EXHIBIT 10.17
Contract No. 97TX-10080
January 8, 1998
LICENSE AGREEMENT
executed by the
UNITED STATES OF AMERICA
DEPARTMENT OF ENERGY
acting by and through the
BONNEVILLE POWER ADMINISTRATION
and
ELECTRIC LIGHTWAVE, INC.
Index to Sections
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Section Page
1. Definitions........................................ 2
2. Term............................................... 6
3. Exhibits........................................... 7
4. Amendments......................................... 7
5. Milestone Schedule................................. 7
6. Ownership.......................................... 7
7. License............................................ 8
8. Performance Criteria............................... 8
9. ▇▇▇ Capital Spending............................... 11
10. BPA Terminal Equipment............................. 11
11. Business Plan...................................... 11
12. Market Price Assessment............................ 12
13. Payment............................................ 13
14. Maintenance, Repair, and Restoration of the Cable.. 14
15. Regenerator Building(s)............................ 17
16. Rights and Obligations Concerning the Cable........ 18
17. Relocation of the Cable............................ 22
18. Representations and Warranties..................... 22
19. Audit Procedures................................... 25
20. Insurance.......................................... 26
21. Default............................................ 28
22. Termination........................................ 30
23. Indemnification; Waiver of Damages................. 31
23. Dispute Resolution................................. 32
25. General............................................ 34
Exhibit A (Route)
Exhibit B (Payment Specifications)
Exhibit C (Revenue Sharing Route)
Exhibit D (Fiber Specifications)
Exhibit E (Acceptance Testing Standards)
Exhibit F (Terminal Equipment Standards)
This LICENSE AGREEMENT (Agreement), was executed January 8, 1998, by the
UNITED STATES OF AMERICA (Government), Department of Energy, acting by and
through the BONNEVILLE POWER ADMINISTRATION (BPA), and Electric Lightwave,
Incorporated (▇▇▇), a corporation organized and existing under the laws of the
State of Delaware. Both BPA and ▇▇▇ may be referred to herein individually as
"Party" and collectively as "Parties."
W I T N E S S E T H :
WHEREAS BPA owns the Cable and Cable accessories; and
WHEREAS BPA currently needs only 8 of the 72 fibers in the Cable for its
own operational use, which will give BPA fiber-optic cable capacity in excess of
that which is needed to operate its transmission communications along the Cable
Route; and
WHEREAS BPA desires to grant a license for a period of time to ▇▇▇
respecting the Commercial Fiber along the Cable Route under the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
obligations and agreements herein contained, the Parties hereby agree as
follows:
1. DEFINITIONS
The following terms, when used in this Agreement, shall have the meanings
set forth in this section:
(a) "BPA Capital Cost" means the direct and indirect costs BPA incurs
,using prudent electric utility practices, to develop and construct
the Cable. Direct costs include, but are not limited to, environment,
surveying and mapping, design, land, material, construction, and
labor. Such direct costs incurred up to 12 months after the Service
Ready Date shall be included in BPA Capital Cost. Indirect costs
(overheads) shall be included as part of BPA Capital Cost and applied
at a fixed rate of 45 percent to all direct costs. Interest costs,
implicit or otherwise, will be excluded. BPA shall use its best
efforts to manage the cost of development and construction of the
Cable to, or below, $* .
* Confidential information has been omitted pursuant to a request for
confidential treatment. Such material has been filed separately with the
Securities and Exchange Commission.
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(b) "BPA Facilities" means all BPA-owned and/or leased structures,
buildings, land, access roads, and equipment along the Cable Route.
(c) "BPA Fiber" means 8 dark optical fibers within the Cable designated
for BPA's exclusive use and control.
(d) "BPA Terminal Equipment" means that equipment set forth in Exhibit F.
(e) "Cable" means a BPA-owned cable, containing 72 optical fibers, single-
mode, nondispersion shifted, to be installed along the Cable Route.
(f) "Cable Accessories" means the equipment necessary for the attachment
of the Cable to the BPA Facilities, including splice boxes.
(g) "Cable Route" means the Cable path described in Exhibit A.
(h) "Cable Specifications" means the drawings and specifications regarding
the Cable hardware and materials incorporated into the construction
project.
(i) "Commercial Fiber" means the 64 dark optical fibers within the Cable
licensed to ▇▇▇ under this License Agreement.
(j) "Dark Fiber Lease Value" means the sum of all dark fiber lease
payments received by ▇▇▇ for Commercial Fiber.
(k) "Diverse Fibers" means 4 dark optical fibers within the Cable and
constituting a portion of the Commercial Fiber reserved for diverse
switching paths for a SONET ring in order to achieve optimum network
robustness and reliability.
(l) "▇▇▇ Transport Service(s)" means Transport Service(s) used by ▇▇▇ in
the delivery of End-User Service(s).
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(m) "▇▇▇ Transport Service Value(s)" means the sum of the values for all
the ▇▇▇ Transport Service(s) within the Commercial Fiber as described
in Exhibit B.
(n) "End-User" means the customer(s) of ▇▇▇.
(o) "End-User Service(s)" means services provided to the End-User, other
than Transport Service(s) and Other Transport Service(s).
(p) "End-User Transport Service Value(s)" means the sum of all payments
received by ▇▇▇ from End-User(s) for Transport Service sales.
(q) "Fiber Specifications" means the performance attributes of the fiber
within the Cable as described in Exhibit D.
(r) "Gross Revenue Value(s) (GRV)" means the annual sum of ELI's Transport
Service Value(s) plus End-User Transport Service Value(s) plus Dark
Fiber Lease Value(s) plus Other Transport Service Value(s) provided
over the Revenue Sharing Route.
(s) "Interest Rate" means .05 percent per day (18.25 percent per annum) to
be compounded daily on the unpaid balance.
(t) "License" means the License granted to ▇▇▇ in section
7(a).t"Originating and Terminating Markets" means the areas in and
around the cities along the Route, including Portland, Vancouver, The
Dalles, Madras, ▇▇▇▇▇▇▇, and Bend.
(u) "Other Transport Service(s)" means services sold over the Commercial
Fiber at the Optical Carrier level (e.g., ▇▇▇, ▇▇▇, ▇▇▇▇, OC48).
(v) "Other Transport Service Value(s)" means the sum of all payments
received by ▇▇▇ for Other Transport Services.
(w) "Performance Criteria" means those minimum Annual Gross Revenues
described in Section 8 and calculated in Exhibit B, page 2 of 2.
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(x) "Regenerator Building(s)" means the building(s) along the Cable Route,
owned and operated by ▇▇▇, that house the terminal and regenerator
equipment including any optronics or electronics required by ▇▇▇ to
make use of the ▇▇▇ Fibers. For the purpose of this Agreement, the
Regenerator Building(s) include conduit and fiber-optic cable from the
Regenerator Building(s) up to the nearest fiber-optic splice box on
the Cable Route or the nearest substation fence, at BPA's discretion.
(y) "Revenue Sharing Route" means the cable path described in Exhibit C.
(z) "Route" means the Cable path as described in Exhibit A.
(aa) "Service Ready" means the time when the Commercial Fiber is fully
installed and meets ELI's Acceptance Testing Standards, which
acceptance will be provided by ▇▇▇ to BPA in writing. ELI's
Acceptance Testing Standards are set forth in Exhibit E.
(bb) "Transport Services" means individual DS0, DS1, and DS3 circuits used
or sold as bulk transport by ▇▇▇ for long-haul traffic on the
Commercial Fiber as described below:
(1) "Digital Signal Zero (DS0)" means: one (1) 64-Kilobits-per-
second (Kbps) or 56-Kbps digital, pulse-coded modulated voice
channel;
(2) "Digital Signal One (DS1)" means: (A) in the U.S. Digital
hierarchy, digital signal level 1 indicates a 1.544 megabytes per
second (Mbps) data signal; and (B) also referred to as a T1 in
the U.S. time-division multiplexing hierarchy, digital signal
level 1 (DS1) indicates the first level of multiplexing. It is
defined as 24 DS0 (64 Kbps) circuits multiplexed into a 1.544
Mbps data signal; and
(3) "Digital Signal Level Three (DS3)" means: (A) In the U.S.
Digital hierarchy, digital signal level 3 indicates a 44.736 Mbps
data signal, often delivered to customers via optical fiber
systems, also referred to as T3; (B) in the U.S. time-division
multiplexing hierarchy, digital signal level 3 (DS3) indicates
the third level of multiplexing. It is defined as 28 DS1 (1.544
Mbps) signals, with added overhead bits, multiplexed onto a
44.736 Mpbs data signal; and (C) high capacity access service
that provides capacity equivalent to 28 DS1 circuits, 7 DS2
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channels, or 672 voice grade special access circuits; also used
generically to describe digital data transmission services
operating over fiber-optic lines at transmission speed of 44.6
Mbps.
2. TERM
(a) This Agreement shall be effective at 2400 hours on the date of
execution by both Parties (Effective Date) and shall continue in
effect for a period of 20 years after Service Ready Date, unless
sooner terminated or extended in accordance with the terms of this
Agreement.
(b) The term of this Agreement shall be extended only by written mutual
agreement of the Parties. The Agreement may be extended for one
separate 10-year renewal period. Either Party shall notify the other
Party at least 90 days prior to the expiration date of this Agreement
if the notifying Party seeks to renew the Agreement. The Parties
shall have 45 calendar days from the notifying Party's notice in which
to reach written agreement on renewal. The terms and conditions of
this Agreement applicable to the initial 20-year period may be
modified or renegotiated before each renewal period(s) upon written
mutual agreement of the Parties.
3. EXHIBITS
Exhibit A (Cable Route); Exhibit B (Payment Specifications); Exhibit C
(Revenue Sharing Route); Exhibit D (Fiber Specifications); Exhibit E
(Acceptance Testing Standards); and Exhibit F (Terminal Equipment
Standards) are incorporated into and made a part of this Agreement.
4. AMENDMENTS
This Agreement may be amended upon the written agreement of both Parties.
5. MILESTONE SCHEDULE
Service Ready Date of the Cable is currently scheduled for December 31,
1998. On or before June 1, 1998, BPA and ▇▇▇ agree to complete an
evaluation of the milestones required to complete
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construction and Service Ready Date of the Cable. The evaluation shall be
used by the Parties to determine whether milestones will be revised to
reflect an earlier, or later, Service Ready Date.
6. OWNERSHIP
(a) Each Party shall own its own electronic and optronic devices necessary
to transmit signals over the fibers each Party controls as specified
in this Agreement.
(b) Except as otherwise provided in section 6(c) below, BPA shall own all
structures, improvements, and components obtained for or installed on
BPA Facilities along the Cable Route in accordance with this
Agreement.
(c) Title and ownership of the Cable Accessories, Regenerator Building(s),
and related equipment within the Regenerator Building(s) furnished by
▇▇▇ shall be and remain the property of ▇▇▇, except that BPA shall
gain title to and ownership of such equipment that cannot be removed
without damage to BPA Facilities at termination of this Agreement.
7. LICENSE
(a) EXCLUSIVITY
BPA hereby grants to ▇▇▇ an exclusive License to use the Commercial
Fiber and to manage the Diverse Fibers. During the term of this
Agreement, Tthis right shall remain exclusive with respect to 4
optical fibers of the Commercial Fiber, and exclusive with respect to
the remaining 60 optical fibers of the Commercial Fiber as long as ▇▇▇
meets or exceeds the Performance Criteria described in section 8.
(b) ACCESS TO THE CABLE ROUTE
▇▇▇ shall have escorted access to the Cable Route for the purposes of
performing its rights and obligations under this Agreement. BPA shall
have the right to use the Cable Route, BPA Fiber, or any portion
thereof, together with the right to enter upon the Cable Route, or any
portion thereof, at all times, for any and all purposes. BPA shall
retain the right to
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use the BPA Fiber for its own internal electric system network and
utility business purposes.
(c) NO PROPERTY INTEREST
This Agreement shall not confer upon ▇▇▇ any ownership or possessory
interest in the Cable Route or other property owned by BPA except as
provided herein, and ▇▇▇ agrees that it shall never make any claim of
such interest based upon this Agreement.
8. PERFORMANCE CRITERIA
(a) MINIMUM ANNUAL GROSS REVENUE PERFORMANCE REQUIREMENTS
▇▇▇ shall maintain sales at a minimum annual GRV equal to or greater
than 50 percent of the annual revenues described in ELI's revenue
forecast (Table A). The Annual GRV shall equal the sum of the monthly
GRVs over a given 12-month period. Unless otherwise agreed to by the
Parties, the first 12-month period (Year 1) shall commence 30 calendar
days following the Service Ready Date.
In the event that the Annual GRV is below the minimum described
herein, BPA may invoke its rights under subsection (b)(1) below
regarding the exclusivity of the Commercial Fiber.
(b) BPA RIGHTS
(1) BPA shall have the right to make a performance audit within 60
days of the conclusion of each annual period. If BPA determines
that ▇▇▇ has failed to meet the annual Performance Criteria, BPA
shall give written notice of such failure to ▇▇▇. ▇▇▇ shall have
10 working days after receipt of written notice from BPA in which
to review the results of BPA's audit and provide any new
information or data that might alter BPA's audit conclusions. If
at the end of such 10-day period, BPA determines that the
Performance Criteria have not been met, BPA, at its discretion,
may determine the License to be nonexclusive and BPA shall have
the right to use any unused portion 60 optical fibers of the
Commercial Fiber for any purpose. Nothing
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contained in this paragraph shall prevent either Party from
seeking a resolution of any dispute hereunder pursuant to the
provisions of Section 23 of this Agreement.
(2) In the event ELI's License becomes nonexclusive, ▇▇▇ shall
cooperate with BPA to allow co-location of other users of the
Commercial Fiber in ELI's Regenerator Buildings, based on
available space. The Parties shall agree to the amount of
reasonable compensation to be charged to the co-locating users.
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TABLE A ($000)
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YEAR* REVENUE FORECAST* PERFORMANCE CRITERIA*
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(c) ▇▇▇ RIGHTS
In the event ELI's License is determined to be nonexclusive under
the provisions of this Section 8, this Agreement shall not
terminate, but shall continue in force and effect. ▇▇▇ shall have
the right, subject to the terms of Agreement, including, without
limitation, the payments described in Section 12, to continue its
use of the Commercial Fibers then being used by ▇▇▇ to provide
End-User Services, Other Transport Services, and Transport
Services. In addition, to the extent BPA has unused dark fiber
capacity along the Cable Route, ▇▇▇ shall have the right to lease
* Confidential information has been omitted pursuant to a request for
confidential treatment. Such material has been filed separately with the
Securities and Exchange Commission.
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such additional dark fiber capacity on the same terms offered by
BPA to other carriers.
9. ▇▇▇ CAPITAL SPENDING
▇▇▇ shall make capital investments to provision the Commercial Fiber with
electronics, optronics, buildings, other infrastructure, and fiber
connectivity with Local Exchange Carrier networks and Inter-Exchange
Carrier networks, at a sufficient level to meet the Revenue Forecast listed
in Table A of section 8.
10. BPA TERMINAL EQUIPMENT
▇▇▇ shall purchase and provide for the installation and testing of BPA
SONET Terminal Equipment at 14 sites along the Cable Route. Upon BPA's
acceptance of the Terminal Equipment, title shall transfer to BPA, no later
than 180 days following the Service Ready Date.
The Terminal Equipment to be provided to BPA is identified in Exhibit F.
BPA will notify ▇▇▇ of the 14 sites upon which to install and test the
Terminal Equipment. The amount to be paid by ▇▇▇ for the Terminal
Equipment shall not exceed $*. ▇▇▇ shall have the option of purchasing the
Terminal Equipment using BPA's existing contract number 95AM50206 "SONET
Microwave Radio and Fiber Optic Project."
11. BUSINESS PLAN
▇▇▇ shall develop a Business Plan that describes ELI's proposal for
marketing, managing, and utilizing the Cable. The Business Plan shall
include, but not be limited to, ELI's marketing strategy for
telecommunications service(s) along the Cable Route; customer service;
sales strategy for all Transport Services; accounting, billing and
collections standards; strategy for maintaining ▇▇▇ fibers; and plan for
maintaining compliance with all regulatory requirements or relevant State
regulatory authorities and the Federal Communications Commission. Unless
otherwise agreed to by the Parties, ▇▇▇ shall complete the Business Plan 6
months from the date of execution of this Agreement. Prior to finalization
of the Business Plan, BPA shall have the right to review ELI's Business
Plan for consistency with this Agreement; however, BPA shall not be
involved in ELI's
* Confidential information has been omitted pursuant to a request for
confidential treatment. Such material has been filed separately with the
Securities and Exchange Commission.
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decisions regarding the marketing, pricing, managing, and use of the
Commercial Fiber. ▇▇▇ shall use its best efforts, consistent with
reasonable commercial practices, to maximize the GRV generated pursuant to
the License.
12. MARKET PRICE ASSESSMENT
(a) BPA shall procure, under separate agreement, the services of a market
assessment consultant(s) to assess market prices of bulk transport
services and provide reports to BPA.
(b) BPA and ▇▇▇ agree to equally share in the costs of procuring the
services described above.
(c) The market assessment consultant(s) shall be responsible for acquiring
quotes, calculating an average, and delivering market assessment
reports to BPA at some planned interval, using the methodology agreed
to by BPA and ▇▇▇. BPA and ▇▇▇ shall, within 120 calendar days from
execution of this Agreement, make their best effort to agree to the
methodology.
(d) BPA agrees to allow ▇▇▇ to participate in the development of the
methodology for assessing market price(s) to be used under this
Agreement.
(e) ▇▇▇ agrees to use the current data provided to BPA by the market
assessment consultant as a basis for setting ▇▇▇ Transport Service
Value(s) for each ▇▇▇ Transport Service, depending on when the ▇▇▇
Transport Service is placed in service by ▇▇▇. The ▇▇▇ Transport
Service Value for any specific ▇▇▇ Transport Service will remain in
effect for a period of 36 months, after which the ▇▇▇ Transport
Service must be re-valued based on the current market assessment data.
(f) The agreed-to methodology may be changed by mutual agreement of BPA
and ▇▇▇.
13. PAYMENT
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(a) ▇▇▇ agrees to pay BPA monthly, according to the Payment Specifications
described in Exhibit B. In addition to ELI's monthly payment to BPA,
▇▇▇ shall include a monthly report of all transactions. The report
will allow BPA to account for the GRV generated each month. Both
Parties shall agree on a reporting format to be used prior to ELI's
first payment to BPA.
(b) For the purposes of determining the monthly payment required under
this Agreement, any Transport Services along the Revenue Sharing Route
will be included in the accounting to determine GRV.
(c) Unless otherwise agreed to by the Parties, accounting of the GRV shall
begin 30 calendar days following the Service Ready Date. Payment
shall be received by BPA from ▇▇▇ by the last day of each month for
GRV calculated on the previous calendar months' transactions (the Due
Date). Payments shall be sent to the address identified in (f) below.
(d) Payments to BPA for revenue generated by ▇▇▇ from use of the
Commercial Fiber (or portion thereof) before the Service Ready Date
shall be based on the GRV of such services and calculated using the 20
percent and the 10 percent Payment Factors, as described in Exhibit B.
All payments, including payments based on Early Service Revenues,
shall be credited toward ELI's accumulative monthly payments to BPA to
determine Payment Factor.
(e) Early Service Revenues: Revenues generated by ▇▇▇, using the
Commercial Fibers, before Service Ready (as described in section 8),
shall be accumulated as a credit against the Performance Criteria in
Year 1.
(f) ▇▇▇ shall pay by wire or ACH transfer, using procedures established by
BPA's Financial Services Group. ▇▇▇ may pay its ▇▇▇▇ by mail,
provided that BPA receives full payment by the Due Date.
▇▇▇ shall include the following information in the description field
of each transfer: BPA contract number, ▇▇▇▇▇▇▇ ▇▇▇, and End Item Code.
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If ▇▇▇ is paying by mail, payments shall be mailed to:
BPA Accounting Operation - CRO
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ shall include the following information in the documentation sent
with each check: BPA Contract Number, Revenue PL6, and End Item Code.
(g) Payments not received by the Due Date shall bear interest at the
Interest Rate from the Due Date until the date payment is received by
BPA.
(h) BPA may purchase from ▇▇▇ any commercial telecommunications service
▇▇▇ generally offers business customers. The price charged by ▇▇▇ for
any such service shall be the lowest price then charged by ▇▇▇ to
similarly situated commercial customers for a similar service or group
of services, taking into account similar terms and volumes.
14. MAINTENANCE, REPAIR, AND RESTORATION OF THE CABLE
(a) MAINTENANCE OF THE CABLE
(1) During the term of this Agreement, BPA shall be responsible for
the physical routine maintenance of the Cable and the Cable
Accessories. BPA shall maintain the Cable and the Cable Route at
all times in good working order and in a safe condition, in
conformity with the Cable Specifications and all applicable laws
and regulations.
(2) BPA shall pay all costs associated with the routine maintenance
of the Cable.
(3) ▇▇▇ shall be responsible for maintenance of its property,
including the Regenerator Building(s) along the Cable Route.
(b) DETAILED RESTORATION PLAN
(1) Restoration activities will be integral to ensuring successful
implementation of this Agreement. Timely restoration is dependent
upon the timely coordination and implementation between BPA and
▇▇▇.
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(2) The Parties agree to jointly, by December 31, 1998, develop a
Detailed Restoration Plan, which shall upon its completion become
part of this Agreement.
(3) The following provisions described in sections (c) and (d) below
shall form the principles and basis for the development of a
Detailed Restoration Plan.
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(c) RESTORATION PRIORITIES AND GENERAL REQUIREMENTS
(1) BPA's obligation to maintain and repair the Cable and any
activities incidental thereto shall be subordinate to, and shall
not conflict with, BPA's rightful use and operation of its
transmission facilities. In the event both BPA's transmission
facilities and the Cable require maintenance or repair, the
restoration of the Cable shall be at all times subordinate to the
restoration of BPA's transmission facilities, unless otherwise
agreed to in writing by BPA in advance. The restoration of BPA's
telecommunications system shall take priority over restoration
activities related to the Commercial Fiber. In the event that
ELI's License becomes nonexclusive pursuant to section 8, the
Commercial Fiber used by ▇▇▇ shall take priority over restoration
activities related to any fibers used by any other users of the
Commercial Fiber.
(2) A BPA representative must be on-site during all repair and
restoration work to perform functions such as safety watch,
protection of BPA's transmission facilities, and the obtaining of
line clearances.
(3) The Party performing the repair and restoration shall use prudent
business methods to acquire the most cost-effective restoration
procedures and materials available given the Cable
Specifications, Fiber Specifications, and current industry
standards.
(4) Any and all BPA, ▇▇▇ representatives, or other users of the
Commercial Fiber that construct, install, repair, replace, or
otherwise handle the Cable, Cable Accessories, Commercial Fiber,
BPA Fiber, or any related materials and equipment shall be
properly trained and equipped to perform work that meets all
current telecommunication industry standards. BPA shall require
all employees or agents of ▇▇▇ or any other users of the
Commercial Fiber who work near BPA's transmission facilities to
demonstrate that they have been properly trained and equipped to
perform the work. The Parties shall agree in advance what
constitutes proper training and reasonable costs. The costs of
agreed-upon training of ▇▇▇ employees, agents of ▇▇▇, or other
users of the Commercial Fiber shall be borne by ▇▇▇.
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(5) A BPA representative shall have the authority to stop any work
activities or equipment functions for reasons that he or she
determines in good faith to involve potential health hazards,
safety concerns, and potential disruption to BPA's operating
system. BPA will make reasonable efforts to coordinate with ▇▇▇
in case of such events.
(d) RESTORATION OF THE CABLE
(1) Except as provided in section 13(c)(1), BPA shall immediately,
upon notification from ▇▇▇ of interruption in service, failure,
disrepair, impairment, or other need for repair or restoration of
the Commercial Fiber, begin to mobilize BPA crews and make its
best effort to achieve such necessary repair or restoration,
including making its best effort to have maintenance personnel at
the affected site within 4 hours after receipt of such notice,
PROVIDED, HOWEVER, that in the event any of ELI's rights are
interrupted pursuant to section 23(a), repairs and restoration
shall be made as expeditiously as possible. ▇▇▇ recognizes that
the 4-hour response time represents optimal conditions, and may
be impossible to achieve when responding to certain remote
locations. Actual response times will be influenced by factors
such as the terrain, weather conditions present at the time the
request is made, and the actual mileage from BPA's dispatch
station to the fault site.
(2) For purposes of this section, best efforts means activities and
performance consistent with prudent utility practice, existing
contract provisions for BPA's hourly employees ("Collective
Agreement between BPA and Columbia Power Trades Council"), and
response times that do not jeopardize the health and safety of
BPA employees or agents or ▇▇▇ employees or agents.
(3) The Detailed Restoration Plan shall set forth the roles and
responsibilities of the respective Parties, and shall address
issues regarding logistical considerations, response interval
factors, communication between the Parties, sequential activity
requirements, and other related items that would impact response
time and restoration intervals. The aforementioned issues will
be taken into consideration in the determination of whether BPA
has used its best efforts in such restoration or repair
activities. The Detailed Restoration Plan will also set forth
financial
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penalties, if any, to be paid to ▇▇▇ by BPA for failure to use
its best efforts on any repair or restoration, including the
mobilization effort as set forth above.
15. REGENERATOR BUILDING(S)
(a) ▇▇▇ shall have sole responsibility for the expense and acquisition of
any electric power and/or property necessary for its equipment along
the Cable Route. If space is available at BPA substations, such space
shall be provided to ▇▇▇ at BPA's "bare land" lease rate under a
separate agreement.
(b) ▇▇▇ shall provide and own, except as provided in section 6, Cable
Accessories, splice boxes, and other components necessary for the
operation of the Commercial Fiber.
(c) ▇▇▇ shall have sole responsibility for the physical maintenance and
environmental compliance associated with the Regenerator Building(s)
and the grounds underneath and around the Regenerator Building(s).
16. RIGHTS AND OBLIGATIONS CONCERNING THE CABLE
(a) GENERAL
In the event that ▇▇▇ requires services from BPA (other than Transport
Service(s)) along the Cable Route, BPA and ▇▇▇ shall agree in writing
on how those transactions shall be valued.
▇▇▇ shall not use Commercial Fiber for commercial activities not
accounted for in this Agreement.
▇▇▇ agrees to utilize the Commercial Fiber for all ▇▇▇ capacity needs,
existing or arising along the Cable Route and Revenue Sharing Route,
except for diversity needs, and subject to ELI's existing contractual
obligations. ▇▇▇ shall use its best efforts to transition as quickly
as possible from existing contractual obligations in satisfying the
requirements of the preceding sentence.
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(b) PERMITS
BPA shall acquire all necessary regulatory or governmental permits and
approvals required for construction of the Cable, and ▇▇▇ shall, at
its cost, cooperate and provide BPA with such information as BPA may
reasonably request from ▇▇▇ in connection with such permits and
approvals. ▇▇▇ shall acquire all necessary regulatory or governmental
permits and approvals necessary for ELI's use of the Commercial Fiber
for telecommunications services, including Transport Service(s) and
Dark Fiber Leases, and any permits and/or approvals that may be
required for the Regenerator Building(s). ▇▇▇ shall not rely upon BPA
to acquire from any other Federal agency any necessary regulatory or
governmental permits and approvals required by ▇▇▇.
When feasible, BPA shall, at its cost, cooperate and provide ▇▇▇ with
such information as ▇▇▇ may reasonably request from BPA in connection
with acquiring permits, easements, or additional rights-of-way for the
Regenerator Building(s); provided that ▇▇▇ indemnifies and holds
harmless BPA from any future liability resulting from such actions.
(c) TAXES, MECHANIC'S LIENS, AND ENCUMBRANCES
▇▇▇ shall pay its own income taxes, as well as all franchise fees and
other fees and taxes resulting from ELI's License or use of the
Commercial Fiber. ▇▇▇ shall keep the Cable Route free and clear from
all liens and encumbrances resulting from ELI's use of the Commercial
Fiber. If ▇▇▇ does not pay the foregoing taxes and fees when such
become due, and such nonpayment results in the imposition of a lien
on, or encumbrance of, the Cable Route, then BPA shall have the right,
but not the obligation, to pay all amounts due and discharge such lien
or encumbrance, upon 30 calendar days' prior written notice to ▇▇▇. In
the event BPA causes such liens or encumbrances to be discharged, ▇▇▇
shall reimburse BPA upon demand together with interest thereon at the
Interest Rate, accruing from the date that BPA makes payment
discharging such liens or encumbrances until the date BPA receives
full reimbursement from ▇▇▇. ▇▇▇ shall have the absolute right to
dispute or challenge any tax or fee assessed on its use of the
Commercial Fiber.
18
(d) ACCESS ROADS
▇▇▇ may use BPA's access roads to access the Regenerator Building(s),
provided that heavy vehicles or other equipment being used on the
access road will not at any time impair the use of the access road by
BPA. Access to the roads shall be limited to the times and frequency
required for maintenance and operation of the Regenerator Building(s)
and equipment, and any repair and restoration of the Cable pursuant to
section 13. ▇▇▇ shall, at ELI's expense, repair any damage to the
access roads caused as a result of ▇▇▇ use of the access roads. ▇▇▇
shall acquire access easements to the Regenerator Building(s) where
BPA access roads are not available.
(e) ENVIRONMENTAL COMPLIANCE ACTIVITIES
(1) BPA shall be responsible for compliance with the National
Environmental Policy Act (NEPA) and shall acquire all necessary
permits associated with the project operations, maintenance, and
construction of the Cable. ▇▇▇ shall, at its expense, cooperate
and provide BPA with such information as it may reasonably
request in connection with such compliance and permits. The
project activities will be limited to construction and operation
of cable, hardware, Regenerator Building(s), access roads, and
distribution lines if needed for Regenerator Building(s). If any
mitigation measures are required along the Cable Route as part of
the NEPA compliance activities, these measures will be performed
by BPA at the sole cost of BPA. Contacts with the local
landowners will be performed by BPA-appointed representatives.
Any landowner compensation required as part of the NEPA and
project activities will be made by BPA. All of the compliance and
permitting activities undertaken by BPA pursuant to this
paragraph (e) shall be at the cost and expense of BPA.
(2) BPA and ▇▇▇ agree neither they nor anyone acting on their behalf
will bring, keep, or use Hazardous Materials at or on the Cable
Route (including regenerators) except for those necessary for use
in their respective businesses, in which case they are to be
handled, stored, used, and disposed of in compliance with
applicable laws, regulations, and ordinances.
19
(3) BPA agrees to indemnify and hold ▇▇▇ harmless from any and all
claims, damages, fines, judgments, penalties, costs, liabilities,
or losses arising from or due to the presence of Hazardous
Materials at or on the Cable Route (including regenerators) if
BPA or its agent, contractor, employees, or invitees is
responsible for the introduction of the Hazardous Materials. This
indemnity shall specifically include, without limitation, any and
all costs due to Hazardous Materials that flow, diffuse, migrate,
or percolate into, onto or under the property, or from the
property to neighboring property or groundwater after the
Agreement commences; however, it shall not include the cost of
repairing ELI's equipment.
(4) ▇▇▇ agrees to indemnify and hold BPA harmless from any and all
claims, damages, fines, judgments, penalties, costs, liabilities,
or losses arising from or due to the presence of Hazardous
Materials at or on the Cable Route (including regenerators) if
▇▇▇ or its agent, contractor, employee, or invitees is
responsible for the introduction of the Hazardous Materials. This
indemnity shall specifically include, without limitation, any and
all costs due to Hazardous Materials that flow, diffuse, migrate,
or percolate into, onto or under the property, or from the
property to neighboring property or groundwater after the
Agreement commences; however, it shall not include the cost of
repairing BPA's equipment.
(5) 'Hazardous Materials', as used herein, shall mean all materials
that have been determined to be hazardous to health or the
environment by virtue of being: (A) a hazardous waste as defined
by the Resource Conservation and Recovery Act; (B) a hazardous
substance as defined in the Comprehensive Environment,
Compensation, and Liability Act; (C) a substance regulated by the
Toxic Substances Control Act; and (D) substances regulated by the
Federal Insecticide, Fungicide, and Rodenticide Act in accordance
with the applicability provisions of such Act. Reference to
specific statutes include amendments as they are made from time-
to-time, as well as the regulations promulgated thereunder.
17. RELOCATION OF THE CABLE
In the event the Cable requires relocation or replacement during the term
of this Agreement, the cost of such relocation or replacement shall be
allocated as follows:
20
(a) If requested by ELI, ELI shall pay all such costs;
(b) If requested by BPA due to requirements necessary to provide
economical and reliable electric power, BPA shall pay all such costs;
(c) If the Cable must be relocated due to the order of any court,
governmental agency, or in conjunction with the operational needs of
BPA, BPA shall, in consultation with ▇▇▇, designate a new route for
the Cable. The costs associated with such required relocation that
are not paid by a third party shall be paid by BPA. ▇▇▇ shall be
responsible for any relocation costs associated with ELI's Regenerator
Building(s), ▇▇▇-owned cable, and
▇▇▇-owned terminal equipment.
18. REPRESENTATIONS AND WARRANTIES
(a) ▇▇▇
▇▇▇ represents and warrants to BPA as follows:
(1) ▇▇▇ is a corporation duly organized and validly existing and in
good standing under the laws of the State of Delaware. ▇▇▇ is
duly qualified to do business and is in good standing in the
States of Oregon and Washington. ▇▇▇ covenants that it will
maintain any necessary Federal, State, or local compliance needed
to continue to do business in the States of Oregon, Washington,
and California. ▇▇▇ has full power and authority to execute,
deliver, and perform its obligations under this Agreement. The
execution of this Agreement by ▇▇▇ has been duly and validly
authorized by all necessary action on the part of ▇▇▇. This
Agreement is a legal, valid, and binding obligation of ▇▇▇,
enforceable against ▇▇▇ in accordance with its terms, subject,
however, to limitations imposed by bankruptcy laws of the United
States, insolvency, reorganization, arrangement, moratorium, or
other laws relating to or affecting the enforceability of
creditor's rights generally. The execution and delivery of this
Agreement by ▇▇▇ and the performance of the terms, covenants, and
conditions contained herein will not violate the articles of the
corporation, or bylaws of ▇▇▇, or any applicable law or
regulation or any
21
order of court or arbitrator, and will not conflict with and will
not constitute a material breach of, or default under, the
provisions of any contract by which ▇▇▇ is bound. Except for
approvals and authorizations required to perform services on the
cable (such as franchise and building permit applications and
approvals), or as otherwise stated herein, no approval,
authorization, or other action by any governmental authority or
filing with any such authority which has not been obtained or
accomplished is required in connection with the execution,
delivery, and performance by ▇▇▇ of this Agreement.
(2) Any assignment of the License of this Agreement to parties not
owned by Citizens Utilities shall be with the written consent of
BPA. Such consent shall not be unreasonably withheld.
(3) There are no known actions, suits, or proceedings pending or
overtly threatened against ▇▇▇ before any court or administrative
agency that would materially impair ELI's performance of its
obligations under this Agreement.
(4) ▇▇▇ has made no other representations or warranties outside of
this Agreement, and BPA acknowledges and agrees that it is not
relying on any other representations or warranties.
(b) BPA
BPA represents and warrants to ▇▇▇ as follows:
(1) BPA is duly authorized to execute this Agreement. This Agreement
constitutes a legal and valid obligation of BPA, enforceable in
accordance with its terms to the full extent provided by law.
The enforceability of this Agreement is qualified as to:
Limitations imposed by bankruptcy laws of the United States,
insolvency, reorganization, arrangement, moratorium, or other
laws relating to or affecting the enforcement of creditor's
rights generally.
(2) Upon execution of this Agreement, BPA warrants that there are no
known conflicts with this Agreement and that this Agreement does
not constitute a material breach of or a default under any
constitutional provision, law, or
22
administrative regulation; or violate any judgment, decree, or
other instrument, or any other contract related to the Cable
Route to which BPA is a Party or to which BPA or any of its
property or assets is subject.
(3) BPA has made no other representations or warranties outside of
this Agreement, and ▇▇▇ acknowledges and agrees that it is not
relying on any other representations or warranties.
(c) NO BPA WARRANTY CONCERNING CABLE ROUTE
BPA makes no representation or warranty whatsoever concerning the
physical characteristics of the Cable Route. ▇▇▇ acknowledges that
neither BPA nor any of BPA's officers, employees, representatives,
contractors, or subcontractors or agents have made any such
representation, nor is BPA or ▇▇▇ entering into this Agreement in
reliance upon any such representation or warranty.
19. AUDIT PROCEDURES
(a) RECORDS
The Parties shall maintain true and correct sets of records in
connection with the performance of this Agreement. ▇▇▇ shall retain
records of all transactions with supporting documentation related
thereto for a period of not less than 3 years after the term of a
specific transaction has expired and receipt of final payment by ▇▇▇
to BPA. The records in connection with each financial transaction
shall include an accounting of gross revenues, revenue shares, and
billing and collection. BPA shall retain all documents relative to BPA
Capital Cost for a period of at least 3 years after BPA incurs the
Capital Cost.
(b) AUDIT RIGHTS
Either Party shall have the right to perform an audit of each other's
books, records, and documents used in or relating to the costs to
construct, repair, and maintain the site and improvements under this
Agreement. Such audit may be performed within 36 months after the
date that either Party renders a ▇▇▇▇ or refund voucher. Each Party
shall be responsible for all expenses incurred by such Party in the
performance of an audit pursuant to this
23
section. In the event that the Parties agree that the Auditing Party's
audit is determined to be correct, the Non-Auditing Party shall
reimburse the Auditing Party the agreed upon amount. In the event that
the Non-Auditing Party disagrees with the results of the other Party's
audit, and resolution is not reached between the Parties, the Parties
agree to resolve the dispute pursuant to section 23 of this Agreement.
(c) TECHNICAL AUDITS
BPA reserves the right to conduct technical audits, including physical
inspection of the number, type, and use of circuits, including
Transport Service(s) sold, used, and administered by ▇▇▇ using the
Commercial Fiber.
20. INSURANCE
(a) GENERAL
At all times during the term of this Agreement and the License term,
▇▇▇, at its own cost and expense, shall provide the insurance
specified by this section.
(b) EVIDENCE REQUIRED
On the Effective Date of this Agreement, ▇▇▇ shall provide BPA with a
certificate of insurance (Certificate of Insurance) executed by an
authorized representative of the insurer(s) evidencing that ▇▇▇
insurance complies with this section. A copy of all required
endorsements shall be attached to and form a part of the Certificate
of Insurance.
(c) NOTICE OF CANCELLATION, REDUCTION, OR MATERIAL CHANGE IN COVERAGE
Policies shall be endorsed to provide BPA with 30 calendar days' prior
written notice of any cancellation, reduction, or material change in
coverage. If insurance coverage is due to be canceled, reduced, or
materially changed, ▇▇▇ shall, within 30 calendar days before the
effective date of such cancellation, reduction, or material change,
obtain the coverage required under this section 19 and provide to BPA
documentation evidencing such coverage. ▇▇▇ shall be responsible for
the costs of any damage, liability, or injury occurring during any
period of cancellation, reduction, or material change in insurance
coverage to the extent such costs are not otherwise covered by
insurance; provided that
24
▇▇▇ shall not be responsible for the costs of any damage, liability,
or injury occurring during any such period if such damage, liability,
or injury was caused by BPA's gross negligence or willful misconduct.
(d) QUALIFYING INSURERS
Policies shall be issued by companies which hold a current
policyholders alphabetic and financial size category rating of not
less than A:X according to Best's Insurance Reports.
(e) INSURANCE REQUIRED
(1) LIABILITY
Commercial general liability insurance for bodily injury
(including death) and property damage shall provide limits of not
less than $10 million per occurrence.
(A) Coverage included shall be:
(i) premises and operations;
(ii) broad form property damage;
(iii) products and completed operations;
(iv) blanket contractual liability;
(v) personal injury liability;
(vi) cross-liability and severability of interests; and
(vii) independent contractors liability.
(B) Coverage shall be endorsed to include the following:
(i) inclusion of BPA, its officers, representatives,
agents, and employees as an additional insured as
respects services or operations in connection with
this Agreement; and
(ii) stipulation that the insurance is primary insurance
and that no insurance or self-insurance of BPA will
be called upon to contribute to a loss.
(2) BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business Automobile Liability Insurance for bodily injury
(including death) and property damage shall provide total limits
of not less than $2 million combined single limit per occurrence
to all owned, non-owned, and hired vehicles.
25
(3) WORKERS' COMPENSATION/EMPLOYER'S LIABILITY INSURANCE
Statutory Workers' Compensation and Employer's Liability
Insurance for not less than $1 million per occurrence shall apply
to employer's liability coverage for all employees engaged in
services or operations under this Agreement. The policy shall
include broad form all-States/ other States coverage.
(f) SPECIAL PROVISIONS
(1) The foregoing requirements as to the types and limits of
insurance coverage to be maintained by ▇▇▇, and any approval of
said insurance by BPA or ▇▇▇, are not intended to and shall not
in any manner limit or qualify the liabilities and obligations
otherwise assumed by ▇▇▇ pursuant to this Agreement, including,
but not limited to, the provisions concerning indemnification.
(2) BPA acknowledges that some insurance requirements contained in
this section 19 may be fulfilled by a funded self-insurance
program of ▇▇▇ or its parent company, Citizens Utilities.
However, this shall not in any way limit liabilities assumed by
▇▇▇ under this Agreement. Any self-insurance program must be
first approved in writing by BPA.
21. DEFAULT
(a) EVENTS OF DEFAULT
If either Party is in material breach or default (Defaulting Party),
under this Agreement, the other Party (Non-Defaulting Party) may
notify in writing the Defaulting Party that it is in material breach
or default, such notice to be effective upon its receipt by the
Defaulting Party. Material breach or default under this Agreement
shall include, but is not limited to the following:
(1) failure to make any payment when due hereunder; with the
exception of payments that become payable during periods of Force
Majeure as provided in section 24(a)(2).
26
(2) failure to perform any obligations required to be observed or
performed hereunder;
(3) any representation or warranty made by one Party to the other
herein proving incorrect in any material respect as of the date
of the making thereof;
(4) ▇▇▇ files a voluntary petition in bankruptcy, or a petition in
bankruptcy is filed against ▇▇▇ and not dismissed within 60 days,
or ▇▇▇ is adjudicated as bankrupt or insolvent, or files any
petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution,
or similar relief under any present or future Federal, State, or
other statute, law, or regulation relating to bankruptcy,
insolvency, or other relief for debtors, or seeks or consents to
or acquiesces in the appointment of any trustee, receiver,
custodian, liquidator, or similar official of ▇▇▇, or makes any
general assignment for the benefit of creditors;
(5) material interference by a Party to the other Party's operations;
or
(6) failure to make restitution for any damage to a Party's real
property or equipment caused as a result of the negligent or
willful acts or omissions of the other Party when such damage
causes material interference to a Party's operations.
(b) REMEDIES
(1) DEFAULTING PARTY'S RIGHT TO CURE
The Defaulting Party shall have the right to cure any material
breach or default under this Agreement within 30 calendar days
after the receipt by the Defaulting Party of notification of such
material breach or default. In the case of any material breach or
default which may not reasonably be cured within 30 calendar
days, other than in the case of a breach of section 20(a)(1), the
Defaulting Party shall have the right to provide the Non-
Defaulting Party with a plan for the appropriate actions to cure
such material breach or default, which plan shall be subject to
the approval of the Non-Defaulting Party, which approval shall
not be unreasonably withheld. Within 30 calendar days of
submission of the plan, the Defaulting Party must commence
diligently pursuing appropriate action under the plan to cure the
material breach or default, and unless otherwise agreed to by the
27
Parties, such material breach or default shall be cured within 90
calendar days of submission of the plan, failing which the Non-
Defaulting Party may forthwith and without further notice
terminate this Agreement.
(2) RIGHTS AND REMEDIES UPON TERMINATION
Any Party terminating this Agreement under section 21 shall have
the additional right to cure any material breach or default of
the Defaulting Party to preserve the Non-Defaulting Party's
rights that may be prejudiced as a result of such material breach
or default and exercise and pursue all other rights and remedies
available to it under applicable law.
(3) RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided in this Agreement, any right or
remedy afforded to either ▇▇▇ or BPA under any provision of this
Agreement is in addition to, and not in lieu of, all rights or
remedies afforded either ▇▇▇ or BPA under any other provision of
this Agreement, by law or otherwise.
22. TERMINATION
(a) Termination of this Agreement may occur in the following instances:
(1) By the Non-Defaulting Party, after the time period for
the Defaulting Party to cure a material breach or
default has expired;
(2) By either Party, if the Party claiming Force Majeure has
not satisfactorily performed any obligations delayed due
to the Force Majeure within 1 year of the notice of the
Force Majeure event; or
(3) Pursuant to Partial Invalidity terms, section 24(d) of
this Agreement.
(b) Subject to section 20(b), the Terminating Party shall give the other
Party 30 calendar days advance written notice of Termination, which
Termination shall become effective 30 calendar days after the receipt
of such notice by the other Party.
28
23. INDEMNIFICATION; WAIVER OF DAMAGES
(a) INDEMNIFICATION BY ▇▇▇
(1) To the extent allowed by law, ▇▇▇ shall release and indemnify,
defend, and hold harmless BPA and each of its directors,
officers, agents, representatives, subcontractors, and employees
(the "BPA Indemnitees") from and against any and all claims: (A)
for injury to or death of a person, including an employee of BPA
or an ▇▇▇ Indemnity; or (B) for loss of or damage to property
resulting directly or indirectly from ELI's performance or
nonperformance of this Agreement; or
(C) for any Claims against BPA by customers of ▇▇▇ or others
doing business with ▇▇▇, except in the cases of clauses (A) and
(B) only, to the extent that such Claim is the result of the
gross negligence or willful misconduct of a BPA Indemnity.
(2) If gross negligence or willful misconduct of a BPA Indemnity has
contributed to a Claim, ▇▇▇ shall not be obligated to indemnify
the BPA Indemnitees for the proportionate share of such Claims
caused by such negligence or willful misconduct. BPA shall have
the right, at its own cost, to retain counsel, and to monitor, or
participate in the defense of any Claim that is covered by ELI's
indemnity hereunder.
(b) INDEMNIFICATION BY BPA
(1) To the extent allowed under the Federal Tort Claims Act, BPA
shall release and indemnify, defend, and hold harmless ▇▇▇ and
each of its directors, officers, agents, representatives,
subcontractors, and employees (the "▇▇▇ Indemnitees") from and
against any and all claims for injury to or death of a person,
including an employee of BPA or an ▇▇▇ Indemnity, or for loss of
or damage to property resulting directly or indirectly from BPA's
performance or nonperformance of this Agreement, except to the
extent that such claim is the result of the gross negligence or
willful misconduct of a ▇▇▇ Indemnity. In no event shall BPA be
29
required to indemnify ▇▇▇ Indemnities against claims against ▇▇▇
by customers of ▇▇▇ or others doing business with ▇▇▇.
(2) If gross negligence or willful misconduct of an ▇▇▇ Indemnity has
contributed to a claim, BPA shall not be obligated to indemnify
the ▇▇▇ Indemnitees for the proportionate share of such claims
caused by such negligence or willful misconduct. ▇▇▇ shall have
the right, at its own cost, to retain counsel, to monitor, or to
participate in the defense of any claim that is covered by BPA's
indemnity hereunder.
(c) WAIVER OF CERTAIN DAMAGES
Each Party hereby waives any right to consequential, incidental,
special or indirect damages, or damages for lost profits or exemplary
damages with respect to any claim arising out of or related to this
Agreement. The Parties acknowledge that the foregoing waiver shall not
prejudice the right of indemnity respecting any claim under this
section 22.
24. DISPUTE RESOLUTION
(a) Pending resolution of a disputed matter, the Parties shall continue
performance of their respective obligations hereunder, provided that
neither Party shall be required to take any action pending such
resolution which it has been advised by Counsel, or which it
reasonably believes, is unlawful or not permitted pursuant to
applicable regulations or permit requirements. Any controversy
between the Parties rising out of this Agreement or breach thereof, or
out of performance under this Agreement, is subject to the mediation
process described below. If not resolved by mediation, then the
matter must be submitted to the American Arbitration Association
("AAA") for arbitration before a sole arbitrator.
(b) A meeting will be held promptly between the Parties to attempt in good
faith to negotiate a resolution of the dispute. The meeting will be
attended by individuals with decision-making authority regarding the
dispute. If within 30 calendar days after such meeting the Parties
have not succeeded in resolving the dispute, within 30 calendar days
thereafter, upon the written notice from either Party to the other
Party, they shall submit the dispute
30
to a mutually acceptable third-party mediator who is acquainted with
dispute resolution methods. The mediation shall be non-binding. If the
dispute is not resolved by mediation, either Party may initiate an
arbitration with the AAA, upon the written notice from either Party to
the other Party. The dispute shall be resolved by arbitration under
the rules and administration of the AAA (except that service of
process, pleadings, motions and orders on BPA shall be as prescribed
by the Federal Rules of Civil Procedures), and judgment upon the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Neither Party is entitled to seek or recover
punitive damages in considering or fixing any award under these
proceedings.
(c) The costs of mediation and arbitration, including any mediator's fees,
AAA administration fee, the arbitrator's fee, and costs for the use of
facilities during the hearings, shall be borne equally by the Parties.
Reasonable attorneys' fees may be awarded to the prevailing Party
(provided such a Party can clearly be determined from the proceedings)
at the discretion of the arbitrator. Each Party's other costs and
expenses will be borne by the Party incurring them.
25. GENERAL
(a) FORCE MAJEURE
(1) As used in this Agreement, the term "Force Majeure" means acts of
God (including but not limited to, earthquakes, fires, floods,
windstorms, landslides, and ice storms); strikes, lockouts, or
other labor disputes; acts of public enemy; wars, riots, and
insurrection; epidemics; civil disturbances; explosions; train
derailments; breakdown or failure of machinery or facilities
(excluding the Cable and Cable Accessories); accidents to
machinery or equipment (excluding the Cable and Cable
Accessories), and delay in delivery of equipment to the extent
such occurrences are beyond the reasonable control of the
Parties; electrical disturbance originating in or transmitted
through such Party's electrical system or equipment or any
electrical system with which such Party's system or equipment is
interconnected; and any other event, cause, or condition beyond
the Party's
31
reasonable control, which, by the exercise of
reasonable diligence, prevents the operation of the Cable and
prevents the Party claiming Force Majeure from performing its
obligations under this Agreement.
(2) If either Party is unable to carry out its obligations under this
Agreement as a result of an event, cause, or condition of Force
Majeure, the Party claiming Force Majeure shall give notice and
full particulars of such Force Majeure in writing to the other
Party within 5 calendar days after the occurrence of the Force
Majeure event, cause, or condition. Any obligations that such
Party claims it is unable to perform due to an event, cause, or
condition of Force Majeure shall be suspended during the
continuance of such event of Force Majeure. The Party claiming
Force Majeure shall use reasonable efforts to remedy and minimize
the effects of such event of Force Majeure with all reasonable
dispatch. For purposes of this Agreement, the Parties are
obligated to make payments during periods of Force Majeure;
PROVIDED, HOWEVER, ▇▇▇ shall not be obligated to make payments
during periods of Force Majeure when ▇▇▇ is unable to provide
service under the terms of the agreement with ELI's customers.
Interest shall not accrue on payments that become payable to
either Party during the period of any Force Majeure.
(3) Neither Party shall be liable under this Agreement for, or
considered to be in material breach or default under, this
Agreement on account of any delay in or failure of performance
due to Force Majeure unless specifically stated in this
Agreement. In the event that ▇▇▇ continues to receive revenue
from End-Users under this Agreement during a Force Majeure event,
▇▇▇ will not be excused from performing its payment under this
Agreement.
(b) NOTICES
All notices and other communications under this Agreement shall be properly
given only if made in writing; and
(1) mailed by certified mail, return receipt requested, postage
prepaid; or
(2) delivered by facsimile transmission followed by certified mail to
the Party's at the address or
32
facsimile number set forth in this section 24(b) or such other
address or facsimile number as such Party may designate by notice
to the other Party. Such notices and other communications shall
be effective on the date of receipt. If any such notice or
communication is not received or cannot be delivered due to a
change in the address of the receiving Party of which notice was
not previously given to the sending Party or due to a refusal to
accept by the receiving Party, such notice or other communication
shall be effective on the date delivery is attempted.
If to BPA: The Bonneville Power Administration
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: To be identified under separate letter
with a copy to: The Bonneville Power Administration
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: To be identified under separate letter
If to ▇▇▇: Electric Lightwave, Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
Attn: Legal Affairs
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
(c) ASSIGNMENT
▇▇▇ shall not sell, assign, lease, sublease, sub-license or otherwise
allow use of ELI's License under this Agreement to any person or
entity without BPA's written approval; which approval shall not be
unreasonably withheld. Notwithstanding the foregoing, ▇▇▇ may assign
in writing its rights and responsibilities under this Agreement to a
corporate parent, subsidiary, or commonly owned affiliate, upon
written notification to BPA, and a guarantee by its parent company,
Citizens Utilities, to perform the obligation of ▇▇▇ under this
Agreement. Any permitted assignment or other transfer of rights
hereunder shall be in writing and shall specify that the assignee or
other transferee is bound by the terms and conditions of this
Agreement to the same extent as if it were the original named party
instead of ▇▇▇ hereunder. In the event that ▇▇▇ ▇▇▇▇▇, assigns,
leases, subleases, or
33
otherwise allows use of ELI's License under this Agreement, ▇▇▇ or its
assigned entity shall designate a single point-of-contact to BPA for
all activities relating to this Agreement. A sale, transfer, or
distribution (by way of a dividend or otherwise) in one or a series of
transactions of 50 percent or more of the capital stock of the entity
that holds the License shall be deemed to be an assignment of the
License.
(d) PARTIAL INVALIDITY
If any provision of this Agreement is determined by a proper court to
be invalid, illegal, or unenforceable, such invalidity, illegality, or
unenforceability shall not affect the performance of other provisions
of this Agreement, and this Agreement shall remain in full force and
effect without such invalid, illegal, or unenforceable provision;
provided that if any such invalid, illegal, or unenforceable provision
results in frustration of this Agreement, such that ▇▇▇ cannot perform
under section 13, BPA shall have the right to terminate in accordance
with section 21.
(e) GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
Federal law.
(f) TERMS GENERALLY
The defined terms in this Agreement shall apply equally to both the
singular and the plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine, and neuter forms. The term "person" includes
individuals, corporations, partnerships, trusts, other legal entities,
organizations and associations, and any Government or governmental
agency or authority. The words "include," "includes," and
"including," shall be deemed to be followed by the phrase "without
limitation." The words "approval," "consent," and "notice," shall be
deemed to be preceded by the word "written."
(g) RELATIONSHIP OF THE PARTIES
Nothing in this Agreement is intended or shall be deemed to constitute
a partnership, agency, or joint venture relationship between or among
the Parties hereto. The performance by the Parties of all duties and
obligations hereunder shall be as independent
34
contractors and not as agents of the other Party, and no persons
employed or utilized by a performing Party shall be considered
employees or agents of the other.
(h) WAIVERS
No waiver of any provision or breach of this Agreement shall be
effective unless such waiver is in writing and signed by the waiving
Party and any such waiver shall not be deemed a waiver of any other
provision of this Agreement or any other breach of this Agreement.
(i) CONFIDENTIALITY
If and to the extent any information or documents furnished by one
Party to the other under this Agreement is confidential or proprietary
to the furnishing Party, the receiving Party shall treat such
information or documents as confidential and proprietary and shall
take reasonable steps to protect against the unauthorized use or
disclosure of such information or documents; PROVIDED, HOWEVER, that
such information and documents are conspicuously marked or otherwise
clearly identified as confidential or proprietary when furnished; and
PROVIDED, FURTHER, that this section 24(g) shall not apply to
information or documents in the public domain or to information or
documents required to be disclosed by any law, rule, regulation,
order, or other requirement of any governmental authority having
jurisdiction. If a Freedom of Information Act, or Congressional,
request is received by BPA for such written information or documents,
BPA must promptly notify ▇▇▇ of such request and will, further, notify
▇▇▇ if BPA is required to disclose such written information or
documents.
(j) NO THIRD-PARTY BENEFICIARIES
This Agreement creates rights and obligations only between the Parties
hereto. The Parties hereto expressly do not intend to create any
obligations or promise of performance to any other third person or
entity, nor have the Parties conferred any rights or remedy upon any
third person or entity other than the Parties hereto, their respective
successor or assigns to enforce this Agreement.
(k) MISCELLANEOUS
35
Neither Party shall make public announcement of this Agreement or the
transactions contemplated by this Agreement without the prior consent
of the other Party, unless such public announcement is necessary to
comply with applicable law. This Agreement shall benefit and bind ▇▇▇
and BPA and their respective permitted successors and assigns. Time
is of the essence of this Agreement. This Agreement may be executed
in counterparts, each of which shall be an original, but all of which
shall constitute one and the same Agreement. This Agreement may not
be amended or modified except by a written instrument signed by ▇▇▇
and BPA.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in two
counterparts.
UNITED STATES OF AMERICA
Department of Energy
BPA Power Administration
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ for
Name ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Transmission
Marketing & Sales
January 8, 1998
Date ___________________________
ACCEPTED:
ELECTRIC LIGHTWAVE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By __________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name __________________________
(Print/Type)
President
Title __________________________
January 8, 1998
Date __________________________
36
Exhibit A, Page 1 of 1
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
ROUTE DESCRIPTION
---------------------------------------------------------------------------------------------------
STATION OR (TOWER LINE DISTANCE LINE COMMENTS
SERIAL NO.) (MILES) NAME
-------------------------------------------------------------------------------------------------------------
▇▇▇▇
-------------------------------------------------------------------------------------------------------------
14.7 North Bon. - ▇▇▇▇ No. 1 From ▇▇▇▇ to structure
AFX 113A
-------------------------------------------------------------------------------------------------------------
(AFX 113A) Line Transition
-------------------------------------------------------------------------------------------------------------
6.7 North Bon.- Troutdale From Structure
No. 2 AFX 113A to Troutdale
-------------------------------------------------------------------------------------------------------------
Troutdale
-------------------------------------------------------------------------------------------------------------
53.4 Big Eddy-Troutdale No. 1
-------------------------------------------------------------------------------------------------------------
Parkdale
-------------------------------------------------------------------------------------------------------------
24.0 Big Eddy - Troutdale No. 1
-------------------------------------------------------------------------------------------------------------
Big Eddy
-------------------------------------------------------------------------------------------------------------
29.4 Big ▇▇▇▇ - ▇▇▇▇▇▇▇ No. 1
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
▇▇.▇ ▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇. ▇
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
15.1 ▇▇▇▇▇▇▇ - Pilot Butte No. 1
-------------------------------------------------------------------------------------------------------------
Pilot Butte
-------------------------------------------------------------------------------------------------------------
29.6 Pilot Butte - ▇▇▇▇▇▇ No. 1
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------
45.5 ▇▇▇▇▇▇ - Fort Rock No. 1
-------------------------------------------------------------------------------------------------------------
(ALC 308) From ▇▇▇▇▇▇ to str. 46/3
(Serial No. ALC 308)
-------------------------------------------------------------------------------------------------------------
0.1 Line Transition
-------------------------------------------------------------------------------------------------------------
(CG 406) Starting point on Grizzly
- Captain ▇▇▇▇ (86/5)
-------------------------------------------------------------------------------------------------------------
1.5 Grizzly - Captain ▇▇▇▇ No. 1
-------------------------------------------------------------------------------------------------------------
Fort Rock BPA Compensation Station
-------------------------------------------------------------------------------------------------------------
28.5 Grizzly - Captain ▇▇▇▇ No. 1
-------------------------------------------------------------------------------------------------------------
Sycan
-------------------------------------------------------------------------------------------------------------
60.0 Grizzly - Captain ▇▇▇▇ No. 1
-------------------------------------------------------------------------------------------------------------
Captain ▇▇▇▇
-------------------------------------------------------------------------------------------------------------
7.4 Captain Jack - Malin No. 1
-------------------------------------------------------------------------------------------------------------
Malin
-------------------------------------------------------------------------------------------------------------
Total Miles = 383.9
------------------------------------------------------------------------------------------------------------
1
Exhibit B, Page 1 of 2
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
PAYMENT SPECIFICATIONS
ELI's MONTHLY PAYMENT to BPA will equal GRV multiplied by the Payment Factor.
The PAYMENT FACTOR equals * (*) until ELI's accumulative monthly
payments to BPA exceed BPA Capital Costs, after which the Payment Factor will
equal * (*) for the remainder of the contract.
The GRV will be determined using the following formula:
GRV = ELITSV + EUTSV + DFLV + OSV
Where:
GRV = GROSS REVENUE VALUE
ELITSV = ▇▇▇ TRANSPORT SERVICE VALUE(S)
EUTSV = END-USER TRANSPORT SERVICE VALUE(S)
DFLV = DARK FIBER LEASE VALUE(S)
OSV = OTHER SERVICE VALUE(S)
* Confidential information has been omitted pursuant to a request for
confidential treatment. Such material has been filed separately with the
Securities and Exchange Commission.
1
Exhibit B, Page 2 of 2
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
ELECTRIC LIGHTWAVE, INC.
PORTLAND - SACRAMENTO - SAN FRANCISCO - LOS ANGELES
($000)
Calendar Years 1998* 1999* 2000* 2001* 2002* 2003* 2004* 2005* 2006* 2007* 2008* 2009* 2010* 2011*
Revenue Forecast:
-----------------
Revenue Growth yrs 6-10*
Revenue Growth yrs 11-20*
Portland to Sacramento*
Portland to San Francisco*
Portland to Los Angeles*
Sacramento to Los Angeles*
San Francisco to Los Angeles*
Sacramento to San Francisco*
Dark Fiber Lease*
Total ▇▇▇ Revenue*
Revenue Split:
BPA Revenue split percentage
Until capital is repaid*
After capital is repaid*
BPA Annual Revenues*
BPA Cumulative Revenues*
BPA Revenues*
Capital Investment:
-------------------
Number of Miles*
BPA Miles*
BPA Outside Plant($000)*
BPA
Cash Flow:
----------
Capital Expenditures*
Revenue*
BPA Cash Flow*
----------
* Confidential information has been omitted pursuant to a request for
confidential treatment. Such material has been filed separately with the
Securities and Exchange Commission.
Exhibit C, Page 1 of 1
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
EXHIBIT C
REVENUE SHARING ROUTE
The revenue sharing route originates in the Portland, Oregon area and
terminates in Los Angeles, California, passing though Sacramento and San
Francisco, California.
Exhibit D, Page 1 of 4
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
COMMERCIAL FIBER SPECIFICATIONS
CORNING/(R)/ SMF-28 CPC6
SINGLE-MODE OPTICAL FIBER
GENERAL
Corning/(R)/ SMF-28 single-mode fiber is considered the "standard" optical fiber
for telephony, cable television, submarine, and private network applications in
the transmission of data, voice, and/or video services. Corning SMF-28 fiber is
manufactured to the most demanding specifications in the industry.
SMF-28 fiber is optimized for use in the 1310 nm wavelength region. The
information-carrying capacity of the fiber is at its highest in this
transmission window; it is also where dispersion is the lowest. SMF-28 fiber
can also be effectively used in the 1550 nm wavelength region.
Corning's enhanced, dual layer acrylate CPC6 coating provides excellent fiber
protection and is easy to work with. CPC6 can be mechanically stripped and has
an outside diameter of 245 um. CPC6 is optimized for use in many single and
multi-fiber cable designs including loose tube, ribbon, slotted core, and tight
buffer cables.
SMF-28 fiber is manufactured using the Outside Vapor Deposition (OVD) process,
which produces a totally synthetic, ultra-pure fiber. As a result, Corning SMF-
28 has consistent geometric properties, high strength, and low attenuation.
Corning SMF-28 fiber can be counted on to deliver excellent performance and high
reliability, reel after reel.
FEATURES AND BENEFITS
. Versatility in 1310 nm and 1550 nm applications.
. Outstanding geometrical properties for low splice loss and high splice
yields.
. OVD manufacturing reliability and product consistency.
. Optimized for use in ribbon, loose tube, and other common cable designs.
1
Exhibit D, Page 2 of 4
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
OPTICAL SPECIFICATIONS
ATTENUATION
UNCABLED FIBER ATTENUATION CELLS POINT DISCONTINUITY
---------------------------------------
Attenuation Cells No point of discontinuity greater than 0.10 dB at either 1310 nm or 1550
(dB/km) nm.
---------------------------------------
Wavelength (nm) Standard
---------------------------------------
1310 less than or equal to 0.40 ATTENUATION AT THE WATER PEAK
---------------------------------------
1550 less than or equal to 0.30 The attenuation at 1383 plus/minus 3 nm shall not exceed 2.1 dB/km.
---------------------------------------
*Lower attenuation available in limited quantities.
ATTENUATION VS. WAVELENGTH
---------------------------------------
Range Ref.L Max Increase The attenuation in a given wavelength range
(nm) (nm) A(dB/km) does not exceed the attenuation of the reference
1285-1330 1310 0.05 wavelength (L) by more than the value A.
---------------------------------------
1525-1575 1550 0.05
---------------------------------------
ATTENUATION WITH BENDING
--------------------------------------------------------------------
Mandrel Number of Turns Wavelength Induced The induced attenuation due to fiber
Diameter (nm) Attenuation wrapped around a mandrel of a specified
(mm) (dB) diameter.
32 1 1550 less than or equal to 0.50
--------------------------------------------------------------------
75 100 1310 less than or equal to 0.05
--------------------------------------------------------------------
75 100 1550 less than or equal to 0.10
--------------------------------------------------------------------
. CABLE CUTOFF WAVELENGTH (Lccf) . MODE-FIELD DIAMETER
Lccf less than 1260 nm 9.30 plus/minus 0.50 micro m at 1310 nm
10.50 plus/minus 1.00 micro m at 1550 nm
. DISPERSION
Zero Dispersion Wavelength (L\o\): 1301.5 nm less than or equal to Lo less than or equal to 1321.5 nm
Zero Dispersion Slope (S\o\): less than or equal to 0.092 ps/(nm/2/ . km)
Fiber Polarization Mode Dispersion Coefficient (PMD): less than or equal to 0.5 psec/ divided by km
DISPERSION CALCULATION
---------------------------------------------------------------------------------------------------------------------------------
S\o\ [ L\o\ to the 4th power]
Dispersion = D (L): ~ ---- [ L - ---------------------] ps/(▇▇.▇▇), for 1200 nm less than or equal to L
4 [ L to the 3rd power ] less than or equal to 1600 nm L = Operating Wavelength
ENVIRONMENTAL SPECIFICATIONS
2
Exhibit D, Page 3 of 4
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
INDUCED
ENVIRONMENTAL TEST CONDITION ATTENUATION
(DB/KM)
------------------------------------------------------------------------------------ Operating Temperature Range
-60C to +85C
1310 nm 1550 nm
------------------------------------------------------------------------------------
Temperature Dependence less than or equal to 0.05 less than or equal to 0.05
-60 to +85C
------------------------------------------------------------------------------------
Temperature-Humidity Cycling less than or equal to 0.05 less than or equal to 0.05
-10C to +85C, up to 98% RH
------------------------------------------------------------------------------------
Water Immersion, 23C less than or equal to 0.05 less than or equal to 0.05
Heat ▇▇▇▇▇, ▇▇▇ less than or equal to 0.05 less than or equal to 0.05
------------------------------------------------------------------------------------
DIMENSIONAL SPECIFICATIONS
STANDARD LENGTH (KM/REEL): 2.2 - 25.0
*Longer spliced lengths available at a premium.
GLASS GEOMETRY COATING GEOMETRY
Fiber Curl: greater than or equal to 2.0 m radius of curvature Coating Diameter: 245 plus/minus 10 micro m
Cladding Diameter: 125.0 plus/minus 1.0 micro m Coating-Cladding Concentricity: less than 12 micro m
Core-Clad Concentricity: less than or equal to 0.8 micro m
Cadding Non-Circularity: less than 1.0%
[ Min. Cladding Diameter ] x 100
Defined as: 1 - ----------------------
[ Max. Cladding Diameter ]
MECHANICAL SPECIFICATIONS
PROOF TEST:
The entire length of fiber is subjected to a tensile proof stress greater than
or equal to 100 kpsi (0.7 GN/m/2/)*
*Higher proof test available at a premium.
3
Exhibit D, Page 4 of 4
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
PERFORMANCE CHARACTERIZATIONS
Characterized parameters are typical values.
CORE DIAMETER: REFRACTIVE INDEX DIFFERENCE:
8.3 micro m 0.36%
NUMERICAL APERTURE: EFFECTIVE GROUP INDEX OF REFRACTION (▇▇▇▇):
0.13 1.4675 at 1310 nm
NA was measured at the one percent power 1.4681 at 1550 nm
angle of a one-dimensional far-field scan
at 1310 nm.
ZERO DISPERSION WAVELENGTH (Lo): FATIGUE RESISTANCE PARAMETER (nd):
1312 nm greater than or equal to 20
ZERO DISPERSION SLOPE (So): COATING STRIP FORCE:
0.090 ps/(nm/2/.km) Dry: 0.7 lbs. (3.2 N)
Wet: 14 days room temperature: 0.7 lbs. (3.2 N)
COATINGS
SMF-28 optical fiber also is available with CSB4 500 micro m coating.
4
Exhibit E, Page 1 of 3
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
EXHIBIT E
▇▇▇ FIBER ACCEPTANCE TESTING STANDARDS
Bonneville shall meet or exceed these specifications. In the event that
Bonneville's performance requirements for its communication system requires
Bonneville to exceed the standards and requirements specified in this Exhibit D,
Bonneville shall apply the higher standard.
▇▇▇ Network Span and Final Acceptance Requirements:
1.0 Design Criteria:
--------------------
The number of cable splices at the time of original construction must be
designed to an average of 4 km between splices. Due to cable cuts, and cable
relocation, additional splices are allowed. The number of splices must be
closely monitored to insure attenuation and reflection tolerances are
maintained.
Construction:
-------------
Cable must be constructed in accordance with sound commercial practices. The
National Electrical Code shall be followed in every case except where local
regulations are more stringent, in which case local regulations shall govern.
2.0 Typical Fiber Cable Information:
------------------------------------
Single mode fiber specifications may vary, depending on the fiber manufacturer.
Typical concatenated levels of 0.35 dB per km @ 1310nm and 0.25 per km @ 1550nm
are expected.
3.0 Span Requirements:
----------------------
Span documentation must be performed using the two following methods: OTDR
(optical time domain reflectometer) and insertion loss (stabilized light source
and power meter) measurement in each direction at 1550nm wavelength.
. Maximum total span loss must not exceed 35.0 dB at 1550nm.
----------
. Maximum dB/Km loss must not exceed 0.35 dB/Km at 1550nm.
-----
. In no case shall a fiber show a point discontinuity greater than 0.1dB.
Discontinuities (know as steps, splices, or attenuation non-uniformities)
shall be measured with an optical time domain reflectometer (OTDR) to
determine the loss of the localized attenuation. The lease squares fit method
of measurement must be used to determine the magnitude of the loss of a point
discontinuity.
. Typical span scenario 30.0 dB=120 Km X .25 dB/Km.
----
1
Exhibit E, Page 2 of 3
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
. Maximum fiber loss scenario 35.0 dB= 100 Km X ..35 dB/Km. (depends on
----------
regeneration huts)
. Maximum span dispersion = 2250 ps/mn/Km.
---------------
. Performance levels must be maintained as accepted during the entire duration
of the agreement.
. Test data including OTDR hard copies or electronic data must be submitted to
Common System Engineering before Final Acceptance. ▇▇▇, at its discretion,
may choose to physically monitor any or all testing associated with Final
Acceptance of the ▇▇▇ Fibers.
In the event the measured span measured values exceeds the calculated values,
Bonneville will perform corrective maintenance as required to restore the ▇▇▇
Fibers to the calculated values.
4.0 Splice Loss:
------------
the splice loss will average 0.10dB. All splicing will be performed by
proprietor pursuant to fibers leased agreement. Further, no individual splice
will exceed 0.50dB. Splices shall be measured using bi-directional methods to
average absolute splice loss. All fiber splicing must be fusion type.
---------------------------------------
5.0 Compliance:
-----------
Customer, at its discretion, may choose to physically monitor any or all testing
associated with acceptance of Fibers. Test data including OTDR hard copies or
electronic data must be submitted to the customer for review. Customer has the
option to ▇▇▇▇▇▇ any specifications and/or requirements listed in the technical
specification criteria. (limited to ▇▇▇ receiving a hard copy of their fiber
only.)
6.0 Waivers:
--------
the proprietor must provide Fibers with attenuation of not greater than 0.35
loss per. km @ 1550nm and will not be required to perform corrective maintenance
under .25dB to reduce span attenuation.
7.0 Key optical performance Characteristics Required For Single-Mode Optical
----------------------------------------------------------------------------
Cables:
-------
7.1 Attenuation Single Mode Non-Shifted:
----------------------------------------
. The attenuation must not exceed 0.30 dB/Km when measured at a wavelength of
1.55 microns (1550nm) using the two point measurement.
. The attenuation must not exceed 0.40 dB/Km when measured at a wavelength of
1.30 microns (1310nm) using the two point measurement.
2
Exhibit E, Page 3 of 3
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
7.2 Attenuation Single Mode Dispersion Shifted:
-----------------------------------------------
. The attenuation must not exceed 0.25 dB/Km when measured at a wavelength of
1.55 microns (1550nm) using the two joint measurement.
7.3 Attenuation Versus Wavelength Single-Mode and Dispersion Shifted:
---------------------------------------------------------------------
. The attenuation for the wavelength region form 1525 nm to 1575 nm must not
exceed the attenuation at 1550 nm by more than 0.05 dB/Km.
7.4 Chromatic Dispersion Non-Dispersion Shifted (ps/nm-km):
-----------------------------------------------------------
. For conventional single mode fibers, the zero dispersion wavelength must be
1301.5 to 1321.5nm. The maximum dispersion slope (SoMAX) must be no greater
than 0.092 ps/(km-nm /2 /). The nominal zero dispersion wavelength must be
near 1310nm zero dispersion range. The dispersion between 1530 and 1570 nm
must be less than or equal to 18 ps/(nm km).
7.5 Cutoff Wavelength:
----------------------
. The cutoff wavelength of cabled fiber must be less than 1260 nm.
7.6 Core Diameter:
------------------
. The core diameter must be typically 8.3 + or - 0.13.
7.7 Temperature:
----------------
. Operating Temperature Range -60 C to +85 C
Bonneville will insure that the Cable and related appurtenances meet all of the
above optical performance characteristics operating systems power level.
3
Exhibit F, Page 1 of 2
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
EXHIBIT F
TERMINAL EQUIPMENT REQUIREMENTS
GENERAL
▇▇▇ agrees to purchase, in exchange for four (4) fibers between Portland and the
CA-OR border, Lucent Technologies SONET terminal equipment and turnkey
installation of a collapsed ring system for 14 sites. Procurement of this SONET
system shall be in accordance with the specifications of the BPA/▇▇▇▇▇▇-
▇▇▇▇▇▇▇/Lucent 10-year indefinite quantity contract no. 95AM50206.
EQUIPMENT
The equipment shall be Lucent Technologies DDM-2000 OC-3 as specified below.
DESCRIPTION QTY
Shelf Assembly 26 ea.
Heat Baffle 26 ea.
Timing Generator 52 ea.
OC-12 OLIU (1310 nm) 32 ea.
OC-12 OLIU (1550 nm)* 20 ea.
SYSCTRL 26 ea.
OHCTRL 26 ea.
MXRVO BBG2 52 ea.
DS1 Card BBFIB 52 ea.
Retainer Card 177B 156 ea.
OC-3 Software 26 ea.
Fiber Jumpers/Cables 26 lot
9' x 23" Equipment Rack 14 ea. (actual rack heights to be
determined later)
Fuse and Alarm Panel 14 ea.
DS1 Jackfield Assy. 14 ea.
Service Chan/Orderwire 14 ea.
DVA Remote Alarm 14 ea.
Fiber Termination Panel 14 ea.
DDM-2000 Manuals 14 set
DDM-2000 Schematics 14 set
Factory setup & test 1 job
1
Exhibit F, Page 2 of 2
Contract No. 97TX-10080
▇▇▇ Telecommunications Corporation
Effective on the Effective Date
In addition, the following spares are required:
DESCRIPTION QTY
OC-12 OLIU (1310 nm) 3 ea.
OC-12 OLIU (1550 nm)* 3 ea.
SYSCTRL 2 ea. (with software loaded)
OHCTRL 2 ea. (with software loaded)
OC-3 Software 1 ea. (set of diskettes)
Fiber Jumpers/Cables 4 lot
Service Chan/Orderwire 1 ea. (▇▇▇▇-▇▇▇▇ used Premisys IMACS 600 shelves & ▇▇▇▇▇▇-▇▇▇▇▇▇▇ DVSII's)
DDM-2000 Manuals 2 set
DDM-2000 Schematics 2 set
* As of December 15, 1997 the 1550 nm OC-12 OLIU for the OC-3 DDM-2000 shelf is
in development. BPA anticipates Lucent Technologies will have this module
commercially available by July 1998.
2
