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EXHIBIT 10.16
FIBER OPTIC CABLE ON FREEWAYS IN MISSOURI
THIRD AMENDMENT
This third amendment to the Agreement executed July 29, 1994 is entered
into by the Missouri Highway and Transportation Commission (hereinafter the
"MHTC") and Digital Teleport, Inc (hereinafter the "Fiber Optic Contractor", or
"FOC").
WITNESSETH:
WHEREAS, it is to the mutual benefit of the parties to modify the July 29,
1994 Agreement, by providing additional locations for the FOC to install its
fiber optic cable and related equipment outside of existing utility corridors
on MHTC highway right-of-way, in certain locations which provide further IVHS
(now "Intelligent Transportation System" or "ITS") resources for MHTC and its
state highway and transportation system; and
WHEREAS, it is to the mutual benefit of the parties for the FOC to receive
these additions to the Fiber Optic Cable System, in return for MHTC having
that system fully connected to all Missouri Department of Transportation
(MoDOT) District headquarters office buildings at no additional expense to
MHTC;
NOW, THEREFORE, in consideration of these mutual covenants, promises and
representations, the parties agree as follows:
(1) AMENDMENTS: The original Agreement, as previously modified by a first
and second amendment to that Agreement, is further amended as follows:
(A) Section (1), "DEFINITIONS", is amended by adding a subsection (CC),
"System Additions", to read as follows:
(CC) System Additions: Those proposed Fiber Optic
Cable System builds that are agreed to by MHTC and FOC, which
were not designated on the original freeway system designated
in the Agreement, but which are now considered necessary to
support that system and the MHTC's intent in developing that
system.
(B) Section (1), "DEFINITIONS", is further amended by modifying its
subsection "H", adding a new "Exhibit D", so that the subsection now reads in
full as follows:
(H) Exhibit A: Three Phase Construction Plan
Exhibit B: Fiber Optic Terminal Equipment location and Schedules
for Three Phases
Exhibit C: Technical Interface Design
Exhibit D: System Additions
(C) Section (7), "EASEMENT GRANT AND CONSTRUCTION GUIDELINES", is amended
by adding a subsection (H), to read as follows:
(H) Commencing no later than January 1, 1997, the FOC shall
physically xxxx the surface location of the existing buried cable or
conduit on an on-
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going basis until all locations are marked in a manner acceptable and
approved by MHTC's Division Engineer for Traffic. Cable or conduit which
are placed after October 1, 1996, that are shown in Exhibits A and B
shall be marked by the FOC within sixty (60) calendar days after burial
of the cable or conduit. Cable or conduit placed as shown in Exhibit D
shall be marked by the FOC within forty-five (45) calendar days after
burial of the cable or conduit, if any of the locations are not within
the existing utility corridor. The surface location of cable or conduit
buried within the utility corridor may (but need not be) physically
marked in the same manner.
(D) Section (7), "EASEMENT GRANT AND CONSTRUCTION GUIDELINES",
is further amended by adding a subsection (I), to read as follows:
(I) All terms and conditions of this Agreement will govern and
apply to all system additions (as shown in Exhibit D), except that
any such system additions shall be relocated at the expense of the
FOC, if relocation is deemed necessary by the MHTC or by its
Commission Representative designated in Section (29) of this
Agreement.
(E) Section (11), "INSTALLATION", is amended by adding a subsection (D),
which subsection reads as follows:
(D) System Additions:
1. Without regard to the FOC's timetable for the completion of
Phases 1, 2 and 3, the installation of those system additions
described in Exhibit D must be completed by the FOC no later than
July 31, 1998. If the system additions are not completely installed
and operational on the designated routes and locations, the FOC must
provide alternative, comparable and acceptable service to the MHTC no
later than July 31, 1998. At the sole option of the MHTC, if any
system additions are incomplete and no alternate, comparable and
acceptable service is provided by the FOC by July 31, 1998, under
this Agreement and Exhibit D, any partial Fiber Optic Cable System
installations within those designated routes may be reconsidered for
disposition by the MHTC. If an alternate service is provided to a
designated route shown in Exhibit D, the designated route shown in
Exhibit D may be removed at any time after July 31, 2000, at the sole
discretion of the MHTC.
2. Further, the FOC shall connect all of the MoDOT District
Headquarters office buildings to the Fiber Optic Cable System either
from the original system, the system additions, or by other means of
access, no later than July 31, 1998. The FOC's obligation shall be
to connect the system to the exterior of one such building within
each district headquarters complex at a location to be specified by
the Division Engineer for Traffic. The authority to install any
system additions in locations outside of the utility corridor is
conditioned upon compliance with this provision.
(2) EXTENSIONS FOR WORK TO BE COMPLETED BY THE FOC: At the sole option
of the MHTC, the MHTC may allow an extension of time for the FOC to complete the
work required under this Agreement or in any of the amendments to the Agreement.
The FOC shall formally request an extension in writing to the MHTC regarding
such an
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extension. The MHTC will respond in writing to the FOC regarding the FOC's
request for an extension to complete any of the required work.
(3) NAME CHANGE OF HIGHWAY AND TRANSPORTATION DEPARTMENT: With the
enactment of H.B. 991, effective August 28, 1996, the "department of highways
and transportation" is to be known as the Department of Transportation." As a
result, any references in the Agreement or in any of the previous amendments to
the Missouri Highway and Transportation Department (MHTD) shall now be referred
to the Missouri Department of Transportation (MoDOT).
(4) REAFFIRMATION OF CONTRACT AS AMENDED: Except as they may be amended by
this third amendment, all other terms and conditions of the original Agreement,
and those contained in the first and second amendments to that Agreement, shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have entered into this agreement on the
date last written below.
Executed by Digital Teleport, Inc. this 4th day of October, 1996.
Executed by MHTC this 9th day of October, 1996.
MISSOURI HIGHWAY AND
TRANSPORTATION COMMISSION DIGITAL TELEPORT, INC.
By: /s/ Xxxx Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
Title: Deputy Chief Engineer
Attest: Attest:
/s/ Mari Xxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Secretary to the Commission
Title: Sec'y
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Approved as to Form: Approved as to Form:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxx III
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Commission Counsel Xxxxxxx X. Xxxxxxxx, III
Attorney at Law
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SYSTEM ADDITIONS
St. Louis Metropolitan Area Additions
(1) Xxxxx 000 - Xxxxx 00 from I-270 to Mississippi River
(2) Route 94 from I-70 to Route 40/I-64
Outside Additions
(1) Route 60 from Route 65 to Route 76 (Willow Springs)
(2) Route 61 from I-70 to Route 36 (Hannibal)
(3) Route 63 from I-70 to Route 36 (Macon)
(4) Route 65 from I-44 to the Arkansas state line
(including Route 765 in Branson)
(5) Route 71 from I-435 to I-44 and continuing to Arkansas state line (future
I-49)
EXHIBIT D
