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Exhibit 10.30
COLLOCATION AGREEMENT
BY AND BETWEEN
BELLSOUTH TELECOMMUNICATIONS, INC.
AND
PATHNET, INC.
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BELLSOUTH PHYSICAL COLLOCATION
MASTER AGREEMENT
THIS AGREEMENT, made this 29 day of July, 1999, by and between BellSouth
Telecommunications, Inc., ("BellSouth") a corporation organized and
existing under the laws of the State of Georgia, and Pathnet, Inc., ("Pathnet")
a (corporation) organized and existing under the laws of Delaware;
W I T N E S S E T H
WHEREAS, Pathnet is a telecommunications carrier and wishes to
occupy BellSouth Central Office Collocation Space as defined herein for the
purpose of interconnection to BellSouth's facilities;
WHEREAS, BellSouth has space available in its Central Office(s)
which Pathnet desires to utilize; and
WHEREAS, BellSouth is willing to make such space available to
Pathnet within its Central Office(s) subject to all terms and conditions of this
Agreement;
NOW THEREFORE, in consideration of the mutual agreements and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. SCOPE OF AGREEMENT
1.1 Scope of Agreement. The rates, terms, and conditions contained
within this Agreement shall only apply when Pathnet is occupying the collocation
space as a sole occupant or as a Host pursuant to Section 4.
1.2 Right to occupy. Subject to Section 4 of this Agreement,
BellSouth hereby grants to Pathnet a right to occupy that certain area
designated by BellSouth within a BellSouth central office premises, of a size
which is specified by Pathnet and agreed to by BellSouth (hereinafter
"Collocation Space"). Notwithstanding the foregoing, BellSouth shall consider in
its designation for cageless collocation any unused space within the BellSouth
central office premises. The size specified by Pathnet may contemplate a request
for space sufficient to accommodate Pathnet's growth within a two year period
unless otherwise agreed to by the Parties.
1.2.1 Space Reclamation. In the event of space exhaust within
a central office premises, Pathnet may be required to release space to BellSouth
to be allocated to other physical collocation applicants when a minimum of fifty
percent of the total amount of space in Pathnet's collocation arrangement is not
being utilized within the first year of operation, or 100% of the total amount
of space by the end of the second year of operation. Pathnet will first have the
option of subleasing any amount of space not being utilized pursuant to this
sub-Section in lieu of releasing space to BellSouth.
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1.3 Use of Space. Pathnet shall use the Collocation Space for the
purposes of installing, maintaining and operating Pathnet's equipment (to
include testing and monitoring equipment) used or useful primarily to
interconnect with BellSouth services and facilities, including access to
unbundled network elements, for the provision of telecommunications services.
Pursuant to Section 5 following, Pathnet may at its option, place Pathnet-owned
fiber entrance facilities to the Collocation Space. In addition to, and not in
lieu of, interconnection to BellSouth services and facilities, Pathnet may
connect to other interconnectors within the designated BellSouth Central Office
(including to its other virtual or physical collocated arrangements) through
co-carrier cross connect facilities designated by Pathnet pursuant to section
5.6 following. The Collocation Space may be used for no other purposes except as
specifically described herein or authorized in writing by BellSouth.
1.4 Rates and charges. Pathnet agrees to pay the rates and charges
identified at Exhibit A attached hereto.
1.5 Term. The term of this Agreement shall be for an initial
period of two (2) years, beginning on the Agreement date stated above and ending
two (2) years later on the month and day corresponding to such date. This
agreement shall become the collocation section of an interconnection agreement
that may be negotiated pursuant to the Communications Act of 1934 as amended by
the Communications Act of 1996, if in fact that interconnection agreement is
requested by Pathnet and provided that such interconnection agreement is
executed prior to the expiration of the term of this Agreement.
2. SPACE NOTIFICATION
2.1 Availability of Space. Upon submission of an application
pursuant to Section 6, BellSouth will permit Pathnet to physically collocate,
pursuant to the terms of this Agreement, at any BellSouth central office
premises, unless BellSouth has determined that there is no space available due
to space limitations or no space available due to technical infeasibility.
BellSouth will respond to an application within ten (10) business days as to
whether space is available or not available within a BellSouth central office
premises.
2.2 Reporting. Upon request from Pathnet, BellSouth will provide a
written report specifying the amount of collocation space available at the
central office premises requested, the number of collocators present at the
central office premises, any modifications in the use of the space since the
last report or the central office premises requested and the measures BellSouth
is taking to make additional space available for collocation arrangements.
2.2.1 The request from Pathnet must be written and must
include the central office premises and Common Language Location Identification
(CLLI) code of the central office premises. Such information regarding central
office premises and CLLI code is located in the National Exchange Carriers
Association (NECA) Tariff FCC No. 4.
2.2.2 BellSouth will respond to a request for a particular
Central Office location within ten (10) business days of receipt of such
request. BellSouth will make best efforts to respond in ten (10) business days
to such a request when the request includes up to and including five (5) Central
Office locations within the same state. The response time for requests of more
than five (5) shall be negotiated between the Parties. If BellSouth cannot meet
the ten business day response time, BellSouth shall notify Pathnet and inform
Pathnet of the time frame
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under which it can respond and provide such information to Pathnet as it becomes
available to BellSouth on a site by site basis.
2.3 Denial of Application. After notifying Pathnet that BellSouth
has no available space in the requested Central Office ("Denial of
Application"), BellSouth will allow Pathnet, upon request, to tour the entire
Central Office within ten (10) business days of such Denial of Application. In
order to schedule said tour within ten (10) business days, the request for a
tour of the Central Office must be received by BellSouth within five (5)
business days of the Denial of Application.
2.4 Filing of Petition for Waiver. Upon Denial of Application
BellSouth will timely file a petition with the Commission pursuant to 47 U.S.C.
Section 251(c)(6).
2.5 Waiting List. On a first come first served basis, BellSouth
will maintain a waiting list of requesting carriers who have either received a
Denial of Application or, where it is publicly known that the central office
premises is out of space, have submitted a Letter of Intent to collocate.
BellSouth will notify the telecommunications carriers on the waiting list when
space becomes available according to how much space becomes available and the
position of telecommunications carrier on said waiting list. Upon request
BellSouth will advise Pathnet as to its position on the list.
2.6 Public Notification. BellSouth will maintain on its
Interconnection Services website a notification document that will indicate all
central office premises that are without available space. BellSouth shall update
such document within ten (10) business days of the Denial of Application date.
BellSouth will also post a document on its Interconnection Services website that
contains a general notice where space has become available in a Central Office
previously on the space exhaust list. BellSouth shall allocate said available
space pursuant to the waiting list referenced in Section 2.5.
2.7 State Agency Procedures. Notwithstanding the foregoing, should
any state regulatory agency impose a procedure different than procedures set
forth in this section, that procedure shall supersede the requirements set forth
herein.
3. COLLOCATION OPTIONS
3.1 Cageless. Except where local building code does not allow
cageless collocation, BellSouth shall allow Pathnet to collocate Pathnet's
equipment and facilities without requiring the construction of a cage or similar
structure and without requiring the creation of a separate entrance to the
Collocation Space. BellSouth shall allow Pathnet to have direct access to its
equipment and facilities but may require Pathnet to use a central entrance to
the BellSouth Central Office. BellSouth shall make cageless collocation
available in single bay increments pursuant to Section 7. Except where Pathnet's
equipment requires special technical considerations (e.g., special cable
racking, isolated ground plane), BellSouth shall assign cageless Collocation
Space in conventional equipment rack lineups where feasible. For equipment
requiring special technical considerations, Pathnet must provide the equipment
layout, including spatial dimensions for such equipment pursuant to generic
requirements contained in BellCore (Telcordia) GR-63-Core and shall be
responsible for constructing all
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special technical requirements associated with such equipment pursuant to
Section 6.5 following.
3.2 Cages and Adjacent Arrangement Enclosures. BellSouth shall
authorize the enclosure of Pathnet's equipment and facilities at Pathnet's
option or if required by local building code. Pathnet must arrange with a
BellSouth certified contractor to construct a collocation arrangement enclosure
in accordance with BellSouth's guidelines and specifications and at its sole
expense. BellSouth will provide guidelines and specifications upon request.
Where local building codes require enclosure specifications more stringent than
BellSouth's standard enclosure specification, Pathnet and Pathnet's BellSouth
certified contractor must comply with local building code requirements.
Pathnet's BellSouth certified contractor shall be responsible for filing and
receiving any and all necessary permits and/or licenses for such construction.
The Certified Vendor shall bill Pathnet directly for all work performed for
Pathnet pursuant to this Agreement and BellSouth shall have no liability for nor
responsibility to pay such charges imposed by the Certified Vendor. Pathnet must
provide the local BellSouth building contact with two Access Keys used to enter
the locked enclosure. Except in case of emergency, BellSouth will not access
Pathnet's locked enclosure prior to notifying Pathnet.
3.2.1 BellSouth has the right to review Pathnet's plans and
specifications prior to allowing construction to start. BellSouth has the right
to inspect the enclosure after construction to make sure it is designed and
constructed according to BellSouth's guidelines and specifications and to
require Pathnet to remove or correct at Pathnet's cost any structure that does
not meet these standards.
3.3 Shared (Subleased) Caged Collocation. Pathnet may allow other
telecommunications carriers to share Pathnet's caged collocation arrangement
pursuant to terms and conditions agreed to by Pathnet ("Host") and other
telecommunications carriers ("Guests") and pursuant to this section with the
following exceptions: (1) where local building code does not allow Shared
(Subleased) Caged Collocation and (2) where the BellSouth central office
premises is located within a leased space and BellSouth is prohibited by said
lease from offering such an option,. The terms and conditions of the agreement
between the Host and its Guests shall be written and a copy provided to the
BellSouth contact specified in Section 15 within ten (10) business days of its
execution and prior to any Firm Order. Further, said agreement shall incorporate
by reference the rates, terms, and conditions of this Agreement between
BellSouth and Pathnet.
3.3.1 Pathnet shall be the sole interface and responsible
party to BellSouth for the purpose of submitting applications for initial and
additional equipment placements of Guest; for assessment of rates and charges
contained within this Agreement; and for the purposes of ensuring that the
safety and security requirements of this Agreement are fully complied with by
the Guest, its employees and agents. The initial Guest application shall require
the assessment of an Application Fee, as set forth in Exhibit A. Notwithstanding
the foregoing, Guest may arrange directly with BellSouth for the provision of
the interconnecting facilities between BellSouth and Guest and for the
provisions of the services and access to unbundled network elements.
3.3.2 Pathnet shall indemnify and hold harmless BellSouth from
any and all claims, actions, causes of action, of whatever kind or nature
arising out of the presence of Pathnet's Guests in the Collocation Space.
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3.4 Adjacent Collocation. BellSouth will provide adjacent
collocation arrangements ("Adjacent Arrangement") where space within the Central
Office is legitimately exhausted, subject to technical feasibility, where the
Adjacent Arrangement does not interfere with access to existing or planned
structures or facilities on the Central Office property and where permitted by
zoning and other applicable state and local regulations. The Adjacent
Arrangement shall be constructed or procured by Pathnet and in conformance with
BellSouth's design and construction specifications. Further, Pathnet shall
construct, procure, maintain and operate said Adjacent Arrangement(s) pursuant
to all of the terms and conditions set forth in this Agreement. Rates shall be
negotiated at the time of the request for Adjacent Collocation.
3.4.1 Should Pathnet elect such option, Pathnet must arrange
with a BellSouth certified contractor to construct an Adjacent Arrangement
structure in accordance with BellSouth's guidelines and specifications.
BellSouth will provide guidelines and specifications upon request. Where local
building codes require enclosure specifications more stringent than BellSouth's
standard specification, Pathnet and Pathnet's contractor must comply with local
building code requirements. Pathnet's contractor shall be responsible for filing
and receiving any and all necessary zoning, permits and/or licenses for such
construction. Pathnet's BellSouth Certified Vendor shall bill Pathnet directly
for all work performed for Pathnet pursuant to this Agreement and BellSouth
shall have no liability for nor responsibility to pay such charges imposed by
the Certified Vendor. Pathnet must provide the local BellSouth building contact
with two cards, keys or other access device used to enter the locked enclosure.
Except in cases of emergency, BellSouth shall not access Pathnet's locked
enclosure prior to notifying Pathnet.
3.4.2 BellSouth maintains the right to review Pathnet's plans
and specifications prior to construction of an Adjacent Arrangement(s).
BellSouth may inspect the Adjacent Arrangement(s) following construction and
prior to commencement, as defined in Section 4.1 following, to ensure the design
and construction comply with BellSouth's guidelines and specifications.
BellSouth may require Pathnet, at Pathnet's sole cost, to correct any deviations
from BellSouth's guidelines and specifications found during such inspection(s),
up to and including removal of the Adjacent Arrangement, within five (5)
business days of BellSouth's inspection, unless the Parties mutually agree to an
alternative time frame.
3.4.3 Pathnet shall provide a concrete pad, the structure
housing the arrangement, HVAC, lighting, and all facilities that connect the
structure (i.e. racking, conduits, etc.) to the BellSouth point of
interconnection. At Pathnet's option, BellSouth shall provide an AC power source
and access to physical collocation services and facilities subject to the same
nondiscriminatory requirements as applicable to any other physical collocation
arrangement.
3.4.4 BellSouth shall allow Shared (Subleased) Caged
Collocation within an Adjacent Arrangement pursuant to the terms and conditions
set forth in Section 3.3 proceeding.
3.5 Microwave Collocation. Bell South will provide to Pathnet
Microwave Collocation and appropriate entrance facilities pursuant to Attachment
A of this Agreement.
4. OCCUPANCY
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4.1 Commencement Date. The "Commencement Date" shall be the day
Pathnet's equipment becomes operational as described in Article 4.2, following.
4.2 Occupancy. BellSouth will notify Pathnet in writing that the
Collocation Space is ready for occupancy. Pathnet must place operational
telecommunications equipment in the Collocation Space and connect with
BellSouth's network within one hundred eighty (180) days after receipt of such
notice. Pathnet must notify BellSouth in writing that collocation equipment
installation is complete and is operational with BellSouth's network. BellSouth
may, at its option, not accept orders for interconnected service until receipt
of such notice. If Pathnet fails to place operational telecommunications
equipment in the Collocation Space within 180 calendar days and such failure
continues for a period of thirty (30) days after receipt of written notice from
BellSouth and the reason for such failure to connect with BellSouth during such
time frame is not due to any actions or in-actions on the part of BellSouth,
then and in that event Pathnet's right to occupy the Collocation Space
terminates and BellSouth shall have no further obligations to Pathnet with
respect to said Collocation Space. Termination of Pathnet's rights to the
Collocation Space pursuant to this paragraph shall not operate to release
Pathnet from its obligation to reimburse BellSouth for all costs reasonably
incurred by BellSouth in preparing the Collocation Space, but rather such
obligation shall survive this Agreement. For purposes of this paragraph,
Pathnet's telecommunications equipment will be deemed operational when
cross-connected to BellSouth's network for the purpose of service provision.
4.3 Termination. Except where otherwise agreed to by the Parties,
Pathnet may terminate occupancy in a particular Collocation Space upon thirty
(30) days prior written notice to BellSouth. Upon termination of such occupancy,
Pathnet at its expense shall remove its equipment and other property from the
Collocation Space. Pathnet shall have thirty (30) days from the termination date
to complete such removal, including the removal of all equipment and facilities
of Pathnet's Guests; provided, however, that Pathnet shall continue payment of
monthly fees to BellSouth until such date as Pathnet has fully vacated the
Collocation Space. Should Pathnet fail to vacate the Collocation Space within
thirty (30) days from the termination date, BellSouth shall have the right to
remove the equipment and other property of Pathnet at Pathnet's expense and with
no liability for damage or injury to Pathnet's property unless caused by the
gross negligence or intentional misconduct of BellSouth. Upon expiration of this
Agreement, Pathnet shall surrender the Collocation Space to BellSouth in the
same condition as when first occupied by the Pathnet except for ordinary wear
and tear. Pathnet shall be responsible for the cost of removing any enclosure,
together with all support structures (e.g., racking, conduits), of an Adjacent
Collocation arrangement at the termination of occupancy and restoring the
grounds to their original condition.
5. USE OF COLLOCATION SPACE
5.1 Equipment Type. BellSouth permits the collocation of any type
of equipment used or useful for interconnection to BellSouth's network or for
access to unbundled network elements in the provision of telecommunications
services. Such equipment used or useful for interconnection and access to
unbundled network elements includes, but is not limited to transmission
equipment including, but not limited to, optical terminating equipment and
multiplexers, and digital subscriber line access multiplexers, routers,
asyncronous transfer mode multiplexers, and remote switching modules. Nothing in
this section requires BellSouth to permit collocation of equipment used solely
to provide enhanced services; provided, however, that
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BellSouth may not place any limitations on the ability of requesting carriers to
use all the features, functions, and capabilities of equipment collocated
pursuant to this section. Microwave transmission equipment will be allowed in
any physical collocation arrangement pursuant to Section 5.9 of this Agreement.
5.1.1 Such equipment must at a minimum meet the following
BellCore (Telcordia) Network Equipment Building Systems (NEBS) General Equipment
Requirements: Criteria Level 1 requirements as outlined in the BellCore
(Telcordia) Special Report SR-3580, Issue 1; equipment design spatial
requirements per GR-63-CORE, Section 2; thermal heat dissipation per
GR-063-CORE, Section 4, Criteria 77-79; acoustic noise per GR-063-CORE, Section
4, Criterion 128, and National Electric Code standards.
5.1.2 Pathnet shall not use the Collocation Space for
marketing purposes nor shall it place any identifying signs or markings in the
area surrounding the Collocation Space or on the grounds of the central office
premises.
5.1.3 Pathnet shall place a plaque or other identification
affixed to Pathnet's equipment necessary to identify Pathnet's equipment,
including a list of emergency contacts with telephone numbers.
5.2 Entrance Facilities. Pathnet may elect to place Pathnet-owned
or Pathnet-leased fiber entrance facilities into the Collocation Space.
BellSouth will designate the point of interconnection in close proximity to the
Central Office building housing the Collocation Space, such as an entrance
manhole or a cable vault which are physically accessible by both parties.
Pathnet will provide and place fiber cable at the point of interconnection of
sufficient length to be pulled through conduit and into the splice location.
Pathnet will provide and install a sufficient length of fire retardant riser
cable, to which the entrance cable will be spliced, which will extend from the
splice location to the Pathnet's equipment in the Collocation Space. In the
event Pathnet utilizes a non-metallic, riser-type entrance facility, a splice
will not be required. Pathnet must contact BellSouth for instructions prior to
placing the entrance facility cable in the manhole. Pathnet is responsible for
maintenance of the entrance facilities. In the event Pathnet requests more than
one (1) waveguide cable entry, BellSouth shall consider such entry(s) pursuant
to sub-Section 5.2.1.
5.2.1 Dual Entrance. BellSouth will provide at least two
interconnection points at each central office premises where there are at least
two such interconnection points available and where capacity exists. Upon
receipt of a request for physical collocation under this Agreement, BellSouth
shall provide Pathnet with information regarding BellSouth's capacity to
accommodate dual entrance facilities. If conduit in the serving manhole(s) or an
existing wall penetration is available and is not reserved for another purpose
for utilization within 12 months of the receipt of an application for
collocation, BellSouth will make the requested conduit space or existing wall
penetration available for installing a second entrance facility to Pathnet's
arrangement. The location of the serving manhole(s) or existing wall penetration
will be determined at the sole discretion of BellSouth. Where dual entrance is
not available due to lack of capacity, BellSouth will so state in the
Application Response.
5.2.2 Shared Use. Pathnet may utilize spare capacity on an
existing Interconnector entrance facility for the purpose of providing an
entrance facility to another Pathnet collocation arrangement within the same
BellSouth Central Office. Pathnet must
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arrange with BellSouth for BellSouth to splice the utilized entrance facility
capacity to Pathnet-provided riser cable.
5.3 Splicing in the Entrance Manhole. Although not generally
permitted, should Pathnet request a splice to occur in the entrance manhole(s),
BellSouth, at its sole discretion, may grant such a request, provided that
BellSouth will not unreasonably withhold approval of requests to make such a
splice. When the request for a splice is granted to Pathnet by BellSouth,
Pathnet shall ensure its employees or agents entering and/or performing work in
the entrance manhole(s) are trained and comply with BellSouth procedures and
OSHA requirements regarding access to manholes and that BellSouth personnel are
notified and present for all entrances and work performed in the entrance
manhole(s). Manhole covers shall be properly closed and secured at the
conclusion of entry and/or work. Advance notification to BellSouth shall occur
at a minimum of 48 hours prior to desired entry for normal work activities and
at a minimum of 2 hours prior to desired entry in an out of service condition.
5.4 Demarcation Point. BellSouth will designate the point(s) of
interconnection between Pathnet's equipment and/or network and BellSouth's
network. Each party will be responsible for maintenance and operation of all
equipment/facilities on its side of the demarcation point. For 2-wire and 4-wire
connections to BellSouth's network, the demarcation point shall be a common
block on the BellSouth designated conventional distributing frame. Pathnet shall
be responsible for providing, and Pathnet's BellSouth Certified Vendor shall be
responsible for installing and properly labelling/stenciling, the common block,
and necessary cabling pursuant to Section 6.4. For all other terminations
BellSouth shall designate a demarcation point on a per arrangement basis.
Pathnet or its agent must perform all required maintenance to
equipment/facilities on its side of the demarcation point, pursuant to
subsection 5.5, following, and may self-provision cross-connects that may be
required within the collocation space to activate service requests. At Pathnet's
option, a Point of Termination (POT) bay or frame may be placed in the
Collocation Space.
5.5 Pathnet's Equipment and Facilities. Pathnet, or if required by
this Agreement, Pathnet's BellSouth certified vendor, is solely responsible for
the design, engineering, installation, testing, provisioning, performance,
monitoring, maintenance and repair of the equipment and facilities used by
Pathnet. Such equipment and facilities may include but are not limited to
cable(s); equipment; and point of termination connections.
5.6 Co-Carrier Cross-connect. In addition to, and not in lieu of,
obtaining interconnection with, or access to, BellSouth telecommunications
services, unbundled network elements, and facilities, Pathnet may directly
connect to other Interconnectors within the designated BellSouth Central Office
(including to its other virtual or physical collocated arrangements) through
facilities owned by Pathnet or through BellSouth facilities designated by
Pathnet, at Pathnet's option. Such connections to other carriers may be made
using either optical or electrical facilities. Pathnet may deploy such optical
or electrical connections directly between its own facilities and the facilities
of other Interconnector(s) without being routed through BellSouth equipment.
5.6.1 If Pathnet requests a co-Carrier cross-connect after the
initial installation i.e., Pathnet must submit an application with a Subsequent
Application Fee.Pathnet must use a Certified Vendor to place the co-Carrier
cross connect, except in cases where the Pathnet equipment and the equipment of
the other Interconnector are located within the same
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collocation area or are within contiguous collocation spaces. In cases where
Pathnet's equipment and the equipment of the other Interconnector are located in
the same collocation area or are in contiguous collocation spaces, Pathnet will
have the option to deploy the co-Carrier cross connects between the sets of
equipment. Where cable support structure exists for such connection there will
be a recurring charge per linear foot of support structure used. When cable
support structures do not exist and must be constructed a non-recurring charge
for the individual case will be assessed.
5.7 Easement Space. From time to time BellSouth may require access
to the Collocation Space. BellSouth retains the right to access such space for
the purpose of making BellSouth equipment and building modifications (e.g.,
running, altering or removing racking, ducts, electrical wiring, HVAC, and
cables). BellSouth will give reasonable notice to Pathnet when access to the
Collocation Space is required. Pathnet may elect to be present whenever
BellSouth performs work in the Collocation Space. The Parties agree that Pathnet
will not bear any of the expense associated with this work.
5.8 Access. Pursuant to Section 11, Pathnet shall have
unencumbered access to the Collocation Space twenty-four (24) hours a day, seven
(7) days a week. Pathnet agrees to provide the name, social security number, and
date of birth of each employee, contractor, or agents provided with Access Keys
or cards ("Access Keys") prior to the issuance of said Access Keys. Access Keys
shall not be duplicated under any circumstances. Pathnet agrees to be
responsible for all Access Keys and for the return of all said Access Keys in
the possession of Pathnet employees, contractors, Guests, or agents after
termination of the employment relationship, contractual obligation with Pathnet
or upon the termination of this Agreement or the termination of occupancy of an
individual collocation arrangement.
5.8.1 Lost or Stolen Access Keys. Pathnet shall notify
BellSouth in writing immediately in the case of lost or stolen Access Keys.
Pathnet will pay BellSouth $250.00 per Access Key(s) lost or stolen. Should it
become necessary for BellSouth to re-key buildings as a result of a lost Access
Key(s) or for failure to return an Access Key(s), Pathnet shall pay for all
reasonable costs associated with the re-keying.
5.9 Interference or Impairment. Notwithstanding any other
provisions of this Agreement, equipment and facilities placed in the Collocation
Space shall not interfere with or impair service provided by BellSouth or by any
other Interconnector located in the Central Office; shall not endanger or damage
the facilities of BellSouth or of any other Interconnector, the Collocation
Space, or the Central Office; shall not compromise the privacy of any
communications carried in, from, or through the Central Office; and shall not
create an unreasonable risk of injury or death to any individual or to the
public. If BellSouth reasonably determines that any equipment or facilities of
Pathnet violates the provisions of this paragraph, BellSouth shall give written
notice to Pathnet, which notice shall direct Pathnet to cure the violation
within forty-eight (48) hours of Pathnet's actual receipt of written notice or,
at a minimum, to commence curative measures within 24 hours and to exercise
reasonable diligence to complete such measures as soon as possible thereafter.
After receipt of the notice, the parties agree to consult immediately and, if
necessary, to inspect the arrangement. If Pathnet fails to take curative action
within 48 hours or if the violation is of a character which poses an immediate
and substantial threat of damage to property, injury or death to any person, or
interference/impairment of the services provided by BellSouth or any other
interconnector, then and only in that event BellSouth may take such action as it
deems appropriate to correct the
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violation, including without limitation the interruption of electrical power to
Pathnet's equipment. BellSouth will endeavor, but is not required, to provide
notice to Pathnet prior to taking such action and shall have no liability to
Pathnet for any damages arising from such action, except to the extent that such
action by BellSouth constitutes willful misconduct.
5.10 Personalty and its Removal. Subject to requirements of this
Agreement, Pathnet may place or install in or on the Collocation Space such
facilities and equipment, including storage for and spare equipment, as it deems
desirable for the conduct of business; Provided that such equipment is
telecommunications equipment, does not violate floor loading requirements,
imposes or could impose or contains or could contain environmental conditions or
hazards. Personal property, facilities and equipment placed by Pathnet in the
Collocation Space shall not become a part of the Collocation Space, even if
nailed, screwed or otherwise fastened to the Collocation Space, but shall retain
their status as personalty and may be removed by Pathnet at any time. Any damage
caused to the Collocation Space by Pathnet's employees, agents or
representatives during the removal of such property shall be promptly repaired
by Pathnet at its expense.
5.11 Alterations. In no case shall Pathnet or any person acting on
behalf of Pathnet make any rearrangement, modification, improvement, addition,
repair, or other alteration to the Collocation Space or the BellSouth Central
Office without the written consent of BellSouth, which consent shall not be
unreasonably withheld. The cost of any such specialized alterations shall be
paid by Pathnet.
5.12 Janitorial Service. Pathnet shall be responsible for the
general upkeep and cleaning of the Caged Collocation Space and shall arrange
directly with a BellSouth certified contractor for janitorial services.
BellSouth shall provide a list of such contractors on a site-specific basis upon
request.
6. ORDERING AND PREPARATION OF COLLOCATION SPACE
6.1 Application for Space. Pathnet shall submit an application
document when Pathnet or Pathnet's Guest(s), as defined in Section 3.3, desires
to request or modify the use of the Collocation Space.
6.1.1 Initial Application. For Pathnet or Pathnet's Guest(s)
initial equipment placement, Pathnet shall submit to BellSouth a complete and
accurate Application and Inquiry document (Bona Fide Application), together with
payment of the Application Fee as stated in Exhibit A. The Bona Fide Application
shall contain a detailed description and schematic drawing of the equipment to
be placed in Pathnet's Collocation Space(s) and an estimate of the amount of
square footage required.
6.1.2 Subsequent Application Fee. In the event Pathnet or
Pathnet's Guest(s) desire to modify the use of the Collocation Space, Pathnet
shall complete an Application document detailing all information regarding the
mofidication to the Collocation Space together with payment of the minimum
Subsequent Application Fee as stated in Exhibit A. Said minimum Subsequent
Application Fee shall be considered a partial payment of the applicable
Subsequent Application Fee which shall be calculated as set forth below.
BellSouth shall determine what modifications, if any, to the Central Office
premises are required to accommodate the change
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requested by Pathnet in the Application. Such necessary modifications to the
Central Office premises may include but are not limited to, floor loading
changes, changes necessary to meet HVAC requirements, changes to power plant
requirements, and equipment additions. The fee paid by Pathnet for its request
to modify the use of the Collocation Space shall be dependent upon the
modification requested. Where the subsequent application does not require
provisioning or construction work by BellSouth, no Subsequent Application Fee
will be required and the pre-paid fee shall be refunded to Pathnet. The fee for
an application where the modification requested has limited effect (e.g., does
not require capital expenditure by BellSouth) shall be the Subsequent
Application Fee as set forth in Exhibit A. All other modifications shall require
a Subsequent Application Fee assessed at the applicable application fee. In the
event such modifications require the assessment of a full Application Fee as set
forth in Exhibit A, the outstanding balance shall be due by Pathnet within 30
calendar days following Pathnet's receipt of a bill or invoice from BellSouth.
6.2 Application Response. In addition to the notice of space
availability pursuant to Section 2.1, BellSouth will respond within ten (10)
business days of receipt of an Application whether the Application is Bona Fide,
and if it is not Bona Fide, the items necessary to cause the Application to
become Bona Fide. When space has been determined to be available, BellSouth will
provide a comprehensive written response within thirty (30) business days of
receipt of a complete application. When multiple applications are submitted
within a fifteen business day window, BellSouth will respond to the applications
as soon as possible, but no later than the following: within thirty (30)
business days for applications 1-5; within thirty-six (36) business days for
applications 6-10; within forty-two (42) business days for applications 11-15.
Response intervals for multiple applications submitted within the same timeframe
for the same state in excess of 15 must be negotiated. All negotiations shall
consider the total volume from all requests from telecommunications companies
for collocation. The Application Response will detail whether the amount of
space requested is available or if the amount of space requested is not
available, the amount of space that is available. The response will also include
the configuration of the space. When BellSouth's response includes an amount of
space less than that requested by Pathnet or differently configured, Pathnet
must amend its application to reflect the actual space available prior to
submitting a Bona Fide Firm Order.
6.3 Bona Fide Firm Order. Pathnet shall indicate its intent to
proceed with equipment installation in a BellSouth Central Office by submitting
a Bona Fide Firm Order to BellSouth. A Bona Fide Firm Order requires Pathnet to
complete the Application/Inquiry process described in Subsection 6.1, preceding,
and submit the Expanded Interconnection Bona Fide Firm Order document
(BSTEI-1P-F) indicating acceptance of the written application response provided
by BellSouth ("Bona Fide Firm Order") and all appropriate fees. The Bona Fide
Firm Order must be received by BellSouth no later than thirty (30) calendar days
after BellSouth's response to Pathnet's Application/Inquiry. If Pathnet makes
changes to its application in light of BellSouth's written Application Response,
BellSouth will be required to re-evaluate and respond to the change(s). In this
event, BellSouth's provisioning interval will not start until the re-evaluation
and response to the change(s) is complete and the Bona Fide Firm Order is
received by BellSouth and all appropriate fees and duties have been executed. If
BellSouth needs to reevaluate Pathnet's application as a result of changes
requested by Pathnet to Pathnet's original application, then BellSouth will
charge Pathnet a fee based upon the additional engineering hours required to do
the reassessment. Major changes such as requesting additional space or
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adding additional equipment may require Pathnet to resubmit the application with
an application fee.
6.3.1 BellSouth will establish a firm order date, per request,
based upon the date BellSouth is in receipt of a Bona Fide Firm Order. BellSouth
will acknowledge the receipt of Pathnet's Bona Fide Firm Order within five (5)
business days of receipt indicating that the Bona Fide Firm Order has been
received. A BellSouth response to a Bona Fide Firm Order will include a Firm
Order Confirmation containing the firm order date.
6.3.2 BellSouth will permit one accompanied site visit to
Pathnet's designated collocation arrangement location after receipt of the Bona
Fide Firm Order without charge to Pathnet.
6.3.3 Space preparation for the Collocation Space will not
begin until BellSouth receives the Bona Fide Firm Order and all applicable fees.
6.3.4 Pathnet must submit to BellSouth the completed Access
Control Request Form (RF-2906-A) for all employees or agents requiring access to
the BellSouth Central Office a minimum of 30 calendar days prior to the date
Pathnet desires access to the Collocation Space.
6.4 Construction and Provisioning Interval. BellSouth will
negotiate construction and provisioning intervals per request on an individual
case basis. Excluding the time interval required to secure the appropriate
government licenses and permits, BellSouth will use best efforts to complete
construction for collocation arrangements under ordinary conditions as soon as
possible and within a maximum of 90 business days from receipt of a complete and
accurate Bona Fide Firm Order. Ordinary conditions are defined as space
available with only minor changes to support systems required, such as but not
limited to, HVAC, cabling and the power plant(s). Excluding the time interval
required to secure the appropriate government licenses and permits, BellSouth
will use best efforts to complete construction of all other collocation space
("extraordinary conditions") within 130 business days of the receipt of a
complete and accurate Bona Fide Firm Order. Extraordinary conditions are defined
to include but are not limited to major BellSouth equipment rearrangement or
addition; power plant addition or upgrade; major mechanical addition or upgrade;
major upgrade for ADA compliance; environmental hazard or hazardous materials
abatement.
6.4.1 Joint Planning Meeting. Unless otherwise agreed to by
the Parties, a joint planning meeting or other method of joint planning between
BellSouth and Pathnet will commence within a maximum of 15 business days from
BellSouth's receipt of a Bona Fide Firm Order and the payment of agreed upon
fees. At such meeting, the Parties will agree to the preliminary design of the
Collocation Space and the equipment configuration requirements as reflected in
the Application and affirmed in the Bona Fide Firm Order. The Collocation Space
Completion time period will be provided to Pathnet during the joint planning
meeting or as soon as possible thereafter. BellSouth will complete all design
work following the joint planning meeting.
6.4.2 Permits. Each Party or its agents will diligently pursue
filing for the permits required for the scope of work to be performed by that
Party or its agents within 7 business days of the completion of finalized
construction designs and specifications.
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6.4.3 Acceptance Walk Through. Pathnet and BellSouth will
complete an acceptance walk through of each Collocation Space requested from
BellSouth by Pathnet. BellSouth will correct any deviations to Pathnet's
original or jointly amended requirements within five (5) business days after the
walk through, unless the Parties jointly agree upon a different time frame.
6.5 Use of Certified Vendor. Pathnet shall select a vendor which
has been approved as a BellSouth Certified Vendor to perform all engineering and
installation work required in the Collocation Space. In some cases, Pathnet must
select separate BellSouth Certified Vendors for transmission equipment,
switching equipment and power equipment. BellSouth shall provide Pathnet with a
list of Certified Vendors upon request. The Certified Vendor(s) shall be
responsible for installing Pathnet's equipment and components, installing
co-carrier cross connects, extending power cabling to the BellSouth power
distribution frame, performing operational tests after installation is complete,
and notifying BellSouth's equipment engineers and Pathnet upon successful
completion of installation. The Certified Vendor shall bill Pathnet directly for
all work performed for Pathnet pursuant to this Agreement and BellSouth shall
have no liability for nor responsibility to pay such charges imposed by the
Certified Vendor. BellSouth shall consider certifying Pathnet or any vendor
proposed by Pathnet.
6.6 Alarm and Monitoring. BellSouth shall place environmental
alarms in the Central Office for the protection of BellSouth equipment and
facilities. Pathnet shall be responsible for placement, monitoring and removal
of environmental and equipment alarms used to service Pathnet's Collocation
Space. Upon request, BellSouth will provide Pathnet with applicable tariffed
service(s) to facilitate remote monitoring of collocated equipment by Pathnet.
Both parties shall use best efforts to notify the other of any verified
environmental hazard known to that party. The parties agree to utilize and
adhere to the Environmental Hazard Guidelines identified as Exhibit B attached
hereto.
6.7 Basic Telephone Service. Upon request of Pathnet, BellSouth
will provide basic telephone service to the Collocation Space under the rates,
terms and conditions of the current tariff offering for the service requested.
6.8 Space Preparation. BellSouth shall pro rate the costs of any
renovation or upgrade to Central Office space or support mechanisms which is
required to accommodate physical collocation. Pathnet's pro rated share will be
calculated by multiplying such cost by a percentage equal to the amount of
square footage occupied by Pathnet divided by the total Central Office square
footage receiving renovation or upgrade. For this section, support mechanisms
provided by BellSouth may include, but not be limited to heating/ventilation/air
conditioning (HVAC) equipment, HVAC duct work, cable support structure, fire
wall(s), mechanical upgrade, asbestos abatement, or ground plane addition. Such
renovation or upgrade will be evaluated and the charges assessed on a per
Central Office basis. BellSouth will reimburse Pathnetin an amount equal to
Pathnet reasonable, demonstrative and mitigated expenditures incurred as a
direct result of delays to the completion and turnover dates caused by
BellSouth.
6.9 Virtual Collocation Transition. BellSouth offers Virtual
Collocation pursuant to the rates, terms and conditions set forth in its F.C.C.
Tariff No. 1. For the interconnection to BellSouth's network and access to
BellSouth unbundled network elements, Pathnet may
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purchase 2-wire and 4-wire Cross-Connects as set forth in Exhibit A, and Pathnet
may place within its Virtual Collocation arrangements the telecommunications
equipment set forth in Section 5.1. In the event physical collocation space was
previously denied at a location due to technical reasons or space limitations,
and that physical collocation space has subsequently become available, Pathnet
may transition its virtual collocation arrangements to physical collocation
arrangements and pay the appropriate non-recurring fees for physical collocation
and for the rearrangement or reconfiguration of services terminated in the
virtual collocation arrangement. In the event that BellSouth knows when
additional space for physical collocation may become available at the location
requested by Pathnet, such information will be provided to Pathnet in
BellSouth's written denial of physical collocation. To the extent that (i)
physical collocation space becomes available to Pathnet within 180 days of
BellSouth's written denial of Pathnet's request for physical collocation, and
(ii) Pathnet was not informed in the written denial that physical collocation
space would become available within such 180 days, then Pathnet may transition
its virtual collocation arrangement to a physical collocation arrangement and
will receive a credit for any nonrecurring charges previously paid for such
virtual collocation credit for any Pathnet must arrange with a BellSouth
certified vendor for the relocation of equipment from its virtual collocation
space to its physical collocation space and will bear the cost of such
relocation.
6.10 Cancellation. If, at anytime, Pathnet cancels its order for
the Collocation Space(s), Pathnet will reimburse BellSouth for any expenses
incurred up to the date that written notice of the cancellation is received. In
no event will the level of reimbursement under this paragraph exceed the maximum
amount Pathnet would have otherwise paid for work undertaken by BellSouth if no
cancellation of the order had occurred.
6.11 Licenses. Pathnet, at its own expense, will be solely
responsible for obtaining from governmental authorities, and any other
appropriate agency, entity, or person, all rights, privileges, and licenses
necessary or required to operate as a provider of telecommunications services to
the public or to occupy the Collocation Space.
7. RATES AND CHARGES
7.1 Non-recurring Fees. In addition to the Application Fee
referenced in Section 6, preceding, Pathnet shall remit payment of a Cable
Installation Fee and one-half (1/2) of the estimated Space Preparation Fee, as
applicable, coincident with submission of a Bona Fide Firm Order. The
outstanding balance of the actual Space Preparation Fee shall be due thirty (30)
calendar days following Pathnet's receipt of a bill or invoice from BellSouth.
Once the installation of the initial equipment arrangement is complete, a
subsequent application fee may apply (as described in Subsection 7.4, when
Pathnet requests a modification to the arrangement.
7.2 Documentation. BellSouth shall provide documentation to
establish the actual Space Preparation Fee. The Space Preparation Fee will be
pro rated as prescribed in Section 6, preceding.
7.3 Cable Installation. Cable Installation Fee(s) are assessed
per entrance fiber placed.
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7.4 Floor Space. The floor space charge includes reasonable
charges for lighting, heat, air conditioning, ventilation and other allocated
expenses associated with maintenance of the Central Office but does not include
amperage necessary to power Pathnet's equipment. When the Collocation Space is
enclosed, Pathnet shall pay floor space charges based upon the number of square
feet so enclosed. When the Collocation Space is not enclosed, Pathnet shall pay
floor space charges based upon the following floor space calculation: [(depth of
the equipment lineup in which the rack is placed) + (0.5 x maintenance aisle
depth) + (0.5 x wiring aisle depth)] X (width of rack and spacers). For purposes
of this calculation, the depth of the equipment lineup shall consider the
footprint of equipment racks plus any equipment overhang. BellSouth will assign
unenclosed Collocation Space in conventional equipment rack lineups where
feasible. In the event Pathnet's collocated equipment requires special cable
racking, isolated grounding or other treatment which prevents placement within
conventional equipment rack lineups, Pathnet shall be required to request an
amount of floor space sufficient to accommodate the total equipment arrangement.
Floor space charges are due beginning with the date on which BellSouth releases
the Collocation Space for occupancy or on the date Pathnet first occupies the
Collocation Space, whichever is sooner.
7.5 Power. BellSouth shall make power, including back-up power,
available to Pathnet on a level and manner that is at least at parity to the
level and manner which BellSouth provides itself, its subsidiaries, affiliates,
or any other CLEC. BellSouth shall supply -48 Volt (-48V) DC power for Pathnet's
Collocation Space within the central office premises and shall make available AC
power at Pathnet's option for Adjacent Arrangement collocation.
7.5.1 Charges for -48V DC power will be assessed per ampere
per month based upon the certified vendor engineered and installed power feed
fused ampere capacity. Rates include redundant feeder fuse positions (A&B) and
cable rack to Pathnet's equipment or space enclosure. When obtaining power from
a BellSouth Battery Distribution Fuse Bay, fuses and power cables (A&B) must be
engineered (sized), furnished and installed by Pathnet's certified vendor. When
obtaining power from a BellSouth Power Board, power cables (A&B) must be
engineered (sized), furnished and installed by Pathnet's certified power vendor.
Pathnet's certified vendor must also provide a copy of the engineering power
specification prior to the Commencement Date. In the event BellSouth shall be
required to construct additional DC power plant or upgrade the existing DC power
plant in a Central Office as a result of Pathnet's request to collocate in that
Central Office ("Power Plant Construction"), Pathnet shall pay its pro-rata
share of costs associated with the Power Plant Construction. The determination
of whether Power Plant Construction is necessary shall be within BellSouth's
sole, but reasonable, discretion. BellSouth shall comply with all BellCore
(Telcordia) and ANSI Standards regarding power cabling, including BellCore
(Telcordia) Network Equipment Building System (NEBS) StandardGR-63-CORE.
BellSouth will notify Pathnet of the need for the Power Plant Construction and
will estimate the costs associated with the Power Plant Construction if
BellSouth were to perform the Power Plant Construction. The costs of power plant
construction shall be pro-rated and shared among all who benefit from that
construction. Pathnet shall pay BellSouth one-half of its prorata share of the
estimated Power Plant Construction costs prior to commencement of the work.
Pathnet shall pay BellSouth the balance due (actual cost less one-half of the
estimated cost) within thirty (30) days of completion of the Power Plant
Construction. Pathnet has the option to perform the Power Plant Construction
itself; provided, however, that such work shall be performed by a BellSouth
certified contractor and such contractor shall comply with BellSouth's
guidelines and specifications. Where the Power Plant Construction results in
construction of a new power plant room, upon termination of this Agreement
Pathnet
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shall have the right to remove its equipment from the power plant room, but
shall otherwise leave the room intact. Where the Power Plant Construction
results in an upgrade to BellSouth's existing power plant, upon termination of
this Agreement, such upgrades shall become the property of BellSouth.
7.5.2 Charges for AC power will be assessed per breaker ampere
per month based upon the certified vendor engineered and installed power feed
fused ampere capacity. Rates include the provision of commercial and standby AC
power. When obtaining power from a BellSouth Distribution Fuse Bay, Power Board
or Service Panel, fuses and power cables must be engineered (sized), furnished
and installed by Pathnet's certified vendor. Pathnet's certified vendor must
also provide a copy of the engineering power specification prior to the
Commencement Date. Charges for AC power shall be assessed pursuant to the rates
specified in Exhibit A. AC power voltage and phase ratings shall be determined
on a per location basis.
7.6 Security Escort. A security escort will be required whenever
Pathnet or its approved agent desires access to the entrance manhole or must
have access to the Central Office Premises after the one accompanied site visit
allowed pursuant to subsection 6.2.2 prior to completing BellSouth's Security
Training requirements and/or prior to Space Acceptance. Rates for a security
escort are assessed in one-half (1/2) hour increments according to the schedule
appended hereto as Exhibit A.
7.7 Rate "True-Up." The Parties agree that the prices reflected as
interim herein shall be "trued-up" (up or down) based on final prices either
determined by further agreement or by final order, including any appeals, in a
proceeding involving BellSouth before the regulatory authority for the state in
which the services are being performed or any other body having jurisdiction
over this agreement (hereinafter "Commission"). Under the "true-up" process, the
interim price for each service shall be multiplied by the volume of that service
purchased to arrive at the total interim amount paid for that service ("Total
Interim Price"). The final price for that service shall be multiplied by the
volume purchased to arrive at the total final amount due ("Total Final Price").
The Total Interim Price shall be compared with the Total Final Price. If the
Total Final Price is more than the Total Interim Price, Pathnet shall pay the
difference to BellSouth. If the Total Final Price is less than the Total Interim
Price, BellSouth shall pay the difference to Pathnet. Each party shall keep its
own records upon which a "true-up" can be based and any final payment from one
party to the other shall be in an amount agreed upon by the Parties based on
such records. In the event of any disagreement as between the records or the
Parties regarding the amount of such "true-up," the Parties agree that the
Commission shall be called upon to resolve such differences.
7.8 Other. If no rate is identified in the contract, the rate for
the specific service or function will be negotiated by the parties upon request
by either party. Payment of all other charges under this Agreement shall be due
thirty (30) days after receipt of the bill (payment due date). Pathnet will pay
a late payment charge of one and one-half percent (1-1/2%) assessed monthly on
any balance which remains unpaid after the payment due date.
8. INSURANCE
8.1 Pathnet shall, at its sole cost and expense, procure,
maintain, and keep in force insurance as specified in this Article VI and
underwritten by insurance companies licensed to do
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business in the states applicable under this Agreement and having a BEST
Insurance Rating of B ++ X (B ++ ten).
8.2 Pathnet shall maintain the following specific coverage:
8.2.1 Commercial General Liability coverage in the amount of
ten million dollars ($10,000,000.00) or a combination of Commercial General
Liability and Excess/Umbrella coverage totaling not less than ten million
dollars ($10,000,000.00). BellSouth shall be named as an ADDITIONAL INSURED on
ALL applicable policies as specified herein.
8.2.2 Statutory Workers Compensation coverage and Employers
Liability coverage in the amount of one hundred thousand dollars ($100,000.00)
each accident, one hundred thousand dollars ($100,000.00) each employee by
disease, and five hundred thousand dollars ($500,000.00) policy limit by
disease.
8.2.3 Pathnet may elect to purchase business interruption and
contingent business interruption insurance, having been advised that BellSouth
assumes no liability for loss of profit or revenues should an interruption of
service occur.
8.3 The limits set forth in Subsection 6.2 above may be increased
by BellSouth from time to time during the term of this Agreement upon thirty
(30) days notice to Pathnet to at least such minimum limits as shall then be
customary with respect to comparable occupancy of BellSouth structures.
8.4 All policies purchased by Pathnet shall be deemed to be
primary and not contributing to or in excess of any similar coverage purchased
by BellSouth. All insurance must be in effect on or before the date equipment is
delivered to BellSouth's Central Office and shall remain in effect for the term
of this Agreement or until all Pathnet's property has been removed from
BellSouth's Central Office, whichever period is longer. If Pathnet fails to
maintain required coverage, BellSouth may pay the premiums thereon and seek
reimbursement of same from Pathnet.
8.5 Pathnet shall submit certificates of insurance reflecting the
coverage required pursuant to this Section a minimum of ten (10) days prior to
the commencement of any work in the Collocation Space. Failure to meet this
interval may result in construction and equipment installation delays. Pathnet
shall arrange for BellSouth to receive thirty (30) days advance notice of
cancellation from Pathnet's insurance company. Pathnet shall forward a
certificate of insurance and notice of cancellation to BellSouth at the
following address:
BellSouth Telecommunications, Inc.
Attn.: Risk Management Coordinator
600 N. 19th Street, 18B3
Birmingham, Alabama 35203
8.6 Pathnet must conform to recommendations made by BellSouth's
fire insurance company to the extent BellSouth has agreed to, or shall hereafter
agree to, such recommendations.
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8.7 Failure to comply with the provisions of this Section will be
deemed a material breach of this Agreement.
9. MECHANICS LIENS
9.1 If any mechanics lien or other liens shall be filed against
property of either party (BellSouth or Pathnet), or any improvement thereon by
reason of or arising out of any labor or materials furnished or alleged to have
been furnished or to be furnished to or for the other party or by reason of any
changes, or additions to said property made at the request or under the
direction of the other party, the other party directing or requesting those
changes shall, within thirty (30) days after receipt of written notice from the
party against whose property said lien has been filed, either pay such lien or
cause the same to be bonded off the affected property in the manner provided by
law. The party causing said lien to be placed against the property of the other
shall also defend, at its sole cost and expense, on behalf of the other, any
action, suit or proceeding which may be brought for the enforcement of such
liens and shall pay any damage and discharge any judgment entered thereon.
10. INSPECTIONS
10.1 BellSouth shall conduct an inspection of Pathnet's equipment
and facilities in the Collocation Space(s) prior to the activation of facilities
between Pathnet's equipment and equipment of BellSouth. BellSouth may conduct an
inspection if Pathnet adds equipment and may otherwise conduct routine
inspections at reasonable intervals mutually agreed upon by the Parties.
BellSouth shall provide Pathnet with a minimum of forty-eight (48) hours or two
(2) business days, whichever is greater, advance notice of all such inspections.
All costs of such inspection shall be borne by BellSouth.
11. SECURITY AND SAFETY REQUIREMENTS
11.1 Only BellSouth employees, BellSouth certified vendors and
authorized employees, authorized Guests, pursuant to Section 3.3, preceding, or
authorized agents of Pathnet will be permitted in the BellSouth Central Office.
Pathnet shall provide its employees and agents with picture identification which
must be worn and visible at all times while in the Collocation Space or other
areas in or around the Central Office. The photo Identification card shall bear,
at a minimum, the employee's name and photo, and the Pathnet name. BellSouth
reserves the right to remove from its premises any employee of Pathnet not
possessing identification issued by Pathnet. Pathnet shall hold BellSouth
harmless for any damages resulting from such removal of its personnel from
BellSouth premises. Pathnet shall be solely responsible for ensuring that any
Guest of Pathnet is in compliance with all subsections of this Section 11.
11.1.1 Pathnet will be required, at its own expense, to
conduct a statewide investigation of criminal history records for each Pathnet
employee being considered for work on the BellSouth Central Office, for the
states/counties where the Pathnet employee has worked and lived for the past
five years. Where state law does not permit statewide collection or reporting,
an investigation of the applicable counties is acceptable.
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11.1.2 Pathnet will be required to administer to their
personnel assigned to the BellSouth Central Office security training either
provided by BellSouth, or meeting criteria defined by BellSouth. BellSouth will
provide Pathnet with such security training documentation upon execution of this
Agreement.
11.1.3 Pathnet shall not assign to the BellSouth Central
Office any personnel with records of felony criminal convictions. Pathnet shall
not assign to the BellSouth Central Office any personnel with records of
misdemeanor convictions, without advising BellSouth of the nature and gravity of
the offense(s). BellSouth reserves the right to refuse building access to any
Pathnet personnel who have been identified to have misdemeanor criminal
convictions.
11.1.4 For each Pathnet employee requiring access to a
BellSouth Central Office pursuant to this agreement, Pathnet shall furnish
BellSouth, prior to an employee gaining such access, a notarized affidavit
certifying that the aforementioned background check and security training were
completed. The affidavit will contain a statement certifying no felony
convictions were found and certifying that the security training was completed
by the employee. If the employee's criminal history includes misdemeanor
convictions, Pathnet will disclose the nature of the convictions to BellSouth at
that time.
11.1.5 At BellSouth's request, Pathnet shall promptly remove
from the BellSouth's premises any employee of Pathnet BellSouth does not wish to
grant access to its premises pursuant to any investigation conducted by
BellSouth.
11.2 Notification to BellSouth. BST reserves the right to
interview Pathnet's employees, agents, or contractors. Pathnet and its
contractors shall cooperate fully with BellSouth's investigation into
allegations of wrongdoing or criminal conduct committed by or involving
Pathnet's employees, agents, or contractors. Additionally, BellSouth reserves
the right to bill Pathnet for all costs associated with investigations involving
its employees, agents, or contractors if it can be reasonably established that
Pathnet's employees, agents, or contractors are responsible for the alleged act.
BellSouth shall bill Pathnet for BellSouth property which is stolen or damaged
where an investigation determines the culpability of Pathnet's employees,
agents, or contractors. Pathnet shall notify BellSouth in writing immediately in
the event that the CLEC discovers one of its employees already working on the
BellSouth premises is a possible security risk. BellSouth reserves the right to
permanently remove from its premises any employee of Pathnet identified as
posing a security risk to BellSouth or any other CLEC, or having violated
BellSouth policies set forth in the BellSouth CLEC Security Training. Pathnet
shall hold BellSouth harmless for any damages resulting from such removal of its
personnel from BellSouth premises.
11.3 Use of BellSouth Supplies by Pathnet Employees. Use of any
BellSouth supplies by a Pathnet employee, whether or not used routinely to
provide telephone service (e.g. plug-in cards,) will be considered theft and
will be handled accordingly. Costs associated with such unauthorized use of
BellSouth property may be charged to Pathnet as may be all associated
investigative costs. At BellSouth's request, Pathnet shall promptly and
permanently remove from BellSouth's Central Office any employee of Pathnet found
to be in violation of this rule.
11.4 Use of Official Lines by Pathnet Employees. Except for local
calls necessary in the performance of their work, Pathnet employees shall not
use the telephones on BellSouth
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Central Office. Charges for unauthorized telephone calls made by a Pathnet's
employees may be charged to Pathnet as may be all associated investigative
costs. At BellSouth's request, Pathnet shall promptly and permanently remove
from BellSouth's premises any employee of Pathnet found to be in violation of
this rule.
11.5 Accountability. Full compliance with the Security requirements
of this section shall in no way limit the accountability of any CLEC for the
improper actions of its employees.
12. DESTRUCTION OF COLLOCATION SPACE
12.1 In the event a Collocation Space is wholly or partially
damaged by fire, windstorm, tornado, flood or by similar causes to such an
extent as to be rendered wholly unsuitable for Pathnet's permitted use
hereunder, then either party may elect within ten (10) days after such damage,
to terminate this Agreement, and if either party shall so elect, by giving the
other written notice of termination, both parties shall stand released of and
from further liability under the terms hereof. If the Collocation Space shall
suffer only minor damage and shall not be rendered wholly unsuitable for
Pathnet's permitted use, or is damaged and the option to terminate is not
exercised by either party, BellSouth covenants and agrees to proceed promptly
without expense to Pathnet, except for improvements not the property of
BellSouth, to repair the damage. BellSouth shall have a reasonable time within
which to rebuild or make any repairs, and such rebuilding and repairing shall be
subject to delays caused by storms, shortages of labor and materials, government
regulations, strikes, walkouts, and causes beyond the control of BellSouth,
which causes shall not be construed as limiting factors, but as exemplary only.
Pathnet may, at its own expense, accelerate the rebuild of its collocated space
and equipment provided however that a certified vendor is used and the necessary
space preparation has been completed. Rebuild of equipment must be performed by
a BellSouth Certified Vendor. If Pathnet's acceleration of the project increases
the cost of the project, then those additional charges will be incurred by
Pathnet. Where allowed and where practical, Pathnet may erect a temporary
facility while BellSouth rebuilds or makes repairs. In all cases where the
Collocation Space shall be rebuilt or repaired, Pathnet shall be entitled to an
equitable abatement of rent and other charges, depending upon the unsuitability
of the Collocation Space for Pathnet's permitted use, until such Collocation
Space is fully repaired and restored and Pathnet's equipment installed therein
(but in no event later than thirty (30) days after the Collocation Space is
fully repaired and restored). Where Pathnet has placed an Adjacent Arrangement
pursuant to section 3.4, Pathnet shall have the sole responsibility to repair or
replace said Adjacent Arrangement provided herein. Pursuant to this section,
BellSouth will restore the associated services to the Adjacent Arrangement.
13. EMINENT DOMAIN
13.1 If the whole of a Collocation Space or Adjacent Arrangement
shall be taken by any public authority under the power of eminent domain, then
this Agreement shall terminate as of the day possession shall be taken by such
public authority and rent and other charges for the Collocation Space or
Adjacent Arrangement shall be paid up to that day with proportionate refund by
BellSouth of such rent and charges as may have been paid in advance for a period
subsequent to the date of the taking. If any part of the Collocation Space or
Adjacent Arrangement shall be taken under eminent domain, BellSouth and Pathnet
shall each have the
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right to terminate this Agreement and declare the same null and void, by written
notice of such intention to the other party within ten (10) days after such
taking.
14. NONEXCLUSIVITY
12.1 Pathnet understands that this Agreement is not exclusive and
that BellSouth may enter into similar agreements with other parties. Assignment
of space pursuant to all such agreements shall be determined by space
availability and made on a first come, first served basis.
15. NOTICES
15.1 Except as otherwise provided herein, any notices or demands
that are required by law or under the terms of this Agreement shall be given or
made by Pathnet or BellSouth in writing and shall be given by hand delivery, or
by certified or registered mail, and addressed to the parties as follows:
To BellSouth: To Pathnet:
600 N. 19th Str 1015 31st Street, N.W.
9th Floor Suite 500
Birmingham, AL 35240 Washington, D.C. 20007
ATTN: CLEC Account Team ATTN: Al Baird
15.2 Such notices shall be deemed to have been given in the case of
certified or registered mail when deposited in the United States mail with
postage prepaid.
16. INDEMNITY / LIMITATION OF LIABILITY
16.1 Pathnet shall be liable for any damage to property, equipment
or facilities or injury to person caused by the activities of Pathnet, its
agents or employees pursuant to, or in furtherance of, rights granted under this
Agreement. Pathnet shall indemnify and hold BellSouth harmless from and against
any judgments, fees, costs or other expenses resulting or claimed to result from
such activities by Pathnet, its agents or employees. Likewise, BellSouth shall
be liable for any damage to property, equipment or facilities or injury to
person caused by the activites of BellSouth, its agents or employees pursuant
to, or in furtherance of, providing the Collocation Space(s) under this
Agreement. BellSouth shall indemnify and hold PathNet harmless from and against
any judgments, fees, costs or other expenses resulting or claimed to result from
such activities by BellSouth, its agents or employees.
16.2 BellSouth shall not be liable to Pathnet for any interruption
of Pathnet's service or for interference with the operation of Pathnet's
communications facilities, or for any special,
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indirect, incidental or consequential damages arising in any manner, including
BellSouth's negligence, out of the use of the Collocation Space(s) and Pathnet
shall indemnify, defend and hold BellSouth harmless from and against any and all
claims, demands, causes of action, costs and reasonable attorneys' fees with
respect to such special, indirect, incidental or consequential damages.
16.3 BellSouth assumes no responsibility, and shall not be liable
to Pathnet for, any damage to the property, equipment or facilities of Pathnet
or for injury to any person caused by the activities of another Interconnector,
its agents or employees.
17. PUBLICITY
17.1 Pathnet agrees to submit to BellSouth all advertising, sales
promotion, press releases, and other publicity matters relating to this
Agreement or mentioning or implying the tradenames, logos, trademarks or service
marks (hereinafter "Marks") of BellSouth Corporation and/or any of its
affiliated companies or language from which the connection of said Marks
therewith may be inferred or implied, or mentioning or implying the names of any
personnel of BellSouth Corporation and/or any of its affiliated companies, and
Pathnet further agrees not to publish or use such advertising, sales promotions,
press releases, or publicity matters without BellSouth's prior written consent.
18. FORCE MAJEURE
18.1 Neither party shall be in default by reason of any failure in
performance of this Agreement, in accordance with its terms and conditions, if
such failure arises out of causes beyond the control of the nonperforming party
including, but not restricted to, acts of God, acts of government,
insurrections, fires, floods, accidents, epidemics, quarantines, restrictions,
strikes, freight embargoes, inability to secure raw materials or transportation
facilities, acts or omissions of carriers or any and all other causes beyond the
party's control.
19. YEAR 2000 COMPLIANCE
19.1 Each party warrants that it has implemented a program the goal
of which is to ensure that all collocated equipment, software, hardware and
related materials (collectively called "Systems") delivered, connected with
BellSouth or supplied in the furtherance of the terms and conditions specified
in this Agreement: (i) will record, store, process and display calendar dates
falling on or after January 1, 2000, in the same manner, and with the same
functionality as such software records, stores, processes and calendar dates
falling on or before December 31, 1999; and (ii) shall include without
limitation date data century recognition, calculations that accommodate same
century and multicentury formulas and date values, and date data interface
values that reflect the century.
20. ASSIGNMENT
20.1 Pathnet acknowledges that this Agreement does not convey any
right, title or interest in the Central Office to Pathnet. This Agreement is not
assignable by either party without the prior written consent of the other party,
and any attempt to assign any of the rights,
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duties or obligations of this Agreement without such consent is void.
Notwithstanding the foregoing, either party may assign any rights, duties or
obligations of this Agreement to a parent, subsidiary or affiliate without the
consent of the other party.
21. NO IMPLIED WAIVER
21.1 No consent or waiver by either party to or of any breach of
any covenant, term, condition, provision or duty of the other party under this
Agreement shall be construed as a consent to or waiver of any other breach of
the same or any other covenant, term, condition, provision or duty. No such
consent or waiver shall be valid unless in writing and signed by the party
granting such consent or waiver.
22. RESOLUTION OF DISPUTES
22.1 Except as otherwise stated in this Agreement, the Parties
agree that if any dispute arises as to the interpretation of any provision of
this Agreement or as to the proper implementation of this Agreement, the parties
will petition the Commission in the state where the services are provided
pursuant to this Agreement for a resolution of the dispute. However, each party
reserves any rights it may have to seek judicial review of any ruling made by
the Public Service Commission concerning this Agreement.
23. SECTION HEADINGS
23.1 The section headings used herein are for convenience only,
and shall not be deemed to constitute integral provisions of this Agreement.
24. AUTHORITY
24.1 Each of the parties hereto warrants to the other that the
person or persons executing this Agreement on behalf of such party has the full
right, power and authority to enter into and execute this Agreement on such
party's behalf and that no consent from any other person or entity is required
as a condition precedent to the legal effect of this Agreement.
25. REVIEW OF AGREEMENT
25.1 The parties acknowledge that each has had an opportunity to
review and negotiate this Agreement and has executed this Agreement only after
such review and negotiation. The Parties further agree that this Agreement shall
be deemed to have been drafted by both BellSouth and Pathnet and the terms and
conditions contained herein shall not be construed any more strictly against one
party or the other.
26. FILING OF AGREEMENT
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26.1 Upon execution of this Agreement it shall be filed with the
appropriate state regulatory agency pursuant to the requirements of section 252
of the Act. If the regulatory agency imposes any filing or public interest
notice fees regarding the filing or approval of the Agreement, said costs shall
be borne by Pathnet.
27. ENTIRE AGREEMENT
27.1 This Agreement contains the full understanding of the Parties
(superseding all prior or contemporaneous correspondence between the Parties)
and shall constitute the entire agreement between BellSouth and Pathnet and may
not be modified or amended other than by a written instrument signed by both
parties. If any conflict arises between the terms and conditions contained in
this Agreement and those contained in a filed tariff, the terms and conditions
of this Agreement shall control.
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly
authorized representatives in one or more counterparts, each of which shall
constitute an original, on the day and year first above written.
BELLSOUTH TELECOMMUNICATIONS, (Pathnet's Full Company Name)
INC.
/s/ JERRY HENDRIX /s/ MICHAEAL A. LUBIN
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Authorized Signature Authorized Signature
Jerry Hendrix Michael Lubin
- ---------------------------------- -------------------------------
Print or Type Name Print or Type Name
Senior Director V.P. and General Counsel
- ---------------------------------- -------------------------------
Title Title
7/29/99 7/26/99
- ---------------------------------- -------------------------------
Date Date
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