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Exhibit 10.31
INTERIM
COLLOCATION AGREEMENT
AGREEMENT NUMBER
CDS-990616-0108
BETWEEN
U S WEST COMMUNICATIONS, INC.
AND
PATHNET, INC.
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COLLOCATION AGREEMENT
THIS COLLOCATION AGREEMENT ("Agreement") is made and effective as of
August 12, 1999, by and between U S WEST Communications, Inc., a Colorado
corporation ("USW"), and Pathnet, Inc., a Delaware corporation ("Pathnet").
WHEREAS, USW is an incumbent local exchange carrier having a
statutory duty to provide for "Collocation" of equipment necessary for
interconnection or access to unbundled network elements at its Premises, in
accordance with the Telecommunications Act of 1996 (the "Act"); and
WHEREAS, Pathnet wishes to physically locate certain of its equipment within the
Space (as defined herein) and connect with USW in accordance with the Act;
WHEREAS, Pathnet must have a state approved Interconnection agreement with USW
in the states covered by this Agreement before Pathnet can order local
interconnection trunks for the purpose of exchanging traffic between the
Parties' networks.
NOW THEREFORE, in consideration of the mutual agreements and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, USW and Pathnet (the "Parties") agree as follows:
SECTION 1. TERM
This Agreement is prepared in order for USW to process Pathnet's Collocation
requests for the states of Arizona, Colorado, Idaho, Iowa, Minnesota, Nebraska,
New Mexico, North Dakota and Wyoming (other states can be requested through a
general amendment to this contract) while the Parties finalize the
Interconnection Agreement between USW and Pathnet ("Interconnection Agreement").
The Parties intend to submit the Interconnection Agreement to the state public
utilities commissions having jurisdiction, for approval under the provisions of
47 U.S.C. Section 252. This Agreement will remain in effect until April 1, 2000,
or until approval of that Interconnection Agreement, whichever occurs first. At
such time of Commission approval of the Interconnection Agreement, this
Agreement will terminate and the terms and conditions of the approved
Interconnection Agreement will prevail. In the event the Interconnection
Agreement is not approved by the Commission Pathnet shall vacate the Space and
pay USW all of the expenses and costs that USW has incurred that have not been
fully reimbursed to USW by the nonrecurring charges paid by Pathnet to USW.
Pathnet shall have the option to convert cageless collocation to a virtual
collocation in this event as defined under the FCC tariffs dealing with the USW
Expanded Interconnection Services and shall pay charges for such conversion. USW
shall not refund any sum paid to it by or on behalf of Pathnet.
SECTION 2. COLLOCATION DESCRIPTION
2.1 Collocation allows for the placing of telecommunications
equipment owned by Pathnet within USW's Central Office
for the purpose of accessing Unbundled Network Elements
(UNEs) and/or terminating EAS/Local and ancillary
traffic.
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2.1.1 Virtual Collocation
With a Virtual Collocation arrangement,
Pathnet is responsible for the procurement
of its own telecommunications equipment
which USW installs and maintains. Pathnet
does not have physical access to its
equipment in the USW Central Office but will
be granted access to the appropriate
cross-connect for making any cross
connections it may require for access to USW
UNEs.
2.1.2 Caged Physical Collocation
Caged Physical Collocation allows Pathnet to
lease caged floor space approximately in 100
square foot increments, up to a maximum of
400 square feet, for placement of its
telecommunications equipment within USW's
Central Office for the purpose of
interconnecting with USW finished services
or UNEs. Pathnet is responsible for the
procurement, installation and on-going
maintenance of its equipment as well as the
cross connections required at the
appropriate cross-connect device for
connecting its equipment to USW UNEs.
2.1.3 Cageless Physical Collocation
Cageless Physical Collocation is a non-caged
area within a USW Central Office. Space will
be made available in standard 9 square foot,
single bay increments. Pathnet will be
responsible for the procurement,
installation and maintenance of the bays and
telecommunications equipment. As with both
Virtual and Caged Physical Collocation,
Cageless Physical Collocation will also
include access to the appropriate
cross-connect device in which Pathnet can
make connections to USW UNEs.
2.1.4 Shared Space Caged Physical Collocation
Shared Space Caged Physical Collocation
offers Co-Providers the opportunity to share
a caged physical space with each other for
the purpose of interconnecting with UNEs.
Each collocator will be responsible for
ordering entrance, power and terminations
from USW at time of application. In order to
address issues around warehousing of space,
the original collocator will not be allowed
to charge the shared occupant a per square
foot charge in excess of the rate that the
original collocator is presently charged by
USW. There are some limitations set on the
original collocator as to rates and terms of
the arrangement such as a per square foot
charge not exceeding the recurring amount
that USW is charging.
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2.1.5 Interconnection Distribution Frame (ICDF)
Collocation
Where Pathnet does not require its equipment
to be placed in a USW Central Office, but
wishes only to combine USW UNEs, ICDF
Collocation is available, where allowed by
law.
The combination of the UNEs shall be
completed at the appropriate USW
cross-connect device. Such devices will be
located within USW Central Offices for
common or dedicated usage. The cross-connect
devices accommodate DS0, DS1, DS3 and OCn
terminations. Tie cable arrangements between
the various USW distribution frames may be
required and will be provided in a
nondiscriminatory manner.
2.1.6 Microwave Collocation - See Attachment 1
2.1.7 Adjacent Collocation
2.1.7.1 USW will provide adjacent
collocation arrangements
("Adjacent Arrangement") on
contiguous property 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 USW'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.
2.1.7.2 Should Pathnet elect such
option, Pathnet must arrange
with a USW certified contractor
to construct an Adjacent
Arrangement structure in
accordance with USW's guidelines
and specifications. USW will
provide guidelines and
specifications upon request.
Where local building codes
require enclosure specifications
more stringent than USW'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 USW
Certified Vendor shall bill
Pathnet directly for all work
performed for Pathnet pursuant
to this Agreement and USW shall
have no liability for nor
responsibility to pay such
charges imposed by the Certified
Vendor. Pathnet must provide the
local USW building contact with
two cards, keys or other access
device used to enter the
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locked enclosure. Except in
cases of emergency, USW shall
not access Pathnet's locked
enclosure prior to notifying
Pathnet.
2.1.7.3 USW maintains the right to
review Pathnet's plans and
specifications prior to
construction of an Adjacent
Arrangement(s). USW 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 USW's guidelines and
specifications. USW may require
Pathnet, at Pathnet's sole cost,
to correct any deviations from
USW's guidelines and
specifications found during such
inspection(s), up to and
including removal of the
Adjacent Arrangement, within
five (5) business days of USW's
inspection, unless the Parties
mutually agree to an alternative
time frame.
2.1.7.4 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 USW point
of interconnection. At Pathnet's
option, and to the extent
technically feasible, USW 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. Due to the distance
limitations of power cable, USW
will accommodate requests to a
reasonable distance within 300
feet of the Central Office power
source, or 200 feet from the
Central Office outside wall.
2.1.7.5 USW shall allow Shared
(Subleased) Caged Collocation
within an Adjacent Arrangement
pursuant to the terms and
conditions set forth in Section
3.3 following. Pathnet shall
make all necessary arrangements
with a third party property
owner.
SECTION 3. COLLOCATION TERMS AND CONDITIONS - ALL COLLOCATION
3.1 With respect to any technical requirements or
performance standards specified in this Section, USW
shall provide Collocation in a nondiscriminatory manner
on rates, terms and conditions that are just, reasonable
and nondiscriminatory.
3.2 Pathnet will only collocate telecommunications equipment
which is necessary for interconnection and access to
unbundled elements. Pathnet must identify what
telecommunications equipment will be installed and the
vendor technical specifications of such equipment so
that USW may engineer the power, floor loading, heat
release, environmental particulate level, and HVAC.
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3.3 Collocation requests require that space be provided for
the placement of Pathnet telecommunications equipment
within or adjacent to USW's Central Office. USW will
also provide, at a cost to Pathnet, the structure that
is necessary in support of this equipment. This includes
but is not limited to, physical space, a cage (for Caged
Physical Collocation), HVAC, any required cabling
between Pathnet's telecommunications equipment and the
Distribution Frame and any other associated hardware.
3.4 All equipment placed will meet NEBS Level 1 standards
and will be installed in accordance with USW Technical
Publications 77350, 77351, 77355, 77367, 77386 and
77390. USW shall provide standard Central Office
alarming pursuant to Technical Publication 77390.
3.5 Collocation is offered on a first-come, first-served
basis. Requests for Collocation may be denied due to the
lack of sufficient space in a USW Central Office for
placement of Pathnet's equipment. If USW determines that
the amount of space requested by Pathnet for Caged
Physical Collocation is not available, Pathnet will be
offered Collocation in the closest 100 square foot
increment that is determined to be available in relation
to the original request, or Pathnet will be offered
Cageless Physical Collocation (bay at a time), or
Virtual Collocation as an alternative to Caged Physical
Collocation.
3.6 Requests for Collocation from Pathnet will be
prioritized by USW, but in the event Pathnet submits
requests for Collocation, such that more than five (5)
requests per week, per state are in process by USW, the
following procedure shall apply:
3.6.1 USW and Pathnet shall work cooperatively and
in good faith to establish a project plan
and schedule to implement Pathnet's requests
for Collocation. The project plan shall
establish staggered due dates on both the
up-front and ready-for-service dates, and
outline responsibilities for each Party;
3.6.2 The project plan established by USW and
Pathnet to implement Pathnet's request for
Collocation may also be used by Pathnet to
prioritize implementation of Collocation
requests in the event that five (5) or fewer
requests for Collocation per week, per state
submitted by Pathnet are being processed by
USW;
3.6.3 Should the Parties not reach agreement on
the project plan, Pathnet's requests for
Collocation shall be addressed by USW on an
individual case basis.
3.7 If a request for Collocation is denied due to a total
lack of appropriate space in a USW Central Office,
Pathnet may request USW to provide a cost quote for the
reclamation of space and/or equipment, or an adjacent
collocation arrangement. Quotes will be developed within
sixty (60) business days including the estimated time
frames for the work that is required in order to satisfy
the Collocation request. Pathnet has thirty (30)
business days to accept the quote. If Pathnet
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accepts the quote, work will begin on receipt of 50% of
the quoted charges, with the balance due on completion.
Reclamation may include the following:
Grooming - The moving of circuits from
working equipment to other equipment bays
with similar functionality for the purpose
of providing space for Interconnection.
Space Reclamation - Administrative space
that can be reconditioned, downsized or
modified for the placement of
telecommunications equipment.
3.8 Out of Space
USW will provide documentation with the specific state
Commission whenever a Collocation request is denied due
to insufficient space. Additionally, if Pathnet's
request is denied, and Pathnet requests the
documentation, USW will furnish a marked copy of that
Central Office floor plan to Pathnet. Tours of the
affected Central Office, when requested, will be
arranged through USW channels, including USW Legal
Department, State Interconnection Management, and
Account Management teams.
3.9 All equipment and installation shall meet the state
specific earthquake rating requirements for Virtual or
Cageless Collocation.
3.10 USW will designate the POI for network Interconnection
for Virtual, Physical, Adjacent, Cageless or Caged
Physical Collocation arrangements. Pathnet will be
allowed access to the POI on non-discriminatory terms.
3.11 Pathnet is responsible for providing its own fiber
facilities to the POI outside USW's Central Office. USW
will extend the fiber facility from the POI on a USW
fiber cable from the POI to a Fiber Distribution Panel
(FDP). From the FDP additional fiber, conduit and
associated riser structure will then be provided by USW
to continue the run to Pathnet's telecommunications
equipment or Collocation area. Where there is an
adjacent collocation arrangement, the specifics will be
determined on a site to site basis.
3.12 The Collocation entrance facility is assumed to be fiber
optic cable and meets industry standards (GR. 20 Core).
Metallic sheath cable is not considered a standard
Collocation entrance facility. Requests for non-standard
entrances will be considered on an individual case basis
including an evaluation of the feasibility of the
request. All costs and provisioning intervals will be
developed on an individual case basis.
3.13 Dual entry into a USW Central Office will be provided
only when two entry points pre-exist and duct space is
available. USW will not initiate construction of a
second, separate Collocation entrance facility solely
for Collocation. If USW
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requires a Collocation entrance facility for its own
use, then the needs of Pathnet will also be taken into
consideration.
3.14 Where Collocation entrance facilities are not available,
USW will offer Pathnet USW OCn, DS3, or DS1 Private Line
Transport Services in accordance with Tariff terms and
conditions, in lieu of entrance facilities to be
terminated at Pathnet's collocated equipment.
3.15 USW will review the security requirements and hours of
access with Pathnet. This will include issuing keys, ID
cards, and explaining the access control processes,
including but not limited to the requirement that all
Pathnet approved personnel are subject to trespass
violations if outside of designated and approved areas
or if found to be providing access to unauthorized
individuals. Pathnet personnel found outside of
designated and approved areas, those being only those
areas directly adjacent to Pathnet equipment or Pathnet
terminated equipment, will be escorted away from those
non-approved areas and reported to USW Security.
Repeated violations will result in denial of access to
USW facilities and a possibility of criminal penalties.
3.16 USW shall provide access to existing eyewash stations,
bathrooms, and drinking water within the collocated
facility on a twenty-four (24) hours per day, seven (7)
days per week basis for Pathnet personnel and its
designated agents.
3.17 Pathnet shall be restricted to corridors, stairways, and
elevators that provide direct access to Pathnet's space,
or to the nearest restroom facility from Pathnet's
designated space, and such direct access will be
outlined during Pathnet's orientation meeting. Access
shall not be permitted to any other portion of the
building, except to the roof top where microwave
collocation has been installed.
3.18 Nothing herein shall be construed to limit Pathnet's
ability to obtain any or all types of USW Caged Physical
Collocation in a single location, provided space is
available.
3.19 Conversion of the Virtual Collocation (e.g.,
Virtual-to-Cageless Physical) is available upon request
and submission of a Quote Preparation Fee (QPF) by
Pathnet. Pathnet must pay all associated conversion
charges. Conversions shall be in accordance with USW's
standard Collocation provisioning processes. If
required, Pathnet will submit separate service orders
for grooming Pathnet's existing end user circuits to the
new Collocation. Upon request, Pathnet may convert a
non-completed Virtual Collocation Order to a Cageless
Physical Collocation. USW will consider requests to use
existing time frames if possible; such requests shall
not be unreasonably denied.
SECTION 4. COLLOCATION TERMS AND CONDITIONS - VIRTUAL COLLOCATION
4.1 USW is responsible for installing and maintaining
Virtually Collocated equipment for the purpose of
Interconnection of the mutual networks and to access
UNEs.
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4.2 Pathnet will be responsible for obtaining and providing
to USW administrative codes, (e.g., common language
codes, for all equipment provided by Pathnet and
installed in Wire Center buildings).
4.3 Pathnet shall ensure that upon receipt of Pathnet's
Virtually Collocated equipment by USW, all warranties
and access to ongoing technical support are passed
through to USW, all at Pathnet's expense. Pathnet shall
advise the manufacturer and seller of the virtually
collocated equipment that Pathnet's equipment will be
possessed, installed and maintained by USW.
4.4 Pathnet's virtually collocated equipment must comply
with the Bellcore Network Equipment Building System
(NEBS) Level 1 Generic Equipment Requirements
TR-NWT-000063, USW Wire Center environmental and
transmission standards and any statutory (local, state
or federal) and/or regulatory requirements in effect at
the time of equipment installation or that subsequently
become effective. Pathnet shall provide USW interface
specifications (e.g., electrical, functional, physical
and software) of Pathnet's virtually collocated
equipment.
4.5 Pathnet must specify all software options and associated
plug-ins for its virtually collocated equipment.
4.6 Pathnet will be responsible for payment of USW Direct
Training Charges associated with training USW employees
for the maintenance, operation and installation of
Pathnet's Virtually Collocated equipment when such
equipment is different than the standard equipment used
by USW in that Central Office. This includes per diem
charges (i.e., expenses based upon effective USW labor
agreements), travel and lodging incurred by USW
employees attending a vendor-provided training course.
4.7 Pathnet will be responsible for payment of charges
incurred in the maintenance and/or repair of Pathnet's
virtually collocated equipment.
SECTION 5. COLLOCATION TERMS AND CONDITIONS - CAGED PHYSICAL COLLOCATION
5.1 USW shall provide Caged Physical Collocation to Pathnet
for access to UNEs and/or terminating EAS/Local traffic,
except that USW may provide for Cageless Physical or
Virtual Collocation if USW demonstrates to the
Commission that Caged Physical Collocation is not
practical for technical reasons such as space
limitations, as provided in Section 251(c)(6) of the
Act. USW shall provide basic telephone service with a
connection jack at the request of Pathnet for the
Physical or Cageless Physical Collocated space. Upon
Pathnet's request, this service shall be available per
standard USW business service provisioning processes.
5.2 Caged Physical Collocation is offered in Wire Centers on
a space-available, first come, first-served basis.
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5.3 The minimum standard amount of leased floor space is 100
square feet. Pathnet must begin equipment installation
within sixty (60) days of cage acceptance and actively
use 50% of the space to provide telecommunication
services within twelve (12) months of acceptance. If USW
identifies under utilized space, in caged collocation
installations over 100 square feet, USW reserves the
right to reclaim the unused portion and allocate it to
another Co-Provider if a request is pending and an out
of space condition exists in that Central Office,
provided that the space granted to the Co-Provider shall
not be less than 100 square feet unless agreed to by
both Parties.
5.4 Pathnet's leased floor space will be separated from
other Co-Providers and USW space through a cage
enclosure unless the space is provided under a shared
space Collocation arrangement in which case there will
not be any cage delineation. USW will construct the cage
enclosure. All Pathnet equipment placed will meet NEBS
Level 1 standards, will be installed in accordance USW
Technical Publications 77390 and 77367, and will comply
with any local, state, or federal regulatory
requirements in effect at the time of equipment
installation or that subsequently become effective.
These two Technical Publications must be in the
possession of Pathnet and its agents at the site during
all work activities.
5.5 USW will designate and design the floor space within
each Wire Center which will constitute Pathnet's leased
space.
5.6 When USW constructs the Caged Physical space, USW will
ensure that the necessary construction work (racking,
ducting, caging, grounding, terminations, environmental
designs, AC and DC power, etc.) is performed to build
Pathnet's leased physical space and the riser from the
vault to the leased physical space, pursuant to
Technical Publication 77350.
5.7 Pathnet owns and is responsible for the installation,
maintenance and repair of its telecommunications
equipment located within the physically collocated space
rented from USW.
5.8 Shared Space Caged and Cageless Physical Collocation is
covered in subsequent Sections of this Agreement.
5.9 For Collocation entrance facilities, USW will extend
USW-provided and owned fiber optic cable from the POI to
Pathnet's leased physical space. Pathnet will procure,
install and maintain all fiber optic facilities up to
the USW designated POI.
5.10 Testing of the completed Collocation components will be
performed. USW will test to the demarcation points of
its portion of affected circuits. Subsequent joint
testing between the Parties will be conducted in
accordance with the rates and terms of this Agreement.
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5.11 If, during installation, USW determines Pathnet
activities or equipment do not comply with the NEBS
standards listed in this Section or are otherwise
unsafe, non-standard or in violation of any applicable
laws or regulations, USW has the right to stop all
Collocation work until the situation is remedied. If
such conditions pose an immediate threat to the safety
of USW employees, interfere with the performance of
USW's service obligations, or pose an immediate threat
to the physical integrity of the conduit system, cable
facilities or other equipment in the Central Office, USW
may perform such work and/or take action as is necessary
to correct the condition at Pathnet's expense.
5.12 If, at any time, USW determines that the equipment or
the installation does not meet technical standard
requirements, Pathnet will be responsible for the costs
associated with the removal (should Pathnet opt for
removal as resolution), modification to, or installation
of the equipment to bring it into compliance. If Pathnet
fails to correct any non-compliance within fifteen (15)
calendar days of written notice of non-compliance, USW
will have the equipment removed or the condition
corrected at Pathnet's expense.
SECTION 6. COLLOCATION TERMS AND CONDITIONS - CAGELESS PHYSICAL COLLOCATION
6.1 Pathnet owns and is responsible for the installation,
maintenance and repair of its telecommunications bays
and equipment located within the space leased from USW.
Pathnet may access its own Collocated equipment.
6.2 Requests for multiple bay space will be provided in
adjacent bays where possible. When contiguous space is
not available, bays may be commingled with other
Co-Providers' equipment bays. Pathnet may request
through the USW Space Reclamation Policy, a price quote
to rearrange USW equipment to provide Pathnet with
adjacent space.
6.3 All equipment placed will be subject to random audits
conducted by USW. These audits will determine whether
the equipment meets the standards required by this
Agreement. Pathnet will be notified of the results of
this audit and shall rectify all non-conformities within
thirty (30) calendar days of notification. All
non-conforming items remaining after this thirty (30)
day period may be rectified by USW and the cost assessed
to Pathnet.
SECTION 7. RATE ELEMENTS - ALL COLLOCATION
7.1 USW will recover Collocation costs through both
recurring and nonrecurring charges. The charges are
determined by the scope of work to be performed based on
the information provided by Pathnet on the Collocation
Order Form. If feasibility determines space is
available, a quote is then developed by USW for the work
to be performed.
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7.2 The following elements as specified in Exhibit 1 of this
Agreement are used to develop a price quotation in
support of Collocation.
7.3 Quote Preparation Fee. A non-refundable charge for the
work required to verify space and develop a price quote
for the total costs to Pathnet for its Collocation
request. The QPF is not credited against the total
nonrecurring charges of the job and recovers the
engineering and processing costs of the order.
7.4 Collocation Entrance Facility Charge. Depending on the
number of Entrance Facilities requested (single or dual)
the Entrance Facility charge is applied per fiber pair.
At each entrance Pathnet will deliver a minimum 12
strand fiber cable to the USW POI. The facilities from
the POI to the collocated equipment are owned, provided,
engineered, installed and maintained by USW. The
Collocation Entrance Facility includes riser, racking,
fiber placement, splicing, entrance closure,
conduit/innerduct, and core drilling.
7.5 Cable Splicing Charge. Represents the labor and
equipment to perform a subsequent splice to Pathnet
provided fiber optic cable after the initial
installation splice. Includes per-setup and
per-fiber-spliced rate elements.
7.6 -48 Volt DC Power Charge. Provides -48 volt DC power to
Pathnet collocated equipment. Charged on a per ampere
basis.
7.7 -48 Volt DC Power Cable Charge. Provides for the
transmission of -48 volt DC power to the collocated
equipment. It includes engineering, furnishing and
installing the main distribution bay power breaker,
associated power cable, cable rack and local power bay
to the closest power distribution bay. It also includes
the power cable (A and B feeds) from the local power
distribution bay to the leased physical space (for
Cageless or Caged Physical Collocation) or to the
collocated equipment (for Virtual Collocation). Charged
per A and B feeder, per foot.
7.8 Inspector Labor Charge. Provides for USW qualified
personnel, acting as an inspector, when Pathnet requires
access to the POI after the initial installation. A
call-out of an inspector after business hours is subject
to a minimum charge of three (3) hours. The minimum
call-out charge shall apply when no other employee is
present in the location, and an 'off-shift' USW employee
(or contract employee) is required to go 'on-shift' on
behalf of Pathnet.
7.9 Channel Regeneration Charge. Required when the distance
from the leased physical space (for Caged Physical
Collocation or Cageless Physical Collocation) or from
the collocated equipment (for Virtual Collocation) to
the USW network is of sufficient length to require
regeneration. The cost associated with regeneration will
be borne by Pathnet.
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7.10 Cross-Connect Terminations
7.10.1 If USW provides the equipment cable for
Pathnet, terminations of that cable,
including hardware and installation, will be
provided in the following increments:
DS0 - In blocks of 100 terminations.
DS1 - In increments of 28 terminations
DS-3 - In increments of 1 coax pair
OCn Level Terminations - In increments of 1
fiber pair
These elements include USW provided
equipment cables, terminating blocks,
installation labor and associated racking
required between Pathnet collocated
equipment and the appropriate cross-connect
device.
7.10.2 If Pathnet elects to provide the equipment
cable, rates are applied on a per
termination basis for DS0, DS1, and DS3s as
shown below:
DS0 Per Termination
DS1 Per Termination
DS3 Per Termination
OCn Level Per Termination
These elements include USW provided
termination blocks, installation labor and
associated racking between Pathnet
collocated equipment and the appropriate
cross-connect device .
7.11 Collocation Cable Racking. A charge for cable racking
required for placement of Pathnet's supplied equipment
cables from its equipment to the appropriate
cross-connect device which is provided in conjunction
with the DS0, DS1, DS3 and OCn terminations. Cable
Racking is assessed on a per foot charge based on number
of cable pairs terminated at the various cross-connect
devices.
7.12 Collocation Grounding Charge. A charge associated with
providing grounding for Pathnet's cage enclosure and
equipment. Recurring and nonrecurring charges are
assessed per foot to Pathnet's cage enclosure or common
space where required.
7.13 Heating and Air Conditioning Charge. Environmental
temperature control required for proper operation of
electronic telecommunications equipment.
7.14 Security Charge- The keys/card readers and video cameras
as may be required for Pathnet access to the USW Central
Office for the purpose of Collocation. Flat rate charges
are assessed per Pathnet, per each USW Central Office to
which access is required. If Pathnet desires to enter
unauthorized area and an escort is required, additional
charges will apply.
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SECTION 8. RATE ELEMENTS - VIRTUAL COLLOCATION
The following rate elements apply uniquely to Virtual Collocation.
8.1 Maintenance Labor -- Provides for the labor necessary
for repair of out of service and/or service-affecting
conditions and preventative maintenance of Pathnet
virtually collocated equipment. Pathnet is responsible
for ordering and delivering maintenance spares. USW will
perform maintenance and/or repair work upon receipt of
the replacement maintenance spare and/or equipment from
Pathnet. A call-out of a maintenance technician after
business hours is subject to a minimum charge of three
(3) hours.
8.2 Training Labor -- Provides for the billing of
vendor-provided training for USW personnel on a
metropolitan service area basis, necessary for Pathnet
virtually collocated equipment which is different from
USW provided equipment. USW will require three USW
employees to be trained per metropolitan service area in
which Pathnet virtually collocated equipment is located.
If, by an act of USW, trained employees are relocated,
retired, or are no longer available, USW will not
require Pathnet to provide training for additional USW
employees for the same virtually collocated equipment in
the same metropolitan area.
8.3 Equipment Bay -- Provides mounting space for Pathnet
virtually collocated equipment. Each bay includes the 7
foot bay (or metric equivalent), its installation, and
all necessary environmental supports. Mounting space on
the bay, including space for the fuse panel and air gaps
necessary for heat dissipation is limited to 78 inches.
The monthly rate is applied per shelf.
8.4 Engineering Labor -- Provides the planning and
engineering of Pathnet virtually collocated equipment at
the time of installation, change or removal.
8.5 Installation Labor -- Provides for the installation,
change or removal of Pathnet virtually collocated
equipment.
SECTION 9. RATE ELEMENTS - CAGED PHYSICAL COLLOCATION
9.1 Cage Enclosure. The Cage Enclosure element includes the
material and labor to construct the enclosure. Pathnet
may choose from USW approved contractors to construct
the cage, in accordance with USW's installation
Technical Publication 77350. It includes a nine foot
cage enclosure available in increments of 100, 200, 300
or 400 square feet, (or other size mutually agreed to),
air conditioning (to support Pathnet loads specified),
lighting (not to exceed 2 watts per square foot), and
convenience outlets (3 per cage or number required by
building code). Pricing for the Cage Enclosure will be
provided on an individual basis due to the uniqueness of
Pathnet's requirements, Central Office structure and
arrangements.
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9.2 Floor Space Lease. Provides the monthly lease for the
leased physical space, property taxes and base operating
cost without -48 volt DC power. Includes convenience 110
AC, 15 amp electrical outlets provided in accordance
with local codes and may not be used to power
telecommunications equipment or -48 volt DC power
generating equipment. Also includes maintenance for the
leased space; provides for the preventative maintenance
(climate controls, filters, fire and life systems and
alarms, mechanical systems, standard HVAC); biweekly
housekeeping services (sweeping, spot cleaning, trash
removal) of USW Wire Center areas surrounding the leased
physical space and general repair and maintenance. The
Floor Space Lease includes required aisle space on each
side of the cage enclosure, as applicable.
9.3 AC Power Charge- Standard AC outlet used by Pathnet for
the purpose of powering test equipment, tools etc.
9.4 Grounding Charge- Used to connect the Central Office
common ground to Pathnet's equipment.
SECTION 10. RATE ELEMENTS - CAGELESS PHYSICAL COLLOCATION
The supporting structure and rate elements for Cageless Physical Collocation are
the same as Caged Physical Collocation, excluding the nonrecurring cage
enclosure and grounding charge. The minimum square footage is 9 square feet per
bay. AC power outlet will be provided to every other bay in the lineup. In those
instances where single bays are requested and placed, the single bay will have
it's own AC outlet.
SECTION 11. RATE ELEMENTS - ICDF COLLOCATION
11.1 The nonrecurring rates for the appropriate cross-connect
device recover USW's investment (including engineering
and installation) for all DS0, DS1, DS3 terminations,
including tie cables, appropriate cross-connect device
terminations, and terminations on the applicable USW
frame.
11.2 The recurring rate element for the appropriate
cross-connect device recovers USW's expense for the
maintenance and administration for all DS0, DS1, DS3
terminations, including tie cables, appropriate
cross-connect device terminations, and termination on
the applicable USW frame.
SECTION 12. ORDERING - VIRTUAL COLLOCATION
12.1 Upon receipt of a Collocation Order Form and QPF, USW
will perform a feasibility study to determine if
adequate space can be found for the placement of
Pathnet's equipment within the Central Office. The
feasibility study will be completed within seven (7)
calendar days of receipt of the QPF. If space is
available, USW will develop a price quotation within
thirty five (35) calendar days of completion of the
feasibility study. Subsequent requests to augment an
existing Collocation also require receipt of a Change
Order Form and QPF. Adding plug-ins, e.g., DS1 or
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DS3 cards to existing Virtually Collocated equipment
will be processed with a shorter interval.
12.2 Virtual Collocation price quotes will be honored for
thirty (30) calendar days from the date the quote is
provided to Pathnet. During this period the Collocation
entrance facility and space is reserved pending
Pathnet's approval of the quoted charges. If Pathnet
agrees to terms as stated in the Collocation Price
Quote, Pathnet must respond within 30 calendar days with
a signed quote, a down payment check for 50% down of the
quoted charges and proof of insurance. Under normal
conditions, USW will complete the installation within
ninety (90) calendar days from receipt of Pathnet's
equipment provided that space and power is available.
Depending on specific Wire Center conditions, shorter
intervals may be available. Any portions that cannot be
completed within ninety (90) calendar days will be
negotiated with Pathnet on an individual case basis. The
installation of line cards and other minor modifications
shall be performed by USW on shorter intervals and in no
instance shall any such interval exceed thirty (30)
calendar days. Final Payment is due upon completion.
Recurring monthly charges for the Collocation commences
upon completion of the Collocation.
SECTION 13. ORDERING - CAGED PHYSICAL COLLOCATION
13.1 Upon receipt of a Collocation Order Form and QPF, USW
will perform a feasibility study to determine if
adequate space can be found for the placement of
Pathnet's equipment within the Central Office. The
feasibility study will be provided within ten (10)
calendar days from date of receipt of the QPF. If
Collocation entrance facilities and office space are
found to be available, USW will develop a quote for the
supporting structure within thirty five (35) calendar
days of providing the feasibility study. Caged Physical
Collocation price quotes will be honored for thirty (30)
calendar days from the date the quote is provided. Upon
receipt of the signed quote, 50% down and proof of
insurance, space will be reserved and construction by
USW will begin. The cage will be available to Pathnet
for placement of its equipment within ninety (90)
calendar days of receipt of the 50% down payment.
Depending on specific Wire Center conditions, shorter
intervals may be available. Final payment is due upon
completion of work. Recurring monthly charges for the
Collocation commence upon the completion of the
Collocation.
13.2 Due to variables in equipment availability and scope of
the work to be performed, additional time may be
required for implementation of the structure required to
support the Collocation request. Examples of structure
that may not be completed within ninety (90) calendar
days may include additional time for placement of a POI,
DC power upgrades and space reclamation required to meet
Pathnet's Collocation request.
SECTION 14 ORDERING - CAGELESS PHYSICAL COLLOCATION
14.1 Upon receipt of a Collocation Order Form and QPF, USW
will perform a feasibility study to determine if
adequate space can be found for the placement of
Pathnet's equipment within the Central Office. The
feasibility study will be provided within
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ten (10) calendar days from date of receipt of the
Collocation Order Form and QPF. If Collocation entrance
facilities and office space are found to be available,
USW will develop a quote for supporting structure within
thirty-five (35) calendar days of providing the
feasibility study. Cageless Physical Collocation price
quotes will be honored for thirty (30) calendar days
from the date the quote is provided. If Pathnet agrees
to terms as stated in the Collocation Price Quote,
Pathnet must respond within thirty (30) calendar days
with a signed quote, a check for 50% of the quoted
charges and proof of insurance. Upon receipt of the
signed quote, 50% payment and proof of insurance,
construction by USW will begin. The cageless, physical
space including equipment bays provided by Pathnet and
associated apparatus provided by USW, will be available
to Pathnet for placement of its equipment within ninety
(90) calendar days of receipt of the 50% down payment.
Depending on specific Wire Center conditions, shorter
intervals may be available. Final payment is due upon
completion of work. Recurring monthly charges for the
Collocation commence upon the completion of the
Collocation.
14.2 Due to variables in equipment availability and scope of
the work to be performed, additional time may be
required for implementation of the structure required to
support the Collocation request. Examples of structure
that may not be completed within ninety (90) calendar
days may include additional time for placement of a POI,
DC power upgrades and space reclamation required to meet
Pathnet's Collocation request.
SECTION 15. ORDERING - ICDF COLLOCATION
15.1 Upon receipt of a Collocation Order Form, USW will
verify if ICDF capacity is available at the requested
Central Office. Verification of cross-connection
capacity will be completed within seven (7) calendar
days. USW will develop a cost quotation for the
requested Collocation within thirty five (35) calendar
days from verification. Should the requested Central
Office require additional cross-connection capability
for capacity, USW will make such additional capacity
available as soon as reasonably possible.
15.2 Within thirty five (35) calendar days of the receipt by
USW from Pathnet of a request for appropriate
cross-connect device and tie cable capacity, USW will
provide Pathnet with a quotation for all recurring,
nonrecurring and construction charges associated with
the request. The estimated date of the appropriate
cross-connect device availability will also be included.
15.3 Within thirty (30) calendar days of USW providing the
quotation, Pathnet will accept or reject the quotation.
Acceptance shall require payment to USW of fifty percent
of the nonrecurring and construction charges provided on
the quotation.
15.4 As part of the ordering process, Pathnet will provide at
a minimum an eighteen month non-binding forecast for
each Wire Center in which it intends to utilize the
appropriate cross-connect device. Included in this
forecast will be the termination type (DS0, DS1, DS3)
and the quantity of each termination required.
Appropriate
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cross-connect device terminations must be ordered in
multiples of the following quantities:
100 DSO terminations
28 DS1 terminations
1 DS3 termination
SECTION 16. ORDERING - ALL COLLOCATION
Any changes, modifications or additional engineering requested by Pathnet,
subsequent to its initial order, as to the type and quantity of equipment or
other aspects of the original Collocation request, must be submitted with a
subsequent QPF and Collocation Change Form. Such requests will cause the
original Collocation job to vary from the committed ready for service date.
SECTION 17. BILLING - ALL COLLOCATION
17.1 Upon completion of the Collocation construction
activities and payment of the remaining nonrecurring
balance, USW will provide Pathnet a completion package
that will initiate the recurring Collocation charges.
USW will begin billing the monthly recurring charges
stated in the quote and completion package.
17.2 In the event USW has completed all associated
construction activities and Pathnet has not completed
its associated activities (e.g., delivering fiber to the
POI, providing tie cables for connecting to the
distribution frames, etc.), and provided that no such
Pathnet delays are directly caused by any act or
omission of USW in the provision of information
necessary to complete the engineering necessary to bring
Pathnet's fiber to the POI, USW will begin billing for
all monthly Collocation charges. When Pathnet is ready
to complete its activities, final test and turn-up will
be performed under the maintenance and repair process
contained herein.
SECTION 18. BILLING - VIRTUAL COLLOCATION
Virtual Collocation will be considered complete when the POI has been
constructed, the shared fiber Collocation entrance facility has been
provisioned, and the collocated equipment has been installed. Cooperative
testing between Pathnet and USW may be negotiated and performed to ensure
continuity and acceptable transmission parameters in the facility and equipment.
Any additional joint testing can be provided under rates and terms specified in
this Agreement.
SECTION 19. BILLING - CAGED AND CAGELESS PHYSICAL COLLOCATION
Upon completion of USW construction activities and Pathnet payment of the
remainder of the nonrecurring charges, USW will allow Pathnet access to the
Collocation space. USW will activate monthly billing for the leased space and
turn over access to the space with all security and access privileges. Pathnet
will sign off on the completion of the physical space via the Caged or Cageless
Physical Collocation completion package. Pathnet may then proceed with the
installation of its equipment in the Collocation space. Once Pathnet's equipment
has been installed and cable is provided for the Pathnet's equipment
terminations, USW will complete all remaining work activities.
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SECTION 20. MAINTENANCE AND REPAIR
20.1 Virtual Collocation
20.1.1 Maintenance Labor, Inspector Labor,
Engineering Labor and Equipment Labor
business hours are considered to be Monday
through Friday, 8:00am to 5:00pm (local
time) and after business hours are after
5:00pm and before 8:00am (local time),
Monday through Friday, all day Saturday,
Sunday and holidays.
20.1.2 Installation and maintenance of Pathnet's
virtually collocated equipment will be
performed by USW or a USW authorized
vendor.
20.1.3 Upon failure of Pathnet's virtually
collocated equipment, Pathnet is
responsible for transportation and
delivery of maintenance spares to USW at
the Wire Center housing the failed
equipment. Pathnet is responsible for
purchasing and maintaining a supply of
spares.
20.2 Caged Physical Collocation
Pathnet is solely responsible for the maintenance and
repair of its equipment located within Pathnet's caged
space. If two or more Co-Providers agree to a Shared
Space Caged Physical Collocation arrangement, such
collocators are solely responsible for any and all
maintenance, security and repair arrangements
necessitated by such sharing. USW assumes no liability
for any damages of any kind relating to Shared Space
Caged Physical Collocation or related personnel disputes
among the parties to those arrangements.
20.3 Cageless Physical Collocation
Pathnet is solely responsible for the maintenance and
repair of its equipment located within Pathnet's
cageless physical space.
20.4 ICDF Collocation
Pathnet is responsible for block and jumper maintenance
at the appropriate cross-connect device and using
correct procedures to dress and terminate jumpers on the
appropriate cross-connect device, including using
fanning strips, retaining rings, and having jumper wire
on hand, as needed. Additionally, Pathnet is required to
provide its own tools for such operations.
SECTION 21. PAYMENT
21.1 Amounts payable under this Agreement are due and payable
within thirty (30) calendar days after the date of
invoice.
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21.2 Should Pathnet dispute, in good faith, any portion of
the monthly billing under this Agreement, Pathnet will
notify USW in writing within thirty (30) calendar days
of the receipt of such billing, identifying the amount,
reason and rationale of such dispute. Pathnet shall pay
all amounts due. Both Pathnet and USW agree to expedite
the investigation of any disputed amounts in an effort
to resolve and settle the dispute prior to initiating
any other rights or remedies. Should the dispute be
resolved in Pathnet's favor and the resolved amount did
not appear as a credit on Pathnet's next invoice from
USW, USW will reimburse Pathnet the resolved amount plus
interest from the date of payment. The amount of
interest will be calculated using the late payment
factor that would have applied to such amount had it not
been paid on time. Similarly, in the event Pathnet
withholds payment for a disputed charge, and upon
resolution of the matter it is determined that such
payments should have been made to USW, USW is entitled
to collect interest on the withheld amount, subject to
the above provisions.
21.3 USW will determine Pathnet's credit status based on
previous payment history with USW or credit reports such
as Dun and Bradstreet. If Pathnet has not established
satisfactory credit with USW or if Pathnet is repeatedly
delinquent in making its payments, USW may require a
deposit to be held as security for the payment of
charges. "Repeatedly delinquent" means being thirty (30)
calendar days or more delinquent for three (3)
consecutive months. The deposit may not exceed the
estimated total monthly charges for a two (2) month
period. The deposit may be a surety bond, a letter of
credit with terms and conditions acceptable to USW or
some other form of mutually acceptable security such as
a cash deposit. Required deposits are due and payable
within ten (10) calendar days after demand in accordance
with Commission requirements.
21.4 Interest will be paid on cash deposits at the rate
applying to deposits under applicable Commission rules,
regulations, or Tariffs. Cash deposits and accrued
interest will be credited to Pathnet's account or
refunded, as appropriate, upon the earlier of the
termination of this Agreement or the establishment of
satisfactory credit with USW, which will generally be
one full year of timely payments in full by Pathnet. The
fact that a deposit has been made does not relieve
Pathnet from any requirements of this Agreement.
21.5 USW may review Pathnet's credit standing and modify the
amount of deposit required.
21.6 The late payment charge for amounts that are billed
under this Agreement shall be in accordance with
Commission requirements.
SECTION 22. TAXES
Each Party purchasing services hereunder shall pay or otherwise be responsible
for all federal, state, or local sales, use, excise, gross receipts, transaction
or similar taxes, fees or surcharges levied against or upon such purchasing
Party (or the providing Party when such providing Party is permitted to pass
along to the purchasing Party such taxes, fees or surcharges), except for any
tax on either Party's corporate existence, status or income. Whenever possible,
these
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amounts shall be billed as a separate item on the invoice. To the extent a sale
is claimed to be for resale tax exemption, the purchasing Party shall furnish
the providing Party a proper resale tax exemption certificate as authorized or
required by statute or regulation by the jurisdiction providing said resale tax
exemption. Until such time as a resale tax exemption certificate is provided, no
exemptions will be applied.
SECTION 23. INSURANCE
Pathnet shall at all times during the term of this Agreement, at its own cost
and expense, carry and maintain the insurance coverage listed below with
insurers having a "Best's" rating of B+XIII.
23.1 Workers' Compensation with statutory limits as required
in the state of operation; and Employers' Liability
insurance with limits of not less than $100,000 each
accident.
23.2 Commercial General Liability insurance covering claims
for bodily injury, death, personal injury or property
damage occurring or arising out of the use or occupancy
of the premises, including coverage for independent
contractor's protection (required if any work will be
subcontracted), premises-operations, products and/or
completed operations and contractual liability with
respect to the liability assumed by Pathnet hereunder.
The limits of insurance shall not be less than
$1,000,000 each occurrence and $2,000,000 general
aggregate limit.
23.3 Comprehensive automobile liability insurance covering
the ownership, operation and maintenance of all owned,
non-owned and hired motor vehicles with limits of not
less than $1,000,000 per occurrence for bodily injury
and property damage.
23.4 Umbrella/Excess Liability insurance in an amount of
$10,000,000 excess of Commercial General Liability
insurance specified above. These limits may be obtained
through any combination of primary and excess or
umbrella liability insurance so long as the total limit
is $11,000,000.
23.5 "All Risk" Property coverage on a full replacement cost
basis insuring all of Pathnet personal property situated
on or within the premises. Pathnet may elect to purchase
business interruption and contingent business
interruption insurance. USW has no liability for loss of
profit or revenues should an interruption of service
occur.
23.6 Pathnet and USW each waive any and all rights of
recovery against the other, or against the officers,
employees, agents, representatives or the other, or
other tenants for loss or damage to such waiving Party
arising from any cause covered by any property insurance
required to be carried by such Party. Each Party shall
give notice to insurance carrier(s) that the mutual
waiver of subrogation is contained in this Agreement.
23.7 Upon the execution hereof, Pathnet shall provide
certificate(s) of insurance evidencing coverage, and
annually thereafter within ten (10) calendar days of
renewal of any coverage maintained pursuant to this
Section. Such certificates
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shall; (1) name USW as an additional insured under
commercial general liability coverage as respects USW's
interests; (2) provide USW thirty (30) calendar days
prior written notice of cancellation of, material change
or exclusions in the policy(s) to which certificate(s)
relate; (3) indicate that coverage is primary and not
excess of, or contributory with, any other valid and
collectible insurance purchased by USW; and (4)
policy(s) provide severability of interest/cross
liability coverage.
SECTION 24. FORCE MAJEURE
Neither Party shall be liable for any delay or failure in performance of any
part of this Agreement from any cause beyond its control and without its fault
or negligence including, without limitation, acts of nature, acts of civil or
military authority, government regulations, embargoes, epidemics, terrorist
acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents,
floods, work stoppages, equipment failure, power blackouts, volcanic action,
other major environmental disturbances, unusually severe weather conditions,
inability to secure products or services of other persons or transportation
facilities or acts or omissions of transportation carriers (collectively, a
"Force Majeure Event"). The Party affected by a Force Majeure Event shall give
prompt notice to the other Party, shall be excused from performance of its
obligations hereunder on a day to day basis to the extent those obligations are
prevented by the Force Majeure Event, and shall use reasonable efforts to remove
or mitigate the Force Majeure Event. In the event of a labor dispute or strike
the Parties agree to provide service to each other at a level equivalent to the
level they provide themselves.
SECTION 25. LIMITATION OF LIABILITY
25.1 Each Party shall be liable to the other for direct
damages for any loss, defect or equipment failure
resulting from the causing Party's conduct or the
conduct of its agents or contractors in performing the
obligations contained in this Agreement.
25.2 Neither Party shall be liable to the other for indirect,
incidental, consequential, or special damages, including
(without limitation) damages for lost profits, lost
revenues, lost savings suffered by the other Party
regardless of the form of action, whether in contract,
warranty, strict liability, tort, including (without
limitation) negligence of any kind and regardless of
whether the Parties know the possibility that such
damages could result.
25.3 Except for indemnity obligations, each Party's liability
to the other Party for any loss relating to or arising
out of any act or omission in its performance of this
Agreement, whether in contract or in tort, shall be
limited to the total amount that is or would have been
charged to the other Party by such breaching Party for
the service(s) or function(s) not performed or
improperly performed.
25.4 Nothing contained in this Section shall limit either
Party's liability to the other for intentional,
malicious misconduct.
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25.5 Nothing contained in this Section shall limit either
Party's obligations of indemnification as specified in
the Indemnity Section of this Agreement.
25.6 Neither Party shall be liable to the other under any
theory including indemnity on account of such Party's
failure or neglect to have or maintain a system or
systems that are Year 2000 compliant. As the Parties
approach the Year 2000, date information associated with
any interfaces between the Parties is expected to remain
as it is. Any changes in the interface format associated
with date information will be negotiated and agreed to
by the Parties prior to any changes.
SECTION 26. INDEMNITY
26.1 With respect to third party claims, the Parties agree to
indemnify each other as follows:
26.1.1 Except for claims made by end users of one
Party against the other Party, which claims
are based on defective or faulty services
provided by the other Party to the one
Party, each of the Parties agrees to
release, indemnify, defend and hold harmless
the other Party and each of its officers,
directors, employees and agents (each an
"Indemnitee") from and against and in
respect of any loss, debt, liability,
damage, obligation, claim, demand, judgment
or settlement of any nature or kind, known
or unknown, liquidated or unliquidated
including, but not limited to, costs and
attorneys' fees, whether suffered, made,
instituted, or asserted by any other party
or person, for invasion of privacy, personal
injury to or death of any person or persons,
or for loss, damage to, or destruction of
property, whether or not owned by others,
resulting from the indemnifying Party's
performance, breach of applicable law, or
status of its employees, agents and
subcontractors; or for failure to perform
under this Agreement, regardless of the form
of action.
26.1.2 Where the third party claim is made by (or
through) an end user of one Party against
the other Party, which claim is based on
defective or faulty services provided by the
other Party to the one Party then there
shall be no obligation of indemnity unless
the act or omission giving rise to the
defective or faulty services is shown to be
intentional, malicious misconduct of the
other Party.
26.1.3 If the claim is made by (or through) an end
user and where a claim is in the nature of a
claim for invasion of privacy, liable,
slander, or other claim based on the content
of a transmission, and it is made against a
Party who is not the immediate provider of
the Telecommunications Service to the end
user (the indemnified provider), then in the
absence of fault or neglect on the part of
the indemnified provider, the Party who is
the immediate seller of such
Telecommunications Service shall indemnify,
defend and hold harmless the indemnified
provider from such claim.
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26.2 The indemnification provided herein shall be conditioned
upon:
26.2.1 The indemnified Party shall
promptly notify the indemnifying
Party of any action taken against
the indemnified Party relating to
the indemnification. Failure to so
notify the indemnifying Party shall
not relieve the indemnifying Party
of any liability that the
indemnifying Party might have,
except to the extent that such
failure prejudices the indemnifying
Party's ability to defend such
claim.
26.2.2 The indemnifying Party shall have
sole authority to defend any such
action, including the selection of
legal counsel, and the indemnified
Party may engage separate legal
counsel only at its sole cost and
expense.
26.2.3 In no event shall the indemnifying
Party settle or consent to any
judgment pertaining to any such
action without the prior written
consent of the indemnified Party.
SECTION 27. WARRANTIES
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE PARTIES AGREE THAT
NEITHER PARTY HAS MADE, AND THAT THERE DOES NOT EXIST, ANY WARRANTY, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
SECTION 28. ASSIGNMENT
28.1 Neither Party may assign or transfer (whether by
operation of law or otherwise) this Agreement (or any
rights or obligations hereunder) to a third party
without the prior written consent of the other Party.
Notwithstanding the foregoing, either Party may assign
or transfer this Agreement to a corporate affiliate or
an entity under its common control; however, if
Pathnet's assignee or transferee has an Interconnection
Agreement with USW, no assignment or transfer of this
Agreement shall be effective without the prior written
consent of USW. Such consent shall include appropriate
resolutions of conflicts and discrepancies between the
assignee's or transferee's Interconnection agreement and
this Agreement. Any attempted assignment or transfer
that is not permitted is void ab initio. Without
limiting the generality of the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of
the Parties' respective successors and assigns.
28.2 Without limiting the generality of the foregoing
subsection, any merger, dissolution, consolidation or
other reorganization of Pathnet, or any sale, transfer,
pledge or other disposition by Pathnet of securities
representing more than 50% of the securities entitled to
vote in an election of Pathnet's board of directors or
other similar governing body, or any sale, transfer,
pledge or other disposition by Pathnet of substantially
all of its assets, shall be deemed a transfer of
control. If
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any entity, other than Pathnet, involved in such merger,
dissolution, consolidation, reorganization, sale,
transfer, pledge or other disposition of Pathnet has an
Interconnection Agreement with USW, the Parties agree
that only one agreement, either this Agreement or the
Interconnection Agreement of the other entity, will
remain valid. All other interconnection agreements will
be terminated. The Parties agree to work together to
determine which Interconnection Agreement should remain
valid and which should terminate. In the event the
Parties cannot reach agreement on this issue, the issue
shall be resolved through the Dispute Resolution process
contained in this Agreement.
SECTION 29. DEFAULT
If either Party defaults in the payment of any amount due hereunder, or if
either Party violates any other material provision of this Agreement, and such
default or violation shall continue for thirty (30) calendar days after written
notice thereof, the other Party may seek relief in accordance with the Dispute
Resolution provision of this Agreement. The failure of either Party to enforce
any of the provisions of this Agreement or the waiver thereof in any instance
shall not be construed as a general waiver or relinquishment on its part of any
such provision, but the same shall, nevertheless, be and remain in full force
and effect.
SECTION 30. DISCLAIMER OF AGENCY
Except for provisions herein expressly authorizing a Party to act for another,
nothing in this Agreement shall constitute a Party as a legal representative or
agent of the other Party, nor shall a Party have the right or authority to
assume, create or incur any liability or any obligation of any kind, express or
implied, against or in the name or on behalf of the other Party unless otherwise
expressly permitted by such other Party. Except as otherwise expressly provided
in this Agreement, no Party undertakes to perform any obligation of the other
Party whether regulatory or contractual, or to assume any responsibility for the
management of the other Party's business.
SECTION 31. NONDISCLOSURE
31.1 All information, including but not limited to
specifications, microfilm, photocopies, magnetic disks,
magnetic tapes, drawings, sketches, models, samples,
tools, technical information, data, employee records,
maps, financial reports, and market data, (i) furnished
by one Party to the other Party dealing with end user
specific, facility specific, or usage specific
information, other than end user information
communicated for the purpose of providing directory
assistance or publication of directory database, or (ii)
in written, graphic, electromagnetic, or other tangible
form and marked at the time of delivery as
"Confidential" or "Proprietary", or (iii) communicated
and declared to the receiving Party at the time of
delivery, or by written notice given to the receiving
Party within ten (10) calendar days after delivery, to
be "Confidential" or "Proprietary" (collectively
referred to as "Proprietary Information"), shall remain
the property of the disclosing Party. A Party who
receives Proprietary Information via an oral
communication may request written confirmation that the
material is Proprietary Information. A Party who
delivers Proprietary Information via an oral
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communication may request written confirmation that the
Party receiving the information understands that the
material is Proprietary Information.
31.2 Upon request by the disclosing Party, the receiving
Party shall return all tangible copies of Proprietary
Information, whether written, graphic or otherwise,
except that the receiving Party may retain one copy for
archival purposes.
31.3 Each Party shall keep all of the other Party's
Proprietary Information confidential and shall use the
other Party's Proprietary Information only in connection
with this Agreement. Neither Party shall use the other
Party's Proprietary Information for any other purpose
except upon such terms and conditions as may be agreed
upon between the Parties in writing.
31.4 Unless otherwise agreed, the obligations of
confidentiality and non-use set forth in this Agreement
do not apply to such Proprietary Information as:
31.4.1 was at the time of receipt already known to
the receiving Party free of any obligation
to keep it confidential evidenced by written
records prepared prior to delivery by the
disclosing Party; or
31.4.2 is or becomes publicly known through no
wrongful act of the receiving Party; or
31.4.3 is rightfully received from a third person
having no direct or indirect secrecy or
confidentiality obligation to the disclosing
Party with respect to such information; or
31.4.4 is independently developed by an employee,
agent, or contractor of the receiving Party
which individual is not involved in any
manner with the provision of services
pursuant to the Agreement and does not have
any direct or indirect access to the
Proprietary Information; or
31.4.5 is disclosed to a third person by the
disclosing Party without similar
restrictions on such third person's rights;
or
31.4.6 is approved for release by written
authorization of the disclosing Party; or
31.4.7 is required to be made public by the
receiving Party pursuant to applicable law
or regulation provided that the receiving
Party shall give sufficient notice of the
requirement to the disclosing Party to
enable the disclosing Party to seek
protective orders.
31.5 Nothing herein is intended to prohibit a Party from
supplying factual information about its network and
Telecommunications Services on or connected to its
network to regulatory agencies including the Federal
Communications Commission and the Commission so long as
any confidential obligation is protected.
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31.6 Effective Date Of This Section. Notwithstanding any
other provision of this Agreement, the Proprietary
Information provisions of this Agreement shall apply to
all information furnished by either Party to the other
in furtherance of the purpose of this Agreement, even if
furnished before the date of this Agreement.
SECTION 32. SURVIVAL
Any liabilities or obligations of a Party for acts or omissions prior to the
cancellation or termination of this Agreement; any obligation of a Party under
the provisions regarding indemnification, Confidential or Proprietary
Information, limitations of liability, and any other provisions of this
Agreement which, by their terms, are contemplated to survive (or to be performed
after) termination of this Agreement, shall survive cancellation or termination
hereof.
SECTION 33. DISPUTE RESOLUTION
33.1 If any claim, controversy or dispute between the
Parties, their agents, employees, officers, directors or
affiliated agents should arise, and the Parties do not
resolve it in the ordinary course of their dealings (the
"Dispute"), then it shall be resolved in accordance with
the dispute resolution process set forth in this
Section. Each notice of default, unless cured within the
applicable cure period, shall be resolved in accordance
herewith.
33.2 At the written request of either Party, and prior to any
other formal dispute resolution proceedings, each Party
shall designate an officer-level employee, at no less
than the vice president level, to review, meet, and
negotiate, in good faith, to resolve the Dispute. The
Parties intend that these negotiations be conducted by
non-lawyer, business representatives, and the locations,
format, frequency, duration, and conclusions of these
discussions shall be at the discretion of the
representatives. By mutual agreement, the
representatives may use other procedures, such as
mediation, to assist in these negotiations. The
discussions and correspondence among the representatives
for the purposes of these negotiations shall be treated
as Confidential Information developed for purposes of
settlement, and shall be exempt from discovery and
production, and shall not be admissible in any
subsequent arbitration or other proceedings without the
concurrence of both of the Parties.
33.3 If the vice-presidential level representatives have not
reached a resolution of the Dispute within thirty (30)
calendar days after the matter is referred to them, then
either Party may demand that the Dispute be settled by
arbitration. Such an arbitration proceeding shall be
conducted by a single arbitrator, knowledgeable about
the telecommunications industry. The arbitration
proceedings shall be conducted under the then current
rules of the American Arbitration Association ("AAA").
The Federal Arbitration Act, 9 U.S.C. Sections 1-16, not
state law, shall govern the arbitrability of the
Dispute. The arbitrator shall not have authority to
award punitive damages. All expedited procedures
prescribed by the AAA rules shall apply. The
arbitrator's award shall be final and binding and may be
entered in any court having jurisdiction thereof. Each
Party shall bear its own costs and
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attorneys' fees, and shall share equally in the fees and
expenses of the arbitrator. The arbitration proceedings
shall occur in the state where the dispute is taking
place in a mutually agreed upon city. It is acknowledged
that the Parties, by mutual, written agreement, may
change any of these arbitration practices for a
particular, some, or all Dispute(s).
33.4 Should it become necessary to resort to court
proceedings to enforce a Party's compliance with the
dispute resolution process set forth herein, and the
court directs or otherwise requires compliance herewith,
then all of the costs and expenses, including its
reasonable attorney fees, incurred by the Party
requesting such enforcement shall be reimbursed by the
non-complying Party to the requesting Party.
33.5 Nothing in this Section is intended to divest or limit
the jurisdiction and authority of the Commission or the
Federal Communications Commission as provided by state
or federal law.
33.6 No Dispute, regardless of the form of action, arising
out of this Agreement, may be brought by either Party
more than two (2) years after the cause of action
accrues.
SECTION 34. CONTROLLING LAW
This Agreement was negotiated by the Parties in accordance with the terms of the
Act and the laws of the state where service is provided hereunder. It shall be
interpreted solely in accordance with the terms of the Act and the applicable
state law in the state where the service is provided.
SECTION 35. JOINT WORK PRODUCT
This Agreement is the joint work product of the Parties and has been negotiated
by the Parties and their respective counsel and shall be fairly interpreted in
accordance with its terms and, in the event of any ambiguities, no inferences
shall be drawn against either Party.
SECTION 36. RESPONSIBILITY FOR ENVIRONMENTAL CONTAMINATION
Neither Party shall be liable to the other for any costs whatsoever resulting
from the presence or release of any environmental hazard that either Party did
not introduce to the affected work location. Both Parties shall defend and hold
harmless the other, its officers, directors and employees from and against any
losses, damages, claims, demands, suits, liabilities, fines, penalties and
expenses (including reasonable attorneys' fees) that arise out of or result from
(i) any environmental hazard that the indemnifying Party, its contractors or
agents introduce to the work locations or (ii) the presence or release of any
environmental hazard for which the indemnifying Party is responsible under
applicable law.
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SECTION 37. NOTICES
Any notices required by or concerning this Agreement shall be sent to the
Parties at the addresses shown below:
USW
Director - Interconnection Compliance
1801 California Street, Suite 2410
Denver, CO 80202
With copy to:
U S WEST Law Department
Attention: General Counsel, Interconnection
1801 California Street, Suite 5100
Denver, CO 80202
Pathnet
General Counsel
Suite 500
1015 31st Street NW
Washington, DC 20007
Each Party shall inform the other of any changes in the above
addresses.
SECTION 38. RESPONSIBILITY OF EACH PARTY
Each Party is an independent contractor, and has and hereby retains the right to
exercise full control of and supervision over its own performance of its
obligations under this Agreement and retains full control over the employment,
direction, compensation and discharge of all employees assisting in the
performance of such obligations. Each Party will be solely responsible for all
matters relating to payment of such employees, including compliance with social
security taxes, withholding taxes and all other regulations governing such
matters. Each Party will be solely responsible for proper handling, storage,
transport and disposal at its own expense of all (i) substances or materials
that it or its contractors or agents bring to, create or assume control over at
work locations or, (ii) waste resulting therefrom or otherwise generated in
connection with its or its contractors' or agents' activities at the work
locations. Subject to the limitations on liability and except as otherwise
provided in this Agreement, each Party shall be responsible for (i) its own acts
and performance of all obligations imposed by applicable law in connection with
its activities, legal status and property, real or personal and, (ii) the acts
of its own affiliates, employees, agents and contractors during the performance
of that Party's obligations hereunder.
SECTION 39. NO THIRD PARTY BENEFICIARIES
This Agreement does not provide and shall not be construed to provide third
parties with any remedy, claim, liability, reimbursement, cause of action, or
other privilege.
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SECTION 40. REFERENCED DOCUMENT
All references to Sections shall be deemed to be references to Sections of this
Agreement unless the context shall otherwise require. Whenever any provision of
this Agreement refers to a technical reference, technical publication, Pathnet
practice, USW practice, any publication of telecommunications industry
administrative or technical standards, or any other document specifically
incorporated into this Agreement, it will be deemed to be a reference to the
most recent version or edition (including any amendments, supplements, addenda,
or successors) of such document that is in effect, and will include the most
recent version or edition (including any amendments, supplements, addenda, or
successors) of each document incorporated by reference in such a technical
reference, technical publication, Pathnet practice, USW practice, or publication
of industry standards. The existing configuration of either Party's network may
not be in immediate compliance with the latest release of applicable referenced
documents.
SECTION 41. PUBLICITY
Neither Party shall publish or use any publicity materials with respect to the
execution and delivery or existence of this Agreement without the prior written
approval of the other Party.
SECTION 42. AMENDMENT
Pathnet and USW may mutually agree to amend this Agreement in writing. Since it
is possible that amendments to this Agreement may be needed to fully satisfy the
purposes and objectives of this Agreement, the Parties agree to work
cooperatively, promptly and in good faith to negotiate and implement any such
additions, changes and corrections to this Agreement.
SECTION 43. EXECUTED IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original; but such counterparts shall together constitute one
and the same instrument.
SECTION 44. HEADINGS OF NO FORCE OR EFFECT
The headings of Sections of this Agreement are for convenience of reference
only, and shall in no way define, modify or restrict the meaning or
interpretation of the terms or provisions of this Agreement.
SECTION 45. COMPLIANCE
Each Party shall comply with all applicable federal, state, and local laws,
rules and regulations applicable to its performance under this Agreement.
Without limiting the foregoing, USW and Pathnet agree to take all action
necessary to keep and maintain in full force and effect all permits, licenses,
certificates, and other authorities needed to perform their respective
obligations hereunder.
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SECTION 46. COMPLIANCE WITH THE COMMUNICATIONS ASSISTANCE LAW ENFORCEMENT ACT OF
1994 ("CALEA")
Each Party represents and warrants that any equipment, facilities or services
provided to the other Party under this Agreement comply with CALEA. Each Party
shall indemnify and hold the other Party harmless from any and all penalties
imposed upon the other Party for such noncompliance and shall at the
non-compliant Party's sole cost and expense, modify or replace any equipment,
facilities or services provided to the other Party under this Agreement to
ensure that such equipment, facilities and services fully comply with CALEA.
SECTION 47. COOPERATION
The Parties agree that this Agreement involves the provision of USW services in
ways such services were not previously available and the introduction of new
processes and procedures to provide and bill such services. Accordingly, the
Parties agree to work jointly and cooperatively in testing and implementing
processes for pre-ordering, ordering, maintenance, provisioning and billing and
in reasonably resolving issues which result from such implementation on a timely
basis.
SECTION 48. ENTIRE AGREEMENT
This Agreement and all exhibits, schedules, and amendments and supplements
hereto and including, but not limited to any Adjacent Collocation Arrangements,
constitutes the entire agreement between the Parties and supersedes all prior
oral or written agreements, representations, statements, negotiations,
understandings, proposals and undertakings with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives.
PATHNET, INC. U S WEST COMMUNICATIONS, INC.
/s/ MICHAEL A. LUBIN /s/ KATHY FLEMMING
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Signature Signature
Michael A. Lubin Kathy Flemming
- ---------------------------- --------------------------------
Name Printed/Typed Name Printed/Typed
V.P. and General Counsel V.P. Interconnect Implementation
- ---------------------------- --------------------------------
Title Title
8/16/99 8/18/99
- ---------------------------- --------------------------------
Date Date
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