ADMINISTRATIVELY CONFIDENTIAL
Exhibit 10.32
AGREEMENT
dated as of
March 6, 1990
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BETWEEN
TENNESSEE VALLEY AUTHORITY
and
CONSOLIDATED COMMUNICATIONS CORPORATION
Table of Contents
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Article Page
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1. DEFINITIONS 4
2. GRANTS OF INDEFEASIBLE RIGHTS OF USE AND ACCESS 6
AND TERM OF AGREEMENT
3. OPTIONS TO EXTEND TERM AND RIGHTS 8
4. ROUTE DESIGNATION, CABLE, AND SYSTEM DESIGN 9
5. INSTALLATION AND MAINTENANCE OF SYSTEM 10
6. RELOCATION AND ABANDONMENT 12
7. LIABILITY: INDEMNITY 13
8. ASSIGNMENT, SUBLETTING, AND OTHER TRANSFERS 14
9. TERMINATION 14
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS 15
11. NOTICES 16
12. INDEPENDENT CONTRACTOR STATUS 17
13. MISCELLANEOUS 17
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THIS AGREEMENT, made and entered into as of March 6, 1990, by and
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between the TENNESSEE VALLEY AUTHORITY ("TVA"), a corporation created by and
existing under and by virtue of the Tennessee Valley Authority Act of 1933, as
amended, and CONSOLIDATED COMMUNICATIONS CORPORATION ("CCC"), having its
principal office at 000 0/0 Xxxxx Xxxx Xxxxxx at Arab, Alabama 35016.
W I T N E S S E T H:
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Recitals:
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A. TVA placed an advertisement in the Commerce Business Daily in
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May 1987 stating that TVA would consider proposals from responsible
communications carriers for joint construction of fiber optic systems along
certain transmission lines to support TVA's internal telecommunications needs.
B. A fiber optic cable system ("System") is to be constructed along the
Route, as defined in Section 4.2, to be incorporated into (i) CCC's intercity
communications link, and (ii) TVA's power grid communications system.
C. To enable TVA and CCC to construct, operate, maintain, and replace
the System, CCC requests from TVA and TVA has agreed to grant to CCC an
indefeasible right of use ("IRU") in and to the CCC Capacity, as defined in
Section 1.2, along the Route described in Section 4.2, upon and subject to the
terms and conditions set forth in this Agreement governing the design,
construction, operation, maintenance, and replacement of the System.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements hereinafter set forth, the parties hereto hereby agree as
follows:
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1. DEFINITIONS
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The terms defined in this Article shall, for all purposes of this
Agreement and all agreements supplemental hereto, have the meanings herein
specified.
1.1 "Acceptance of Construction" shall mean written notification from
CCC's Engineer that work has been performed substantially in accordance with the
approved plans.
1.2 "CCC Capacity" shall mean the telecommunications capacity provided
through the Cable to which TVA is granting CCC an exclusive right of use.
Except as otherwise agreed to by the parties, such CCC Capacity shall include
eighteen (18) optical fibers along the Route.
1.3 "Cable" shall mean the Composite Static Ground Wire, including
eighteen (18) optical fibers which will be provided by CCC and installed by TVA
along the Route.
1.4 "Chief Engineer" shall mean (i) the Vice President of Power
Engineering and Construction (or the designee thereof) in those instances where
TVA has primary responsibility for applicable tasks, and (ii) the Chief
Engineering Officer designated by CCC in those instances where CCC has primary
responsibility for applicable tasks.
1.5 "Composite Static Ground Wire" shall mean a composite cable
comprised of the power system overhead ground wire and optical fibers.
1.6 "Discontinuance" shall mean the continuing voluntary cessation of
use of the Cable for any telecommunication purpose (including redundancy) for a
period of at least twelve (12) months other than during periods of Unavoidable
Delays, maintenance, repair, restoral, alteration, or replacement.
1.7 "Discontinuance Notice" shall mean the notice which CCC is required
to give TVA upon planning a Discontinuance with respect to the System, setting
forth the proposed date and schedule for the Discontinuance.
1.8 "Engineer" shall mean the designated or authorized representative of
the applicable Chief Engineer.
1.9 "Force Majeure" shall mean a cause reasonably beyond the control of
the party affected such as, but not limited to, injunction, strike of the
party's employees, war, invasion, fire, accident, floods, backwater caused by
floods, acts of God, or inability to obtain or ship essential services,
materials, or equipment because of the effect of similar causes on the party's
suppliers or carriers.
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1.10 "GNP Deflator" shall mean the annual revisions to the GNP Implicit
Price Deflator Index published by the United States Department of Commerce. If
the GNP Deflator is changed, the GNP Deflator shall be converted in accordance
with the conversion factor published by the Department of Commerce. If the GNP
Deflator is discontinued, with no successor or comparable successor index, the
parties agree to select and substitute a mutually agreeable similar index.
1.11 "Maps" shall mean transmission system drawings to identify "as-
built" conditions, as updated from time to time.
1.12 "Rights-of-Way" shall mean the real property along the Route upon
which the transmission line structures are located, pursuant to subsisting
grants, easements, leases, licenses, or other agreements.
1.13 "Rights of Access" shall mean the right to enter certain property
held by TVA as is being granted to CCC by TVA in this Agreement.
1.14 "Rights of Use" shall mean the IRU and quiet enjoyment in and to
the CCC Capacity being granted to CCC by TVA along the Route.
1.15 "Route" shall mean the route as identified in Section 4.2.
1.16 "Splice" shall mean a point where two independent sections of the
Cable are physically joined.
1.17 "Static Ground Wire" shall mean an overhead ground wire.
1.18 "System" shall have the meaning set forth in recital paragraph B of
this Agreement.
1.19 "TVA Capacity" shall mean the telecommunications capacity described
in appendix B provided by CCC during the term of this Agreement and any
extensions which TVA Capacity, whether in use or in reserve, shall be provided,
in whole or in part, on or through the Cable over the Route; provided, however,
that if the Cable is not being used for telecommunications, CCC shall provide
TVA with alternate equivalent telecommunications capacity. TVA Capacity shall
be provided in Arab, Alabama, at TVA's Arab 161-kV substation in Birmingham,
Alabama, at Alabama Power Company's point of presence and at CCC's point of
presence, and in Montgomery, Alabama, at CCC's point of presence.
1.20 "Unavoidable Delays" shall mean delays on the part of one party due
to the other party's actions or omissions, Force Majeure, or other causes beyond
the reasonable control of the party claiming the Unavoidable Delay.
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2. GRANTS OF INDEFEASIBLE RIGHTS OF USE AND ACCESS
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AND TERM OF AGREEMENT
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2.1 For the term hereof and the consideration hereinafter described, TVA
hereby grants to CCC and its successors and assigns:
(a) The Rights of Use in and to the CCC Capacity along the Route
which shall be provided through the Cable which shall be affixed to the
transmission line structures unless otherwise permitted herein;
(b) The right to be on, upon, over, across (hereinafter collectively
"within") the Rights-of-Way to the extent permitted in this Agreement; and
(c) CCC shall have the right, during the term of this Agreement, to
use existing TVA access roads, paths, and transmission line Rights-of-Way in
connection with activities on the System.
2.2 TVA guarantees that its Rights-of-Way agreements, including
easements, are adequate for a fiber optic telecommunications system as
contemplated in this Agreement. Should a question arise whether any of the
Rights-of-Way are adequate for any of the purposes of this Agreement, TVA will
attempt to resolve the question with the appropriate parties. In the event any
additional rights need to be acquired so that a Right-of-Way becomes adequate
for the purposes of this Agreement, TVA will acquire the right or rights. TVA
will bear the cost of obtaining any such additional rights up to a maximum
amount, which amount is the fair market value of the right or rights acquired as
determined by an MAI appraisal. (TVA shall bear the appraisal costs.) Any
costs or expenses in excess of the above-described fair market value shall be
borne solely by CCC. Instead of having TVA cure any such inadequacy, CCC may,
at its sole option, choose to (a) relocate the Cable, in which case TVA will
reimburse CCC for the costs and expenses CCC incurs in this relocation up to the
amount of the above-described fair market value; or (b) abandon the system upon
ten (10) days' written notice to TVA.
2.3 Except as otherwise provided herein, this Agreement shall become
effective as of the date first above written and shall continue in effect
through the Expiration Date as defined in Section 2.4 below.
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2.4 The Expiration Date of this Agreement shall be ten (10) years after
the date of the Acceptance of Construction for the System by CCC unless
(a) sooner terminated, by mutual agreement of the parties, by a Discontinuance
of the System by CCC, its successors or assigns, or any other party or
otherwise; (b) extended in accordance with Section 3.1 of this Agreement; or
(c) abandonment by CCC in accordance with Section 6.4 or by TVA in accordance
with Subsection 6.2(b). Such Acceptance of Construction for the System by CCC
shall not be unreasonably withheld and in no event shall exceed ninety (90) days
past the date of the notice of completion of construction by TVA.
2.5 As consideration for the grant of the Rights of Use and Rights of
Access herein contemplated (the "Consideration"), CCC shall provide TVA with:
(a) The initial and replacement Cable and associated hardware, which
shall meet or exceed the reasonable specifications provided by TVA (relative to
the ground wire specifications and hardware only) and CCC (relative to the
fibers only) attached hereto as appendix A;
(b) CCC will pay TVA on or before March 1, 1990, $500,000 by
electronic transfer. Upon completion and acceptance of the System, CCC will pay
TVA an additional $500,000 by electronic transfer;
(c) Beginning upon the date of the Acceptance of Construction and
continuing throughout the initial term, CCC shall pay TVA $100,000 annually in
advance;
(d) The TVA Capacity as listed in appendix B which is attached
hereto; and
(e) Title to the Cable and associated hardware (purchased or paid
for by CCC under the terms of this Agreement) affixed to TVA's transmission line
structures. Title to the Cable and associated hardware will pass to TVA upon
delivery to and acceptance by TVA.
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3. OPTIONS TO EXTEND TERM AND RIGHTS
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3.1 Subject to the provisions of this Section 3.1, CCC and its
successors and assigns shall have the right and option to extend the term of
this Agreement from the date upon which it would otherwise expire for up to four
(4) consecutive periods of five (5) years each ("Extension Periods"), provided,
however, that (a) if TVA has abandoned the transmission line structures along
the Route in accordance with Subsection 6.2(a), such extensions shall not be
renewed, or (b) if TVA has not abandoned the transmission line structures but is
no longer using them for power supply purposes, such extension may be renewed,
but CCC will pay TVA, after receipt of an invoice, the difference between the
cost and appropriate overheads for maintaining the transmission line structures
in the typical condition for TVA transmission line facilities that are not being
used for power supply purposes and the cost and appropriate overheads for
maintaining them as described in Section 5.6 of this Agreement. Such options to
extend the Agreement shall be deemed to have been exercised by CCC upon written
notice to TVA no later than six (6) months or earlier than twelve (12) months
prior to the expiration of the initial term or any of said Extension Periods, as
applicable. TVA will give CCC notice that the Agreement is about to expire
during the first ninety (90) days of the 12-month period immediately preceding
the expiration of the initial term or of any of the Extension Periods; provided,
however, that in the event TVA fails to provide this notice and CCC in turn
fails to notify TVA with respect to the Extension Period, CCC shall have sixty
(60) days from learning of its failure to provide the foregoing written notice
to notify TVA with respect to the Extension Period.
Should CCC choose to exercise its Discontinuance rights under
Section 6.3 with respect to the System, the provisions of this Agreement with
respect to such System shall be terminated and, except for CCC's obligations
referred to in Section 7.4 hereof, CCC shall have no further liability
thereunder, nor shall TVA have any further liabilities to CCC.
3.2 CCC shall be required to pay consideration during the Extension
Period(s). Such consideration will consist of an annual payment in advance.
The annual payment will be $100,000, adjusted to correct for the effects of
inflation and to maintain $100,000 of constant purchasing power by multiplying
such $100,000 figure (or portion thereof for partial years) by a fraction, the
numerator of which is the GNP Deflator for the year preceding the year in which
the adjustment is being made and the denominator of which is the GNP Deflator
for the year of expiration of the initial term of this Agreement.
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4. ROUTE DESIGNATION, CABLE, AND SYSTEM DESIGN
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4.1 TVA will be responsible for the engineering, design, installation,
and maintenance (excluding splicing) of the Cable and for all aspects of this
project which affect or potentially impact the operation of TVA's electric power
system. CCC shall be responsible for the design of all remaining plans that
affect the CCC Capacity and for performing all splicing on the System. All work
under this Agreement, whether performed by TVA or CCC, shall be performed in a
good, workmanlike manner and in compliance with all laws, ordinances, codes, and
regulations of any governmental authority having jurisdiction thereover, and
will be consistent with standard practices that are used throughout the
industry. TVA acknowledges that time is important in the performance of its
engineering, design, installation, and/or maintenance functions, and that TVA
will use its best efforts to perform these functions within a reasonable
timeframe.
4.2 The Route covered by the terms of this Agreement shall be along
TVA's Xxxxxxxxxxxx-Xxxxxxxxxx 000-xX transmission line Right-of-Way for a
distance of approximately fifty (50) miles beginning at a point approximately
ten (10) miles south of Arab, Alabama, where Highway 231 intersects TVA's Right-
of-Way and continuing southerly with an intermediate stop at a splice case on
the transmission line structure nearest to Locust Fork, Alabama, substation and
then (after signal regeneration) proceeding from the splice case to the
Fultondale, Alabama, substation.
4.3 CCC, at its own expense, will provide all initial Cable and
associated hardware as mutually agreed to by the parties on a timely basis which
does not adversely impact TVA's cost or schedule for such construction.
Thereafter, CCC shall provide all restoration and replacement Cable and
associated hardware necessary to enable TVA to perform its installation and
maintenance responsibilities herein.
4.4 In the event TVA incurs additional cost of construction specifically
due to CCC or CCC's suppliers of any and all Cable or associated hardware, CCC
agrees to pay TVA's additional cost plus applicable overheads.
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4.5 The parties may enter into future supplements to this Agreement
whenever CCC and TVA reach a mutual agreement to install additional fiber
segments along TVA's Rights-of-Way. This Section 4.5 reflects an attempt on the
part of TVA and CCC to foresee requirements for expansion of the System along
portions of TVA's Rights-of-Way not initially covered by this Agreement and is
merely an expression of the intent of CCC and TVA to work together in the future
when mutually beneficial. This provision shall not bind either CCC or TVA to
agree to future extensions of the System.
5. INSTALLATION AND MAINTENANCE OF SYSTEM
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5.1 TVA shall remove a single existing Static Ground Wire and engineer,
design, and install a Composite Static Ground Wire along the Route. Installation
of the Cable, splice boxes, and associated hardware shall, to the extent
practicable, be carried out in accordance with a schedule to be prepared,
updated, and revised at regular intervals by TVA and CCC as applicable. TVA
shall use its best efforts to construct and install the Cable within the times
estimated in such schedule, but shall not be responsible for any consequential
or other damages due to TVA's or its contractors' or suppliers' inability to
meet such schedule.
5.2 TVA shall secure all applicable approvals, permits, and licenses
(collectively, "Approvals") from all governmental authorities and/or other
parties having jurisdiction or approval rights for those installation,
operation, and maintenance functions for which TVA has responsibility under
Article 4 of this Agreement. CCC shall obtain all required Approvals for those
functions for which CCC has responsibility. CCC and TVA agree to cooperate with
each other and to cause its personnel to render all reasonable assistance in the
procurement by the other party of Approvals.
5.3 CCC at its expense will be responsible for all initial and
maintenance splicing of the Cable. TVA will make the splice boxes and/or trays
readily available to CCC, and CCC will not, in any event, climb the transmission
line structures. All CCC employees, agents, and contractors that will be
working on TVA's Rights-of-Way will be required to attend a TVA-provided safety
course before commencing work.
5.4 TVA shall furnish CCC final "as-built" drawings within six (6)
months of the completion of construction, which drawings, as the same may be
amended from time to time, shall constitute the location of the System Route.
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5.5 Within thirty (30) days of notice of completion of construction of
the System by TVA, CCC shall cause its Engineer to inspect the System for
conformance with the plan design. Following such inspection, CCC shall furnish
TVA with either (a) an Acceptance of Construction of the System, or (b) a
statement setting forth in reasonable detail any bona fide objections to or
defects in the construction. Upon receipt of any such statement of bona fide
objections and/or defects, TVA shall, as soon as practicable, (a) either correct
the objections or defects in the construction, whereupon CCC's Engineer shall
reinspect the same within ten (10) days following notice from TVA that the work
has been corrected and, if found corrected, issue an Acceptance of Construction,
as aforesaid, or (b) dispute such statement of objections or defects, by
referring the disputed issues for determination in the first instance, and
without thereby waiving any rights in respect of the matter(s) in controversy,
to the Chief Engineers of both CCC and TVA. CCC's issuance of an Acceptance of
Construction, or statement of any objections to or defects in the construction
shall signify approval of or objections with respect to CCC's communications
system only and shall in no way be deemed to represent an opinion with respect
to the adequacy of TVA's power transmission system or the support thereof.
5.6 TVA (a) shall maintain and provide operational support for the Cable
and associated hardware except for splicing of the Cable, and (b) shall perform
routine maintenance on the Rights-of-Way and the transmission structures to
which the Cable is affixed for the term of this Agreement, except for the
provision described in Subsection 6.2(b) hereof, including any Extension
Periods.
5.7 Restoral of any of the Cable necessary due to incidents of Force
Majeure or otherwise beyond the control of either party will be at CCC's sole
cost and expense. TVA will use its best efforts to restore the Cable as soon as
possible, but TVA shall not be precluded from giving higher priority to the
restoration or preservation of electric power service. In the event CCC
determines, in its sole judgment, that Restoral of the Cable is not economical,
it may abandon the System upon ten (10) days' written notice to TVA.
5.8 TVA and CCC will develop and keep current ongoing maintenance,
replacement, and restoral procedures for the Cable and the System. At its own
expense, CCC will, on an ongoing basis, make available to TVA restoral Cable,
replacement Cable, accessories, supplies, and other necessary items as the
parties may agree are required in order for TVA to provide such maintenance and
operational support. In addition, each party shall provide the other a 24-hour
telephone number for the purpose of reporting problems with the System.
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5.9 CCC shall be permitted to have access to the CCC Capacity at any
splice point along the Route with TVA's oversight and prior approval, which
approval will not be unreasonably withheld or delayed. In all instances, TVA
will make available to CCC the splice boxes and/or trays which are located on
TVA structures.
6. RELOCATION AND ABANDONMENT
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6.1 TVA shall be entitled to relocate, above or below ground, the System
or any portion thereof along the Route and shall not be restricted by this
Agreement as to the method of such relocation. TVA shall give CCC prior written
notice of such relocation as soon as possible, and shall use its best efforts to
give such notice no later than twelve (12) months before any relocation;
provided, however, that in situations which are beyond the control of TVA which
necessitate a shorter notice period, TVA shall give CCC the same amount of
notice regarding such relocation which was received by TVA. TVA shall provide
CCC with a plan for an alternative route as soon as practicable after such
notice. For involuntary relocations, TVA shall relocate the Cable at its
expense, and CCC shall (a) provide the required replacement Cable, accessories,
and any other material necessary to perform the relocation; or (b) abandon, in
its sole option, the entire system upon ten (10) days notice to TVA. If
relocating the System is a voluntary decision by TVA, TVA will pay all
relocation costs, including the cost of the Cable and associated hardware.
6.2(a) TVA shall be entitled to abandon its use of any part of the
electrical power system or Rights-of-Way along the Route of the System. TVA
shall give CCC prior written notice of such abandonment as soon as possible, and
shall use its best efforts to give such notice no later than twelve (12) months
before any abandonment; provided, however, that in situations which are beyond
the control of TVA which necessitate a shorter notice period, TVA shall give CCC
the same amount of notice regarding such abandonment which was received by TVA.
6.2(b) In the event CCC chooses to remain on the affected portion of the
System, at CCC's option, TVA shall (i) sell to CCC at TVA's salvage or book
value, whichever is less, any facilities located on said affected portion of the
System which CCC desires to retain, and (ii) use its best efforts to convey to
CCC any real property rights it has and can legally convey to CCC upon an
abandonment.
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6.2(c) In the event CCC chooses not to remain, this Agreement as it
applies to such abandoned portion of the System shall be terminated, and any
payments made to TVA for continued use of the System shall be prorated.
6.3 CCC shall, after giving the Discontinuance Notice to TVA at least
twelve (12) months before Discontinuance, have the right to discontinue its use
of the System, if it decides such Discontinuance is in CCC's best interests.
Upon discontinuance by CCC, the IRU of the fibers and any and all rights and
obligations of CCC shall revert to TVA, and CCC shall have no further
responsibility or obligation to TVA with respect to such facilities.
6.4 CCC may abandon use of the System as described in Sections 2.2, 5.7,
and 6.1. Upon abandonment by CCC, the IRU of the fibers and any rights of CCC
shall revert to TVA, and CCC shall have no further responsibility or obligation
to TVA (except for any that may exist under Article 7 and as described in this
Section 6.4) with respect to such facilities. In the event CCC abandons the
System, CCC agrees to provide TVA with equivalent telecommunications capacity to
that described in Exhibit B for a period of twelve (12) months after the
effective date of the abandonment or until TVA obtains replacement
telecommunications capacity, whichever is earlier.
7. LIABILITY; INDEMNITY
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7.1 CCC and TVA each hereby release the other and shall indemnify and
save harmless the other from any and all claims, demands, or causes of action
for personal injuries, property damage, or loss of life or property, including
the Cable, and all reasonable costs and expenses, including reasonable legal
fees, incurred in connection with actions arising out of or in any way connected
with their respective activities regarding the design, engineering,
installation, use, operation, maintenance, repair, defect, or failure of the
Cable except those personal injuries, property damage, or loss of life or
property caused or occasioned solely by the other's negligence.
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7.2 CCC shall indemnify and hold TVA harmless from and against any and
all liability, losses, damages, claims, or causes of action and expenses
connected therewith (including reasonable attorney's fees) asserted by them or
any of their customers by reason of any outage or interruption in the CCC
Capacity, including any failure to transmit messages accurately, even if such
outage, interruption, or failure was occasioned in whole or in part by TVA, its
agents, or employees; provided, however, that such indemnity shall not extend to
willful misconduct or gross negligence.
7.3 Neither party shall be liable to the other party for consequential
or other damages, including lost profits.
7.4 The obligations of the respective parties under this Article 7 shall
survive the Expiration Date in respect to any occurrences within the term.
8. ASSIGNMENT, SUBLETTING, AND OTHER TRANSFERS
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8.1 CCC and TVA, and their successors and assigns, shall have the right,
at any time and from time to time, to assign, sublease, license, and relinquish
possession or control of or otherwise transfer or apportion, in whole or in
part, their rights and/or interests (a) under this Agreement, or (b) in the
System.
8.2 Neither party shall be prohibited or restricted by this Agreement
from any merger or acquisition.
8.3 The obligations of both TVA and CCC under this Agreement shall be
binding upon the parties' respective successors and assigns. TVA and CCC, as
assignors under any transfer or assignment, will guarantee the obligations of
the transferee.
9. TERMINATION
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9.1 This Agreement shall terminate upon the happening of any of the
following events:
(a) Upon the Discontinuance by CCC of the use of the CCC Capacity;
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(b) Upon a breach or default by either party of any material
obligation hereunder, the nondefaulting party may (but is not obligated to)
terminate this Agreement by giving written notice to the other party specifying
the breach or default and stating that this Agreement shall terminate on the
date specified in such notice, which termination date shall be no less than ten
(10) days after the giving of such notice and upon such date this Agreement
shall terminate unless the other party has cured the default or breach in
question;
(c) Upon the subsequent written mutual agreement of the parties
hereto; and
(d) Upon the abandonment of the use of the System by TVA in
accordance with Section 6.2 or by CCC in accordance with Sections 2.2, 5.7, and
6.1.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS
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10.1 Entering into this Agreement with CCC for installation of the
herein described System shall in no way restrict TVA from installing other fiber
optic cables for any future use along this Route or other TVA transmission
routes, nor shall TVA be restricted in any way from entering into any
arrangements with any other parties for telecommunications systems. TVA's
future use of other telecommunications systems shall in no way be restricted by
this arrangement.
10.2 Should a sovereign act of the United States Government or a Force
Majeure make it commercially impracticable for either TVA or CCC to perform a
duty under this Agreement, performance of such duty shall be excused; provided,
however, that, if the duty being excused is material to the transaction
contemplated in this Agreement, the party whose performance would not be excused
under this Section 10.2 shall have the option to terminate the Agreement.
10.3 The TVA Capacity may be utilized only for TVA's own internal
communications purposes, and TVA may not resell or allow any third parties to
use the TVA Capacity except to the electric distributors of TVA power and other
electric utilities; the Corps of Engineers; the National Weather Service; other
Federal agencies; State emergency management associations; nonprofit
organizations involved with public
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safety; other parties with whom TVA interfaces as required by Federal law or
regulation; and other parties agreed to by CCC in CCC's sole discretion. Under
no circumstances may the parties being provided with telecommunications capacity
by TVA be allowed to resell such capacity. Nothing contained herein is intended
to deny TVA the right, and TVA shall have the right, to use the TVA Capacity for
TVA to communicate with any party whatsoever.
11. NOTICES
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11.1 Unless otherwise herein specifically set forth, all notices and
other communications concerning this Agreement shall be in writing addressed to:
CCC at: (one copy each to:)
President, Consolidated Communications Corporation
000 0/0 Xxxxx Xxxx Xxxxxx
X.X. Xxx Xxxxxx X
Xxxx, Xxxxxxx 00000
General Counsel, Consolidated Communications Corporation
000 0/0 Xxxxx Xxxx Xxxxxx
X.X. Xxx Xxxxxx X
Xxxx, Xxxxxxx 00000
TVA at: (one copy each to:)
Vice President of Power Engineering and Construction
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Vice President of Power Transmission and Customer Services
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
or at such other addresses as may be designated in writing to the other party.
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11.2 Unless otherwise herein set forth, notices shall be sent, postage
prepaid, either by registered or certified United States Mail, Return Receipt
Requested, or by overnight express delivery service, and shall be deemed served
or given when received by the addressee, as evidenced by the date of the return
receipt provided by the United States Postal Service or the delivery service, as
applicable.
11.3 During the term of this Agreement, CCC shall give TVA's Engineer
reasonable prior notice before entry upon any portion of the Rights-of-Way.
11.4 In case of emergency, including, without limitation, Cable breakage
or System failure, demanding immediate examination or repairs, notice of entry
shall be given by either party to the other in person or by telephone to the
Emergency Response Center(s) designated in writing by each party to the other.
Such notice, however, must be confirmed in writing within forty-eight (48) hours
of the initial verbal or telephonic notice. Notwithstanding anything in this
Article 11 to the contrary, TVA shall have the right to have a representative
present at any time that CCC, its employees, agents, and contractors are on the
Rights-of-Way.
12. INDEPENDENT CONTRACTOR STATUS
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12.1 TVA acknowledges and agrees that it reserves no control whatsoever
over the employment, discharge, compensation of, or services rendered by CCC's
employees or contractors, and it is the intention of the parties that CCC shall
be and remain an independent contractor, and nothing herein shall be construed
as inconsistent with that status or relationship or as creating or implying any
partnership or joint venture between CCC and TVA.
13. MISCELLANEOUS
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13.1 No consent or approval required of any party pursuant to this
Agreement shall be unreasonably withheld or delayed.
13.2 Except as otherwise set forth in this Agreement, each party shall
be responsible for its own costs, including legal fees, incurred in negotiating
or finalizing this Agreement.
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13.3 This Agreement expresses the entire understanding of the parties
relating to the subject matter hereof; all prior understandings, written or
oral, with respect to such subject matter are hereby merged herein and
superseded.
13.4 Neither this Agreement nor any term or provision hereof can be
amended, waived, modified, supplemented, discharged or terminated, except
by an instrument in writing signed by the party against which enforcement
thereof is sought and except as otherwise set forth herein.
13.5 This Agreement and any amendment, modification, waiver, or
supplement hereto may be executed by the parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original for all purposes, but all such counterparts shall together
constitute but one and the same instrument.
13.6 No member of or delegate to Congress or Resident Commissioner, or
any officer, employee, special Government employee, or agent of TVA shall
be admitted to any share or part of the Agreement or to any benefit that
may arise therefrom unless the Agreement be made with a corporation for its
general benefit, nor shall CCC offer or give, directly or indirectly, to
any officer, employee, special Government employee, or agent of TVA any
gift, gratuity, favor, entertainment, loan, or any other thing of monetary
value, except as provided in 18 C.F.R. (S) 1300.735-12 or -34. Breach of
this provision shall constitute a material breach of the Agreement.
13.7 Notwithstanding the provisions of Section 12.1, if CCC employs
any laborers or mechanics upon a TVA site in the construction, alteration,
maintenance, or repair of the System or the TVA System, CCC agrees to pay
such laborers and mechanics not less than the rate of wages for work of a
similar nature prevailing in the vicinity.
13.8 Notwithstanding the provisions of Section 12.1, CCC agrees during
the performance of its obligations under this Agreement to comply with the
equal employment opportunity and affirmative action requirements set forth
in 41 C.F.R. pts. 60-1 and 60-2 (equal employment opportunity), 41 C.F.R.
pt. 60-250 (disabled veterans and veterans of the Vietnam era), and 41
C.F.R. pt. 60-741 (handicapped workers), which requirements are
incorporated by reference and made a part hereof as if fully set forth
herein.
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13.9 Payments due under this Agreement shall be made so as to be
received no later than the date for payment specified herein, and in the event
no date is otherwise specified within thirty (30) days of the date of invoice.
Each party hereto agrees to pay the other interest, at the rate payable by TVA
under the Prompt Payment Act (Pub. L. No. 97-177), including any amendments
thereto, on any overdue amount. Interest shall run from the date payment is due
until the date payment is received or the date the remittance is postmarked,
whichever is earlier. Payment of interest shall be due thirty (30) days after
an invoice for such interest is dated.
13.10 Should either CCC or TVA dispute any invoice presented by one
party to the other pursuant to any of the provisions of this Agreement with
respect to such invoices, and unless specifically provided for otherwise herein,
the party having such dispute shall remit to the other party any amount(s) not
disputed in accordance with the applicable provisions concerning said invoice;
concurrently, the party having dispute with any amount invoiced will present its
objections in writing, in sufficient detail to facilitate a prompt review
thereof, to the invoicing party. If after a prompt, careful, and prudent review
of the particulars of such disputed amounts the invoicing party finds in favor
of the party having raised such objections thereto, the invoicing party will
then present a revised invoice to the other, such revised invoice to be prepared
and presented in accordance with the provisions (including those relating as to
when such invoice is due and payable) applicable to the original disputed
invoice. If the original disputed invoice is mutually agreed to be just and
correct, the party having raised dispute to such invoice will immediately remit
to the invoicing party the entire disputed amount; in addition, the party having
raised such dispute and withheld payment therefor shall pay to the invoicing
party interest, applied to the unpaid amount, as set forth in Section 13.9
above, based on the date of the original disputed invoice.
13.11 Notwithstanding anything contained in this Agreement to the
contrary, if TVA reasonably determines that any of CCC's System, or any of CCC's
activities permitted hereunder, cause a material, adverse effect on TVA's power
system, CCC shall, upon notice from TVA, take all actions necessary to
immediately eliminate or alleviate such adverse effect at CCC's sole expense.
Any other adverse effect caused by CCC shall be corrected by CCC as soon as
reasonably practicable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TENNESSEE VALLEY AUTHORITY
By: [SIGNATURE ILLEGIBLE]
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Senior Vice President of Power
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Title
March 6, 1990
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Date
CONSOLIDATED COMMUNICATIONS CORPORATION
By: /s/ Xxx XxXxxxxx
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President
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February 14, 1990
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Date
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