HomeMy WebLinkAboutKNOLOGY OPERATING AGREEMENT
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FIBER MAINTENANCE AND
JOINT OPERATING
AGREEMENT
BETWEEN
KNOLOGY OF AUGUSTA, INC.
AND
AUGUSTA, GEORGIA
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FIBER MAINTENANCE AND JOINT OPERATING AGREEMENT
. THIS AGREEMENT (hereinafter this "Agreement"), made as of the /I th day of
77?1-?{lLJ ,2008 (the "Effective Date") by and between Knology of Augusta, Inc., a
Delaware corporation (referred to herein as "Provider") and Augusta, Georgia, a political
subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, GA,
30911 (hereinafter the ("Customer"), sets forth the terms and conditions for the maintenance of
certain telecommunications facilities and assets as hereinafter described. Each of Provider and
Customer may hereinafter be referred to individually as a "Party" and together as the "Parties."
WHEREAS, Customer has purchased fiber optic facilities from the Provider between
locations defined in Exhibit "A"; and
WHEREAS, Provider owns and maintains the existing fiber optic cables, infrastructure
through which the Customer's fiber optic facilities reside; and
WHEREAS, Customer desires to engage Provider to provide maintenance and restoration
services pursuant to the terms and conditions of this Agreement, and
WHEREAS, Provider is willing to provide maintenance and restoration servIces to
Customer pursuant to the terms and conditions of this Agreement; and
WHEREAS, Customer and Provider wish to set forth the terms and conditions of
Customer's use of its fibers in Provider's infrastructure; and
WHEREAS, Customer desires, at its own expense, to obtain, supply, install and maintain
any and all equipment that Customer chooses to use in connection with the fiber optic facilities
in order lawfully to transmit digital telecommunications signals; and
WHEREAS, Customer is able and willing to pay Provider all payments required to be
paid by Customer under the terms and conditions of this Agreement; and
WHEREAS, the Parties desire to define and set forth the terms and conditions under
which such rights will be accomplished; and
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
premises hereinafter set forth, the Parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Equipment - "Equipment" means all power, electronic, optronic and telecommunications
equipment, including, without limitation, passive couplers, fiber optic terminations,
transmission, testing, switching, alarm-monitoring, and repair equipment and all other
articles of personal property used for the transmission or receipt of telecommunication or
receipt of telecommunications signals over the Fibers.
1.2 Events of Default - "Events of Default" has the meaning set forth in ARTICLE 12.
1.3 Fibers- "Fibers" are the fiber optic facilities which Customer owns and operates for its
own benefit which reside within the Provider's Fiber Network and System. The
particular fiber optic facilities serviced and maintained under this Agreement are set forth
in Exhibit "A", attached hereto and made a part hereof. The term "Fibers" refers solely to
the optical fibers themselves, and does not include any associated Equipment, Fiber
Network or System that may be necessary or desirable to enable Customer or any other
person or entity to use such Fibers for the purpose of transmitting or receiving
telecommunications signals.
1.4 Fiber Termination Point(s) - "Fiber Termination Point(s)" are the designated physical
locations along Provider's Fiber Network where Customer has access to the Fibers.
1.5 Fiber Network - "Fiber 'Network" is the Provider's fiber optic network including the
physical fiber cables, the splice cases, fiber splice trays, fiber patch-panels, fiber
termination cables, fiber jumper cable(s), and the fiber optic facilities other than the
Customer's Fibers.
1.6 Service Order(s) - "Service Order(s)" are the detailed descriptions of the specific
portions of the Customer's Fibers for which the Provider shall provide Service(s) detailed
in Exhibit "A".
1.7 Service(s). "Service(s)" means the maintenance and restoration services to be furnished
by Provider hereunder, as more fully specified in ARTICLE 3 INSTALLATION AND
MAINTENANCE SERVICES.
1.8 Service Affecting Outage - a "Service Affecting Outage" is any interruption or
reduction in transmission capacity or quality of the Fibers caused by physical damage
resulting in cuts, breaks or microbends in the Fibers, but not including any service
degradation or failure to meet the specifications due to the aging of the Fibers, that
materially adversely affects Customer's ability to operate and use the Fibers.
1.9 System - The "System" is the supporting infrastructure, pole attachments, conduits,
maintenance holes, and the like through which the Fibers and Fiber Network reside.
ARTICLE 2 TERM AND TERMINATION
2.1 Term. The original term of this Agreement shall commence on the Effective
Date of this Agreement and shall end on the twentieth (20th) anniversary of the Effective Date.
Provider shall grant Customer two (2) renewal terms of ten (10) years each at the end of the
original term. Provider and Customer shall negotiate in good faith the Annual Fiber Maintenance
Fee for each Service Order for each renewal term. ("Term"). If the Fiber degrades for causes
other than as described in Paragraph 1.8 above, the Parties may agree to mutually terminate this
Agreement under Paragraph 2.2.1 below.
2.2 Termination by Either Party. Except as otherwise provided herein, either Party
may terminate this Agreement in part or in whole, and the rights created hereby, without liability
of any kind, in the event of one or more of the following:
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2.2.1 upon the mutual written agreement of the Parties; or
2.2.2 by Provider for any Event of Default of Customer, or vice versa
2.2.3 Events of Default, with respect to either Party, shall have occurred by
reason of any of the following: (i) any material misrepresentation, material
breach of any warranty, failure to pay, or failure to meet any other
material representation or obligation contained in the Agreement;
2.2.4 This AGREEMENT may be terminated for convenience on sixty (60)
days' written notice or for cause if either party fails substantially to
perform through no fault of the other and does not commence correction
of such nonperformance within fifteen (15) days of written notice and
diligently complete the correction thereafter.
2.3 Effects of Termination. Upon termination of this Agreement in whole, or in part
by Service Order, for any cause or reason whatsoever, Provider shall be relieved of any
obligation to provide Service(s) to the Customer.
ARTICLE 3 INSTALLATION AND MAINTENANCE SERVICES
3.1 Installation. Provider shall install, construct, splice or otherwise provide the
interconnection facilities necessary by Customer to access the Fibers as specified in Section III
INSTALLATION of Exhibit "A" ("Installation Facilities").
3.2 Maintenance. Provider shall use commercially reasonable efforts to perform the
work and provide the services set forth in the following paragraphs:
3.2.1 Preventive and Unscheduled Maintenance. Provider shall perform
appropriate routine preventative maintenance on the Fibers, Fiber Network
and the System used to support the Fibers in accordance with Provider's
reasonable then current preventative maintenance procedures. Provider
shall use reasonable efforts to restore and repair damage to the Fibers to
remove any Service Affecting Outage so that the Fibers operate in
compliance with the Fiber and Splice Specification of Exhibit "B".
3.2.2 Optical Performance Testing. Upon written request by Customer,
Provider shall validate the performance of the Fibers utilizing industry
standard procedures and test equipment to include optical loss readings
utilizing Optical Time Domain Reflectometer ("OTDR") test equipment.
Provider shall provide up to two (2) such performance tests per Service
Order per calendar year at no additional cost to Customer. Additional
Customer requested optical performance testing shall be performed for an
additional cost of three hundred dollars ($300) per request per Service
Order.
3.2.3 Locating. Provider shall comply with all state laws applicable in
adequately identifying and marking underground Fiber Network and
System facilities ("Locating").
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3.3 NOC Functions. Provider shall operate a manned Network Operations Center
("NOC") twenty-four (24) hours a day, seven (7) days a week that is available to respond to
Customer's request for restoration, repair, or maintenance services. Customer assumes all
responsibility for monitoring any alarm system that it opts to have regarding the Fibers.
3.4 Spare Cable. Provider shall maintain an inventory of spare optical fiber and other
maintenance equipment at strategic locations to facilitate timely restoration.
3.5 Conduct of Work. In performing its services, Provider shall use commercially
reasonable efforts to take workmanlike care to prevent impairment to the signal continuity and
performance of the Fibers. Provider shall reasonably cooperate with Customer in sharing
information and analyzing the disturbances regarding the Fibers.
3.6 Scheduling. Provider shall make commercially reasonable efforts to avoid
performing routine maintenance between 0600-2400 local time, Monday through Friday,
inclusive, that will have a disruptive impact on the continuity or performance level of the Fibers.
Provider will make reasonable efforts to provide Customer with at least five days notice of all
non-emergency planned network maintenance and repair to the Fibers and Fiber Network and
permit a Customer representative to be present at such maintenance and repair.
3.7 Repair and Restoration Response Time. Provider shall use commercially
reasonable efforts to repair Fibers within the following times
3.7.1 Dispatch of personnel to problem area - within fifteen (15) minutes of
learning of discontinuity
3.7.2 Maintenance employee or contractor on site - within one (1) hour of
learning of discontinuity
3.7.3 Restoration of Fibers continuity - within two (2) hours of learning of
discontinuity
3.7.4 Within twenty-four (24) hours after completion of an emergency repair,
Provider shall commence its planning for permanent repair, shall notify
Customer of its plans to the extent the plans relate to the Fibers and
System and Provider shall implement such permanent repair within an
appropriate time thereafter.
3.8 Modifications. Provider shall perform all commercially reasonable efforts to
provide free and easy access by the Customer to the Fiber Termination Points and assist the
Customer's written requests to modify, change or otherwise alter the splicing and fiber optic
facilities interface between the Customer's Equipment, the Fiber Network and the Fibers.
ARTICLE 4 SYSTEM SERVICES AND LICENSE
4.1 System Services. Provider will use commercially reasonable efforts to ensure
Customer's ability to use the Fibers in any lawful manner for the term of the Agreement.
Customer represents and warrants that it will not use the Fibers in any way that would impair,
nullify, jeopardize or void any governmental or regulatory approval, license or permit that
Provider has obtained or may obtain related to this Agreement.
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4.2 Franchises and Pole Attachments Rights. The Provider has certain franchises
and pole attachment agreements ("Associated Rights") that are necessary for its use of the
System. Provider shall obtain, and cause to remain effective throughout the Term of this
Agreement, the Associated Rights necessary to maintain and operate the System. If any of these
Associated Rights arise out of an agreement that is terminated or expires, the Provider shall
renew or extend such agreement to extend the Associated Rights through the Term. The
Provider shall deliver to the Customer copies of any such agreements upon their renewal or
extension. The Provider does not make any representations or warranties in regard to these
Associated Rights.
The Customer acknowledges that the Fibers will be on (or in) poles conduit, rights-of-
way, franchises, easements and/or other facilities belonging to third parties or arising out of
agreements with third parties. While the Provider believes that it has permission to use these
facilities and agreements, the term and/or scope of such permission may be limited. The
Customer is aware of these limitations and has been provided the opportunity to review all
relevant agreements with third parties and governmental agencies. Customer acknowledges that
the third parties may require that all or part of the System, including the Fibers, be removed,
moved, reconfigured, relocated, demolished, or otherwise altered, and by entering into this
Agreement, Customer accepts the risk of all of the foregoing. Under its existing right-of-way
agreements with private landowners and/or holders of easements providing rights-of-way,
Provider believes that it has the right to use the rights-of-way as contemplated herein, but does
not warrant that they will be legally sufficient, without the consent of the landowners, for all
purposes contemplated hereunder. In the event that a landowner should object to Provider's or
Customer's use of a right-of-way, Provider will promptly notify Customer of the objection and
will use reasonable best efforts to resolve the dispute. Customer agrees to indemnify and hold
Provider harmless for any expenses or costs related to Customers use of the Fibers on Provider's
system, including additional franchise fees, pole attachment charges or legal fees.
4.3 Grant of License. To the extent allowed under the applicable law, Provider
hereby grants the Customer a license during the Term of this Agreement in the System,
Installation Facilities and Fiber Network, including access to and use of Fiber Termination
Points. Such license shall be deemed terminated upon termination of this Agreement.
ARTICLE 5 REMEDIES AND CONSULTATION
5.1 During the Term, Provider shall perform all Services on the Fibers, Fiber Network
and System. To the extent Provider fails to perform the maintenance, repair, and replacement
obligations under this Agreement, Customer or Customer's agent(s) or contractor(s) may
perform same; and without limiting the generality of Paragraph 5.3 below, Provider will
reimburse Customer within thirty (30) days of receipt thereafter of an invoice for expenditures
used therefore, not to exceed said cost estimate.
5.2 Non-Liability Generally. Except as provided in Paragraph 5.3 below, Provider
shall not be liable to Customer for any Service Affecting Outage caused in whole or in part by:
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5.2.1 an event of Force Majeure, as described in ARTICLE 11 of this
Agreement below, or
5.2.2 construction, maintenance, repairs, replacements, installation of
equipment, investigations and inspections, of or related to the Fibers,
performed by Customer or by Customer's agents or contractors.
5.3 Restoration Schedule; Compensation for Late Restoration of a Service
Affecting Outage. In the event of a Service Affecting Outage, Provider will use its reasonable
best efforts to restore use of the Fibers. If use of the fibers and the underlying rights is not
restored within eight (8) continuous hours after Provider's knowledge of such Service Affecting
Outage, recurring charges payable shall abate pending termination of Service Affecting Outage
and, in addition to abatement of charges, Customer, at its option, may (i) terminate the
Maintenance Agreement or the applicable maintenance services related to the Fibers described in
the Service Order and receive a pro rata refund of the annual maintenance fee for the Fibers
described in the Service order; or (ii) to the extent Provider fails to perform the maintenance,
repair, and replacement obligations under this Agreement, Customer or Customer's agent(s) or
contractor(s) may perform the services and Provider will reimburse Customer within thirty (30)
days of receipt thereafter of an invoice for the reasonable expenditures to provide the services.
These remedies in Paragraph 5.3(i) and (ii) are not available if the Service Affecting Outage is
due to any act or omission of Customer. The remedies set forth in this Paragraph, shall be the
sole and exclusive remedies available to Customer for any Service Affecting Outage except to
the extent same arises out of willful misconduct of Provider or its agents or contractors. The
foregoing monetary amounts shall be liquidated damages and not a penalty, the Parties hereby
agreeing that the damages arising out of such Service Affecting Outage(s) would be difficult, if
not impossible, to calculate, and that the Parties agree that said sums are the agreed best estimate
of said damages in the event of a Service Affecting Outage.
5.4 Consultation. Each Party shall use the other Party's portion of the escalation list
attached as Exhibit "C" and Exhibit "D" (which shall be updated as needed by each Party on
notice to the other) to verbally give notice of and report outages and coordinate maintenance,
repair and restoration.
5.5 Manufacturing Defect. To the extent maintenance attributable to the
replacement of Fibers, due to a manufacturing defect thereof, shall become necessary after
expiration of the first year of the term of the Service Order to Customer thereof pursuant to the
terms of this Agreement, Provider shall provide Customer with notice including supporting
documentation of its good faith estimate of said costs thereof (ie. a pro rata share if other
Provider fibers are similarly being replaced). Within thirty (30) days of receipt of said notice,
Customer shall have the option to: (i) agree to pay the reasonable costs thereof so prorated within
30 days of receipt thereafter of an invoice for expenditures used therefore, not to exceed said cost
estimate; or (ii) terminate the Service Order applicable to said Fibers.
ARTICLE 6 FEES AND PAYMENTS
6.1 Annual Maintenance Fee. Unless otherwise provided in Exhibit "A", Customer
agrees to pay Provider on an annualized basis for Service(s) in the amount set forth in each
Service Order as detailed hereafter in Exhibit "A" ("Annual Fiber Maintenance Fee").
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6.1.1 Rates. Rates shall be expressed as a charge per route mile of the
Customer's Fibers for each particular Service Order with an additional per
unit charge for each Fiber Termination Point. The rate shall be negotiated
with each Service Order.
6.1.2 Invoicing and Prorating. Provider shall invoice Customer for the
prorated Annual Maintenance Fee for the first calendar year upon the
Service Order Agreement Date. Prorating for the first invoice shall be
calculated as the total number of days remaining in the calendar year from
the Service Order Agreement date divided by three hundred sixty five
(365) multiplied by the normal full Annual Maintenance Fee for that year.
Each subsequent invoice throughout the term of the Service Order shall be
invoiced in December for fees and charges due for the following year.
6.1.2.1 Prorating fees for the Terminating Year with prior notice. If
Customer notifies Provider of its intent to terminate a Service
Order at least fifteen (15) days prior to the December invoicing for
the terminating year's Annual Fiber Maintenance Fee, Provider
shall prorate the fees and charges as the total number of days from
the first day of the terminating year to the Service Order
Termination Date divided by three hundred sixty five (365)
multiplied by the normal full Annual Maintenance Fee for that
year.
6.1.2.2 Without prior notice. In all other cases, Customer shall remain
obligated for the Annual Fiber Maintenance Fee and no rebate or
refund shall be due Customer for unused Service(s).
6.2 Annual Increase. All recurring maintenance fees shall increase every year on the
first day of the calendar year following the one year anniversary of the Service Order Effective
Date by no more than the lower of: (a) the change in the Consumer Price Index for the twelve
(12) months immediately preceding the last such change, or (b) five percent (5%) per annum. As
used herein, the "Consumer Price Index" shall mean the Consumer Price Index for Urban Wage
Earners and Clerical Workers, All Items (1982-84 =100), for the Northeast Urban Region, as
published by the United States Department of Labor, Bureau of Labor Statistics, or any successor
index thereto.
6.3 Taxes and Franchise Charges. To the extent that the Customer's use of the
Fibers shall incur any additional taxes, franchise or license fees charged to Provider based solely
on Customer's use, Customer shall remain obligated for any said charges, fees, taxes or costs.
Customer's failure to indemnify Provider from any said liability shall constitute an Event of
Default by Customer. To the extent that the use of the Purchased Fibers causes Provider to incur
any attributable charges, fees, taxes (excluding any taxes related to the income of the Provider),
governmental surcharges or costs of any kind, including any franchise or governmental
surcharge based upon the use of the Purchased Fibers, the Customer shall indemnify and hold the
Provider harmless for any such charge, fee or tax.
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6.4 Payment. Customer shall pay the Provider within thirty (30) business days of the
due date. The first payment shall be due upon the effective date of this Agreement. Payments
shall be made to Accounts Payable at Knology, Inc. at;
Knology
ATTN: Accounts Payable
1241 OG Skinner Drive
West Point, GA 31833
6.5 Late Payments. Any sums of money due under this Agreement when more than
ten (10) days delinquent after written demand therefore shall accrue interest at the lesser of
eighteen percent (18%) per annum or (ii) the highest rate allowed by law, until paid in full.
ARTICLE 7 CONFIDENTIALITY
7.1 Confidentiality. Except as required by law, no Party shall, without the other
Party's specific prior written consent, disclose to any third party any information supplied to it
by the other Party, which the other Party designated as confidential, proprietary or private, if
such information is not otherwise generally available to the public, independently developed by
the recipient, available to the recipient without restriction from a third party, disclosed to an
agent or contractor in connection with making business assessments or negotiations in
connection with this Agreement, or reasonably necessary to be disclosed in order to defend or
enforce said recipient's rights or duties pursuant to this Agreement. The Parties hereby designate
the terms, conditions, and Exhibits of this Agreement as confidential, provided that Customer
may disclose information concerning this Agreement to its customers or Customers in
connection with sales, Purchases, licenses, or other use of its services or assets or as otherwise
permitted to be disclosed as provided in the prior sentence. The obligation under this Section 7.1
shall survive termination of this Agreement for three years to the fullest extent permitted by
applicable law.
ARTICLE 8 COMPLIANCE WITH LAWS
8.1 Each Party hereto agrees to comply, and to cause its employees to comply, with
all applicable requirements of law pertaining to its activities in connection with this Agreement.
ARTICLE 9 LIMITATION OF LIABILITY
9.1 Limitation of Liability. Other than damage arising from the acts of Provider, its
agents, subcontractors, independent contractors or others acting on behalf of Provider, Provider
shall not be liable for any damage arising out of the Customer's use of the Fibers, including acts
of Customer's agents, subcontractors, independent contractors or others acting on behalf of
Customer or Customer's customers or for any act or omission of Customer in furnishing services
to others.
9.2 NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY,
NEITHER CUSTOMER OR PROVIDER NOR THEIR PARENTS OR SUBSIDIARIES
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WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES OR LOSS OF USE (TO THE EXTENT SAME IS
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES), LOST REVENUES OR
LOST PROFITS ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE
OR NON-PERFORMANCE THEREOF (WHETHER ARISING IN CONTRACT, TORT,
OR OTHERWISE), EVEN IF IT OR ANY OF ITS PARENT OR SUBSIDIARIES HAS
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS
OTHERWISE PROVIDED, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE
LIABILITY TO THE OTHER PARTY EXCEED THE GREATER OF THE AMOUNTS
ACTUALLY PAID OR THE AMOUNTS THAT SHOULD HAVE BEEN PAID TO
PROVIDER BY CUSTOMER UNDER THIS AGREEMENT. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE.
9.3 Disclaimer of any Implied Warranties. Other than the warranties and services
expressly provided in this Agreement, Provider does not warrant the Fibers, or any other product,
equipment or service to be provided in connection with this Agreement, and PROVIDER
HEREBY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
PROVIDER MAKES NO WARRANTY TO CUSTOMER OR ANY THIRD PERSON OR
ENTITY AS TO THE AVAILABILITY OR GRADE OF SERVICE TO BE PROVIDED BY
OR OVER THE FIBERS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
9.4 Indemnification of Provider. Customer hereby agrees to indemnify and hold
harmless and defend Provider and all employees, directors, officers, shareholders, agents,
representatives, counsel, affiliates, Parents, successors and permitted assigns of Provider from
and for any and all liabilities, damages, lawsuits, obligations, claims, costs, expenses,
assessments, and penalties, including reasonable attorneys' fees and expenses and court costs,
incurred by or asserted against Provider relating to Customer's use of the Fibers.
9.5 Indemnification of Customer. Provider hereby agrees to indemnify and hold
harmless and defend Customer and all employees, directors, officers, shareholders, agents,
representatives, counsel, affiliates and Parents of Customer from and for any and all liabilities,
damages, lawsuits, obligations, claims, costs, expenses, assessments, and penalties, including
reasonable attorneys' fees and expenses and court costs, incurred by or asserted against Customer
relating to Provider's use of the Fiber Network and System. This indemnification shall not
include any claim arising out of the sale, use or maintenance of the Purchased Fibers.
ARTICLE 10 INSURANCE
10.1 Coverage Required. During the Term, each Party and all contractors or
subcontractors hired by said Party for work pursuant to this Agreement shall take out, pay the
premiums on, and continuously maintain insurance coverage's described below. Promptly after
the Effective Date, Provider and Customer shall deliver to each other, pursuant to the notice
provisions of this Agreement, certificates of insurance, reasonably acceptable to the other,
evidencing at least the following levels of insurance coverage:
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10.1.1 Worker's compensation insurance coverage complying with the law of the
State of Georgia and employers liability insurance with limits of not less
than $500,000 per occurrence;
10.1.2 Commercial general liability insurance coverage and excess umbrella, if
necessary, for a combined bodily injury and property damages limit of not
less than $2,000,000 per occurrence and $4,000,000 general aggregate,
which coverage shall include contractual liability assumed under an
insured contract, products liability, and completed operations liability
coverage; and
10.2 Rating. Provider or Customer, as the case may be, shall be specifically named as
an "Additional Insured" on the liability policy of the other as their interests may appear. Any
insurance carried pursuant to this Articles 10 shall be issued by carrier with A.M. Best rating of
at least A-7.
10.3 Notice of Cancellation. All such insurance coverage of Provider and Customer
described in this paragraph shall provide for not less than thirty (30) days' prior written notice to
the other of cancellation or material change. Each Party shall maintain all such coverage in force
at all times during the Term of this Agreement.
10.4 Self-Insurance. Notwithstanding any provision to the contrary, each Party shall
be entitled to self-insure instead of maintaining the insurance policies required by this
Agreement. In the event any Party elects to self-insure, it shall advise the other Party of such
fact in writing, and in such event, the self-insuring Party agrees to release, indemnify, defend and
hold the other Party, its directors, officers, parent, subsidiaries, employees, and agents harmless
from any liability imposed on the other Party, its directors, officers, parent, subsidiaries,
employees, and agents that otherwise would have been covered by the insurance to be provided
to the self-insuring Party under this Article 10.
ARTICLE 11 FORCE MAJEURE
11.1 Force Majeure. Neither Party shall be liable to the other for any delay,
impairment or failure to perform during any period in which such delay, impairment or failure is
(i) due to causes beyond its control and reasonable anticipation, and (ii) without such Party's
fault or negligence (hereinafter a "Force Majeure"), including, but not limited to, fires, floods,
epidemics, quarantine restrictions, war, labor disputes and freight embargoes.
11.2 Mitigate the Extent. Each Party whose performance is impaired under this
Section 11 shall exercise best efforts (including interconnection and cooperation with other
carriers) to mitigate the extent of such delay or failure, including those arising from labor
disputes or strikes.
ARTICLE 12 DEFAULT
12.1 Events of Default. Events of default shall be and include: (i) any use of the
Fibers which materially interferes with, impairs and adversely effects Providers use of its Fiber
Network or System; (ii) any use of the Fibers which would result in a material violation of
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Provider's pole attachment agreements, easements, franchises, or any other governmental permit
or license; (iii) Customer's failure to indemnify Provider according to the terms of Paragraph 4.2
or 6.3 above (iv) the failure of Customer to pay any amount owed under this Agreement more
than thirty (30) days past its due date; (v) the failure by a Party to comply in good faith with any
or all of the material terms and conditions of this Agreement and such defaulting Party's failure
to cure such default in (i)-(v) above within thirty (30) days after written notice thereof or, if such
default cannot be cured within thirty (30) days, such defaulting Party commencing curative
actions within such thirty (30) days and diligently and continuously pursuing such curative
action to a conclusion; (vi) any material misrepresentation or breach of any warranty or
representation contained in this Agreement by a Party; (vii) a Party ceasing to do business as a
going concern; or (viii) a Party makes a general assignment for the benefit of, or enters into any
composition or arrangement with creditors; is unable to or admits in writing its inability to pay
its debts a they become due; authorizes, applies for, or consents to the appointment of trustee or
liquidator of all or substantial part of its assets or has proceedings seeking such appointment
commenced against it which are not terminated within sixty (60) days of such commencement;
files a voluntary petition under any bankruptcy or insolvency law or files a voluntary petition
under the reorganization or arrangement provisions of the laws of the United States pertaining to
bankruptcy or similar law of any jurisdiction or has proceedings under any such law instituted
against it which are not terminated within sixty (60) days of such commencement. The non-
defaulting Party may exercise its legal and equitable remedies against the defaulting Party.
12.2 A Major Event Default. An Event of Default, as defined in Paragraph 12.1 (i)
through (iii), which Customer has failed to cure or commenced curative action under Paragraph
12.1, or a breach of Paragraph 14.1 below, will constitute a Major Event of Default. Upon a
Major Event of Default, Customer agrees that any economic remedies available to Provider are
insufficient to compensate Provider for Customer's breach. Customer and Provider agree, that in
addition to any other remedy available to Provider in law or equity, that, upon a Major Event of
Default and Customer's failure to cure such Major Event of Default as described above,
Customer shall be deemed to have automatically forfeited access to the Fibers and Customer
hereby grants Provider the right to use any means necessary to prevent Customer's use of the
Fiber Network, Installation Facilities and the System for any purpose whatsoever. Customer
hereby waives and releases Provider from any liability, responsibility or obligation to Customer,
Customer's customers, or any user of the Fibers upon a Major Event of Default and Customer
agrees that Provider may, at its sole discretion, remove any or all portions of the Installation
Facilities.
ARTICLE 13 ALTERATION OF ROUTE
13.1 Relocation Options. The Provider reserves the right to move or relocate the
Fibers if it moves or relocates its System, Fiber Network or the sheath containing the Fibers.
Customer hereby grants Provider permission to relocate the Fibers to the extent reasonably
necessary when the Provider is moving or relocating its Fiber Network or the sheath containing
the Fibers. Before Provider significantly changes any part of the Fibers (including, without
limitation, relocating or dismantling any part of the Fiber Network of which the Fibers are a part)
or substantially alters the character of any part of the Fibers, Provider will give Customer at least
three (3) months notice, or if such notice period is impractical, then as much notice as practical
to be no less than ten (10) business days. Customer agrees to the extent alternative facilities are
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available and re-routing is technically feasible and economically viable and Fiber Termination
Points and Fibers' length, number, and type are not materially changed, to consent to Provider's
re-route of such affected part of the Fibers to a new or existing fiber optic networ~ facilities on
an alternate route between the Fiber Termination Points listed on Exhibit "A" provided that such
re-route is performed expeditiously and with as little service outage time as reasonably possible.
If this Agreement is terminated, Customer hereby consents to Provider terminating or cutting
Customers Fiber to the extent reasonably necessary for Provider to relocate, repair or replace any
portion of its Fiber Network.
13.2 Relocation Expenses. If Provider makes a significant change or alteration
described in Section 13.1 upon Customer's request and without Provider's fault, then Customer
shall pay all costs of such change or alteration. If Provider makes a significant change or
alteration described in Section 13.1 solely for its own benefit, Provider will pay the full costs or
re-routing due to such change or alteration. In all other cases, Customer will pay a pro-rata
amount of the full costs of re-routing due to such change or alteration. The proration shall be
based on the number of Customer's Fibers in proportion to the total number of fibers in the
affected part of the Fiber Network or System.
ARTICLE 14 MISCELLANEOUS
14.1 Assignment. Neither Party shall assign this Agreement without the prior written
consent of the other Party. In the event fibers purchased under the Fiber Bill of Sale have been
sold or assigned to a third party, as provided for in the Fiber Bill of Sale, such third party shall
become a party to this Agreement and assume the position of Customer herein without the need
for any additional consent hereunder.
14.2 Modification. This Agreement shall not be amended, altered or modified except
by an instrument in writing duly executed by the Parties.
14.3 Limitation of Benefits. This Agreement shall be binding upon and shall inure to
the benefit of the Parties hereto and their respective successors and permitted assigns. The
Parties do not intend that this Agreement benefit any persons or entities other than the Parties
hereto. It is the explicit intention of the Parties hereto that no person or entity other than the
Parties hereto is or shall be entitled to bring any action to enforce any provision of this
Agreement against any of the Parties hereto, and that the covenants, undertakings, and
agreements set forth in this Agreement shall be enforceable only by, the Parties hereto or their
respective successors or permitted assigns. Any assignees shall be required to become a
signatory to this Agreement and be bound by all of its terms and conditions.
14.4 Notices. Except as otherwise expressly provided, any notice required or
permitted to be given hereunder shall be (a) in writing, (b) effective on the first day in which the
Provider's offices are open for business ("Business Day") following the date of receipt, and (c)
delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight
package delivery or courier service; (iii) by the United States Postal Service, first class, certified
mail, return receipt requested, postage prepaid; or (iv) by prepaid telecopier, telex, or other
similar means of electronic communication (followed by confirmation on the same or following
day by overnight delivery or by mail as aforesaid). All notices, except escalation list changes,
given under this Agreement shall be addressed, in the case of Customer, as follows:
12
The originals to: IT Director Copies to:
530 Greene Street, A-I0l
Augusta, GA 30911
ATTN: TamekaAllen
Title: IT Director
Telephone: 706.821.2522
Fax Number: 706.821.2530
City Administrator
530 Greene Street, Room 801
Augusta, GA 30911
A TTN: Fred Russell
Title: City Administrator
Telephone: 706.821.2400
IT Assistant Director
530 Greene Street, A-I01
Augusta, GA 30911
A TTN: Gary Hewett
Title: IT Assistant Director
Telephone: 706.821.2525
Fax Number: 706.821.2530
and, in the case of Provider, as follows:
Mark Alldredge
Director of Engineering
Knology, Inc.
1241 O.G. Skinner Drive
West Point, GA 31833
FAX 706/645-3985
with a copy to:
Chad Wachter
General Counsel
Knology, Inc.
1241 O. G. Skinner Drive
West Point, GA 31833
FAX 706/645-0148
or to such other addresses or telecopier numbers of which the applicable Party has been advised
in writing by any of the above-described means. Escalation list changes shall be sent directly to
each Party's NOC as identified on Exhibit "D". The following shall also constitute receipt: (i) a
Party's rejection or other refusal to accept notice, and (ii) the inability to deliver to a Party
because of a changed address or telecopier number of which no notice has been received by the
other Party. Notwithstanding the foregoing, no notice of change of address or telecopier number
shall be effective until ten (10) days after the date of receipt thereof. This paragraph shall not be
construed in any way to affect or impair any waiver of notice or demand herein provided.
14.5 Independent Contractors. In all matters pertaining to this Agreement, the
relationship of Provider and Customer shall be that of independent contractors or Provider and
Customer, and neither Provider nor Customer shall make any representations or warranties that
their relationship is other than that of independent contractors or Provider and Customer. This
Agreement is not intended to create nor shall it be construed to create any partnership, joint
13
venture, employment, franchise, or agency relationship between Provider and Customer; and no
Party hereto shall be liable for the payment or performance of any debts, obligations, or
liabilities of the other Party, unless expressly assumed in writing herein or otherwise. Each Party
retains full control over the employment, direction, compensation and discharge of its
employees, agents and representatives and will be solely responsible for all compensation of
such employees, agents and representatives, including but not limited to any applicable social
security, insurance, tax withholding and worker's compensation responsibilities.
14.6 Incorporation of Exhibits and Amendments Thereto. The Exhibits referenced
in this Agreement, as it may be amended from time to time in writings executed by the Parties,
shall be deemed an integral part hereof to the same extent as if written at length herein.
14.7 Governing Law. This Agreement shall be governed by and construed in
accordance to the laws of the State of Georgia and constitutes the entire agreement between the
parties hereto with respect to maintenance of Equipment/Software, and shall supersede all
previous or contemporaneous negotiations, commitments, writings, with respect to matters set
forth herein. It may only be modified by a writing signed by authorized representatives of both
parties. The terms and provisions of this Agreement shall prevail over any conflicting, additional
or other terms appearing on any purchase order submitted by Licensee at any time. Neither this
Agreement nor any rights hereunder may be assigned or otherwise transferred by either party,
except to any corporation controlled by or under common control with the assigned party, or in
connection with the acquisition of, or the sale of substantially all of, the assets of the business to
which this Agreement pertains.
14.8 Claims and Disputes. All claims, disputes and other matters in question between
the Customer and the Provider arising out of or relating to this Agreement, or the breach thereof,
shall be decided in the Superior Court of Richmond County, Georgia. Provider, by executing this
agreement, specifically consents to venue and jurisdiction in Richmond County, Georgia and
waives any right to contest jurisdiction and venue in said court.
14.9 Entire Agreement; No Oral Modifications. This Agreement, together with all
Exhibits attached, and the Fiber Sale-Purchase Agreement constitute the entire agreement
between the Parties with respect to the transaction contemplated herein, and supersede all prior
oral or written agreements commitments or understandings with respect to the matters provided
for herein. This Agreement shall not be amended or modified except by a writing executed by
the Parties.
15.0 Severability. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect.
15.1 Abandonment. If at any time, Customer wishes to abandon its Fibers or Provider
wishes to abandon the portion of its Fiber Network in the same sheath as the Fibers, they shall
provide written notice to the other Party at least three (3) months prior to the date of the proposed
abandonment. If during such three (3) month period, the other Party also elects in writing to
abandon its Fibers or the Fiber Network in the same sheath as the Fiber, the Parties shall
14
decommission and, if necessary, remove the fiber cable constituting that Service Order. All
costs thereof shall be treated as Relocation Expenses pursuant to Paragraph 5.2, and following
such decommissioning, this Agreement shall terminate with respect to that Service Order or
portion thereof. If the other Party does not elect to abandon its Fibers or the portion of the Fiber
Network in the sheath as the Fiber, the abandoning Party shall convey all of its Fibers or the
portion of the Fiber Network in the sheath with the Fiber to the other Party at no charge.
Beginning on the date of the conveyance, the other Party will be solely responsible for all costs,
charges, taxes, fees, and liabilities on that Service Order or portion thereof, and this Agreement
shall terminate with respect to that Service Order or portion thereof.
15.2 Survival. Upon termination of this Agreement, any terms and conditions that by
their nature should survive such termination shall continue until such time as they are no longer
applicable, including, but not limited to Articles 9 and Paragraphs 4.2, 6.3 and 7.1. The Customer
specifically acknowledges that the Provider's right to terminate Customer's access to and use of
the Fibers according to the terms of Article 12 survive termination of this Agreement.
15
IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to be duly
executed on their behalf, as of the day and year first hereinabove set forth.
SIGNED AND DELIVERED
Augusta, Georgia
By: [J2d0 . f
1410 As its Mayor
;6't~
~
Name:
Address: .
SEAL:
I..
TEL:
FAX:
By:
~ II
Name: BIc.t Ml,.Cants r,fud'l j/~
Title: ~cRiOI vr Opl,.li1tiullS uP )Ja.~
Address: 1241 O.G. Skinner Drive
West Point, GA 31833
TEL: 706-645~&'/6 [)
FAX: 706-645-3985
16
Cf5/e'!.:j
APPROVED
~
law GrouR rJ
Date )) 111 01
Exhibit A
Service Order Number AUG-01-12-11-07
The following Service Order for maintenance, restoration and joint operation services in support of dark
fiber facilities on the specified term and conditions herein is made by the undersigned Customer pursuant to
the Fibers referred to above ("Service Order")
Provider: Knology of Augusta, Inc.
1. FIBER ROUTE: Under the Agreement, Knology of Augusta will provide the following
Maintenance and Joint Operation between the following locations in Augusta, Georgia, each
as shown on the maps below:
-------------------------- The rest of this page intentionally left. blank -----------------------
A-I
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I1. SEGMENTS: The Fiber Termination Points where the Customer shall have
full access upon request to the fibers referenced in this Service Order are:
Fiber Termination Points
Sheriffs Substation Southgate
Fire Department Administration
Fire Department Training Bldg
Address
1631 Gordon Hwy
3125 Deans Bridge Rd
3125 Deans Bridge Rd
II1. INSTALLATION: The following activities shall be completed by Provider as
specified in Section Va, VI, and VII below.
FTP
Sheriff s Substation
Southgate
Fire Department
Administration
Installation Activity
Terminate (12) SM Fibers in Provider cable to be
spliced inside to building via entrance duct.
Terminate (12) SM Fibers in Provider cable to be
spliced inside to building via entrance duct
Fire Department Provide (6) MM fibers to Fire Department Administration
Trainin Bld
IV. INSTALLATION AND ANNUAL MAINTENANCE FEES: The charges
associated with establishing this Service Order for Customer are:
A-3
Installation Fee: $0.00
A-4
Installation Fee for the activities specified in Section
III above. $0.00
A-5
Maintenance and Joint Operating Fees:
Fibers
12
A Side
1631 Gordon H wy
Z Side
3125 Deans Bridge Rd*
Route Miles
3.08
Total Route Miles
3.08
Initial Annual Maintenance Fee
$ 690
*Includes maintenance for MMF to Fire Dept Training
V. TERMS OF PAYMENT: As stated in the Agreement. The first annual
increase as provided for in Section 6.2 shall occur for the calendar year
beginning January 1, 2009.
a. Installation Fee(s). Invoicing for the Installation Fee(s) shall commence
on the date on which both Parties agree to this Service Order Exhibit A
("Service Order Agreement Date"). Upon receipt of the Installation
Fee(s), Seller shall commence Installation for completion by the date
described in Section III above. Buyer shall pay the Seller all Installation
Fee(s) prior to the Seller commencing Installation.
V1. EFFECTIVE DATES: Installation for this Service Order shall be completed
within ninety (90) calendar days of receipt of the Installation Charge from
Buyer to Seller.
VI1. REFERENCES: All correspondence or remittance shall reference City of
Augusta, Georgia, Dark Fiber Maintenance and this Service Order
Number: 01-12-11-07
VII1. BASIC AGREEMENT: This Service Order is hereby incorporated in its
entirety into the Agreement, and is hereby executed by the respective Parties
hereto as of the undersign date by Knology of Augusta, Inc., said date not to
be more than 10 days after the undersigned date by Customer.
A-6
CUSTOMER:
KNOLOGY:
Augusta, Georgia
I
By: CfJ c:14 ..-~ By:
(J
, r'Nwne' l/dJ~P ~. CAf"''' <I'-+'6<-Nwn" M ,!J,:.e./J
~U' Title, r\~j Title, ~4'j;d~,t~/z:~
Date: 3 ((f ft> f Date: 3 -/3- 09'
APPROVED
i-~
Law Group
Date~1111~~
A-7
EXHIBIT B
FIBER AND SPLICE MAINTENANCE SPECIFICATIONS
Provider shall maintain an average of 0.10 dB bi-directionalloss per splice with a
maximum splice loss not to exceed 0.2 dB bi-directional on any individual splice as part
of its maintenance obligations. Provider will utilize "Fusion Splicing" for any long-term
maintenance, repair or restoration Services provided under this Agreement. Provider will
record the actual dB loss reading as displayed on the splicer or Optical Time Domain
Reflectometer ("OTDR") as the splice is completed. Provider will provide the results to
Customer in electronic and hard copy formats.
Provider shall make commercially reasonable efforts to ensure the maximum fiber
bend radius for the Fibers is not exceeded anywhere along the Fiber Network or System.
Provider shall make commercially reasonable efforts to maintain a fiber loss of
less than 0.38 dB per kilometer at 1310 nanometers or 0.28 dB per kilometer at 1550
nanometers for the Fibers. Any combined loss that exceeds 1.0 dB per kilometer at 1310
nanometers; 0.75 dB per kilometer at 1550 nanometers or a total optical loss of fifty
percent (50%) greater than the total optical loss of any similar reading from the previous
year shall be considered a Service Affecting Outage entitled to restoration under the
provisions of Paragraph 5.3 of the Agreement.
Provider shall make commercially reasonable efforts to cause terminated fibers to
exhibit a maximum of -50.0dB reflectance for a mated connector at the fiber distribution
panel or any event on the route.
B-1
Exhibit C
CUSTOMER ESCALATION LIST
Infrastructure Supervisor, Kevin Luce
luce@augustaga.gov
Office 706.821.1603
Cell 706.564.1005
Fax 706.821.2530
Assistant Director, Gary Hewett
hewetttaga. gov
Office 706.821.2525
Cell 706.564.7100
Fax 706.821.2530
C - 1
Exhibit D
PROVIDERS ESCALATION LIST
Knology NOC
NOC 800-453-1777 or 706-645-3939
KNOC Techs@knology.com
NOC Manager, Karl Tompkins
karl. tompkins@knology.com
Office 706-645-3930
Cell 770-356-4427
Home 770-233-8332
IT Director, Hank Dobbins
hank.dobbins@knology.com
Office 706-634-2608
PCS 706-518-8773
VP Network Operations, Andy Sivell
andy.sivell@knology.com
Office 706-645-8168
PCS 706-773-0705
E - 1