efforts and services provided in response to an
emergency circumstance which requires restoration.
1. GENERAL
a. SPC shall maintain a Network Operations Center (NOC) with twenty-four
(24) hour access , (7) seven days a week, staffed by trained and
qualified personnel. SPC shall maintain a toll-free number to contact
personnel at NOC. SPC's NOC personnel shall dispatch maintenance and
repair personnel along the system to handle and repair problems
detected through the NOC's remote surveillance equipment, by the STA,
or otherwise.
b. SPC's maintenance employees shall be available for dispatch twenty-four
(24) hours a day, seven (7) days a week. SPC shall use best
commercially reasonable efforts to have its first maintenance employee
at the site requiring an emergency maintenance activity within four (4)
hours from the time alarm identified by SPC's NOC or notification by
STA, whichever occurs first. Emergency maintenance is defined as any
service affecting situations requiring an immediate response.
c. STA shall utilize an Operations Escalation List, to report and seek
immediate initial redress of exceptions noted in the performance of SPC
in meeting maintenance service objectives.
d. In performing its services hereunder, SPC shall take workmanlike care
to prevent impairment to the signal continuity and performance of the
system. The precautions to be taken by SPC shall include notification
to STA. In addition, SPC shall reasonably cooperate with STA in sharing
information and analyzing the disturbances regarding the cable and/or
Fiber Facility.
e. SPC shall use its best effort to notify STA seven (7) days prior to the
date of any planned non-emergency maintenance activity. In the event
that a SPC planned activity is canceled or delayed for whatever reason
as previously notified, SPC shall notify STA at SPC's earliest
opportunity and will comply with the provisions of the previous
sentence to reschedule any delayed activity.
f. Non-emergency work that is reasonably expected to produce any signal
discontinuity must be coordinated between parties. Generally, this work
should be scheduled, pursuant to the Scheduled Maintenance Procedures,
on a Saturday or Sunday after midnight and before 6:00 a.m. local time.
Major system work such as fiber rolls and hot cuts will be scheduled
for SMP.
g. SPC shall have qualified representatives on site at any time another
company is
URRS Agreement Page 169 Dated: September 9, ▇▇▇▇
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crossing the System or digging within four (4) feet of buried
facilities. SPC shall maintain all signposts along the Route with
the number of the "call before you dig" organization.
h. SPC shall maintain the system in a manner that permits normal operation
of the equipment associated with the system. Such maintenance includes,
but is not limited to, landscaping, weed control, fence repair, smoke
detectors, air conditioning, power and trash removal.
2. FACILITIES
a. SPC shall maintain the System in a manner that permits normal operation
of the Leased Fibers and STA Equipment used in connection therewith.
b. SPC shall perform appropriate Routine Maintenance on the Cable and
Equipment in accordance with SPC's then current preventive maintenance
procedures that shall not substantially deviate from industry practice
and shall be responsible for correcting dysfunction. SPC shall notify
STA in advance of Routine Maintenance procedure. Typical routine
procedures and the frequency of the procedure include but are not
limited to:
Semi-Annually
Optical equipment levels verified and reported
Power levels verified and reported
All records remain on master files and at each site for
reference.
c. SPC's NOC shall monitor the housekeeping alarms throughout the system.
STA may monitor SPC's housekeeping alarms. Upon receipt of an alarm,
SPC shall take appropriate action and notify STA of a major service
jeopardy situation.
d. At a minimum, SPC's NOC shall monitor the alarms and in a similar
fashion as it does for the rest of its network, including, but not
limited to, degradation and dysfunction of transmission systems,
intrusion. Upon receipt of an alarm, SPC shall take appropriate action.
3. FIBERS
a. Subject to the provisions of paragraph 3.b., hereof, SPC shall maintain
the Cable in good and operable condition and shall repair the cable in
workmanlike manner pursuant to Section 5 hereof.
b. SPC shall patrol the route of cable on a reasonable, routine basis and
shall perform all required locates. SPC shall have qualified
representatives on site at any time another company is crossing the
cable or digging within four (4) feet of the cable or, if aerial, use
attached escalation list to notify utility provider. SPC shall perform
appropriate routine maintenance on the Cable in accordance with SPC's
then current preventative maintenance. SPC's maintenance procedures
shall not substantially deviate from industry practice.
4. RESTORATION
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a. When restoring a cut cable, the parties agree to work together to
restore all traffic as quickly as possible. SPC, immediately upon
arriving on the site of the cut, shall determine the best course of
action to be taken to restore the cable and shall begin restoration
efforts. Upon SPC's NOC learning of an emergency restoration event, SPC
will notify STA at (1) hour intervals until the emergency event or
restoration is resolved.
b. It will be the responsibility of SPC and STA to report to one another
respectively of any known environmental hazards which would restrict or
jeopardize any maintenance work activities in shelters or right of ways
areas of operations.
c. When restoring a cut Cable, the parties agree to work together to
restore all traffic as quickly as possible. SPC, immediately upon
arriving on the site of the cut, shall determine the course of action
to be taken to restore the Cable and shall begin restoration efforts.
SPC shall initially splice a buffer tube 12 fibers of its choice
containing SPC's fibers. Once continuity is established allowing
transmission systems to come back on line, SPC shall begin splicing
STA's lit fibers. This process will continue until all fibers in all
lit STA buffer fibers are spliced and all STA traffic restored. SPC
repair and restoration efforts shall be conducted in a manner whereby
STA's lit Leased Fibers receive preferential repair and restoration
service.
d. SPC will maintain an updated list of local area qualified maintenance
support contractors equipped with the necessary equipment and
personnel.
e. Upon notification of interruption of fiber service, disrepair,
impairment or other need for repair or restoration of the Cable and the
location of the damaged Cable, SPC shall pursue commercially reasonable
efforts to mobilize SPC crews to achieve necessary repair or
restoration, including, but without limitation, to have Maintenance
personnel at the affected site within four (4) hours after receipt of
such notice with the required restoration material and equipment. In
the event SPC fails to respond in such timeframe, STA may dispatch
personnel and restore the Cable at SPC's expense.
f. In the event that STA's use of the Cable is interrupted due to the
occurrence of a Force Majeure event repairs and restoration will be
made as expeditiously as possible.
g. The requirement for detection of the fault location is "as exact as
possible" utilizing test records, cable documentation, GPS coordinates
and OTDR test results of the affected cable segment. Subject to the
priorities described above in the event that STA's use of the Cable is
interrupted due to an occurrence of a Force Majeure Event, repairs and
restoration shall be made as expeditiously as possible. STA recognizes
that the four (4) hour response time represents optimal conditions, and
may be impossible to achieve when emergency restoration of SPC's System
Integrity is required or when responding to certain remote locations.
Actual response times will be influenced by such factors as terrain,
weather conditions present at the time the request is made, and the
actual mileage from SPC's dispatch station to the fault site.
h. For purposes of this section, "commercially reasonable efforts" means
activities and performances consistent with prudent utility practice,
existing contract provisions
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for SPC hourly employees, preserving SPC System Integrity, and
response times that do not jeopardize the health and safety of the
employees and agents of SPC and STA.
i. SPC maintenance employees shall be responsible for correcting or
repairing Cable discontinuity or damage, including, but not limited to,
the emergency repair of the Cable or STA fibers within. SPC shall use
reasonable efforts to repair Cable traffic affecting discontinuity
within eight (8) hours after learning of the discontinuity or the
service affecting situation.
j. SPC shall maintain sufficient capability to teleconference with STA
during an emergency repair in order to provide continuous
communication. Within twenty-four (24) hours after completion of an
emergency repair, SPC shall commence its planning for permanent repair,
shall notify STA of such plans, and shall implement such permanent
repair within an appropriate time thereafter. Restoration of open
fibers on fiber strands not immediately required for service, the
repair shall be scheduled for the next available SMP (as described in
section 4 above).
k. SPC shall comply with the Fiber Cable Splicing Specifications as
provided in Schedule C. SPC shall provide to STA any modifications to
these specifications for STA's approval, which shall not be
unreasonably withheld. STA shall have the right but not the obligation
at its sole expense to either conduct its own fiber acceptance testing
to verify that they are operating in accordance with the test
specifications or observe SPC or its contractor during testing.
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APPENDIX L
COMPLETION NOTICE TO THE URRS
To: Sierra Pacific Communications (SPC)
Date: __________________
Notice is hereby given that Sierra Touch America LLC (STA) has
completed construction and testing of the following facilities pursuant to the
Unit Redemption. Release and Sale Agreement dated September 9, 2002 among SPC,
STA, and Touch America, Inc., a Montana corporation:
[ ] First Conduit
[ ] IRU Conduits
[ ] IRU Fiber
-----------------------------------------
(STA) Sierra Touch America, LLC
a Nevada limited liability company
By: ______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, MANAGER
URRS Agreement Page 173 Dated: September 9, 2002
Appendix L
APPENDIX M
FORM OF QWEST AGREEMENT
AMENDED AND RESTATED AGREEMENT FOR
CONSTRUCTION AND SALE OF A CONDUIT
THIS AMENDED AND RESTATED CONDUIT SALE AGREEMENT ("Agreement") dated
this 4 day of September, 2002, is made by and between Sierra Pacific
Communications ("SPC"), a Nevada corporation with offices located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and Qwest
Communications Corporation ("Qwest"), a Delaware corporation, with offices
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. SPC and Qwest may be
referred to individually as a "Party," and collectively may be referred to as
the "Parties".
RECITALS
WHEREAS, Qwest and SPC previously entered into an agreement regarding
the subject matter of this Agreement on or about June 29, 2001; and further
agree that each Party hereby waives any default of the other Party under such
June 29, 2001 agreement.
WHEREAS, the Parties have agreed to certain changes in the structure of
the sale and other terms described in the June 29, 2001 agreement, and agree
that agreement shall be replaced in its entirety with this Agreement;
WHEREAS, SPC is constructing and installing or otherwise procuring a
multiple conduit fiber optic system (the "System") of approximately eight
hundred twelve (812) miles in length from Sacramento, California to Salt Lake
City, Utah, all along public and private right of way more particularly
described in Exhibit A (the "Right-of-Way"); and
WHEREAS, Qwest desires to purchase from SPC the following conduits
within the Right of Way along the Route:
(iv) one (1) one-and-one-quarter inch (1.25") conduit of
approximately one hundred forty-six (146) miles in length
between Sacramento, California and Reno, Nevada ("Leg One");
(v) one (1) two inch (2") conduit of approximately three hundred
fifty (350) miles in length between Reno, Nevada and Ely,
Nevada ("Leg Two");
(vi) one (1) two inch (2"") conduit of approximately three hundred
sixteen (316) miles in length between Ely, Nevada and Salt
Lake City, Utah ("Leg Three").
together with the associated vaults, handholes and manholes, and other related
facilities within the Route, as set forth in Section 1 herein and on Exhibit B
(collectively, the "Conduit System"), and as constructed pursuant to the
specifications attached hereto as Exhibit G (the "Specifications").
NOW THEREFORE, for and in consideration of the Recitals and the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
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1. Sale of the Conduit
1.01 Purchase and Sale. Subject to the terms and conditions of this
Agreement, SPC agrees to convey to Qwest, and Qwest agrees to purchase from SPC,
the Conduit System. SPC shall use commercial best efforts to effect the
completion of the Conduit System according to the schedule set forth on Exhibit
E (the "Scheduled Completion Dates"). SPC shall provide Qwest as-built drawings
within sixty (60) days following the Acceptance Date as defined in Section 3.02.
1.02 Access and Maintenance. The Parties acknowledge that SPC will
install, or cause to be installed, handholes or manholes at standard intervals
along the Route in accordance with the Specifications. To the extent SPC has
such rights and as further set forth in Section 2.06, SPC shall convey to Qwest
any and all access rights to the Conduit System, and Qwest shall maintain any
fiber optic cable contained therein; provided, however, such access is
conditioned upon Qwest complying with any access protocols. In addition, Qwest
shall also have such access to all vaults, handholes, manholes and other
facilities where such access is commonly shared by SPC and other
telecommunications facility users and collocators within the Right of Way along
the Route, subject to STA access protocols as stated in Maintenance Agreement.
1.03 Maintenance. Concurrent with the Final Payment, Qwest and SPC
shall execute a maintenance agreement, in the form of Exhibit F hereto, for the
maintenance, repair, and relocation of the Conduit System (excluding fiber optic
cable) in accordance with the Specifications (the "Maintenance Agreement").
Qwest's obligation to purchase said maintenance from SPC shall be limited to one
(1) two (2) year term with monthly payments equal to $24,000 per month,
commencing on the effective date of this Agreement. The first payment shall be
prorated to reflect a partial month, if applicable. Qwest shall have the option
to renew the Maintenance Agreement at the same monthly rate and in one-year
increments for a total of two (2) renewal years. At such time as Qwest places
fiber in the Conduit system, the Parties agree to modify the specifications and
procedures of the Maintenance Agreement as appropriate to address the presence
of such fiber.
1.04 Additional Associated Property. Provided that Qwest gives SPC
written notice of additional requirements prior to the completion of
construction of the standard handholes or manholes, SPC will install or cause to
be installed, if any such installation does not materially interfere with the
existing facilities of SPC and is otherwise reasonably practicable as determined
by SPC in its reasonable discretion, additional handholes or manholes at such
other locations as requested by Qwest at Qwest's expense. Prior to installing
such handholes or manholes, SPC shall notify Qwest of whether such handholes or
manholes are subject to rights of way requirements of private entities, or
subject to approval by permitting agencies and governmental authorities. Based
on such information, Qwest may elect not to install the additional handholes or
manholes. If Qwest elects to install additional handholes or manholes, Qwest
shall pay SPC all direct costs and out-of-pocket expenses associated with such
additional work plus a management fee equal to fifteen percent (15%) of such
costs.
2. Payment.
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2.01 Total Purchase Price. Qwest shall pay SPC twenty million and
no/100 dollars (US$20,000,000.00) for the Conduit System (the "Total Purchase
Price") as set forth in this Section 2.
2.02 First Payment. Qwest has already paid to SPC, and SPC
acknowledges the receipt thereof, the sum of four million nine hundred
eighty-eight thousand seven hundred eighty four and no/100 dollars
(US$4,988,784.00) (the "First Payment").
2.03 Second Payment. Qwest shall pay SPC by wire transfer of
immediately available funds the sum of five million eleven thousand two hundred
sixteen and no/100 dollars (US$5,011,216.00) immediately upon the execution of
this Agreement by both Parties (the "Second Payment").
2.04 Final Payment. Final payment due for the conduit system shall
be ten million and no/100 dollars (US $10,000,000.00) payable as set forth below
(the "Final Payment"). Qwest shall pay SPC by wire transfer of immediately
available funds the sum of nine million four hundred thousand and no/100 dollars
(US$9,400,000.00) payable on the Acceptance Date (as defined in Section 3.03
below). Upon receipt of said $9,400,00.00, SPC shall promptly transfer title to
the Conduit System to Qwest via a ▇▇▇▇ of sale in the form attached as Exhibit C
upon receipt of the Final Payment. Qwest shall hold back ("Hold Back") an amount
of six hundred thousand and no/100 dollars until SPC delivers the as-built
drawings as set forth in section 1.01 and shall pay by wire transfer of
immediately available funds such Hold Back amount upon receipt of the as built
drawings
2.05 Security. SPC hereby grants Qwest a security interest in (i)
the Conduit System, (ii) all equipment, goods and materials purchased or
otherwise obtained for use in the Conduit System, and (iii) SPC's transferable
occupancy rights in the Right-of-Way in so far as such rights extend to the
Conduit System, to secure payments made by Qwest to SPC, and SPC's performance,
under this Agreement.
SPC hereby warrants and covenants that the security interests granted to Qwest
in this Section 2.05 are (i) a first-priority security interest in Legs One and
Two of the Conduit System, (ii) a security interest in Leg Three of Conduit
System and (iii) SPC's transferable occupancy rights in the Right-of-Way in so
far as such rights extend to the Conduit System. Qwest agrees and acknowledges
that the enforcement of the security interest granted to Qwest in this Section
2.05 is subject to the terms and conditions of Section 4.01(a) of this
Agreement.
SPC shall take all reasonable action requested by Qwest to assist Qwest in the
perfection of the security interest granted to Qwest herein. Immediately upon
the first to occur of (i) SPC's transfer of title to the Conduit System via ▇▇▇▇
of sale as provided hereunder, or (ii) Qwest's default under Section 4.01(b) of
this Agreement, the security interest granted herein shall immediately
extinguish and terminate and be of no further force or effect.
2.06 Right of Way. Promptly following full payment of the Final
Payment to SPC, SPC shall partially assign to Qwest the assignable occupancy
rights in the Right-of-Way occupied by the Conduit System to the extent such
rights are legally transferable; provided, however, Qwest shall cooperate with
SPC in obtaining any required consents to such transfers from private entities
or governmental authorities, and shall be responsible for its share of any
annual recurring fees charged in connection with such occupancy rights. SPC
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will convey such rights by way of occupancy agreements. If SPC's occupancy
rights cannot be assigned directly to Qwest, then SPC shall grant, to the extent
permissible under applicable law and underlying rights of way agreements, access
rights to Qwest through license, indefeasible right of use or otherwise so that
it may access the Conduit System to operate, maintain, and repair the Conduit
System and install, maintain, and repair fiber optic cable in the Conduit
System. If SPC cannot grant the full rights to access, operate, maintain and
repair the Conduit System, then SPC shall agree to perform, or cause to be
performed, such services, not allowed or permitted to be performed by Qwest, on
Qwest's behalf at customary and reasonable costs and timeframes.
2.07 AMP Sites. For that portion of the Conduit System located in
Nevada and Utah, SPC shall provide Qwest with (i) a 20 year IRU for a minimum of
one-half (1/2) acre (Qwest Space) at each of the applicable AMP sites described
on Exhibit H, and shall deliver said IRUs to Qwest upon receipt of Final Payment
(ii) all easements, permits and associated rights of way necessary for Qwest to
utilize said Qwest Space as is customary, and shall deliver said easements,
permits and associated rights of way necessary for Qwest to utilize said Qwest
Space as is customary to Qwest upon receipt of Final Payment (iii) 48V DC power
at $10 and amp per month at each Qwest Space, at a minimum of 200 amps per site,
with an option for Qwest to increase the amperage within the Regen sites at the
same cost per each additional amp. Qwest shall indemnify SPC for any damage to
persons or property in connection with its access to, and use and occupancy of,
such space on the site, in conformity with Qwest's indemnification obligations
set forth in Section 6.06. Qwest agrees to pay its pro rata share of the total
of the acquisition price and acquisition costs specific to each such
regeneration or AMP site, including but not necessarily limited to costs
associated with government permits, licenses, and other authorizations,
environmental reviews, physical inspections, and due diligence investigations
for each site. Such pro rata share shall be equivalent to Qwest's proportionate
share of such costs based on the total square acreage of the land to be used by
Qwest as compared to the total square acreage of the land actually permitted or
licensed to SPC. SPC shall acquire the use of said property on behalf of SPC and
Qwest and convey to Qwest its portion through assignment, license, indefeasible
right of use or similar instrument upon receipt of the Final Payment.
2.08 Interest Rate. If Qwest fails to make any payment under this
Agreement when due, then such payment shall accrue interest both before and
after judgment at the lower of (i) the highest rate permitted by law, or (ii)
one (1%) per month.
3. Conduit System Completion
3.01 Completion of the Conduit System. When SPC has determined that
the Conduit System has been constructed and installed substantially in
conformity with the Specifications, SPC shall provide Qwest a written notice of
the same of the Conduit System (a "Completion Notice"). SPC's delivery of the
Completion Notice shall constitute SPC's representation and warranty to Qwest
(i) that the Conduit System has been constructed and installed substantially in
conformity with the Specifications, (ii) that all costs and expenses of
construction have been paid, and (iii) that the Conduit System has been tested
and is in good working order.
3.02 Acceptance of the Conduit System. Within fifteen (15) days of
receipt of a Completion Notice, Qwest shall either accept or reject the
Completion Notice (specifying in reasonable detail the defect in the applicable
specifications) by delivery of written notice to
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Appendix M
SPC. In the event Qwest rejects the Completion Notice, SPC shall promptly
commence to remedy, or cause to remedy, any nonconforming item. Thereafter, SPC
shall again provide Qwest a Completion Notice and the foregoing procedure shall
again apply. Any failure of Qwest to timely reject a Completion Notice shall be
deemed to constitute final acceptance for purposes of this Agreement and in such
event Qwest shall be deemed to have accepted the Conduit System, as applicable,
on the fifteenth day after delivery of the Completion Notice.
3.03 Acceptance Date. The acceptance date (the "Acceptance Date")
shall be defined as the later of (i) February 1, 2003 or (ii) thirty (30) days
following acceptance of the Completion Notice with respect to the Conduit System
as set forth in Section 3.02.
3.04 Fiber Installation. Qwest shall perform all work with respect
to the pulling, splicing and testing of the fiber optic cable within the Conduit
System
4. Default and Termination Provisions.
4.01 Default. Except as set forth below, neither Party shall be in
default under this Agreement herein unless and until the Party shall have
received written notice of such default from the other Party, and shall have
failed to cure the same within thirty (30) days after receipt of such notice.
Any event of default may be waived under the terms of this Agreement at the
other Party's option. Events of default and the remedies of the parties shall
include, but not be limited to, the following:
(a) Failure to Complete the Conduit System or Other Failure of SPC. If
Qwest has not received a Completion Notice by June 30, 2003, or upon
SPC's breach of any other term or condition of this Agreement and its
failure to cure such breach, Qwest's sole remedy shall be the right to
immediately terminate this Agreement and enforce the security interest
granted to Qwest in Section 2.05 of this Agreement and/or cause SPC to
transfer clear title and ownership of the Conduit System to Qwest as
follows:
(i) Qwest may enforce its security interest against, and/or
cause SPC to transfer to Qwest clear title and ownership to
Legs One and Two of the Conduit System.; and
(ii) Upon Qwest's payment of Ten Million Dollars
($10,000,000.00) to SPC, Qwest may enforce its security
against, and/or cause SPC to transfer clear title and
ownership to Leg Three of the Conduit System.
(b) Failure to Make Payment. Upon the failure by Qwest to timely cure
any undisputed payment default after notice thereof from SPC, Qwest
shall immediately forfeit any right, title or interest in any portion
of the Conduit System, its security interest in the Conduit System
shall immediately extinguish and terminate and be of no further force
or effect, and SPC shall retain all amounts paid by Qwest through the
date of default. The foregoing shall not mitigate or reduce any claim
SPC may have for any amounts due and owing it by Qwest pursuant to the
terms and conditions of this Agreement.
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Appendix M
5. Legal Requirements.
5.01 Authorizations; Compliance. To the best of SPC's knowledge,
SPC is permitted to install and locate the Conduit System and Qwest is permitted
to own, operate, maintain, remove, repair and reinstall the Conduit System as
provided under this Agreement. SPC shall assign to Qwest any and all underlying
rights, permits, licenses and governmental approvals to the extent permitted.
Qwest shall be responsible for obtaining any and all underlying rights, permits,
licenses and governmental approvals that are required for Qwest use, operation
and ownership of the Conduit System subsequent to the Acceptance Date. In
implementing the terms of this Agreement, SPC and Qwest agree to comply with all
applicable local, municipal, state or federal laws, rules, regulations and
orders.
5.02 Permittee Agreement. Qwest acknowledges and agrees that all
rights of Qwest with respect to that segment of the Route that is upon and
within rights-of-way owned or controlled by the Nevada Department of
Transportation ("NDOT") are dependent upon and subject to SPC's rights under
that certain June 29, 2001 Permittee Agreement between NDOT and SPC. Qwest
agrees that it will not do any act or thing that will cause or result in a
default by SPC under the Permittee Agreement. This Agreement shall be subject to
all terms, conditions, and provisions of the Permittee Agreement, and Qwest
hereby binds itself to and agrees, with respect to the Conduit System located
within NDOT rights of way, to all terms and provisions of the Permittee
Agreement applicable thereto, which are hereby incorporated by reference.
Additionally, attached as Exhibit D is form release language, which is required
by NDOT to be incorporated into this Agreement.
5.03 Taxes. Qwest shall pay all taxes, fees and other impositions,
including without limitation personal property taxes, value added and gross
receipts taxes, which are assessed on the Conduit System after the relevant
Acceptance Date. SPC shall be responsible for all taxes imposed on the Conduit
System prior to the relevant Acceptance Date.
5.04 Confidentiality. This Agreement and all materials, maps, and
other documents which are disclosed by one party to the other in fulfilling the
provisions and intent of this Agreement, are and shall be confidential
("Confidential Information"). Neither party shall divulge or otherwise disclose
Confidential Information to any third party without the prior written consent of
the other party except as required for the implementation of this Agreement, and
to auditors, attorneys, financial advisors, lenders and prospective lenders,
provided that in each case the recipient agrees in writing to be bound by the
confidentiality provisions set forth in this Section 4.04. A party may also
disclose Confidential Information without the prior written consent of the other
party if required by a court order or as otherwise required by law or in any
legal or arbitration proceeding relating to this Agreement; provided, however,
that in such case, the disclosing party shall give the other party five (5)
days' written notice of such disclosure to allow such party to seek a protective
order or otherwise prevent or protect such disclosure.
6. General
6.01 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be given by United
States first class mail, postage prepaid, registered or certified, return
receipt requested], or by hand delivery (including by means of a professional
messenger service) addressed as follows:
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Appendix M
To SPC: Sierra Pacific Communications
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager, Facilities
With a copy to: Sierra Pacific Communications
Associate General Counsel
Nevada Power Company M/S 3A
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Qwest: Qwest Communications Corporation
13952 Denver ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: Vice President of Outside
Plant Construction
With a copy to: Qwest Law Department
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Procurement Attorney
Any such notice or other communication shall be deemed to be effective
when actually received or refused. Either party may by similar notice given
change the address to which future notices or other communications shall be
sent.
6.02 Modification. This Agreement may not be rescinded, amended or
otherwise modified except by a writing executed by an authorized representative
of both SPC and Qwest.
6.03 Assignment. Neither party shall assign or otherwise
transfer, by operation of law or otherwise, any of its rights or obligations
under this Agreement without the express written consent of the other party,
which consent shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, either party may assign or otherwise transfer without the
express written consent of the other in connection with: (i) any disposition of
all or substantially all of the assets of either party; (ii) any merger,
consolidation or reorganization of either party; (iii) any assignment, in whole
or in part, to any subsidiary, parent company or other affiliate of either
party; (iv) any collateral assignment, security interest or pledge of this
Agreement to a lender. In any event the assignor shall remain obligated to the
other party under the terms of this Agreement unless the other party releases
and discharges the assignor in writing.
6.04 Warranties. SPC represents and warrants that Qwest shall
receive title to the personal property that comprises the Conduit System free
and clear of all encumbrances, including any mechanics or material liens,
except as may be specifically provided in Section 6.14(c). SPC warrants that
all construction of the Conduit System shall have been performed in a manner
consistent with telecommunication industry standards and the Specifications.
All warranties made under this Section 6.04 shall be true and correct as of the
Acceptance Date and shall survive expiration or termination of this Agreement
for a
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period of one (1) year from the Acceptance Date. EXCEPT AS SET FORTH IN THIS
SECTION 6.04, SPC MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
CONDUIT SYSTEM, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR
PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. THE
WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY
SPC TO QWEST WITH RESPECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER
WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED. If Qwest discovers
any defect in the Conduit System within one (1) year of the Acceptance Date,
Qwest shall notify SPC in writing of the same and SPC shall, within thirty (30)
days of receiving such notice, correct or cause to be corrected any defect at
SPC's cost and expense. If the defect is of a nature that will cause immediate
damage or harm to the Conduit System, Qwest shall notify SPC of the same and SPC
shall use reasonable commercial efforts to have any defect repaired within
forty-eight (48) hours of receiving such notice or, if SPC cannot have the
defect repaired within forty-eight (48) hours of receiving notice, Qwest may
repair the defect at SPC's cost. Additionally, SPC agrees to pass on and assign
to Qwest any warranty it may have received from the manufacturer or supplier, to
the extent that such warranty is assignable.
6.05 Insurance. Each Party shall procure and maintain in force, at
its own expense, insurance coverage in amounts that a reasonably prudent
business person would maintain considering the obligations of the parties
hereunder but in no event less than coverage of the following types and limits:
(a) workers' compensation as required by applicable law; (b) employer's
liability with minimum limits of $1,000,000; (c) general liability with minimum
limits of $2,000,000; and (d) automobile liability with minimum limits of
$2,000,000. Such required insurance shall be obtained through insurers
reasonably acceptable to the other party and licensed to conduct business in the
jurisdiction. Each party shall obtain from the insurance companies providing the
coverage required by this Agreement, the permission of such insurers to allow
such party to waive all rights of subrogation and each party does hereby waive
all such subrogation rights. Both parties expressly acknowledge that a party
shall be deemed to be in compliance with the provisions of this Section 6.05 if
it maintains a state-approved self-insurance program providing for a retention
of up to $1,000,000, and covers any excess coverage requirements under
subsections (a) - (d) above with insurance
6.06 Indemnity. Each Party hereby agrees to indemnify, defend,
protect and hold harmless the other party, its employees, agents, officers and
directors (the "Indemnified Persons"), from and against, and assumes liability
for, all suits, actions, damages or claims of any character brought against the
Indemnified Persons because of any damage received or sustained by any persons
or tangible property which in whole or in part arise on account of (i) the
negligent acts or omissions or willful misconduct of the indemnifying Party in
the performance of or related to the indemnifying Party's duties or obligations
under this Agreement, or (ii) a breach of this Agreement. Notwithstanding the
termination of this Agreement for any reason, the provisions in this paragraph
shall survive such termination.
6.07 Complete Agreement. This Agreement represents the entire
understanding between SPC and Qwest with respect to the installation and sale of
the Conduit System covered hereunder and incorporate all prior and
contemporaneous understandings, whether written or oral, between the parties.
This Agreement supersedes all other prior oral or written agreements concerning
the installation and sale of the Conduit System
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covered hereunder. This Agreement may not be rescinded, amended, or otherwise
modified except in writing executed by the authorized representatives of both
parties.
6.08 No Personal Liability. Each action or claim against any party
arising under or relating to this Agreement shall be made only against such
party as a corporation, and any liability relating thereto shall be enforceable
only against the corporate assets of such party. No party shall seek to ▇▇▇▇▇▇
the corporate veil or otherwise seek to impose any liability relating to, or
arising from, this Agreement against any shareholder, employee, officer,
director or agent of the other party. Each of such persons is an intended
beneficiary of the mutual promises set forth in this Section and shall be
entitled to enforce the obligations or provisions of this Section.
6.09 Attorneys' Fees. Subject to Sections 3.02 and 6.19 , in the
event any suit or action is brought by a party under this Agreement to enforce
any of its terms, or in an appeal therefrom, the prevailing party will be
entitled to have the other party pay its reasonable attorneys' fees, as fixed by
the trial court and/or appellate court, whichever the case may be.
6.10 Damages; Limitation of Liability. Notwithstanding any
provision of this Agreement to the contrary, neither party shall be liable to
the other party for any loss of profits or indirect, incidental, consequential,
punitive or exemplary damages of any type whatsoever arising under or related to
this agreement. The parties expressly agree that damages of the types referenced
in the immediately preceding sentence do not include damages for termination of
contract provided under Section 4 of this Agreement. The parties further agree
that no claim for losses or damages whatsoever in connection with this Agreement
shall be made more than two (2) years after the date that the event giving rise
to such claim is known or reasonably should have been known to the party making
such claim.
6.11 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
6.12 Severability. In the event that any provision of this
Agreement is held unenforceable or invalid, the remainder of the Agreement shall
remain in full force and effect, and that the unenforceable or invalid provision
be replaced with a reasonable provision that most closely reflects the intention
of the parties.
6.13 Governing Law. This Agreement shall be governed by the laws
of the State of Nevada, without reference to conflicts of law principles.
6.14 SPC's Representations and Warranties. SPC represents and
warrants that:
(a) SPC is a corporation duly organized, validly existing and
in good standing under the Laws of its state of incorporation. SPC has
full power and lawful authority to enter into this Agreement and
consummate the transactions contemplated by this Agreement.
(b) As of the Acceptance Date, SPC has good and marketable
title to the personal property which comprises the Conduit System, free
and clear of all liens, claims and encumbrances.
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(c) To the best of SPC's knowledge and except as otherwise
set forth in Exhibit G, neither SPC nor the Conduit System is subject
to any pending or threatened litigation, proceeding or administrative
investigation.
(d) To the best of SPC's knowledge and as of the Acceptance
Date, the Conduit System complies with all applicable laws.
(e) As of the Acceptance Date, there are no parties in
possession of any of the Conduit System, and there are no other rights
of possession to or use of the Conduit System which have been granted
to any third party or parties, except where access is commonly shared
by SPC and other telecommunications facility users and collocators
within the Right of Way along the Route.
(f) As of the Acceptance Date SPC has not granted to any
party any option, contract or other agreement with respect to the
purchase or sale of the Conduit System.
(g) To the best of SPC's knowledge, there are no pending or
threatened condemnations or similar proceedings affecting any of the
Conduit System and, to the best of SPC's knowledge, no such proceeding
is contemplated by any governmental authority. SPC has no knowledge i)
that the Conduit System is situated within any special assessment
district, or ii) of any proposal under which the Conduit System is to
be placed in any such special assessment district.
(h) To the best of SPC's knowledge and provided Qwest
performs its transactional and continuing obligations under this
Agreement, the entering into and consummation of the transactions
contemplated hereby will not conflict with or, with or without notice
or the passage of time or both, constitute a default under, any
contract, lease or other agreement, including, without limitation, the
contracts to which SPC is a party or by which SPC may be bound or any
laws affecting SPC or the Conduit System. This Agreement and all
documents referenced herein to be executed by SPC are and shall be
valid and legally binding obligations of SPC.
(i) To the best of SPC's knowledge, (i) all representations
and warranties made by SPC in this Agreement, and all information
contained in any statement, document or certificate furnished to Qwest
in connection with this transaction, are free from any untrue statement
of material fact and do not omit to state any material facts necessary
to make the statements contained herein or therein not misleading; and
(ii) the copies of any documents furnished to Qwest in connection with
this transaction are true and complete copies of the documents they
purport to be. Each of the representations and warranties of SPC
contained in this Agreement are acknowledged by SPC to be material and
to be relied upon by Qwest in proceeding with this transaction, shall
be deemed to have been remade by SPC as of the Acceptance Date and
shall survive the Acceptance Date.
6.16 Qwest's Representations and Warranties. Qwest represents and
warrants that:
(a) Qwest is a corporation duly organized, validly existing
and in good standing under the Laws of its state of incorporation, and
has or will have the corporate power and authority to enter into this
Agreement and to consummate the
URRS Agreement Page 183 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ M
transactions contemplated by this Agreement. Prior to the date of
execution of this Agreement, this Agreement will have been duly
authorized by all necessary corporate action on the part of the Qwest.
This Agreement constitutes the legal, valid and binding obligation of
Qwest, enforceable against Qwest in accordance with its terms.
(b) No third party approval or consent is required to enter
into this Agreement or the documents referenced herein or to consummate
the transactions contemplated hereby. To the best of Qwest's knowledge,
the entering into and consummation of the transactions contemplated
hereby will not conflict with or, with or without notice or the passage
of time or both, constitute a default under, any contract, lease or
other agreement, including, without limitation, the contracts to which
Qwest is a party or by which Qwest may be bound or any laws affecting
Qwest.This Agreement and all documents referenced herein to be executed
by Qwest are and shall be valid and legally binding obligations of
Qwest.
(c) All representations and warranties made by Qwest in this
Agreement, and all information contained in any statement, document or
certificate furnished to SPC in connection with this transaction, are
free from any untrue statement of material fact and do not omit to
state any material facts necessary to make the statements contained
herein or therein not misleading. The copies of any documents
furnished to SPC in connection with this transaction are true and
complete copies of the documents they purport to be. Each of the
representations and warranties of Qwest contained in this Agreement are
acknowledged by Qwest to be material and to be relied upon by SPC in
proceeding with this transaction, shall be deemed to have been remade
by Qwest as of the Acceptance Date and shall survive the Acceptance
Date.
6.17 Conditions to Qwest's Obligations. Qwest's obligations under
this Agreement are subject to the satisfaction, on the Acceptance Date, of each
of the following conditions, any of which may be waived in writing by Qwest:
(a) SPC will have fully complied with and performed all of
its obligations under this Agreement.
(b) All representations of SPC in this Agreement will be true
and complete as of the date when given and on the Acceptance Date.
(c) All consents, approvals and waivers required to consummate
the transactions contemplated by this Agreement will have been obtained
in writing by SPC.
6.18 Conditions to SPC's Obligations. SPC's obligations under this
Agreement are subject to the satisfaction, on the Acceptance Date, of each of
the following conditions, any of which may be waived in writing by SPC:
(a) Qwest will have fully complied with and performed all of
its obligations under this Agreement.
(b) All representations of Qwest in this Agreement will be
true and complete as of the date when given and on the Acceptance Date.
(c) All consents, approvals and waivers required to
consummate the
URRS Agreement Page 184 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ M
transactions contemplated by this Agreement will have been obtained in
writing by Qwest.
6.19 Risk of Loss. If, prior to the Scheduled Completion Date, the
Conduit System or any portion thereof is destroyed by any casualty or is the
subject of a taking, SPC may repair or replace the affected potion of the
Conduit System and, in such event, all the terms and conditions of this
Agreement shall remain in full force and effect. If SPC chooses not to repair
the Conduit System, then Qwest will have the option, to be exercised within
twenty (20) days following the date on which SPC notifies Qwest in writing that
it will not repair or replace the affected portion of the Conduit System, to (a)
terminate this Agreement and receive from SPC, within ten (10) days of providing
SPC with notice of such termination, any portion of the Purchase Price which
Qwest paid to SPC as of the date of the destruction or taking, or (b) deduct
from the Purchase Price the value of that portion of the Conduit System which
was so destroyed or taken as is mutually agreed to by Qwest and SPC or, in the
event of disagreement, the amount determined by an arbitrator or appraiser
mutually agreeable to Qwest and SPC, and to otherwise consummate this
transaction.
6.20 Dispute Resolution. Except for an action seeking a temporary
restraining order or injunction, or suit to compel compliance with this dispute
resolution process, the Parties agree to exclusively use the dispute resolution
procedures set forth in this Section 6.20 with respect to any controversy or
claim arising out of or relating to this Agreement. For a period of forty-five
(45) days after notice from either Party, the Parties shall attempt in good
faith to resolve the dispute by direct negotiation of representatives of the
Parties. If the Parties do not resolve the dispute within such period, such
dispute shall be resolved by arbitration in a location agreed to by the parties
and in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The Federal Arbitration Act, 9 U.S.C. Sections 1-15,
not state law, shall govern the arbitrability of all claims, the arbitration
shall be held in the jurisdiction of the Party against whom the arbitration is
filed Judgment on any award rendered by the arbitrator under this Section may
be entered in any court having jurisdiction thereof. No award rendered under
this Section, shall include indirect, consequential, special or punitive
damages. If any party files a judicial or administrative action asserting
claims subject to arbitration as prescribed herein, and another party
successfully stays such action or compels arbitration of said claims, the party
filing said action shall pay the other party's costs and expenses incurred in
seeking such stay or compelling arbitration, including reasonable attorneys'
fees.
6.21 Force Majeure. Neither party shall be liable to the other
party, and each party's performance under this Agreement shall be excused, if
and to the extent that any failure or delay in such party's performance of one
or more of its obligations hereunder is caused by any of the following
conditions, and such party's performance of such obligation or obligations shall
be excused and extended for and during the period of any such delay: act of God;
fire; flood; fiber, cable, conduit, or other material failures, shortages or
unavailability or other delay in delivery not resulting from the responsible
party's failure to timely place orders therefor; lack of or delay in
transportation; the effect of applicable laws, or the imposition of any
governmental codes, ordinances, laws, rules, regulations or restrictions, or
delay in governmental authorizations; war or civil disorder; strikes or other
labor disputes; failure of a third party to grant or recognize an underlying
right (provided that SPC has made timely and reasonable commercial efforts to
obtain the same); or any other cause beyond the reasonable control of such
party. The party claiming relief under this Section shall notify the other in
writing of the existence of the event relied on and the
URRS Agreement Page 185 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ M
cessation or termination of said event, and the party claiming relief shall
exercise reasonable commercial efforts to minimize the time of any such delay.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first written above.
QWEST COMMUNICATIONS
CORPORATION
By: _______________________________ By: _____________________________
Name: _____________________________ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: ____________________________ Title: President
URRS Agreement Page 186 Dated: September 9, 2002
Appendix M
EXHIBIT A
MAP OF THE RIGHT-OF-WAY
[GRAPHIC]
URRS Agreement Page 187 Dated: September 9, 2002
Appendix M
EXHIBIT B
THE CONDUIT SYSTEM
VERDI, NEVADA TO SACRAMENTO, CALIFORNIA
This portion of the route consists of approximately 131 miles
(691,680') in length. The telecommunications system along the route from the
Union Pacific Railroad milepost 227, approximately 8/10 of a mile east of the
California - Nevada State Line near Verdi Nevada to Hirshdale Road UPRR MP
218.3, approximately 11 miles (58,080'). From Hirshdale Road to West Truckee,
approximately 16.5 miles (87,120'). West Truckee to Soda Spring, approximately
6.8 miles (35,904'). Soda Springs to Cisco Grove approximately 9.1 miles
(48,048'). Cisco Grove to Blue Canyon approximately 12 miles (63,360'). Blue
Canyon to Colfax UPRR MP 142, approximately 21 miles (110,880'). UPRR MP 142 to
Sacramento UPRR MP 89 approximately 53.7 mile (283,536'). Sacramento UPRR MP 89
to ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ approximately 1 mile (5280').
RENO METRO
The fiber optic cable line will start .8 of a mile from the California
border into Nevada and ties in with a ▇▇▇▇▇▇▇▇ handhole between UPRR and 1-80
and ends at the ▇▇▇▇▇ Fargo building at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Phase II
begins at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Fargo building, and ends at South
▇▇▇▇▇▇▇ Parkway.
LONG HAUL
The fiber optic cable line will start at the intersection of South
▇▇▇▇▇▇▇ Parkway and South Virginia Street in Reno and follow the highway
right-of-way south from Reno along U.S. highway 395 to East Lake Boulevard.
From East Lake Boulevard, the cable will continue southward along a corridor to
Goni Road and then to Arrowhead Drive in ▇▇▇▇▇▇ City. At Arrowhead Drive it
will head eastward to US Highway 50 and continue east crossing the rest of
Nevada, passing through the cities of Fallon, Austin, Eureka, and Ely and
continuing into Delta Utah. At Delta the route would follow US Highway 6
northeastward to State Route 132 In Lynndyl, Utah. At State Route 132 the cable
would continue northeast to just west of Nephi, Utah, where it would intersect
▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ the fiber optic cable would continue
northward through ▇▇▇▇ to Santaquin, Utah. The cable would then head northeast,
following side roads and a portion of State Route 115 on the west side of
Interstate 15 (1-15). Just north of Spanish Fork the fiber optic cable would
cross under 1-15 and tie in with another fiber optic cable system on 4800
South, approximately 0.2 miles east of 1-15. The route would then continue
north on I-15 to Provo, UT, run along city streets into the Provo POP located
at the corner of East 100 and North 100, then along city streets to I-15, then
north on I-15 to the vicinity of the ▇▇▇▇▇▇▇▇▇ Highway, north to west 700
south, along city streets to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, north on Regent Street to the
termination point at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
CALIFORNIA
- Verdi Nevada on UPRR MP 227 to MP 218.3 at Hirshdale Rd. spread 5.1.
- Hirshdale Rd. to West Truckee, spread 5.2.
- West Truckee to Soda Springs, spread 5.3
- Soda Springs to Cisco Grove, spread 5.4
- Cisco Grove to Blue Canyon, spread 5.5
- Blue Canyon to Colfax UPRR MP 142, spread 5.6
- Colfax UPRR MP 142 to Sacramento UPRR 89, spread 6
- Sacramento UPRR 89 to ▇▇▇▇ ▇▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇, spread 7
URRS Agreement Page 188 Dated: September 9, 2002
Appendix M
NEVADA
- Reno Metro, Phase 1 is approximately 74,406 feet
- Phase 2 is approximately 51,069 feet.
- Spread ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to Lyon County line Is approximately 321,496
feet.
- Spread 2, ▇▇▇▇▇▇▇▇▇ County line to the Lander County line is approximately
567,791 feet.
- Spread 3, Lender County line to the White Pine County line is approximately
578,458 feet.
- Spread 4, White Pine County to Utah border is approximately 702,319 feet.
UTAH
- Spread 5, ▇▇▇▇▇▇▇ County at the Nevada/Utah border to Juab County line is
approximately 616,238 feet.
- Spread 6, Juab County line to north of Spanish Fork approximately 0.2 miles
east of 1-15 end is approximately 355,097 feet.
- Spanish Fork to Provo, UT approximately 7.95 miles (42,000 feet).
- Provo north to Salt Lake City, UT approximately 59.14 miles (312,265 feet).
URRS Agreement Page 189 Dated: September 9, 2002
Appendix M
EXHIBIT C
▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS that, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Sierra Pacific
Communications, a Nevada corporation ("SPC"), does hereby sell, transfer, and
convey to Qwest Communications Corporation, a Delaware corporation ("Qwest"),
all right, title and interest in the following personal property:
(i) one (1) one-and-one-quarter inch (1.25") conduit of
approximately one hundred forty-six (146) miles in length
between Sacramento, California and Reno, Nevada;
(ii) one (1) two inch (2") conduit of approximately three hundred
fifty (350) miles in length between Reno, Nevada and Ely,
Nevada;
(iii) one (1) two inch (2"") conduit of approximately three hundred
sixteen (316) miles in length between Ely, Nevada and Salt
Lake City, Utah;
together with the associated vaults, handholes and manholes, and other related
facilities within the Route as set forth in Exhibit B (the "Conduit System"),
installed on approximately 812 miles between Sacramento, CA and Salt Lake City,
Utah and as more particularly described in the Amended and Restated Agreement
for Construction and Sale of a Conduit between the SPC and Qwest dated
September 4, 2002. SPC hereby warrants to Qwest that good and clear title to
the personal property that comprises the Conduit System is hereby vested in
Qwest free and clear of all liens, claims, encumbrances and rights of others.
IN WITNESS WHEREOF, SPC has caused this ▇▇▇▇ of Sale to be executed
and delivered in its name this ____ day of _______, 2003.
SIERRA PACIFIC COMMUNICATIONS
("SPC")
Insert Company Name
By: _________________________________
Name: ________________________________
Title: _______________________________
URRS Agreement Page 190 Dated: September 9, 2002
Appendix M
Date:
_______________________________
EXHIBIT D
NDOT FORM RELEASE LANGUAGE
IRU Grantee acknowledges and agrees that neither NDOT, nor its
representatives, agents, servants, and/or employees is responsible for the
continuing Operation and Maintenance of the System and the IRU Grantee's IRU
Fibers. Neither NDOT, its representatives, agents, servants, and/or employees
shall be responsible or liable for any damage to, or interruption of the
Operational status of IRU Grantee's network and/or the IRU Fibers, provided,
however, that in the event that Maintenance on the IRU Fibers is required due
to the supervening negligence or willful misconduct of NDOT, its
representatives, agents, servants of employees, the reasonable costs and
expenses of such Maintenance work shall be borne by NDOT, subject to any
limitations set forth in the Permittee Agreement between NDOT and SPC. IRU
Grantee understands and agrees that the Installation of the IRU Fibers and the
System is within a public highway environment and therefore subject to the
inherent dangers of such environment including, without limitation damage to
the IRU Fibers resulting from traffic accident or construction along the ROW.
IRU Grantee agrees to release, remise and forever discharge NDOT, its
representatives, agents, servants, and employees from any liability associated
with or relating to damage to, or interruption of the Operational status of,
the System and/or the IRU Fibers, whether or not the proximate cause of such
damage or interruption was the negligence of NDOT, representatives, agents,
servants, and/or employees, including, without limitation, liability for
incidental or consequential damages and/or loss of business or business
revenue; provided, however, that in the event that Maintenance on the IRU
Fibers is required due to the supervening negligence or willful misconduct of
NDOT, its representatives, agents, servants or employees, the reasonable costs
and expenses of such Maintenance work shall be borne by NDOT, subject to the
limitations set forth in the Permittee Agreement between NDOT and SPC.
URRS Agreement Page 191 Dated: September 9, 2002
Appendix M
EXHIBIT E
COMPLETION DATES
ROUTE STATUS CONDUIT INSTALLATION: STATUS EST. COMPLETION
Sacramento to Reno Complete
South ▇▇▇▇▇▇▇ - ▇▇▇▇/▇▇▇▇▇▇▇▇▇ 79.7% complete 10-30-02
▇▇▇▇▇▇▇▇▇ County NV 98.5% complete ▇▇-▇▇-▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ 94% complete ▇▇-▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 87% complete 10-30-02
▇▇▇▇▇▇▇ County, UT 99.1% Complete 10-30-02
Juab & Utah Counties, UT 98% complete ▇▇-▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ ▇▇ 0.0% complete ▇▇-▇▇-▇▇
▇▇▇ - ▇▇▇▇▇ ▇▇▇, ▇▇ 0.0% complete 12-31-02
Provo, UT - SLC 0.0% complete 01-31-03
URRS Agreement Page 192 Dated: September 9, 2002
Appendix M
EXHIBIT F
MAINTENANCE SPECIFICATIONS AND PROCEDURES
1. DEFINITIONS:
Terms used in this exhibit are defined in the Agreement and as follows:
Agreement: The Agreement between Qwest Communications ("CUSTOMER") and Sierra
Pacific Communications, the Service Provider ("SP")
Cable Relocation: The physical relocation of the System, which may be required
by public (e.g., city or state government) or private entities.
Facilities: All physical building spaces, including but not limited to
regenerator huts, terminal offices, terminal huts, and manholes, where the
System is present along the Route.
Maintenance Activity: All work activities as defined in Section 2 of this
Schedule.
Method of Procedure (MOP): The plan developed by the SP, which details the
activities, required to be followed during work activities near or on the
System.
One-Call Agency: Each state has a state run agency established by the state for
anyone (including but not limited to contractors) to call a pre-designated
phone number to report potential intrusions to the System. Every state has its
own One-Call Agency.
Operations Center (OC): The facility or facilities, along with the personnel
and other assets required to monitor, communicate, coordinate, restore, repair,
and perform all Maintenance Activity.
Planned Cable Activity (PCA) : Any planned conduit activity, including
activities that do not impair the conduit as well as activities that do impair
the conduit, that could potentially affect SP's service of the System.
Planned System Work Period (PSWP): A pre-arranged period of time reserved for
performing certain work on the System that may potentially impact traffic.
Generally, this will be restricted to weekends, avoiding the first and last
weekend of each month and high-traffic weekends. The PSWP shall be agreed upon
per this Exhibit C of this Agreement.
Restoration, Total (Total Restoration): A condition whereby the conduit cannot
carry service along one or more Route Segment(s) or Route Section(s) on a
Link(s). An example of this condition is a backhoe severing the conduit.
Service Acceptance Date: The date that the Customer accepts the System and
requires service on the System.
2. MAINTENANCE ACTIVITIES
The following subsections describe the types of Maintenance Activities that
must be performed. All Maintenance Activity types described below shall be
performed by or under the direction of the SP.
For all Maintenance Activities, CUSTOMER may contact SP at any time to discuss
fiber status or
URRS Agreement Page 193 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ M
to notify SP of changes in status or any other issues which require action by
the SP. However, no other party, including but not limited to a lessee of the
CUSTOMER's conduit (i.e. CUSTOMER subleases its conduit to a third party),
shall call the SP for anything related to CUSTOMER's conduit without the
written agreement of both the CUSTOMER's and SP's escalation lists (Attachment
2) Tier 3 representative. It is the intention of this Agreement that any lessee
of fibers in the conduit coordinate all problems and issues solely with the
originating party of the Disposition.
Parties have the right to review each other's maintenance standards, which
include preventative maintenance procedures, Planned Cable Activity procedures,
and cable restoration procedures.
SP shall notify CUSTOMER at least ten (10) business days prior to the date in
connection with any Planned System Work Period (PSWP) of any Maintenance
Activity and as soon as possible after becoming aware of the need for
unscheduled maintenance. CUSTOMER shall have the right to be present during the
performance of any Maintenance Activity or unscheduled maintenance so long as
this requirement does not interfere with SP's ability to perform its
obligations under this Agreement. In the event that Maintenance Activity is
canceled or delayed for whatever reason as previously notified, SP shall notify
CUSTOMER at SP's earliest opportunity, and will comply with the provisions of
the first sentence of this paragraph to reschedule any delayed activity.
2.2. Preventative Maintenance
Preventative maintenance will be performed according to the SP's standards.
Each SP's maintenance standards must include the following:
2.1. Consistent with Transportation Equity Act 21 (TEA21) Best
practices, the SP will:
- Subscribe to each and all One-Call Agencies that
govern Route Segment(s), Route Section(s) or Link(s)
they maintain.
- Abide by all state One-Call Agency laws
- Respond to all locate requests.
- Analyze, assign, and dispatch locate request to SP's
qualified technicians
2.2. The SP will positively respond to excavation activity
notifications as follows:
---------------------------------------------------------------------------------------
Locate and ▇▇▇▇ ▇▇▇▇▇ Within fifty (50) feet of System
---------------------------------------------------------------------------------------
Locate, ▇▇▇▇, and Standby to protect conduit Within ten (10) feet of System
---------------------------------------------------------------------------------------
Positive confirmation of the location of the Within eighteen (18) inches
Customer's Conduit will be done through either side of System
various means of (e.g. Potholing) to ensure
that Customers' cable is not damaged
---------------------------------------------------------------------------------------
2.3. Positively respond to boring operations as follows:
----------------------------------------------------------------------------------------
Standby and monitor the boring operation Within one hundred (100) feet of
to ensure the cable is not damaged. System
(Potholing, etc. as required)
----------------------------------------------------------------------------------------
2.4. Route Patrol
Patrol the route by a qualified technician in accordance with the current SP's
procedures for maintenance a minimum of four (4) times a year. This "patrol"
will consist of riding the route to identify potential maintenance issues (e.g.
erosion, encroachments, damaged or missing signs,
URRS Agreement Page 194 Dated: September 9, ▇▇▇▇
▇▇▇▇▇▇▇▇ M
etc.).
2.5. Signs
The SP will routinely replace signs that are damaged.
2.6. Right Of Way Maintenance
Brush, trees and/or other vegetation should be trimmed to the edge of the ROW
as required to support ROW accessibility and worker safety. Under no
circumstances should prevailing growth exceed 30 inches in height or lower if
it obstructs signage visibility. Ongoing trimming of the ROW communicates a
message to others that the underground plant exists in the right of way and
that the SP cares about it. As such, ROW-clearing and trimming serves as a
crucial part of the overall right-of-way maintenance effort to enhance plant
protection.
At a minimum ROW maintenance must comply with local, state, and federal
requirements.
2.7. Voltage Suppressor / Arrestor
Wherever the cable sheath voltage exceeds 50v AC, voltage suppressers or
arrestors shall be installed by Customer at the splice points and regenerator
locations.
2.8. Planned Cable Activity
A Planned Cable Activity (PCA) is any activity, which can be planned in advance
(i.e., not an emergency) that will cause maintenance personnel to physically
move the conduit. There are two types of PCAs: intrusive and non-intrusive.
2.9. Intrusive PCAs
An intrusive PCA is an activity where the SP will expose the buffer tube.
Examples:
- installation of insulating joints / isolation closures,
- reroutes / cutovers / hot cuts
Intrusive PCAs must be performed from 6pm to 6am local time Monday through
Friday or any time during the weekends, excluding holidays. If exceptions are
required to these times, including holidays, utilize the escalation list.
2.10. Non-Intrusive PCAs
Examples of non-intrusive PCAs are as follows:
- conduit lowering or rearrangements
- conduit or manhole rearrangements
Non-intrusive PCAs can be performed anytime.
2.2.4. Responsibilities of SP and CUSTOMER
For ALL PCAs, the SP must notify the CUSTOMER at least fourteen (14) calendar
days prior to the activity.
For PCA activity that will result in signal discontinuity, the following
process will be performed:
URRS Agreement Page 195 Dated: September 9, 2002
Appendix M
- AT LEAST FOURTEEN (14) CALENDAR DAYS IN ADVANCE: SP shall
provide a copy of its Method of Procedure (MOP) in writing
to CUSTOMER and will notify CUSTOMER of this PCA per
escalation list.
- AT LEAST TEN (10) CALENDAR DAYS IN ADVANCE: After receipt of
SP's MOP, CUSTOMER then will provide a copy of its MOP to
the SP that incorporates the switching, verification,
identification, and testing of CUSTOMER's fibers.
- AT THE TIME OF THE PCA: The SP and CUSTOMER shall maintain
communication via phone for the entire execution of the event.
CUSTOMER shall coordinate the execution of CUSTOMER's MOP
with SP.
- If for any reason any PCA is canceled or delayed, then SP
shall notify CUSTOMER as soon as SP is aware of the change,
and SP will reschedule the activity.
2.11. Cable and Conduit Restoration
The SP will respond to all CUSTOMER's notifications indicating any failure, any
interruption, or any impairment to the CUSTOMER's conduit System.
2.12. Restoration
The SP shall notify CUSTOMER of the cable cut, per the escalation list,
including the time of the conduit cut, and the Route Section as soon as
possible, but no later than 15 minutes from the time the cut occurs. Once this
information is provided to the CUSTOMER, the SP shall establish a
communications bridge with the CUSTOMER and stay in constant communication
throughout the cable cut.
The SP shall notify the CUSTOMER of the physical location of the conduit cut as
soon as possible but no later than 90 minutes from the time the cable cut
occurs.
For every total cable cut, SP shall respond immediately after receiving
notification with a goal of restoring CUSTOMER's conduit in six (6) hours from
the time of the cable cut. The only exception to this response time is when an
uncontrolled incident, such as a flood, a chemical spill, a fire, a bridge
collapse, a riot, or other circumstance prevents access to the damage area.
To accomplish this conduit restoration, it is acknowledged that the repairs so
affected may be temporary in nature. In such event, within twenty-four (24)
hours after completion of all temporary Restoration activity, SP shall commence
its planning for permanent repair, and thereafter promptly shall notify
CUSTOMER of such plans. If the SP informs the CUSTOMER that the temporary
conduit repair cannot be made permanent immediately, then the permanent repair
shall be mutually agreed upon by both parties.
The parties agree to mutually support each other during restoration activities.
In the event the restoration cable is exposed above ground, the SP must provide
on-site personnel for conduit protection.
2.13. Conduit Damage and Restoration
The SP will respond to all notifications indicating any damage to the Conduits
in the System. The CUSTOMER will affect repairs to the conduit immediately in
occupied conduit or as soon as commercially reasonable and practical in the
case of damaged empty conduit. The trench will be back filled using approved
materials appropriate to the field conditions. Restoration standards will be at
least as found prior to the excavation or better.
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Verification of continuity of Dark Fibers shall be the responsibility of the
CUSTOMER.
2.14. Hazardous Conditions / Service Precautions
A hazardous condition or service precaution is when an event, such as flooding,
fire, street collapse, cable wash-out or a man-made event such as a train
derailment occurs, and there is an increased probability that the System may be
damaged, and maintenance activity is needed to prevent any potential damage.
For these events SP shall notify CUSTOMER, per escalation list, as soon as the
SP knows of such event. The SP shall establish a communications bridge for
these events and stay in constant communication.
2.15. Disaster Recovery
Disaster recovery is any event that affects service on the System and involves
significantly more maintenance activity than just a cable restoration.
Examples of disaster recovery are as follows:
- train derailment occurs, which by itself would be a hazardous
condition, but for this example it destroys a regeneration
site, or
- the cable at a bridge is washed out and restoration involves
deploying several miles of cable to restore service.
For these events SP shall notify CUSTOMER, per escalation list, as soon as the
SP knows of such event. The SP shall establish a communications bridge for
these events and stay in constant communication.
The parties agree to mutually support each other during disaster recovery
activities. Examples of support may include providing fault locating, splicing,
or running cable. All support is at the discretion of the SP -- meaning that
the SP shall have its crew performing disaster recovery and may accept and
direct the support from the CUSTOMER if the CUSTOMER offers such support.
3. OPERATIONS / NETWORK CONTROL CENTER(S)
3.1. Operations / Network Control Centers
The terms Operations Center and Network Control Center are synonymous, and will
be called Operations Centers for the remainder of this Schedule.
SP shall operate and maintain an Operations Center (OC) staffed twenty-four
(24) hours a day, seven (7) days a week including all holidays. The OC shall be
staffed by trained and qualified personnel. SP's maintenance personnel shall be
available for dispatch twenty-four (24) hours a day, seven (7) days a week.
4. ESCALATION LIST
An escalation list (Attachment 1) will be shared between the parties. This
list shall provide for coordination between SP and CUSTOMER for day-to-day
issues, coordination of all Maintenance Activity communication and
coordination, as well as escalation personnel in the event agreement cannot be
reached at the lowest level of the escalation list.
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This escalation list may be modified by either party at any time if the party
making the change notifies the other party in writing twenty-four (24) hours in
advance of the change.
The escalation's Tier 1 contact shall be the day-to-day working level, which
shall address daily maintenance operations activities.
5. FACILITIES
Except to the extent otherwise expressly provided in the Agreement, CUSTOMER
will be solely responsible for providing and paying for any and all maintenance
of all electronic, optical, and any other equipment, materials and facilities
used by CUSTOMER in connection with the operation of the Dark Fibers, none of
which is included in the maintenance services to be provided hereunder.
Each party agrees that the Facilities shall be placed and maintained in
accordance with the requirements and specifications of current editions of the
National Electrical Code and the National Electrical Safety Code, the
applicable rules and regulations of the Occupational Safety and Health Act
(including those of 29 C.F.R. Section 1910.268(a) et seq.) and the requirements
of any other authority having jurisdiction. Each party shall promptly furnish
to each other, but in no case later than twenty-four (24) hours, copies of all
notices, reports, correspondence, submissions, made by either party to federal,
state, or municipal environmental, safety, or health authorities. Each party
agrees that Facilities shall not physically, electronically or inductively
interfere with those of facilities in place.
6. COVERAGE PERIOD
Maintenance will be performed for agreed upon Route Segment(s) or Route
Section(s) on a Link(s) commencing upon the Service Acceptance Date, and
conclude upon expiration or termination of the Agreement.
7. SUBCONTRACTING
The SP may subcontract any Maintenance Activities herein, provided the SP shall
require the subcontractor(s) to perform in accordance with the Agreement. The
use of any such subcontractor shall not relieve SP of any of its obligations
herein.
8. ESCALATION LISTS
1. Touch America 24 by 7 NOC ▇▇▇-▇▇▇-▇▇▇▇
2. Transport Manager - ▇▇▇ ▇▇▇▇
3. NOC Director - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4. Director, Field Operations - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
5. Vice President, Networks - ▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT G
15. LITIGATION
1. Bayport Pipeline, Inc. v. STA and Mastec North America, Inc.; Case
No. CV-02-0187-HDM (VPC); United States District Court for the
District of Nevada; alleged breach of contract action.
16.
2. TI Energy Services, Inc. v. STA; Cause ▇▇. ▇▇▇▇-▇▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇; 164th Judicial District; alleged breach of contract action.
3. Cleveland Inspection Services, Inc. v. Sierra Pacific Communications
and Touch America, Inc.; Cause ▇▇. ▇▇▇▇▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇;
lien foreclosure action.
4. ▇▇▇▇▇▇▇▇ Construction, Inc. v. STA; Cause ▇▇. ▇▇▇▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇; lien foreclosure action.
5. Adesta Bankruptcy - includes Adesta facilities in ▇▇▇▇▇▇▇▇▇ Hwy and
I15 in Utah
URRS Agreement Page 199 Dated: September 9, 2002
Appendix M
EXHIBIT H
REGENERATION/AMP SITES IN NEVADA AND UTAH
Moundhouse, NV
Lahontan, NV
Salt ▇▇▇▇▇, NV
▇▇▇▇▇▇▇ Creek, NV
Cape Horn, NV
Eureka, NV
▇▇▇▇▇▇▇, NV
Ely, NV
Dry Gulch, NV
Dog Valley, UT
▇▇▇▇▇▇▇, UT
17.
URRS Agreement Page 200 Dated: September 9, 2002
Appendix M