Exhibit 10.5
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS ARE DESIGNATED "[***]"
THIS FIXED POINT MICROWAVE SERVICES AGREEMENT is made and entered into as
of the 17th day of April, 1998 (the "Effective Date"), by and between Pathnet,
Inc. a Delaware corporation and Pathnet/Idaho Power Equipment, LLC ("LLC"), a
Delaware limited liability company (collectively, the "Parties" and each, a
"Party").
WITNESSETH:
WHEREAS, Pathnet is engaged in the business of creating high capacity,
digital, microwave communications systems for purposes of marketing and selling
the excess long distance telecommunications capacity created by such systems;
WHEREAS, the LLC owns a license to use certain towers, shelters, sites and
equipment owned or leased by Idaho Power Company, an Idaho corporation
("Incumbent") for the purpose of operating an analog microwave
telecommunications system of limited capacity;
WHEREAS, the LLC desires to upgrade such system in the near future to a
higher capacity digital microwave system; and
WHEREAS, the LLC desires to engage Pathnet as, and Pathnet desires to act
as, LLC's sole representative for the purpose of installing, managing, and
operating a high capacity digital microwave system along Incumbent's current
microwave paths.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Parties agree as follows:
SECTION 1. DEFINITIONS.
1.1 Definitions: As used in this Agreement, the following terms shall have
the meanings indicated:
1.1.1 1/0 Multiplexer: Any device that multiplexes capacity between
the DS-l and the DS-O levels.
1.1.2 1 x 1: A microwave radio configuration consisting of a primary
and a protect radio.
1.1.3 Affiliate: With respect to any Person, any other Person that
directly or indirectly controls, is controlled by, or is under common
control with such Person. For the purposes of this definition, "control"
(including the terms "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities, by contract, or otherwise.
1.1.4 Agreement: This Fixed Point Microwave Services Agreement,
including the Schedules and Exhibits attached hereto, as the same may be
amended, supplemented or modified in accordance with the terms hereof.
1.1.5 Alarm and Event Report: As defined in Section 7.7 of Schedule
A.
1.1.6 As-Built Drawing: As defined in Section 4.1.4 of Schedule A.
1.1.7 Available Excess Capacity: The total Pathnet Excess Capacity
available (and not allocated) for use or sale on the System at any given
time from Commissioning through the Expiration Date.
1.1.8 Average Sold Excess Capacity: The cumulative average of the
quotient of (i) Pathnet Excess Capacity less Available Excess Capacity,
divided by (ii) Pathnet Excess Capacity, taken as a percentage.
1.1.9 Bit Error Rate: The number of received bits in error compared
to the total number of bits received.
1.1.10 Breaching Party: As defined in Section 17.1.1.
1.1.11 Business Day: Any day other than a Saturday, a Sunday, or a
day on which the banking institutions in either New York, New York, or the
city and state in which the principal executive offices of Pathnet within
the United States are located, are not open for business.
1.1.12 Capacity Expansion: An increase in telecommunication channels
a System is able to transmit, receive and transport above those created by
the installation of the Initial System, achieved by an addition to or
change in equipment.
1.1.13 Capacity Expansion Schedule: As defined in Section 7.1 of
Schedule A.
1.1.14 CERCLA: Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 6901 et. seq., as amended.
1.1.15 Channel Plan: As defined in Section 1.1 of Schedule A.
1.1.16 Commissioning: With respect to each path or Segment, the date
on which the circuits of such path or Segment are available for service
after completion of all site acceptance testing on the Initial System or
any Capacity Expansion required hereunder.
1.1.17 Contingent Radio Revenue Agreement: That certain Contingent
Radio Revenue Agreement by and between Incumbent, LLC and Pathnet, dated
as of the date hereof.
1.1.18 Customer Agreements: As defined in Section 10.1.1.
1.1.19 Cutover Plan: As defined in Section 4.1.1 of Schedule A.
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1.1.20 DS-0: 64,000 bits per second; The world-wide standard speed
for digitizing one voice conversation using pulse code modulation, which
is approximately equivalent to a single voice or data channel.
1.1.21 DS-1: 24 DS-0's.
1.1.22 DS-3: 672 DS-0's or 28 DS-l's.
1.1.23 Deficiency List: As defined in Section 5.7 of Schedule A.
1.1.24 Dispute: As defined in Section 17.1.3.
1.1.25 Drop and Insert: That process wherein a part of the
information carried in a transmission system is demodulated (dropped) at
an intermediate point and different information is entered (inserted) for
subsequent transmission.
1.1.26 Effective Date: As defined in the introductory paragraph of
this Agreement, as the context indicates.
1.1.27 Error Free Second: Any one-second interval that does not
contain a measurable bit error.
1.1.28 Encumbrance. Any security interests, mortgages, liens,
pledges, charges, claims, easements, reservations, restrictions, clouds,
equities, rights of way, options, rights of first refusal and other
encumbrances whether or not relating to the extension of credit or the
borrowing of money. To "Encumber" shall mean to effect any Encumbrance.
1.1.29 Equipment: Any and all digital microwave radios, radio
components, cards, antennas, waveguides, multiplexers, software and other
equipment or parts required for the operation of the System provided and
installed by Pathnet as set forth on Exhibit A-1 to Schedule A.
1.1.30 Errored Second: Any one-second interval during which one or
more bit errors occur.
1.1.31 Excess Capacity: The Pathnet Excess Capacity and the
Incumbent Excess Capacity (as such term is defined in the Contingent Radio
Revenue Agreement).
1.1.32 Existing System Inventory: As defined in Section 1.1 of
Schedule A.
1.1.33 Expiration Date: The date on which this Agreement and the
rights and obligations hereunder are terminated or expire in accordance
with Section 3.
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1.1.34 FAA: The Federal Aviation Administration, or any other
Federal agency at the time administering tower registration requirements
and regulations.
1.1.35 Failed Second: Any one-second interval that has 1,544 bit
errors at a DS-l rate.
1.1.36 Facilities: Incumbent's and the LLC's towers shelters, sites
and all equipment used by Incumbent, the LLC or Pathnet relating to and
used in association with such towers, shelters and sites for the purpose
of operating the System. The Facilities are as set forth in Schedule B as
amended from time to time.
1.1.37 Facility Encumbrance: As defined in Section 6.9.
1.138 FCC: The Federal Communications Commission, or any other
Federal agency at the time administering the FCC Code.
1.1.39 FCC Code: The Communications Act of 1934, as amended, the
Telecommunications Act of 1996, as amended, and the rules and regulations
promulgated thereunder and related thereto.
1.1.40 First Extension Period: As defined in Section 3.1.3.
1.1.41 Force Majeure Event: As defined in Section 16.3.
1.1.42 Form 415: As defined in Section 11.1.1.
1.1.43 Frequency Availability Model: As defined in Section 1.1 of
Schedule A.
1.1.44 Frequency Diversity: A method of protecting a radio signal by
providing a second radio signal on a different frequency, which will
assume the radio signal load when the regular channel fails.
1.1.45 Governmental Authority: Any nation or government, any state
or other political subdivision thereof and any court, panel, judge, board,
bureau, commission, agency or other entity, body or other person
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
1.1.46 Hazardous Material: Any substance, material, matter or waste
which is or becomes regulated by any Federal, state or local law,
ordinance, order, rule, regulation, code or any government restrictions or
requirement including, but not limited to, asbestos, petroleum products
and "Hazardous Substances" and "Hazardous Wastes" (as such terms are
defined in CERCLA and RCRA.)
1.1.47 Incumbent: Idaho Power Company, an Idaho corporation.
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1.1.48 Incumbent Capacity: As defined in Section 8.2.2.
1.1.49 Incumbent IRU Agreement: The Indefeasible Right to Use
Agreement by and between the LLC and Incumbent dated as of the date
hereof, as it may be amended, extended or modified from time to time.
1.1.50 Initial System: The initial system with a 1 x 1 configuration
which is comprised of the first 84 DS-l channels (which is equivalent to
2,040 DS-0's) of the System (the "Non-Protect Radio") and the System's 84
DS-l protect channels (the "Protect Radio") and all radio components,
antennas, waveguides, multiplexers, software and other equipment and parts
necessary for the operation thereof.
1.1.51 Initial Term: As defined in Section 3.1.2.
1.1.52 Interconnection: The point at which a private network is
connected to (i) the PSTN, which can include IXC POPs, tandem access
points, the central office, Internet service providers, or major
industrial customer points of presence or (ii) a private network
1.1.53 Interference: Any measurable impairment in the performance of
the System or the quality of the signals received or transmitted on the
System.
1.1.54 IXC: An inter-exchange carrier; a telephone company that
provides long-distance telephone service between LATA's but not within any
one LATA.
1.1.55 Judgment: Any order, judgment, writ, decree, award or other
determination, decision or ruling of any court, judge, justice or
magistrate, any other Governmental Authority or any arbitrator.
1.1.56 LATA: Local Access and Transport Area; one of 161 local
geographic areas in the United States within which a local telephone
company may offer telecommunications services.
1.1.57 LLC: As defined in the introductory paragraph.
1.1.58 LLC Agreement: The Limited Liability Company Agreement of
Pathnet/Idaho Power Equipment, LLC dated as of the date hereof.
1.1.59 LLC Items: As defined in Section 5.1.1.
1.1.60 LLC Payment Cap: As defined in Section 5.1.3.
1.1.61 Losses: Any and all losses, claims, shortages, damages,
liabilities, expenses (including reasonable attorneys' and accountants'
fees), assessments, tax deficiencies and taxes (including interest and
penalties thereon) sustained, suffered or incurred by any party.
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1.1.62 Maintenance Services Agreement: The Maintenance and
Provisioning Services Agreement, by and between Pathnet, Incumbent and LLC
and to be executed within thirty (30) days hereof, as the same may be
amended from time to time in accordance with its terms.
1.1.63 Material Adverse Effect: Any event, fact, circumstance or
occurrence, which results or would with the passage of time result in a
material adverse change in or a material adverse effect on any of: (i) the
condition (financial or otherwise), business, performance, operations,
properties, or prospects of such Person; (ii) the legality, validity or
enforceability of this Agreement; or (iii) the ability of such Person to
perform its material obligations under this Agreement.
1.1.64 Modifications SOW: As defined in Section 2.1 of Schedule A.
1.1.65 Network Management System: As defined in Section 7.6 of
Schedule A.
1.1.66 Network Monitoring Center: As defined in Section 7.5 of
Schedule A.
1.1.67 Non-Breaching Party: As defined in Section 17.1.1.
1.1.68 Notice of Election: As defined in Section 15.3.
1.1.69 OC-3 Multiplexer: Any device that multiplexes capacity
between the OC-3 and the DS-l levels.
1.1.70 Order Wire: A service channel consisting of a 64,000 bit per
second circuit between sites.
1.1.71 OSHA: The Occupational Safety and Health Act, as amended.
1.1.72 Outage: When the Bit Error Rate in each second is worse than
l0^-3 for a period of ten (10) consecutive seconds.
1.1.73 Part 101: Part 101 of Title 47 of the Code of Federal
Regulations, as amended.
1.1.74 Party: As defined in the introductory paragraph.
1.1.75 Path Studies: As defined in 1.1 of Schedule A.
1.1.76 Pathnet: As defined in the introductory paragraph.
1.1.77 Pathnet Excess Capacity: At any given time, the
telecommunications channels or DS-0's that the System creates, transports
and receives which are granted to
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Pathnet under the Pathnet IRU Agreement and any capacity owned by Pathnet
and created pursuant to a Capacity Expansion.
1.1.78 Pathnet/ Idaho Power License LLC: As defined in Section 9.5.
1.1.79 Pathnet IRU Agreement: The Pathnet Indefeasible Right To Use
Agreement by and between the LLC and Pathnet, in the form attached
hereto as Schedule J, as it may be modified, amended or altered from
time to time.
1.1.80 Pathnet Software: The software (including applications
software and systems software) owned or licensed from a third party by
Pathnet used to provide the services covered in this Agreement.
1.1.81 PCN: A Prior Coordination Notice sent pursuant to Part 101.
1.1.82 Permits: Any and all authorizations, approvals, consents,
licenses, permits, easements, certificates and other rights and
permissions necessary to conduct such Person's business and to own, lease
and operate such Person's properties as currently conducted, owned, leased
or operated.
1.1.83 Person: An individual or a corporation, partnership, limited
liability corporation, trust, incorporated or unincorporated association,
joint venture, joint stock company, or other entity of any kind or any
Governmental Authority.
1.1.84 POP: Point Of Presence; the interconnection between any two
facilities based on networks.
1.1.85 Pre-Commissioning Test Equipment: All equipment required for
the testing required to be performed on the System pursuant to Section 5
of Schedule A, including, but not limited to, all required digital volt
meters, optical power meters, oscilloscopes, RF signal generators, RF
variable attenuators, DADE adjust cables, receiver card extenders and
extension cords.
1.1.86 Preliminary Construction Schedule: As defined in Section 1.1
of Schedule A.
1.1.87 Progress Report: As defined in Section 4.1.2 of Schedule A.
1.1.88 Project Drawings: As defined in Section 1.3 of Schedule A.
1.1.89 Project Management Plan: As defined in Section 4.1.1 of
Schedule A.
1.1.90 Project Schedule: As defined in Section 4.1.1 of Schedule A.
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1.1.91 Protection Configuration: An engineering plant under which
channel capacity is protected either on a fully redundant basis or on a 1
x n protection basis.
1.1.92 PSTN: Publicly Switched Telephone Network.
1.1.93 RCBA: Resource Conservation and Recovery Act, 42 U.S.C.
sections.9601 et seq., as amended.
1.1.94 Requirement of Law: With respect to any Person, all Federal,
state and local laws, rules, regulations, Judgments, injunctions,
standards, codes, limitations, restrictions, conditions, prohibitions,
notices, demands or other requirements or determinations of a court or
other Governmental Authority or an arbitrator, applicable to or binding
upon such Person, any of its property or any business conducted by it or
to which such Person, any of its assets or any business conducted by it is
subject.
1.1.95 Revenue: As defined in Section 6.3 of the Contingent Radio
Revenue Agreement.
1.1.96 Second Extension Period: As defined in Section 3.1.4.
1.1.97 Segment: The portion of a microwave communications network
existing between two geographic points. For purposes of this Agreement,
Segment A is the portion of the microwave communications network between
LaGrande, Oregon and Twin Falls, Idaho, including Hansen Butte, Idaho and
Boise, Idaho, as set forth in Schedule B. Segment B is the portion of the
microwave communications network between Hansen Butte, Idaho and
Pocatello, Idaho, as set forth in Schedule B.
1.1.98 Segment A LLC Estimated Costs: As defined in Section 5.1.2.
1.1.99 Segment A Pathnet Estimated Costs: As defined in Section
5.2.2.
1.1.100 Segment B LLC Estimated Costs: As defined in Section 5.1.2.
1.1.101 Segment B Pathnet Estimated Costs: As defined in Section
5.2.2.
1.1.102 Services: As defined in Section 8.1.
1.1.103 Severely Errored Seconds: Any one second interval where the
Bit Error Rate is greater than or equal to 1 x l0^-3 errors per second at
a DS-l rate regardless of the cause of degradation affecting the channel
error performance including, but not limited to, unprotected equipment
failures and any other factors that contribute to poor performance.
1.1.104 SONET: Synchronous Optical Network; a family of fiber-optic
(or microwave) transmission rates from 51.84 Mbps to 13.22 Gbps, created
to provide the
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flexibility needed to transport many digital signals with different
capacities and to provide a standard to which manufacturers may design.
1.1.105 Space Diversity: Protection of a radio signal by providing a
separate antenna on the same tower to assume the radio signal load when
the regular transmission path on the primary antenna fades, thereby
ensuring continuous transmission.
1.1.106 Spare Parts: The equipment and parts provided by Pathnet to
Incumbent in connection with the performance of Incumbent's obligations
under the Maintenance Services Agreement.
1.1.107 Specifications: As defined in Section 8.2.
1.1.108 Station Log Book: As defined in Section 6.2 of Schedule A.
1.1.109 Subcontractors: Any firm, corporation, or person working
directly or indirectly for a company that furnishes or performs a portion
of the work, labor or material.
1.1.110 Switched Mod Section: A section of network between two
adjacent back-to-back terminals.
1.1.111 System: The high capacity digital SONET Equipment,
Facilities, Network Management System, all other equipment and materials
related thereto, and FCC licenses and other licenses and Permits related
thereto, installed up to a maximum of a 1x7 configuration operated for the
purpose of transmitting, receiving and transporting telecommunications
signals over the Segments set forth on Schedule B and any Capacity
Expansions. As used in this Agreement, 1 x 7 shall mean one protect radio
and seven non-protect radios.
1.1.112 System Budget: As defined in Section 1.1 of Schedule A.
1.1.113 System Budget: As defined in Section 1.1 of Schedule A.
1.1.114 Technology: Inventions, ideas, processes, formulas, and
know-how.
1.1.115 Tower Analysis: As defined in Section 1.1 of Schedule A.
1.1.116 Wayside Channels: The additional DS-l of telecommunications
capacity within each radio beyond the base OC-3 capacity.
1.2 Terms Generally. The definitions in Section 1.1 and elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "herein",
"hereof", "hereto" and "hereunder" and words of similar import refer to this
Agreement (including the Schedules and Exhibits) in its entirety and not to any
part hereto unless the context shall otherwise require. All references herein to
Sections, Exhibits and Schedules shall
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be deemed references to Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Unless otherwise expressly
provided herein or unless the context shall otherwise require, any references as
of any time to the "Certificate of Incorporation," "Articles of Incorporation,"
"charter," "organizational or constituent documents" or "Bylaws" of any Entity,
to any agreement (including this Agreement) or other contract, instrument or
document or to any agreement statute or regulation are to it as amended and
supplemented from time to time (and, in the case of a statute or regulation to
any corresponding provisions of successor statutes or regulations). Any
reference in this Agreement to a "day" or number and "days" (without the
explicit qualification of "Business") shall be interpreted as a reference to a
calendar day or number of calendar days. If any action or notice is to be taken
or given on or by a particular calendar day, and such calendar day is not a
Business Day, then such action or notice shall be deferred until, or may be
taken or given on, the next Business Day.
SECTION 2. RELATIONSHIP OF THE PARTIES.
2.1 Independent Contractor and Network Manager. The LLC hereby appoints
Pathnet and Pathnet hereby agrees to serve in the following capacities during
the term of this Agreement:
(i) As an independent contractor, Pathnet will serve as the LLC's
sole and exclusive representative in performing analytical pre-design and
design services and installing, testing and ensuring the performance of
the System, as well as any upgrades to such System in accordance with the
terms and conditions set forth in Section 7 and in Schedule A.
(ii) In the role of a network manager, Pathnet will serve as the
point of contact for any Outage or trouble on the System and shall operate
the Network Management System and the Network Monitoring Center as
described in Section 7.6 and Section 7.7 of Schedule A.
(iii) In the role of licensee, Pathnet will license from the LLC a
right to use the Facilities on which to build and operate the system.
SECTION 3. TERM AND EXPIRATION.
3.1 Term. Extension Periods, and Renewal.
3.1.1 Term. This Agreement shall commence on the Effective Date and
shall be in full force and effect as to each Segment upon the commencement
of the Initial Term for such Segment and continuing until the expiration
of the term applicable to such Segment as set forth in this Section 3.
3.1.2 Initial Term. The initial term of a Segment (each an "Initial
Term") shall commence upon Commissioning of such Segment and shall expire
on the fifth (5th) anniversary of the Commissioning of any such Segment.
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3.1.3 First Extension Period. With respect to each Segment, in the
event the Average Sold Excess Capacity of such Segment is equal to or
greater than ten percent (10%) during the Initial Term, the term of the
Agreement shall be automatically extended as to such Segment for an
extension period (each a "First Extension Period") commencing on the day
after the expiration of the Initial Term and expiring on the tenth (l0th)
anniversary thereafter.
3.1.4 Second Extension Period. With respect to each Segment, in the
event the Average Sold Excess Capacity of such Segment is equal to or
greater than ten percent (10%) during the Initial Term and the First
Extension Period (calculated as a single measurement on a cumulative
basis), the term of the Agreement shall be automatically extended as to
such Segment for a second extension period (each a "Second Extension
Period") commencing on the day after the expiration of the First Extension
Period and expiring on the later of the tenth (l0th) anniversary
thereafter of the Second Extension Period of either Segment A or Segment
B.
3.1.5 Segment B. If (i) Incumbent and/or the LLC have not acquired
the sites for the Facilities as set forth in Schedule B, which sites shall
be approved in writing by the LLC and Pathnet for inclusion in the
development of Segment B, within twelve (12) months after the Effective
Date (such approval by Pathnet not to be unreasonably withheld, provided
that if the economic cost to Pathnet materially outweighs the economic
benefit to Pathnet as the result of the use of such site, such
circumstance shall be deemed a reasonable basis for withholding such
consent), or (ii) Incumbent, the LLC and/or Pathnet fall to obtain the
permits, approvals and licences (including frequency coordination)
necessary to begin construction on Segment B within fifteen (15) months
after the Effective Date, the Parties shall not develop Segment B pursuant
to this Agreement and all of the terms and conditions contained herein as
to Segment B shall be deemed terminated and of no further force or effect.
Termination of this Agreement as to Segment B pursuant to the terms of
this Section 3.1.5 shall have no effect as to Segment A, as to which this
Agreement shall remain in full force and effect unless otherwise
terminated pursuant to the terms hereof.
3.1.6 Renewal. Upon expiration as to each Segment of the Initial
Term or the First Extension Period, if not automatically extended pursuant
to Section 3.1.3 and 3.1.4 hereof, respectively, or upon the expiration of
the Second Extension Period as to each Segment, this Agreement shall be
automatically renewed as to such Segment for a one-year term, and at the
end of such one-year term for additional one-year terms for each year
thereafter, unless terminated by either Party upon written notice to the
other Party to that effect delivered no less than ninety (90) days prior
to the end of the Initial Term, the First Extension Period, the Second
Extension Period or any such one-year term, as applicable.
3.2 No Unilateral Right to Terminate.
3.2.1 General. Except as provided in Sections 3.1.5, 3.1.6, 3.2.2,
6.2.1, 11.2 and 11.3, neither Party shall have the right to terminate this
Agreement or any rights or obligations of either Party pursuant to this
Agreement as to any Segment.
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3.2.2 Non Performance. If Pathnet does not deliver any Segment of
the System in accordance with the Specifications within eighteen (18)
months after Incumbent and/or the LLC delivers (i) the requisite permits,
approvals and licenses required to develop the sites of the Facilities on
such Segment or (ii) sites of the Facilities in suitable form (including
delivering electric service to the sites) to construct the System for such
Segment, whichever is later, unless such failure of Pathnet to deliver any
Segment of the System in accordance with the Specifications results from
Incumbent unreasonably withholding any approvals required of Incumbent
with respect to installation of the System, then the LLC shall have the
right to terminate this Agreement only as to such Segment.
SECTION 4. CONSIDERATION
4.1 Consideration Paid to Pathnet. In consideration for the services to
be performed and the obligations assumed by Pathnet pursuant to this
Agreement, the LLC shall grant to Pathnet (i) the right to use the
Facilities, pursuant to Section 6, and the Equipment, and (ii) [***] as set
forth in the Channel Plan pursuant to the terms of the Pathnet IRU Agreement.
SECTION 5. ALLOCATION OF COSTS
5.1 LLC Costs.
5.1.1 LLC Items. Subject to the LLC Payment Cap set forth in Section
5.1.3, LLC shall pay for the services, functions, materials and other
items listed in Section 1 of Schedule C and Exhibit C-1 of Schedule C
(collectively, the "LLC Items") in the manner set forth in Section 5.1.5
and as set forth in the LLC Agreement.
5.1.2 Estimated Cost of LLC Items. On the Effective Date, the total
estimated cost of the LLC Items with respect to Segment A [***] (the
"Segment A LLC Estimated Costs") and with respect to Segment B is [***]
(the "Segment B LLC Estimated Costs"). Subject to the LLC Payment Cap,
the costs of such items and the LLC Estimated Costs are estimates and may
be subject to increases or decreases, provided that the cost of Pathnet
engineering and project management shall be no more than the estimated
cost for these items as shown in Schedule C.
5.1.3 LLC Payment Cap. Subject to Section 8.3, LLC shall pay an
amount not to exceed [***] (the "LLC Payment Cap") in the aggregate for
the performance and completion of the LLC Items on Segments A and B.
Payment of any LLC Item shall be approved by Pathnet prior to the payment
thereof if and to the extent such payment is subject to the LLC Payment
Cap. The cost of LLC Items shall be accrued in accordance with generally
accepted accounting principles. Pathnet shall pay for all amounts
incurred over the LLC Payment Cap in the completion and performance of the
LLC Items. As soon as LLC is aware that LLC will pay an amount in excess
of the LLC Payment Cap,
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LLC shall notify Pathnet to that effect. In the event the Parties elect
not to construct Segment B pursuant to Section 3.1.5, the LLC Payment Cap
shall be adjusted to be twenty percent (20%) over the Segment A LLC
Estimated Costs.
5.1.4 Division of Costs Savings. In the event the costs of
completion of the LLC Items for Segment A and Segment B are less than the
LLC Estimated Costs, Pathnet shall deliver to the LLC an invoice setting
forth the differential between the total costs to complete and perform the
LLC Items and the LLC Estimated Costs. Within thirty (30) days of receipt
of such invoice from Pathnet, the LLC shall pay or disburse to Pathnet
thirty-five percent (35%) of such differential. Pathnet shall be liable
for any invoices received after distribution of the costs savings is made
pursuant to this Section 5.1.4.
5.1.5 Payment by LLC. Subject to the LLC Payment Cap set forth in
Section 5.1.3, the LLC shall promptly pay, or the LLC shall cause
Incumbent to promptly pay pursuant to the LLC Agreement, for the LLC Items
for which it is liable upon receipt of a purchase order, invoice or other
bill from Pathnet or from an equipment vendor or service provider
(pursuant to any Pathnet requested retention), provided Pathnet has
approved (which approval shall not be unreasonably withheld) such purchase
order, invoice or bill before any payment is made by the LLC.
5.2 Pathnet Costs.
5.2.1 Pathnet Items. Pathnet shall pay for services, functions,
materials and other items listed in Section 2 of Schedule C, and Exhibit
C-2 of Schedule C (the "Pathnet Items").
5.2.2 Estimated Cost of Pathnet Items. On the Effective Date, the
total estimated cost of the Pathnet Items with respect to Segment A is
[***] (the "Segment A Pathnet Estimated Costs"), and with respect to
Segment B is [***] (the "Segment B Pathnet Estimated Costs").
5.2.3 No Cap on Pathnet Items. Subject to Section 3.1.5 regarding
Segment B, Pathnet shall pay for all amounts incurred in completing the
Pathnet Items whether or not the cost of completing such items is less
than, equal to or exceeds the Segment A and Segment B Pathnet Estimated
Costs.
SECTION 6. INDEFEASIBLE RIGHT TO USE.
6.1 Indefeasible Right to Use. The LLC hereby grants to Pathnet for the
term of this Agreement a non-exclusive and indefeasible right to use each of the
Facilities at such sites set forth on Schedule B, and Equipment, including,
without limitation, the Initial System, in each case to the extent necessary for
the performance of Pathnet's rights and obligations under this Agreement
including the right to create and sell capacity on the System including any
Capacity Expansion on the System.
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6.2 Use of Facilities.
6.2.1 Peaceful Enjoyment, Use and Access. Subject to the terms of
Incumbent's site leases Pathnet shall have the right to the non-exclusive
peaceful use and enjoyment of the Facilities during the term of this
Agreement as required for the performance of Pathnet's rights and
obligations under this Agreement, which rights shall include, but not be
limited to (i) the right to use the Facilities and Equipment and (ii) upon
the reasonable request by Pathnet, the right to full and free access to
the Facilities and related equipment; provided, however, any such access
granted by the LLC to Pathnet shall be subject to the reasonable security,
health and safety and other regulatory, procedural and policy requirements
implemented by Incumbent, and provided to Pathnet from time to time,
provided Pathnet shall have twenty (20) days after receipt of any such
policy or procedure to comply therewith. In the event the terms of
Incumbent's site leases materially and adversely affect Pathnet's ability
to perform its obligations under this Agreement, the LLC shall, or the LLC
shall cause Incumbent to, (x) use best efforts to amend any such lease or
otherwise renegotiate any limitations thereto or (y) use commercially
reasonable efforts to lease or acquire an alternative Facility location in
order that Pathnet may perform hereunder. If and to the extent the LLC is
not able, or the LLC is not able to cause Incumbent to (i) amend or
otherwise re-negotiate the site leases or (ii) provide an alternative
Facility available for the installation and operation of the System,
Pathnet shall have, as its sole and exclusive remedy, the unilateral right
but no obligation to terminate this Agreement as to any Segment without
any further recourse against LLC or Incumbent hereunder.
6.2.2 Interference. During the term of this Agreement and subject to
existing customer uses of the Facilities authorized and disclosed to
Pathnet in writing within thirty (30) days of the Effective Date, the LLC
shall not license or otherwise permit any Person to use the Facilities or
any Incumbent controlled facility if the use of such facilities by such
Person would cause any Interference on the System. As of the Effective
Date, the LLC shall not grant any Person a new or expanded right to use
the Facilities or any Incumbent controlled facility which use would in any
way cause Interference on the System. Notwithstanding the foregoing, in
the event another Person causes any Interference on the System through any
use of the Facilities or any Incumbent controlled facility which was not
authorized prior to the Effective Date, the LLC shall, or the LLC shall
cause Incumbent to, use best efforts to compel such Person using such
facilities to immediately take all steps necessary to correct and
eliminate such Interference, including, without limitation, enforcing
provisions in any license or other agreement between Incumbent and/or the
LLC and such Person using the facilities which allow Incumbent and/or the
LLC to compel such Person to cease operation of such Person's system, to
remove such Person's equipment or materials or to modify such Person's
equipment or materials. The LLC acknowledges that any Interference shall
cause irreparable harm to Pathnet and the prompt cessation of Interference
is material to Pathnet's interest in the Facilities and Pathnet's
performance under this Agreement and, as such, Pathnet shall be entitled
to injunctive relief in the enforcement of this Section 6.2.2.
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6.3 Visiting and Exiting Facilities. Upon exiting any Facility, Pathnet,
on behalf of itself and its employees, agents and Subcontractors, shall ensure
that such Facility is returned to a condition, which existed immediately prior
to such visit except for improvements made thereto and reasonable wear and tear.
6.4 Clearances and Other Requirements. At the reasonable request of the
LLC, Pathnet shall require its employees, agents or Subcontractors to (i) apply
to the LLC for any necessary reasonable clearances and (ii) comply with all
other reasonable and applicable requirements, rules, regulations or ordinances
regarding any Person's ability to have access to the Facilities.
6.5 Pathnet's Responsibility. Subject to LLC's payment obligations under
Section 5.1.5, Pathnet shall remain solely responsible for all actions of its
employees, agents, and Subcontractors in connection with the provision of
services to the LLC under this Agreement. Before allowing any Subcontractor to
commence work, Pathnet shall secure from such Subcontractor evidence of
insurance coverage covering such risks as are usually insured against by prudent
companies engaged in the business and activities in which such Subcontractor is
engaged.
6.6 Subletting. Pathnet shall not grant any interest in the Facilities, in
whole or in part, to any Person without the prior written consent of the LLC and
Incumbent; provided, however, Pathnet shall have the right to transfer and
assign its rights or obligations under this Agreement to any successor or assign
in accordance with Section 18.7.
6.7 Surrender. Upon the expiration of the Agreement in accordance with
Section 3, Pathnet shall peacefully and quietly surrender occupation of the
Facilities, without delivery by the LLC or Incumbent to Pathnet of any notice to
quit or demand for possession.
6.8 Colocation. Subject to space availability at the Facilities at the
time of a Pathnet request, including LLC's or Incumbent's reasonably foreseeable
future space needs on the Facilities, the LLC shall or shall cause Incumbent to
allow Pathnet, at no additional charge to colocate at the Facilities all
equipment necessary to support the interconnections set forth on Exhibit A-6 to
Schedule A and any additional interconnections equipment that may be added by
Pathnet from time to time and at any time during the term of this Agreement,
subject to the limitations set forth in Schedule 3 of Schedule A.
6.9 Subordination. Pathnet shall subordinate its interest in the
Facilities to (i) all deeds of trust, deeds to secure debts, mortgages and other
security instruments now or hereafter Encumbering all or any portion of the real
property relating to the Facilities described on Schedule G (each, a "Facility
Encumbrance") and (ii) any increases, renewals, modifications, consolidations,
replacements and extensions of any such Facility Encumbrance. In connection with
such subordination of Pathnet's interest in the Facility to all Facility
Encumbrances, Pathnet shall, as requested by the LLC, within fifteen (15) days
after any request by Incumbent, execute and deliver a commercially reasonable
subordination, non-disturbance and attornment agreement with all Persons secured
by such Facility Encumbrances. Pathnet shall, as requested by the LLC, execute
and
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deliver similar subordination, non-disturbance and attornment agreements with
each future Person secured by a Facility Encumbrance.
6.10 Removal of Equipment. Upon the Expiration Date, the LLC shall have
the option of purchasing any and all of the Pathnet owned Equipment located on
the Facilities at its then fair market value. Pathnet shall, at the LLC's
request and direction, remove any or all Pathnet owned Equipment not so
purchased by the LLC from the LLC's Facilities and restore each site to its
condition as of Commissioning (reasonable wear and tear, and damage from the
elements, excepted) within sixty (60) days after the Expiration Date and at
Pathnet's sole expense. In the event Pathnet fails to perform such requested
removal within such sixty (60) day period, as determined by the LLC in its sole
discretion, the LLC may remove such Equipment and restore each site to its
condition as of Commissioning, (reasonable wear and tear, and damage from the
elements, excepted), and Pathnet shall promptly pay the LLC all costs reasonably
incurred by the LLC for such removal and restoration. The LLC shall have no
liability to Pathnet in connection with any damage to the Pathnet owned
Equipment resulting from its removal by the LLC.
6.11 Removal of Hazardous Materials. Within ninety (90) days after the
written request of Incumbent, or in any event, within ninety (90) days after the
Expiration Date, Pathnet shall remove from the Facilities any and all Hazardous
Materials, that were brought to the Facilities by Pathnet during the term of
this Agreement in violation of Requirements of Law.
SECTION 7. PROGRAM MANAGEMENT AND PROJECT MANAGEMENT.
7.1 Program Manager. In connection with the Services and other services
performed by Pathnet under this Agreement, Pathnet shall provide a Program
Manager whose duties shall include (i) supervising the project through design,
installation and operation, (ii) supervising the Project Manager, (iii)
overseeing the Field Manager and the other Pathnet personnel, and (iv) ensuring
the performance of Pathnet's rights and obligations under this Agreement.
7.2 Project Management for Modifications. In connection with the
modifications of the Facilities set forth in Section 2 of Schedule A, Pathnet
shall provide a Project Manager, a Field Manager, an Applications Engineer and a
Project Engineer, each of whom shall have the duties as set forth in Section 7.4
with respect to such modifications of the Facilities.
7.3 Project Management for Installation. In connection with the
installation of the System set forth in Section 4 of Schedule A, Pathnet shall
provide a Project Manager, a Field Manager, an Applications Engineer and a
Project Engineer, each of whom shall have the duties as set forth in Section 7.4
with respect to such installation of the System.
7.4 Pathnet Project Management Personnel. The Project Managers, Field
Managers, Applications Engineers and Project Engineers shall each have the
duties as set forth below:
(a) Project Manager. Pathnet shall provide a Project Manager whose
duties shall include ensuring the overall functional integrity of the
System, the preparation, amendment
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and adherence to a construction schedule, and compliance with Pathnet's
other obligations under Schedule A.
(b) Field Manager. Pathnet shall provide a Field Manager whose
duties shall include the oversight and direction of all on-site
activities, the coordination of all Subcontractors and all required
communication with the Project Manager.
(c) Applications Engineer. Pathnet shall provide an Applications
Engineer, whose duties shall include the review and translation of the
System configuration into specific hardware requirements, precise
interface levels, intra and inter-rack cabling and all other necessary
peripheral equipment, rack profiles and required Interconnection data.
(d) Project Manager. Pathnet shall provide a Project Engineer whose
duties shall include the performance of all planning and support
activities and a detailed site survey to gather data for development of
the installation plan and testing plan.
SECTION 8. SERVICES AND SYSTEMS SPECIFICATIONS.
8.1 Services
8.1.1 System Design, Modification, Installation, Operation and
Performance. Pathnet and the LLC shall perform their respective functions
with respect to the design, modification, installation, operation and
performance of the System as set forth on Schedule A and in this Section 8
(the "Services"); provided, that in the event such performance requires
Incumbent's performance, the LLC shall cause Incumbent to so perform.
8.1.2 Upgrade of System. In accordance with its performance of the
Services, Pathnet shall have the right, at its own expense and with the
LLC's prior approval, which approval shall not be unreasonably withheld or
delayed, to upgrade the System and Equipment, and the System and Equipment
operation policies and procedures, including, but not limited to, (i)
replacing Equipment, (ii) adding newly available improved Equipment, and
(iii) modifying policies, procedures and specifications relating to the
System, to conform such policies, procedures and specifications with new
Technology or industry standards; provided, however, nothing contained in
this Section 8.1.2 shall limit Pathnet's rights to perform any Capacity
Expansion pursuant to this Agreement.
8.1.3 Incumbent Training. Pathnet shall provide to Incumbent the
training as set forth on Schedule D.
8.1.4 Maintenance. Pathnet shall enter into the Maintenance Services
Agreement with Incumbent and shall perform all of its obligations
thereunder, including the provision of Spare Parts. The LLC shall
cooperate with Incumbent and Pathnet to permit the performance of the
services or other activities called for or required under the Maintenance
Services Agreement.
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8.1.5 Performance of the Services. Pathnet shall have the right to
engage Subcontractors to perform any of the Services subject to the LLC's
prior approval, which approval shall not be unreasonably withheld or
delayed.
(A) Subcontractors. Nothing contained herein shall create or
imply privity of contract between the LLC and any Subcontractor,
notwithstanding the LLC's consent to any Subcontractor. Pathnet
acknowledges and agrees that the LLC shall have no obligation to (i)
supervise any Pathnet Subcontractor or its employees or (ii) pay any
Pathnet Subcontractor or its employees other than to the extent
required pursuant to Section 5 or as otherwise agreed in writing by
the Parties. No dealings of any kind between the LLC and any
Subcontractor shall be deemed a waiver of the foregoing by the LLC
unless the LLC (at the LLC's election) specifically agrees otherwise
in writing.
(B) Except for any liens arising from LLC's or Incumbent's
failure to pay for the LLC Items for which they are responsible
under Section 5.1.5, if any Subcontractor or any other Person
claiming to have been employed (directly or indirectly) by or
through Pathnet files a lien, Pathnet shall satisfy, remove or
discharge such lien at Pathnet's expense by bonding, payment or
otherwise within thirty (30) days after notice to Pathnet of the
filing thereof. If Pathnet fails to do so, the LLC may satisfy,
remove or discharge such lien, and Pathnet shall pay the same to the
LLC upon demand.
8.2 Specifications.
8.2.1 General. Pathnet and the LLC shall perform the Services in
accordance with any and all technical and operational specifications set
forth in Schedule A (the "Specifications"); provided that in the event
such performance requires Incumbent's performance, the LLC shall cause
Incumbent to so perform.
8.2.2 Channel Plan.
(A) Original Channel Plan. On the Effective Date, the LLC
shall deliver to Pathnet a proposed T-l channelization plan setting
forth the proposed capacity needs of Incumbent at each Facility (the
"Incumbent Capacity"). Such capacity shall be sold to Incumbent by
the LLC pursuant to Incumbent IRU Agreement. Such capacity (i) shall
in no event exceed [***] and (ii) shall be subject to Drop and
Insert capacity at each Switched Mod Section. Pathnet shall
incorporate the LLC's proposed channelization plan into the Channel
Plan subject to the limitations set forth in this Section 8.2.2.
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(B) Amended Channel Plan. Upon written notice to Pathnet and
subject to the capacity granted under the Incumbent IRU Agreement,
the LLC shall have the right to modify Incumbent Capacity (as
described in the Channel Plan) along the network any time after
Commissioning, provided that sufficient Drop and Insert capacity
exists at each Facility not designated as a repeater terminal
between each Switched Mod Section using available Wayside Channels
to effect such modification. Within ninety (90) days after receipt
of any such written notice from the LLC, Pathnet shall make such
modification to the configuration of the Channel Plan at no charge
to the LLC.
8.2.3 Specifications. Standards and Inspections. In connection with
the Services set forth in Section 2 and Section 4 of Schedule A, Pathnet
shall comply with the following requirements:
(A) Obligation to Construct. Pathnet shall use commercially
reasonable efforts to ensure that the modification of the System set
forth in Section 2 of Schedule A and the installation of the System
set forth in Section 4 of Schedule A occur as expeditiously as
possible and in no event later than the 18 month period set forth in
Section 3.2.2.
(B) Industry Standards. All Services and materials supplied
pursuant to Schedule A must meet or exceed all applicable
Specifications. Where Specifications are not stated, such work
performed and materials supplied will meet all applicable provisions
of the following standards: (i) EIA RS-l95 (latest edition), (ii)
EIA/TIA-222 (latest edition), (iii) American Society of Testing
Materials A 325 and A 572, (iv) the applicable sections of the
National Electric Code, (v) the American National Standards
Institute, (vi) ACI 318-83, (vii) ACI-305, (viii) ACI-306, (ix) OSHA
29 CFR 1910 and (x) all other applicable Federal, state and local
regulations of all Governmental Authorities with jurisdiction;
provided, however, in the case of a conflicting requirement of
standards, the more stringent standard shall apply.
(C) Site Inspections. During the performance of the Services,
Incumbent shall allow Pathnet to perform site inspections during
normal business hours, or in the case of an emergency, at any time,
subject to the access limitations set forth herein.
8.2.4 Plans, drawings, etc. All plans, specifications, drawings,
presentations, schedules, budgets, analyses, and other documents of any
kind prepared by Pathnet or any Subcontractor in connection with the
System (the "Project Documents"), and all rights therein, shall be and
remain the joint property of both Pathnet and the LLC. Submission or
description of any document described in the foregoing sentence to any
Person or Governmental Authority for purposes of, or in connection with,
the System shall not be construed as publication in derogation of the
LLC's rights under this Agreement. The term "Project Documents" shall not
include non-technical, non-drawing type documents, memos, analyses, and
other writings used solely for the internal purposes of Pathnet or any
Subcontractor.
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8.3 Change Orders. To the extent requested by the LLC and agreed to by
Pathnet, this Agreement shall incorporate (i) future issuance of change orders
for equipment and services beyond the scope of the Services and this Section 8
of the Agreement, and (ii) Pathnet's provision of additional equipment and
services in accordance with such orders. To the extent mutually agreed upon by
the Parties, all such orders shall be deemed to be supplements to and governed
by the terms of this Agreement. The Segment A and Segment B LLC Estimated Costs
and the LLC Payment Cap may be modified to reflect any agreed upon change
orders. In the event the LLC provides an alternative facility to the Facilities
set forth in Schedule B, pursuant to Sections 6.2.1, 11.2 and 11.3 for
installation of the System, Pathnet and the LLC shall adjust the Segment A and
Segment B LLC Estimated Costs, the Segment A and Segment B Pathnet Estimated
Costs and the LLC Payment Cap as applicable to incorporate the inclusion or
exclusion of any such facility.
SECTION 9. OWNERSHIP, DEPRECIATION AND ENCUMBRANCE OF SYSTEM.
9.1 Ownership of Equipment and Assets.
9.1.1 Equipment and Assets Owned by the LLC. The LLC shall own or
license the equipment and assets relating to the System as set forth in
Schedule E.
9.1.2 Equipment and Assets Owned by Pathnet. Pathnet shall own the
equipment and assets relating to the System as set forth in Schedule E.
9.2 Depreciation of Equipment.
9.2.1 Depreciation by the LLC. The LLC shall have the right to fully
depreciate the equipment and assets currently owned or to be owned by the
LLC as listed in Schedule E.
9.2.2 Depreciation by Pathnet. Pathnet shall have the right to fully
depreciate the equipment and assets currently owned or to be owned by
Pathnet as listed in Schedule E.
9.3 Encumbrance.
9.3.1 Initial System. Pathnet shall not Encumber the radios (other
than the protect radio), radio software, antenna, waveguide, multiplexers
or any other Equipment required to operate the Initial System in
accordance with Specifications hereunder.
9.3.2 Other Equipment, Materials, Agreements and Assets. Pathnet
shall have the right, unless it otherwise agrees in writing, to Encumber
(i) the Equipment used in any Capacity Expansion, (ii) the Revenue
generated from the sale of the Excess Capacity, (iii) any Customer
Agreement entered into by Pathnet with respect to the sale of Excess
Capacity, (iv) this Agreement and any related documents, instruments and
agreements executed and delivered in connection with this Agreement and
any rights and obligations hereunder, and (v) the Equipment relating to
the Initial System other than the radios, radio
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software, antenna, waveguide, multiplexers and any other
Equipment required to operate the Initial System in accordance with the
Specifications hereunder.
9.3.3 Vendor Remedies. The LLC hereby acknowledges that pursuant to
the Encumbrances granted by Pathnet to certain equipment vendors, service
providers or other lenders, in accordance with Section 9.3.2, such
vendors, providers or lenders shall have the right to assume and perform
Pathnet's rights and obligations under this Agreement and the other
documents, instruments and agreements executed in connection herewith and
will be bound by the terms hereof and thereof.
9.4 Taxes. The Parties' respective responsibilities for taxes arising
under or in connection with this Agreement shall be as follows: (i) each Party
shall be responsible for any personal or real property taxes on property it owns
or leases, for franchise and privilege taxes on its business and for taxes based
on its net income or gross revenue and (ii) Pathnet shall be responsible for any
sales, use, excise, value-added services, consumption and other taxes and duties
payable by the LLC or Incumbent on any goods and services used or consumed in
providing the services to be performed by Pathnet under this Agreement, where
the tax is imposed on the LLC's acquisition or use of such goods or services and
the amount of the tax is measured by the LLC's costs in acquiring such goods or
services; provided, however, that Pathnet shall not be responsible for any
Federal, state or local income taxes of Incumbent or the LLC or any franchise
taxes of Incumbent or the LLC.
9.5 Special Purpose Subsidiary Relating to Initial System Licenses.
(a) Pathnet shall contribute to Pathnet/Idaho Power License, LLC, a
Delaware limited liability company ("Pathnet/Idaho Power License LLC") and
cause Pathnet/Idaho Power License LLC to hold, the FCC licenses relating
to the Initial System.
(b) On the Effective Date, Pathnet and the LLC shall execute and
deliver the Pledge Agreement relating to the Pathnet/Idaho Power License
LLC substantially in the form attached hereto as Schedule H.
9.6 Security Interest in Initial System Protect Radio. On the Effective
Date, Pathnet and the LLC shall execute and deliver the Security Agreement
substantially in the form attached hereto as Schedule I, pursuant to which
Pathnet shall grant the LLC a security interest in the Initial System Protect
Radio.
9.7 Agreement Regarding Bankruptcy. Pathnet agrees and shall cause each
subsidiary of Pathnet contracting with the Pathnet/Idaho Power License LLC to
agree, that neither Pathnet, nor any such subsidiary of Pathnet shall take any
actions that would cause the involuntary bankruptcy of the Pathnet/Idaho Power
License LLC.
9.8 Spectrum License Agreement. On the Effective Date, the LLC and
Pathnet/Idaho Power License LLC shall execute a Spectrum License Agreement
substantially in the form set forth in Schedule K.
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SECTION 10. EXCESS CAPACITY MARKETING AND SALES.
10.1 Customer Agreements.
10.1.1 Authorization. Pathnet shall negotiate, execute and deliver
any and all agreements and arrangements ("Customer Agreements") for
customers of the Excess Capacity, which Customer Agreements shall contain
terms and conditions determined by Pathnet in its sole discretion.
10.1.2 Approval and Consent by the LLC. If the terms of any Customer
Agreement require the written approval or consent of the LLC as a
condition to the execution, delivery or performance, the LLC shall
promptly provide such written approval or consent, subject to the
indemnification rights set forth in Section 16.2(d); provided such
approval or consent shall not increase the LLC's liability or obligations
under this Agreement or otherwise.
10.1.3 Modifications to System. In the event that any Customer
Agreement requires that the System be modified in any way, Pathnet shall
ensure that any such modifications (i) shall not compromise the integrity
and performance of the System in accordance with the Specifications and
(ii) shall be made at no additional cost to the LLC.
SECTION 11. FCC LICENSES AND OTHER REGULATORY APPROVALS AND LICENSES.
11.1 FCC Rules and Regulations.
11.1.1 Microwave Radio Station Licenses.
(A) Preparation and Filing of Forms 415. Subject to Section
11.4, Pathnet shall be responsible for all regulatory filings
required to obtain FCC approvals to own and operate the System and
to sell telecommunications capacity to other common carriers,
including but not limited to the initial application(s) for licenses
and any amendments or modifications to the licenses. If necessary,
Pathnet shall be responsible for any filings relating to
cancellation of a license. Pathnet shall be solely responsible for
any expenses incurred with respect to these filings and Pathnet
shall be solely responsible for fees associated with such
applications, including the initial application fees. Pathnet shall
prepare and timely file all required Form 415, Applications for
Authorization in the Microwave Services (each a "Form 415"), or any
successor forms, documents or instruments to such Form 415 as the
FCC may prescribe, including but not limited to, the preparation or
ordering of all frequency coordinations required pursuant to
Schedule B and Schedule C of Form 415, in order to own, operate and
sell the Excess Capacity of the System in accordance with the terms
and conditions of this Agreement. To the extent reasonably
necessary, the LLC and Incumbent shall cooperate with Pathnet in
obtaining FCC approvals.
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(B) Identity of License. All Microwave Radio Station Licenses
issued by the FCC relating to the System shall be licensed in
Pathnet's or Pathnet/Idaho Power License LLC's name. To the extent
permitted by law, Pathnet shall remain licensed under the FCC Code
until such time as its licenses may be terminated. The LLC and
Incumbent shall be permitted to continue to own and be licensed as
private microwave operators at the stations licensed to Pathnet
relating to the system, provided that (i) that frequency assignments
of such private licenses do not interfere with the System
(including, but not limited to, any Capacity Expansion of the
System) and (ii) such private licenses are permitted under the FCC
Code.
(C) Maintenance of License. Pathnet shall maintain in good
standing each Microwave Radio Station License relating to the
System, including, but not limited to, fees, preparing and filing
any required amendments to the Forms 415 relating to the System and
submitting and filing any supplementary information as required by
the FCC.
11.1.2 Common Carrier Reporting Obligations. Pathnet shall prepare
and file all forms, reports, instruments, documents and agreements
required by the FCC and FCC Code relating to Pathnet's status as a "common
carrier" under the FCC Code.
11.1.3 Tariff Filings. Pathnet shall prepare and timely file all
tariff applications pursuant to 47 CFR 61, as amended, or any successor
statute, rule or regulation and shall request and file all necessary
waivers of such tariff requirements, as determined by Pathnet in its sole
discretion.
11.1.4 Frequency Coordination Notices. During the term of this
Agreement, Pathnet shall prepare and send all required frequency
coordination notices required under 47 CFR 101.103, as amended, or any
successor statute, rule or regulation and shall respond, as appropriate,
to all PCNs received by Pathnet, the LLC or Incumbent relating to the
System.
11.1.5 Delivery of Copies. Pathnet shall provide to the LLC a copy
of all filings and submissions with the FCC, relating to the System,
within (10) days after request by the LLC.
11.1.6 Assistance in Preparation of License Applications. Upon
request by Pathnet, and in a timely manner, the LLC shall provide to
Pathnet all information necessary for the completion of all required
filings and submissions with the FCC including, but not limited to the
LLC's authorized signature on any filings or other submissions to the FCC
or any documents, instruments or agreements completed in connection with
such filings and submissions.
11.1.7 Spectral Loading Requirements. Pathnet shall (i) ensure that
the System, as licensed, shall comply with all spectral loading
requirements set forth in 47 CFR 101.141, or any successor statute, rule
or regulation or (ii) obtain a waiver of any or all of such requirements;
provided, however, if the System does not meet such spectral loading
requirements and Pathnet is unable to obtain a waiver of such
requirements, Pathnet shall
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have the right, at its sole cost and expense, to modify the System to a
hot-standby Protection Configuration until such time as the spectral
loading requirements can be met; provided such configuration meets the
System's performance requirements.
11.1.8 Default in FCC License. In the event that the FCC institutes
a penalty against or fine imposed on Pathnet, the LLC, or the System, due
to non-compliance with any FCC requirements by Pathnet, Pathnet shall
promptly pay such penalty or fine (in the case such penalty or fine is
instituted as the result of an act or omission on the part of Pathnet) or
the LLC shall promptly pay such penalty or fine (in the event such penalty
or fine is instituted as the result of an act or omission on the part of
the LLC).
11.2 Zoning Requirements. The LLC shall be responsible for obtaining
appropriately zoned sites and maintaining zoning and land use compliance of the
Facilities throughout the term of the Agreement. Pathnet shall be responsible
for complying with all zoning requirements as provided by the LLC as applicable
to the installation and operation of the System and its Facilities. The LLC
shall advise Pathnet of zoning requirements, which, in the reasonable opinion of
the LLC, differ from those generally applicable to microwave facilities. The LLC
shall provide to Pathnet all required information and shall cooperate with
Pathnet in connection with Pathnet's compliance with all zoning requirements
pursuant to this Section 11.2. Notwithstanding the foregoing, the LLC and
Incumbent shall, or shall cause Incumbent to, implement either (i) best efforts
to obtain all necessary zoning and permits for each Facility or (ii) in the
event Incumbent and/or the LLC are unable to obtain such necessary zoning and
permits, commercially reasonable efforts to obtain an alternative facility
available for installation and operation of the System in order for Pathnet to
perform its obligations under this Agreement. If and to the extent the LLC
and/or Incumbent cannot obtain the required zoning and permits for any Segment,
Pathnet shall have, as its sole and exclusive remedy, the unilateral right but
not obligation to terminate this Agreement, as to any Segment, without any
further recourse against LLC or Incumbent hereunder.
11.3 Lessor Requirements. Where Incumbent leases sites for the location of
its Facilities, the LLC shall be responsible for obtaining all consents or
approvals of the site lessor necessary for construction and operation of the
System. Pathnet and the LLC shall comply with all site lessor requirements.
Pathnet and the LLC shall each cooperate with the other in connection with the
other's compliance with all site lessor approvals pursuant to this Section 11.3.
Notwithstanding the foregoing, the LLC shall, or shall cause Incumbent to,
implement (i) best efforts to obtain all necessary site lessor consents and
approvals for each Facility or (ii) commercially reasonable efforts to obtain an
alternative facility available for installation and operation of the System in
order for Pathnet to perform its obligations under this Agreement. If and to the
extent the LLC and/or Incumbent cannot obtain the required site lessor approval,
Pathnet shall have, as its sole exclusive remedy, the unilateral right but not
obligation to terminate this Agreement, as to any Segment, without any further
recourse against LLC or Incumbent hereunder.
11.4 Tower Registration. Incumbent and the LLC shall ensure timely
compliance with all FAA and FCC tower registration requirements including, but
not limited to, the preparation of any filings with or the obtaining of any
waivers or extensions from the FAA or FCC. The LLC
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and/or Incumbent shall promptly notify Pathnet of any deficiency or
non-compliance with any such tower registration requirements, filings, waivers
or extensions.
SECTION 12. INSURANCE.
12.1 Delivery of Certificates of Insurance. Upon the LLC's request and
prior to the commencement of any Services by Pathnet, Pathnet shall deliver to
the LLC Certificates of Insurance relating to Pathnet's Commercial General
Liability Insurance Policy, Workers Compensation Insurance Policy, Automobile
Liability Insurance, Excess Liability Insurance Policy and Professional
Liability Insurance.
12.2 Pathnet Insurance Coverage. During the term of this Agreement,
Pathnet shall maintain the types of insurance at the coverage limits set forth
below each naming Incumbent and the LLC as an additional insured and providing
for thirty (30) days' prior notification to the LLC and Incumbent and the right
of Incumbent and/or the LLC to cure any default prior to cancellation:
(a) Worker's Compensation Insurance. Workers Compensation Insurance
as required by laws and regulations applicable to and covering Persons
performing the Services;
(b) Commercial General Liability Insurance. Commercial General
Liability Insurance with a limit of not less than $1,000,000 per
occurrence and $ 1,000,000 in the aggregate;
(c) Automobile Liability Insurance. Automobile Liability Insurance,
which includes coverage for non-owned and hired vehicles with a limit of
not less than $1,000,000;
(d) Excess Liability Insurance. Excess Liability Insurance with a
limit of not less than $4,000,000; and
(e) Professional Liability Insurance. Professional Liability
Insurance with a limit of not less than $10,000,000.
12.3 LLC Insurance Coverage Incumbent or the LLC shall maintain insurance
coverage on the Facilities properties and operations of Incumbent and the LLC to
the extent necessary to permit Pathnet to operate the System and perform its
obligations in the event of any property or operations damages or losses which
coverage shall include general liability and other forms of insurance covering
such risks as are usually insured against by prudent companies engaged in the
business and activities in which the LLC is engaged, in amounts which are
adequate in relation to the business and properties of the LLC, and all premiums
to date have been and will continue to be paid in full.
12.4 Proof of Licensed Subcontractors. Upon request of the LLC, Pathnet
shall provide to the LLC proof of licensing and certification of insurance for
any Subcontractors engaged by Pathnet to provide Services, during the term of
such engagement.
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SECTION 13. SOFTWARE AND PROPRIETARY RIGHTS.
13.1 Pathnet Software. Pathnet retains all right, title and interest in
and to Pathnet Software. As of the Effective Date and pursuant to the Pathnet
Sublicense Agreement attached hereto as Schedule F, the LLC is granted a
nonexclusive sublicense to use Pathnet Software for the sole purpose of
receiving the services pursuant to this Agreement. Pathnet Software will be made
available to the LLC in such form and on such media as exists on the Effective
Date, together with existing documentation and any other related materials. The
LLC shall not be permitted to use Pathnet Software for the benefit of any
entities for any use other than performance of the LLC's rights under this
Agreement or any agreement executed in connection therewith, without the prior
written consent of Pathnet which may be withheld at Pathnet's sole discretion.
Except as otherwise requested or approved by Pathnet, the LLC shall cease all
use of Pathnet Software upon expiration of this Agreement. Notwithstanding the
foregoing, the LLC shall have the right to purchase or license the Pathnet
Software from Pathnet to the extent Pathnet owns or otherwise has the ability to
sell or license such software on terms that shall be agreed upon by the Parties
negotiating in good faith.
13.2 Proprietary Rights. The LLC acknowledges and agrees that all or
portions of the information and materials, including but not limited to the
Pathnet Software and related documentation to be supplied by Pathnet hereunder
are owned by Pathnet and/or others and are proprietary in nature. The LLC also
acknowledges and agrees that Pathnet and/or its suppliers have and will retain
all proprietary rights in such information and materials. The LLC (i) shall
respect such claim of proprietary right, (ii) shall protect such information at
least to the extent that it protects its own proprietary information, (iii)
shall not use such information except for the purposes for which its is being
made available as set forth in this Agreement and (iv) shall not reproduce,
print, disclose, or otherwise make said information available to any third
party, in whole or in part, in whatever form.
SECTION 14. REPRESENTATIONS AND WARRANTIES.
14.1 Representations and Warranties of Each Party. Each Party hereby
represents and warrants the other Party as follows:
14.1.1 Due Incorporation and Formation; Authorization of Agreements;
Binding Effect. Such Party is a corporation or limited liability company,
as the case may be, duly formed or organized, and validly existing under
the laws of its state of incorporation or organization, and has the
corporate or limited liability company authority to own its property and
carry on its business as owned and carried on as of the Effective Date.
Such Party is duly licensed or qualified to do business and is in good
standing (if applicable) in each jurisdiction in which the failure to be
so licensed or qualified would have a Material Adverse Effect on such
Party. Such Party has the corporate or limited liability company authority
to execute and deliver this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by such Party
and this Agreement constitutes a legal, valid and binding obligation of
such Party enforceable in accordance with its terms, subject
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as to enforceability to limits imposed by bankruptcy, insolvency or
similar laws affecting creditors rights generally and the availability of
equitable remedies.
14.1.2 No Conflict; No Default. Neither the execution or delivery of
this Agreement by such Party, nor (except as would not have a Material
Adverse Effect on such Party), the performance of this Agreement by such
Party or the consummation by such Party of the transactions contemplated
hereby in accordance with the terms and conditions hereof: (i) will
conflict with, violate, result in a breach of or constitute a default
under any of the terms, conditions or provisions of the certificate or
articles of incorporation or bylaws or LLC operating agreement (or other
governing documents) of such Party or any material agreement or instrument
to which such Party is a party or by which such Party may be bound, (ii)
will conflict with, violate or result in a breach of, constitute a default
under (whether with notice or lapse of time or both), accelerate or permit
the acceleration of the performance required by, give to others any
interests or rights or require any consent, authorization or approval
under any contract to which such Party is a party or by which such Party
is or may be bound or to which any equity interest held by such Party or
any of its material properties or assets is subject or (iii) will result
in the creation or imposition of any Encumbrance upon any equity interest
held by such Party in the LLC or any of the other material properties or
assets of such Party, other than Facility Encumbrances.
14.1.3 No Consent. Other than consents and approvals contemplated by
Section 10.1, no consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Authority,
domestic or foreign, is required to be obtained by such Party in
connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby, except those
that have been obtained and are in full force and effect pursuant to
Section 14.1.5.
14.1.4 Compliance with Laws and Regulations. The performance of its
obligations under this Agreement will not result in a violation in any
respect of (i) any applicable Federal, state, local or foreign laws,
ordinances, regulations, rulings and orders of government agencies
applicable to its business in any respect the violation of which could
have a Material Adverse Effect (including Requirements of Law relating to
pollution, protection of the environment, emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic, hazardous or regulated substances or wastes into the
environment or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage disposal, transport or handling of
pollutants or other such hazardous or regulated substances or wastes) or
(ii) any applicable order, Judgment, injunction, award or decree in any
respect which could have a Material Adverse Effect on such Party.
14.1.5 Permits. Such Party has or will obtain all authorizations,
approvals, consents, licenses, Permits and certificates (including, but
not limited to all required approvals from the FCC) necessary to perform
its respective obligations under this Agreement and to own, lease and
operate its properties as currently or anticipated to be conducted, owned,
leased or operated, as the case may be, for which the failure to possess
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would result in a Material Adverse Effect. No violations are outstanding or
uncured with respect to any such Permits and no proceeding is pending to revoke
or limit any Permit.
14.1.6 Title to Assets, Properties and Rights and Related Matters.
Except as set forth in Section 6.2.1, 11.2 and 11.3 and on Schedule G,
such Party has and will continue to have for the term of this Agreement
good and marketable title to all the properties, interests in properties
and assets, real, personal or mixed, necessary for the conduct of such
Party's business and for the transactions contemplated by this Agreement
(including, but not limited to, any rights of way, leasehold interests,
easements, proofs of dedication and rights necessary to ensure vehicular
and pedestrian ingress and egress to and from any such properties or
assets), free and clear of all Encumbrances of any kind or character,
except (i) liens for current taxes not yet due and payable, (ii)
Encumbrances securing taxes, assessments, governmental charges or levies
or the Encumbrances of materialmen, carriers, landlords and like persons,
all of which are not yet due and payable and (iii) minor Encumbrances of a
character that do not substantially impair the assets or properties of
such Party or which will not have a Material Adverse Effect on such Party.
The LLC will cause Incumbent to use best efforts to keep in full force and
effect any leases of or affecting the Facilities and will cause Incumbent
to use best efforts to renew or enter into new leases for the Facilities
as necessary to ensure that Incumbent has sufficient right, title and
interest in and to the Facilities throughout the term of this Agreement
and to permit the LLC and Pathnet to perform their respective obligations
and rights hereunder.
14.1.7 Labor Matters. Such Party has complied in all material
respects with all applicable Federal, state and local laws and ordinances
relating to the employment of labor, including the provisions thereof
relating to wages, hours, employee benefit plans and the payment of social
security taxes, and is not liable for any arrears of wages or any tax
related thereto (except for currently accrued and unpaid wages and except
for currently accrued withholding, payroll, unemployment and social
security taxes payment of which is not overdue) or penalties for failure
to comply with any of the foregoing, and neither has received a notice to
the contrary from any Governmental Authority. Such Party has not suffered
any strike, slowdown, picketing or work stoppage by any union or other
group or employees affecting the business of such Party, and no such event
or action is threatened.
14.1.8 Contract or Restriction. Such Party is not a Party to or
bound by any contract or agreement nor is subject to any corporate
restrictions that could materially and adversely affect the business,
properties or condition, financial or otherwise, of such Party (other than
adverse effects resulting from vendor creditors exercising their rights
against collateral pledged by such Party pursuant to applicable vendor
credit documents) or adversely affect or call into question the power or
authority of such Party to enter into or perform this Agreement or any of
the agreements or instruments executed by such Party in connection
herewith, or that otherwise adversely affect or call into question the
validity or enforceability of this Agreement or any of the agreements or
instruments executed by such Party in connection herewith.
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14.1.9 Litigation. There are no pending or, to the best of each
Party's knowledge, threatened actions or proceedings before any court,
arbitrator or governmental or administrative body or agency that could in
any way adversely affect or call into question the power or authority of
such Party to enter into or perform this Agreement or any of the
agreements or instruments executed in connection herewith, or that in any
way adversely affect or call into question the validity or enforceability
of this Agreement or any of the agreements or instruments executed in
connection herewith.
14.1.10 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER
PATHNET NOR THE LLC MAKES ANY OTHER EXPRESS WARRANTY AND THERE ARE NO
IMPLIED WARRANTIES WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS
OR OTHER SUBJECT MATTER OF THIS AGREEMENT. PATHNET AND THE LLC HEREBY
DISCLAIM THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
14.2 Representations and Warranties of Pathnet.
14.2.1 Hazardous Materials. Pathnet represents and warrants that (i)
Pathnet is and shall remain in compliance with any and all Federal, state
or local permits in regard to Hazardous Materials, (ii) Pathnet shall
report to applicable Governmental Authorities any release of reportable
quantities of Hazardous Materials as mandated by Section 103 (a) of CERCLA
and (iii) Pathnet will, within five (5) Business Days of receipt, send to
the LLC a copy of any notice, order, inspection report or other document
issued by any government authorities relating to Pathnet's status with
environmental or health and safety laws.
14.2.2 Services. Pathnet warrants (i) that the Services will be
performed in a workmanlike manner and (ii) that it has or will obtain
agreements or arrangements with its employees, agents and Subcontractors
sufficient to allow it to provide the LLC with the Services.
SECTION 15. INDEMNIFICATION AS A RESULT OF THIRD PARTY CLAIMS.
15.1 Indemnification by the LLC. The LLC agrees to indemnify, defend and
hold harmless Pathnet and its Affiliates and their respective officers,
directors, employees, agents, successors and assigns from and against any and
all Losses and threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) any claims of infringement of any patent, trade secret,
copyright or other proprietary rights alleged to have occurred in
connection with systems or other resources provided by Pathnet to the LLC
and arising out of the actions of the LLC, its employees, officers or
agents.
(b) any claims arising out of the untruth, inaccuracy or breach of
any representation or warranty of the LLC set forth in this Agreement.
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(c) subject to Section 16.2 (d) below, the liability of Pathnet for
(i) any personal injury, disease or death of any person, (ii) damage to or
loss of any property, money damages or specific performance owed to any
third party (by contract or operation of law) or (iii) any fines,
penalties, taxes, claims, demands, charges, actions, causes of action,
assessments, environmental response costs, environmental penalties,
injunctive obligations any of which items (i), (ii) or (iii) are caused
by, arise out of, or are in any way incidental to, or are connected with,
actions or omissions of the LLC, its employees, officers or agents.
15.2 Indemnification by Pathnet. Pathnet agrees to indemnify, defend and
hold harmless the LLC and its Affiliates and their respective officers,
directors, employees, agents, successors and assigns from and against any and
all Losses and threatened Losses arising from, in connection with, or based on
allegations of, any of the following:
(a) any claims of infringement of any patent, trade secret,
copyright or other proprietary rights alleged to have occurred in
connection with systems or other resources provided by Pathnet to the LLC
either as a contribution to the LLC, pursuant to this Agreement or the
Pathnet Sublicense Agreement, dated as of the date hereof, or otherwise
and arising out of the actions of Pathnet.
(b) any claims arising out of the untruth, inaccuracy or breach of
any representation or warranty of Pathnet set forth in this Agreement.
(c) the liability of the LLC for (i) any personal injury, disease or
death of any person, (ii) damage to or loss of any property, money damages
or specific performance owed to any third party (by contract or operation
of law) or (iii) any fines, penalties, taxes, assessments, environmental
response costs, environmental penalties or injunctive obligations any of
which items (i), (ii) or (iii) are caused by, arise out of, or are in any
way incidental to, or are connected with, actions or omissions of Pathnet,
its employees, officers, directors or agents.
(d) the liability of the LLC to Pathnet's customers arising out of
any or all obligations to or contracts with customers or Pathnet to
purchase Pathnet Excess Capacity for alleged loss of profits or revenue by
said customers (or the customers of said customers) resulting from a loss
of service over the System.
15.3 Indemnification Procedures. With respect to any third party claims,
the following procedures shall apply:
(a) Notice. Promptly after receipt by an entity entitled to
indemnification under Section 15.1 or Section 15.2 of notice of the
commencement or threatened commencement of any civil, criminal,
administrative or investigative action or proceeding involving a claim in
respect of which the indemnitee will seek indemnification pursuant to any
such section, the indemnitee shall notify the indemnitor of such claim in
writing. No failure to so notify an indemnitor shall relieve it of its
obligations under this Agreement except to the extent that it can
demonstrate damages attributable to such failure. Within fifteen (15) days
following
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receipt of written notice from the indemnitee relating to any claim, bill
no later than ten (10) days before the date on which any response to a
complaint or summons is due, the indenmitor shall notify the indemnitee in
writing if the indenmitor elects to assume control of the defense and
settlement of that claim (a "Notice of Election").
(b) Procedure Following Notice of Election. If the indemnitor
delivers a Notice of Election relating to any claim within the required
notice period, the indemnitor shall be entitled to have sole control over
the defense and settlement of such claim; provided that, (i) the
indemnitee shall be entitled to participate in the defense of such claim
and to employ counsel at its own expense to assist in the handling of such
claim, and (ii) the indemnitor shall provide prior written notice to the
indemnitee before entering into any settlement of such claim or ceasing to
defend against such claim. After the indemnitor has delivered a Notice of
Election relating to any claim in accordance with the subsection (a)
above, the indemnitor shall not be liable to the indemnitee for any legal
expenses incurred by the indemnitee in connection with the defense of that
claim. In addition, the indemnitor shall not be required to indemnify the
indemnitee for any amount paid or payable by the indemnitee in the
settlement of any claim for which the indemnitor has delivered a timely
Notice of Election, if such amount was agreed to without the written
consent of the indemnitor.
(c) Procedure Where No Notice of Election Is Delivered. If the
indemnitor does not deliver a Notice of Election relating to any claim
within the required notice period, the indemnitee shall have the right to
defend or settle the claim in such manner as it may deem appropriate, at
the cost and expense of the indemnitor. The indemnitor shall promptly
reimburse the indemnitee for all such costs and expenses.
15.4 Subrogation. In the event that an indemnitor shall be obligated to
indemnify an indemnitee pursuant to Section 15.1 or Section 15.2, the indemnitor
shall, upon payment of such indemnity in full, be subrogated to all rights of
the indemnitee with respect to the claims to which such indemnification relates.
SECTION 16. LIABILITY OF THE PARTIES TO EACH OTHER.
16.1 Liability Generally. Subject to the specific provisions of this
Section 16, it is the intent of the Parties that each Party shall be liable to
the other Party for any actual damages incurred by the Non-Breaching Party as a
result of the Breaching Party's failure to perform its obligations in the manner
required by this Agreement and failure to cure such nonperformance as set forth
in Section 17.1.1.
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16.2 Liability Restrictions.
(a) SUBJECT TO SUBSECTION (b) BELOW, IN NO EVENT, WHETHER IN
CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT
LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR
INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) The limitations set forth in subsection 16.2 shall not apply
with respect to damages occasioned by a violation of Section 13 of this
Agreement.
(c) Each Party shall have a duty to mitigate damages for which the
other Party is responsible.
(d) Each Party shall be liable to the other Party for any actual
damages as set forth in Section 16.1 only if, and to the extent that the
aggregate of all losses arising from or in connection with any failure to
perform obligations in the manner required by this Agreement exceeds ten
thousand dollars ($10,000.00), except with respect to any payment
obligations set forth in Section 5.
16.3 Force Majeure. No Party shall be liable for any breach, default or
delay in the performance of its obligations under this Agreement (i) if and to
the extent such default or delay is caused, directly or indirectly, by: fire,
flood, earthquake, elements of nature or acts of God, riots, civil disorders,
rebellions or revolutions in any country, changes in Requirements of Law
relating to the System or to the sale of Excess Capacity, or any other cause
beyond the reasonable control of such Party (a "Force Majeure Event"), (ii)
provided the non-performing Party is without fault in causing such breach,
default or delay, and such breach, default or delay could not have been
prevented by reasonable precautions and cannot reasonably be circumvented by the
non-performing Party through the use of alternate sources, work around plans or
other means.
SECTION 17. INFORMAL DISPUTE RESOLUTION; ARBITRATION.
17.1 Informal Dispute Resolution.
17.1.1 Notice of Breach, Cure and Remedies. In the event of a
material breach by either Pathnet or the LLC (the "Breaching Party") the
other Party (the "Non-Breaching Party") shall send by certified mail a
written notice of such material breach to the Breaching Party setting
forth the specific allegations of such breach. Upon receipt of the notice
of breach, the Breaching Party shall have thirty (30) days to cure such
breach. In the event the Breaching Party fails to cure such breach, as
determined by the Non-Breaching Party in its sole discretion, or the
Breaching Party determines, in its sole discretion, that it has cured such
breach, either the Breaching Party or the Non-Breaching Party may invoke
the settlement procedures set forth in Section 17 to resolve whether such
breach has been cured.
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17.1.2 Role of Program Manager. In the event the LLC has a dispute,
controversy or other complaint relating to Pathnet's performance of
Pathnet's rights and obligations under this Agreement, the LLC shall have
the right to first contact the Program Manager to resolve such dispute,
controversy or other complaint. If the LLC is not satisfied with the
resolution provided by the Program Manager, the LLC may resort to the
arbitration procedures set forth in this Section 17.
17.1.3 Resolution of Disputes. Any and all disputes and
controversies between the LLC and Pathnet concerning the negotiation,
interpretation, performance, breach or termination of this Agreement (each
a "Dispute") shall be subject to resolution as set forth in this Section
17.
17.1.4 Settlement Discussions. Any Dispute shall be attempted to be
resolved first through amicable settlement discussions and each Party
shall bear its own costs and attorney's fees of such settlement
discussions. Each Party hereby agrees to use good faith efforts to reach a
settlement through such amicable settlement discussions, provided,
however, that, nothing herein shall prevent a Non-Breaching Party from
immediately exercising any and all rights such Party may have, other than
submission of such Dispute to arbitration or institution of legal
proceedings, either of which remedies may only be invoked pursuant to the
terms hereof and after failure of the settlement discussions required
hereby.
17.1.5 Referral to Binding Arbitration or Litigation. In the event
the Parties fail to reach a settlement of the Dispute pursuant to
settlement discussions in accordance with Section 17.1.4, each Party (the
"Complaining Party") shall have the right, to file suit in a court of
competent jurisdiction in a neutral forum or upon mutual consent of the
parties, to refer such Dispute for final resolution by binding arbitration
in accordance with the rules of the American Association of Arbitration
(the "AAA"); provided, however, that the non-Complaining Party shall only
have the right to institute suit regarding the Dispute in a court of
competent jurisdiction prior to the commencement of the initial
arbitration hearing, and upon filing such suit, the arbitration
proceedings shall be deemed terminated.
17.1.6 Binding Effect. The Parties acknowledge and agree that (i)
the award in any arbitration shall be final, conclusive and binding on the
Parties and (ii) any such arbitration award be a final resolution of the
Dispute between the Parties to the same extent as a final judgment of a
court of competent jurisdiction.
17.1.7 Arbitration Process.
(A) Notice. To commence the arbitration process, the
Complaining Party shall deliver to the other Party a written notice
in accordance with the AAA rules.
(B) Site and Arbitration Tribunal. Absent agreement to the
contrary by the Parties, the arbitration will be conducted in
Washington, D.C., by a panel of three (3) arbitrators with expertise
in the fields of telecommunications engineering and construction,
provided, however, in the case of particular witnesses not subject
to
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subpoena at the designated hearing site, hearings may be held at any
place designated by the arbitrators where such witnesses can be
compelled to attend, and, with the consent of the Parties, before a
single member of the arbitration tribunal. Within thirty (30) days
after the deliverance of the notice of arbitration, each Party must
select one (1) arbitrator and a third arbitrator will be selected by
agreement of the two (2) arbitrators selected by the Parties. If
either Party fails to select an arbitrator or there is no agreement
on the selection of the third arbitrator, AAA will select such
arbitrators.
(C) Transcripts and Evidence. Both Parties shall cause a
written transcript of all proceedings and testimony to be kept and
the cost of such transcript shall be borne equally by the Parties
pending the final award. All documents that either Party proposes to
offer in evidence, except for those objected to by the other Party,
shall be deemed to be self-authenticating.
(D) Applicable Law. The arbitrators shall determine the claims
and defenses of the Parties and render their final award in
accordance with the governing law of this Agreement as set forth in
Section 18.5. Notwithstanding anything set forth in the Arbitration
Rules to the contrary, the provisions of this Section 17 shall
govern any arbitration proceeding brought in relation to this
Agreement or the transactions contemplated thereby.
(E) Sanctions. The Parties acknowledge that, in addition to
any other remedy allowed or specified in or under the AAA rules, the
failure of a Party to comply with any interim, partial or
interlocutory order, after due notice and opportunity to cure such
non-compliance, may be treated by the arbitrators as a default and
all or some of the claims or defenses of the defaulting Party may be
stricken and partial or final award entered against such Party, as
determined by the arbitrators in their sole discretion.
(F) Limitation on Awards. Arbitrators may not award (i)
incidental, consequential or punitive damages in the resolutions of
any Dispute and the Parties hereby waive all rights to and claims
for monetary awards other than compensatory damages, (ii) any other
right or remedy that contravenes the terms and conditions of this
Agreement, or (iii) except as provided in Section 3.2, termination
of this Agreement.
(G) Period of Limitations. In the event the Party claiming a
Dispute does not either file suit or institute binding arbitration
within four (4) years after the commencement of settlement
discussions pursuant to Section 17.1.4, such Party shall forever be
barred from bringing a claim on the specific subject matter of such
Dispute.
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(H) Arbitration Award. Any arbitration award must be in
writing and must contain findings of fact and conclusions of law
upon which the arbitrators relied in making the decision relating to
such award.
(I) Attorney's Fees. The arbitrators shall award the
reasonable cost, including attorneys' fees, to the prevailing Party.
SECTION 18. MISCELLANEOUS.
18.1 Notices. All notices pertaining to disputes arising from this
Agreement shall be directed to a corporate entity or employee designated by the
signatories as having full rights and responsibilities to address such issues.
Notices under this Agreement shall be sufficient only if personally delivered by
a commercial prepaid delivery or courier service or mailed by Certified or
registered mail, return receipt requested to a Party at its address set forth
below or as amended by notice pursuant to this Section 18.1 If not received
sooner, notice by mail shall be deemed received five (5) Business Days after
deposit in the U.S. mail. All notices shall be delivered as follows:
If to Pathnet:
Michael A. Lubin, Esquire
Vice President and General Counsel
Pathnet, Inc.
1015 3lst Street, NW
Washington, D.C. 20007
Tel:202.625.7284
Fax:202.625.7369
If to the LLC:
Dave Angell
Pathnet/Idaho Power Equipment, LLC
c/o Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, ID 83702-5627
Tel:208.388.2701
Fax:208.388.6902
18.2 Binding Nature: Entire Agreement. Pathnet and the LLC acknowledge
that (i) each has read and understands the terms and conditions of this
Agreement and agrees to be bound by such terms and conditions, (ii) this
Agreement shall be binding on each of Pathnet and the LLC and their respective
successors and assigns, (iii) this Agreement together with any agreements or
documents executed in connection and contemporaneously herewith is the complete
and conclusive statement of the agreement between the Parties, (iv) this
Agreement together with any agreements or documents executed in connection and
contemporaneously herewith supersedes any and all prior agreements and
arrangements between the Parties and all understandings and agreements, oral and
written, heretofore made between the LLC and Pathnet are merged in this
Agreement which together
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with any agreements or documents executed in connection and contemporaneously
herewith, fully and completely expresses their agreement on the subject matter
of this Agreement and (v) this Agreement together with any agreements or
documents executed in connection and contemporaneously herewith sets forth the
entire agreement on the subject matter hereof.
18.3 Amendment. No modifications of, additions to or waiver of this
Agreement shall be binding upon the LLC or Pathnet unless such modification,
addition or waiver is in writing and signed by an authorized representative of
each Party.
18.4 Severability. If any provision, sentence, phrase or word of this
Agreement or the application thereof to any Person or circumstance shall be held
invalid, the remainder of this Agreement, or the application of such provision,
sentence, phrase or word to Persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
18.5 Governing Law. This Agreement, and the rights and obligations of the
Parties hereunder, shall be governed and interpreted in accordance with the laws
of the State of Idaho (other than the choice of law rules thereof).
18.6 Survival. Any provision of this Agreement which contemplates
performance or observance subsequent to any termination or expiration of this
Agreement shall survive such termination or expiration and continue in full
force and effect.
18.7 Assignment. At any time and from time to time, Pathnet shall have the
right to assign this Agreement or any of Pathnet's rights and obligations under
this Agreement to an assignee, which assignee shall be bound by the terms and
conditions of this Agreement; provided, that in no event shall any such
assignment relieve Pathnet of its obligations under this Agreement. The LLC may
not or shall not have the right to assign this Agreement or any of its rights
and obligations hereunder without the prior written consent of Pathnet, which
consent shall not be unreasonably withheld; provided, however, the LLC may
assign its right and obligations, in whole but not in part, under this Agreement
without the approval of Pathnet, to any entity which acquires all or
substantially all of the assets of the LLC or to any subsidiary, Affiliate or
successor in a merger or consolidation of the LLC; provided, that in no event
shall any such assignment relieve the LLC of its obligations under this
Agreement.
18.8 Waiver. Failure or delay on the part of the LLC or Pathnet to
exercise any right, power or privilege under this Agreement shall not constitute
a waiver of any right power or privilege of this Agreement.
18.9 Recordation. Each Party hereby acknowledges that this Agreement may
be subject to recordation and the costs, fees or expenses associated with any
such recordation shall be borne by the recording Party.
18.10 Good Faith Renegotiation. Notwithstanding anything set forth herein
to the contrary, the Parties hereby agree that in the event a Governmental
Authority issues a decision, order, rule or other rulemaking of any kind, which
necessitates any modification or amendment to this
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Agreement, the Parties shall negotiate in good faith to modify or amend this
Agreement to comply with such decision, order, rule or other rulemaking.
18.11 Confidential Terms and Conditions. The LLC shall not disclose,
except as required by law or as set forth in Section 18.9, the terms and
conditions of this Agreement to any third party.
18.12 LLC's Designated Representative. The LLC shall on the Effective Date
designate in writing a representative who shall have express authority to bind
the LLC with respect to all matters requiring the LLC's approval or
authorization in connection with this Agreement (the "LLC Representative"). Such
LLC Representative shall have the authority to make decisions and grant any and
all consents required under this Agreement on behalf of the LLC and Pathnet
shall be entitled to rely on any such decision or consent by the LLC
Representative.
18.13 Outsourcing. In addition to, and not in place of, any rights of
Pathnet under this Agreement, Pathnet shall have the right to engage third party
Subcontractors to perform any or all of Pathnet's rights and obligations under
this Agreement, subject to the LLC's prior approval, which approval shall not be
unreasonably withheld; provided that such approval shall not be required for
third-party operation of the Network Monitoring Center.
18.14 Schedule B. In the event the Parties mutually agree to include any
additional or alternative sites in the development of the System, as set forth
herein, such additional or alternative sites shall be amended on Schedule B and
shall be deemed included in Schedule B for all purposes herein.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, as of
the date first written above.
PATHNET, INC.
By: /s/ Dave Schaeffer
-------------------------
Name: Dave Schaeffer
-------------------------
Title: Chairman
-------------------------
PATHNET/IDAHO POWER EQUIPMENT, LLC
By: /s/ Kip W. Runyan
-------------------------
Name: Kip W. Runyan
-------------------------
Title: President
-------------------------
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FIXED POINT MICROWAVE SERVICES AGREEMENT
SCHEDULES
INDEX OF SCHEDULES AND EXHIBITS TO
FIXED POINT MICROWAVE SERVICES AGREEMENT
SCHEDULE A: Services and System Specifications
Exhibit A-1: System Equipment and Scope of Work
Exhibit A-2: Manufacturers Specifications for Radios
Exhibit A-3: Electricity and Power Specifications of the System
Exhibit A-4: Initial DS-1 Requirements
Exhibit A-5: Equipment Shelters Specification and Design
Exhibit A-6: Grounding and Lightning Protection Guidelines and
Specifications for Communications Shelters
Exhibit A-7: Network Interconnections Schedule
Exhibit A-8: Pathnet Spurs and LLC Spurs
Exhibit A-9: Form of Certificate of Acceptance
Exhibit A-10: Scope of Work
SCHEDULE B: The System
SCHEDULE C: Estimated and Operating Costs
Exhibit C-1: LLC Estimated Costs Detail
Exhibit C-2: Pathnet Estimated Costs Detail
SCHEDULE D: Incumbent Training
SCHEDULE E: Ownership of System Equipment Assets and Materials
SCHEDULE F: Form of Pathnet Sublicense Agreement
SCHEDULE G: Facility Encumbrances
SCHEDULE H: Form of Pledge Agreement Pledge Agreement
SCHEDULE I: Form of Incumbent Security Agreement
SCHEDULE J: Form of Pathnet IRU Agreement
SCHEDULE K: Form of Spectrum License Agreement
SCHEDULE L: Form of Maintenance and Provisioning Services Agreement
SCHEDULE A
SERVICES AND SYSTEM SPECIFICATIONS
This Schedule A describes certain services and specifications that Pathnet
and LLC shall perform. Pathnet's and LLC's responsibilities with respect to
particular services and specifications described in this Schedule A, if any, are
specifically indicated where such services and specifications are described.
Pathnet and LLC's payment responsibilities with respect to the Services and
Specifications shall be as set forth in Section 5 of the FPM Agreement and
Schedule C.
SECTION 1. PRELIMINARY ENGINEERING STUDIES AND EVALUATION OF EXISTING SYSTEM.
1.1 Preliminary Analysis. Pathnet shall complete a detailed analysis of
the existing microwave system operated by Incumbent along each Segment set forth
in Schedule B and each Amended Schedule B and upon completion of such analysis
shall deliver the results of such analysis to Incumbent and LLC. Such analysis
shall include, but not be limited to:
(a) an inventory and survey of Incumbent's existing microwave sites
and supporting facilities (the "Existing System Inventory");
(b) microwave path studies and reliability analysis to provide
performance data to serve as the engineering basis for the design of the
System (the "Path Studies");
(c) a preliminary evaluation of the probability of successfully
coordinating frequencies on the System (the "Frequency Availability
Model");
(d) a determination of whether structural analysis of towers and
loading factors (for metal towers only) is required and, in the event such
structural analysis is required, the analysis of Incumbent's towers,
including, but not limited to, the wind loading and weight requirements
for the proposed antenna systems as well as any feedlines necessary to
support the such antenna systems (the "Tower Analysis");
(e) the design of the System (the "System Design") which System
Design conforms with the terms and conditions of Section 3 of this
Schedule A;
(f) a detailed line item budget for the System (the "System
Budget");
(g) a proposed T-1 plan for channelization of the System the
("Channel Plan"); and
(h) a preliminary construction management schedule for each
replacement
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Segment (the "Preliminary Construction Schedule").
1.2 Cooperation of LLC with Preliminary Analysis. LLC shall or shall cause
Incumbent to cooperate with Pathnet in Pathnet's performance of the preliminary
analysis set forth in Section 1.1 of this Schedule A, including, but not limited
to, providing to Pathnet any requested information and documents relating to
Incumbent, LLC or Incumbent's existing system.
1.3 Project Drawings. Upon completion of the preliminary engineering
studies and analysis and documentation as set forth in Section 1.1 of this
Schedule A, Pathnet shall deliver to LLC the following project drawings: (i) a
System layout drawing, (ii) the rack profiles, (iii) block drawings, and (iv)
equipment wiring drawings (collectively, the "Project Drawings.")
SECTION 2. MODIFICATION TO EXISTING INFRASTRUCTURE.
2.1 Documentation. Upon completion of the preliminary analysis as set
forth in Section 1.1 of this Schedule A, Pathnet shall prepare and deliver to
LLC a project management schedule and scope of work (the "Modifications SOW")
setting forth a detailed plan to complete all required modifications of
Incumbent's existing sites and Facilities necessary for the installation and
operation of the new System in accordance with the terms and conditions of this
Agreement. LLC shall have thirty (30) days to either (i) approve by written
notice to Pathnet such Modifications SOW or (ii) deliver to Pathnet a written
list of LLC's suggested modifications to the Modifications SOW. In the event LLC
delivers to Pathnet its suggested modifications to the Modifications SOW,
Pathnet shall review such suggested modifications and, as mutually agreed with
LLC, incorporate some, all or none of such suggested modifications into the
Modifications SOW, respectively, and shall within thirty (30) days of receipt of
LLC's suggested modifications, deliver a Modifications SOW to LLC. In the event
LLC fails to notify Pathnet in writing of its approval or suggested
modifications of the Modifications SOW within the time period prescribed above,
Pathnet shall assume that LLC has granted such approval and Pathnet shall have
the right to rely upon such approval.
2.2 Modifications Required. Pathnet shall perform all of the modifications
set forth in the Modifications SOW. Such modifications shall include, but not be
limited to, the following:
(a) any required modifications to the towers necessary to conform
the towers to the Specifications;
(b) any required modifications to the battery reserves necessary to
conform the battery reserves to the Specifications and the installation of
any required generators, in accordance with the Specifications;
(c) any required modifications to the environmental control systems
of the existing shelters necessary to conform such environmental control
systems to the
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Specifications;
(d) the provision of all necessary D.C. and A.C. power cable
engineering for all racks, including, but not limited to, the installation
of all necessary conduits required to carry D.C. and A.C. power,
terminating cables and alarm cables and the installation of all necessary
A.C. distribution and A.C. wiring as required to meet the Specifications;
(e) the installation of all required new equipment shelters, or
modification of existing equipment shelters, to conform to the
Specifications;
(f) the installation of all required liquid petroleum, diesel or
natural gas lines from the existing liquid petroleum diesel or natural gas
tank or source, as the case may be, to the new shelter in accordance with
the Specifications;
(g) any required modifications to the foundation of any of the
towers, shelters or sites as set forth in the Tower Analysis;
(h) any upgrades required to conform the sites and Facilities to
local building code provisions and any other regulatory Requirements of
Law, including, but not limited to, those related to health and safety;
(i) the removal of any above or below ground obstructions or
materials such as trees and power lines which may affect the performance
of the System or other activities contemplated by this Agreement;
(j) all required fence extensions and replacements;
(k) any required modifications to the grounding and bonding Systems
at each site to conform to the Specifications;
(l) any required modifications to the pressurizing equipment to
conform to the Specifications, including, but not limited to, the
pressurizing equipment manifolds and dehydrators.
(m) any other miscellaneous site work necessary to prepare
Incumbent's sites for the installation and operation of the new System.
2.3 Cooperation by LLC. LLC shall cooperate with Pathnet and shall provide
Pathnet with all required assistance in completion of such obligations in
Pathnet's performance of its obligations under this Section 2 of this Schedule
A.
2.4 Maintenance of Modifications. LLC shall or shall cause Incumbent to
ensure that all modifications performed pursuant to this Section 2 of this
Schedule A are maintained in accordance with the Specifications, including, but
not limited to, the upgrade or replacement of any equipment and materials
described in the Modifications SOW.
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2.5 Choice of Equipment Vendors and Service Providers.
2.5.1 Engagement. In the event LLC proposes equipment, equipment
vendors or service providers other than as specified in this Schedule A,
(i) Pathnet shall have the right to approve any such equipment, vendors or
service providers, which approval shall not be unreasonably withheld, (ii)
all invoices, purchase orders or other bills relating to such equipment or
services shall be sent to both Pathnet and LLC and (iii) LLC shall not pay
any such invoice, purchase order or bill without the prior approval of
Pathnet, which approval shall not be unreasonably withheld.
2.5.2 Approval. LLC shall have the right to approve any
Subcontractor engaged to perform the Services set forth in this Section 2
of Schedule A.
SECTION 3. DESIGN OF NEW SYSTEM.
3.1 Approval of System Design. Within thirty (30) days after receipt by
LLC of the System Design from Pathnet, LLC shall either (i) deliver to Pathnet
written approval of such System Design or (ii) deliver to Pathnet a written list
of LLC's suggested design modifications. In the event LLC delivers to Pathnet
its suggested design modifications, Pathnet shall review such suggested
modifications and, as mutually agreed upon by the Parties, incorporate some, all
or none of such suggested modifications into the System Design. Pathnet shall,
within thirty (30) days of receipt of LLC's suggested modifications, deliver a
revised System Design to LLC. In the event LLC fails to deliver to Pathnet in
writing its approval or suggested modifications of the System Design, Pathnet
shall assume that LLC has approved such System Design and shall have the right
to rely on such approval. Pathnet shall design the System in a manner that will
allow the unimpaired, continuous operation of LLC's low capacity, 6 GHz/10 MHz
system until all operational circuits are cutover. The Parties acknowledge that
Idaho Power Company may operate the existing low-capacity 6 GHz/10 MHz system
for a period of several years after commissioning the Initial System, provided
such low capacity system shall not adversely impact the operation of the System
in accordance with the Specifications.
3.2 Modification of System Design. At any time and from time to time,
Pathnet, with LLC's approval, shall have the right to modify the System Design
upon written notice to LLC of such modifications, as new versions of equipment
used in the System may become available from manufacturers or software
providers, and as Technology is improved, provided LLC's approval shall not be
required in the event the prior version or generation of Equipment is not
available and new Equipment is required to operate the System in accordance with
the Specifications.
3.3 System Technical Specifications. Pathnet shall (i) design the System
in accordance with the minimum network performance standards set forth in
Section 3 of this Schedule A, (ii) in each instance where reasonably possible,
use the towers, antennas, waveguide, and other system components of LLC's
existing system in the System Design, and
A-5
(iii) design the System to meet the following technical specifications:
(a) Radio System Design. The active radio components of the System
shall be designed to conform to the Specifications and the manufacturer
specifications set forth in Exhibit A-2 to this Schedule A.
(b) Radio Software Design. The software used to operate the radios
shall conform to the Specifications and the manufacturer specifications
set forth in Exhibit A-2 to this Schedule A.
(c) Antenna and Frequency Specifications. The radio communications
equipment shall transmit and receive on the frequencies as set forth in
the System Design. All antenna reflectors used in the System shall conform
to (i) Category A standards as defined by the FCC and (ii) the
specifications set forth in any PCN relating to the System, and each high
performance antenna shall be fitted with a radome. All antenna mounting
hardware shall meet wind and loading requirements for the applicable
county and shall conform to EIA-222-F.
(d) Tower Specifications. All towers shall conform to (i) the
EIA/TIA-222-F-1991, Structural Standards for Steel Antenna Towers and
Antenna Supporting Structures, 1996, (ii) EIA/222-F Specifications for
loading for the appropriate county, and (iii) all applicable FCC and FAA
requirements.
(e) Waveguide Specifications. Waveguide used in the System specified
for transmission line shall be of a premium grade to ensure minimum return
loss and shall be an Andrew part EWP-52, EWP-63, or EWP-90 or equivalent
waveguide.
(f) D.C. Power Requirements. The radio components of the System
shall be powered by 48 volts DC with at least eight (8) hours of battery
capability, and all necessary chargers, distribution systems and transfer
switches for generators as set forth in Exhibit A-3 to this Schedule A.
(g) A.C. Power Requirements. A.C. electrical power required by the
System shall be consistent with local requirements and the usage at each
of the sites set forth in Schedule B or any Amended Schedule B and shall
by 120/240 volt single phase 200 amp service as set forth in Exhibit A-3
to this Schedule A.
(h) Bonding and Grounding Specifications. The System and all
associated electrical components shall be grounded and bonded to current
EIA and IEEE specifications.
(i) Order Wire Specification. Each equipment shelter will be
equipped with an Order Wire and a handset, which shall be used as a talk
circuit for System operation and maintenance purposes and which shall be
carried by Pathnet as part of the System payload.
A-6
(j) Diagnostic Circuit. Each equipment shelter will be equipped with
a diagnostic circuit that will be used to connect each such shelter and
the Equipment housed in such shelter to the Network Management System.
(k) Multiplexing from OC-3 to DS-1 Level. The System Design shall
provide for any required multiplexing of the OC-3 to the DS-1 level at
each site that is equipped with an OC-3 Multiplexer.
(l) Multiplexing from DS-1 to DS-0 Level. Within thirty (30) days
after the date hereof, LLC shall deliver to Pathnet a Schedule
substantially in the form of Exhibit A-4 to this Schedule A setting forth
LLC's multiplexing requirements. Upon receipt of such Exhibit A-4 to this
Schedule A, Pathnet will reflect in the System Design the requested
multiplexing of the DS-1 to the DS-0 level at each site using a 1/0
Multiplexer subject to limitations in Drop and Insert Capacity between
each Switched Mod Section using available Wayside Channels.
(m) Wayside Channels. LLC or Pathnet, as reflected in the System
Design, shall use the Wayside Channels.
(n) Spectral Loading Requirements. The System shall meet the then
current FCC requirements of spectrum efficiency outlined, 47 C.F.R. 101
and any successor rule or regulation.
(o) Capacity of System. System shall be comprised of, at a minimum,
3 DS-3 capability and will have a 1 x n protection switch allowing for
upward migration to a maximum of 1 x 7 protection. The capacity of the
System may be expanded by LLC or by Pathnet, upon LLC's request, to a 2 x
14 protection level, using additional spectrum or crossband filters,
provided, such Capacity Expansion does not degrade the System below the
performance standards or Specifications set forth in this Section 3 of
this Schedule A.
(p) SONET Architecture. The digital microwave radios used in the
System shall operate under a SONET format.
(q) Shelters Design. The building layout for each new shelter to be
constructed and the modifications required to the existing shelters, to
the extent applicable and technically feasible at such existing shelters,
shall be as set forth in Exhibit A-5 to this Schedule A and shall comply
with all applicable local laws, regulations and ordinances.
(r) Channel Plan. The System shall be designed such that LLC shall
be allocated capacity as set forth in the Channel Plan and Section 8.2.2.
(s) Interconnections Limitations. The System shall have no more than
four (4) Interconnections per LATA. No more than two (2) of such
Interconnections shall be
A-7
to other segments of the Pathnet network created from facilities of other
Persons and no more than two (2) of such two (2) Interconnections shall be
to the PSTN. At each Interconnection site, there shall be no more than two
(2) additional antennas used solely for such Interconnection purposes.
Interconnections may be by microwave or other media. To the extent Pathnet
develops spurs, Pathnet shall specify the Interconnections at such spurs
on Exhibit A-7 to this Schedule A, as such exhibit shall be amended from
time to time. To the extent LLC or Incumbent develops spurs for its own
connectivity purposes, LLC or Incumbent shall specify the Interconnections
at such spurs on Exhibit A-7 to this Schedule A. For PSTN interconnects at
Boise, Pocatello and Twin Falls, if any, LLC or Incumbent shall provide
Pathnet a route in conduit and/or on distribution poles for the
installation of a fiber optic interconnect. As mutually agreed, Pathnet
and Incumbent shall be responsible for any make-ready charges on the fiber
route and shall pay for the cost of the fiber and associated installation.
Pathnet and Incumbent shall design the fiber optic interconnect routes to
meet the reasonable requirements of each party.
(t) Protection Switching Requirement. Power, radio, and multiplexing
equipment shall be redundant with automatic protection switching to
minimize Outages as a result of equipment failure.
(u) Battery Reserve Specifications. All Equipment at each site shall
have a minimum battery reserve (assuming a 1 x 7 Protection Configuration)
as set forth in Exhibit A-3 to this Schedule A.
(v) Generator Requirements. Generators shall be required at all
sites with a history of power outages and all sites that are difficult to
access as determined by the Parties.
(w) System Integration. The System shall be integrated into the
total Pathnet telecommunications network as set forth in the System
Design.
(x) Transmission Line Requirements. One (1) or more transmission
lines shall be connected to each antenna and such lines will be anchored
firmly to the tower in accordance with the manufacturer's recommendation.
(y) Equipment Rack Specifications. Each equipment rack shall be
firmly anchored to the floor, and the overhead channel iron or the
adjacent racks.
(z) Environmental Control of Shelters. Equipment shelters shall be
environmentally controlled to standards, between 55 degrees Fahrenheit and
80 degrees Fahrenheit and shall be maintained within the desired humidity
range, as set forth in the manufacturer's specifications in Exhibit A-2 to
this Schedule A.
(aa) Spurs. The System shall be designed to allow the build-out of
spurs set forth on Exhibit A-8 to this Schedule A and Incumbent's existing
spurs as provided prior
A-8
to completion of System Design from the backbone network for Pathnet's and
LLC's own network and internal communications purposes.
(bb) Network Management System. The System Design shall include the
Network Management System that complies with the specifications set forth
in Section 7.6 of this Schedule A.
(cc) Fuel Tanks and Lines. All liquid petroleum, diesel and natural
gas tanks and lines required shall meet all applicable environmental and
health and safety standards and Requirements of Law.
(dd) Pressurizing Equipment. The System Design shall include all
required pressurizing equipment, manifolds, dehydrators or nitrogen tanks.
(ee) Availability. The System shall be designed to meet or exceed
the long haul objective of 99.98% availability on an annual basis for a
4,000 mile system, which is equivalent to a one way system Outage of less
than 0.4 seconds, per mile, per year.
(ff) Circuit Acceptance Level. The System shall be designed such
that any continuous five hundred (500) mile segment of the System during
any consecutive twenty-four hour period shall have no more than one (1)
Errored Second, shall have at least 99.9988% Error Free Seconds and shall
have no Severely Errored Seconds, measured at the DS-1 level.
SECTION 4. INSTALLATION AND CONSTRUCTION.
4.1 Documentation.
4.1.1 Project Management Plan, Project Schedule and Commissioning
Plan. Within thirty (30) days after approval by LLC of the System Design
pursuant to Section 3.1 of this Schedule A. Pathnet shall deliver to LLC
(i) a detailed plan of the respective responsibilities of each Party and
other related items relating to the construction and installation of the
System (the "Project Management Plan"), (ii) a detailed schedule for the
installation of the System (the "Project Schedule"), and (iii) a detailed
schedule for the cutover of the System (the "Cutover Plan"). LLC shall
have fifteen (15) days to either (i) approve by written notice to Pathnet
such Project Management Plan, Project Schedule and Commissioning Plan or
(ii) deliver to Pathnet a written list of LLC's suggested modifications to
such Project Management Plan, Project Schedule and Commissioning Plan, as
the case may be. In the event LLC delivers to Pathnet its suggested
modifications to the Project Management Plan, Project Schedule or
Commissioning Plan, Pathnet shall review such suggested modifications and,
as mutually agreed, incorporate any of such suggested modifications into
the Project Management Plan, Project Schedule and Commissioning Plan,
respectively, and shall within fifteen (15) days of receipt of LLC's
suggested modifications, deliver a revised Project
A-9
Management Plan, Project Schedule or Commissioning Plan, as the case may
be, to LLC. In the event LLC fails to notify Pathnet in writing of its
approval or suggested modifications of the Project Management Plan,
Project Schedule and Commissioning Plan within the time period prescribed
above, Pathnet shall assume that LLC has granted such approval and Pathnet
shall have the right to rely upon such approval.
4.1.2 Installation Reports. After installation has begun and
continuing until Commissioning, Pathnet shall provide to LLC a bi-weekly
progress report (each a "Progress Report") setting forth, (i) a
description of the work performed during the immediately preceding period,
(ii) a list of any material deviations from the proposed schedule of work,
and (iii) an analysis of such deviations with respect to their impact upon
the timely deployment of the System.
4.1.3 Changes to Drawings. In the event that during the process of
Installation any of the Project Drawings delivered pursuant to Section 1.3
of this Schedule A require any modifications, Pathnet shall make any such
modifications to such Project Drawings shall deliver the revised Project
Drawings to LLC, and shall place a copy of such revised Project Drawings
at each site.
4.1.4 As-Built Drawings. Upon completion of each phase of
installation as set forth in the Project Schedule, Pathnet shall deliver
to LLC, in hard copy and (if available) soft copy) an as-built drawing of
the System (each an "As-Built Drawing") and shall incorporate the final
As-Built Drawing into the appropriate equipment manuals.
4.2 Installation by Pathnet. Pathnet shall construct and install the
System as set forth below and in accordance with this Schedule A and the
documents and schedules prepared and delivered pursuant to this Schedule A.
(a) Radios. Pathnet shall furnish and install the digital radios
that meet the Specifications.
(b) Antennas and Frequencies. Pathnet shall furnish and install (i)
the antennas that meet the Specifications and (ii) any required antenna
mounting hardware to secure such antennas to the towers in accordance with
the Specifications.
(c) Waveguide Bridge and Supports. Pathnet shall furnish and install
(i) waveguides that meet the Specifications, (ii) new waveguide bridges on
two faces of the existing towers and (iii) all additional supports
required of the waveguide from the tower to termination inside the
shelter.
(d) Bonding and Grounding. Pathnet shall furnish and install all
required ground kits in accordance with the Specifications, including, but
not limited to, waveguide ground kits at the antenna, the bottom of the
tower and at the entry port of the shelter, tower anchor grounding kits,
and ground wire rings for the shelters.
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(e) Moving Company. During installation of the System, Pathnet, or a
full service moving and warehousing company hired by Pathnet, shall handle
the pick up of necessary equipment for temporary warehousing in all
required areas at and near the installation sites.
(f) Order Wire. Pathnet shall furnish and install an Order Wire at
each site in accordance with the Specifications and shall establish Order
Wire connectivity, including, but not limited to, connectivity to all
necessary external interfaces.
(g) OC-3 Multiplexers. Pathnet shall furnish and install all
required OC-3 Multiplexers to the DS-1 level as set forth in Section 3 of
this Schedule A.
(h) Channel Plan. Pathnet shall perform cross-connects of T-1 lines
in accordance with the Channel Plan and the Specifications.
(i) Interconnection Placement Pathnet shall furnish and install
connecting facilities from the System to the PSTN, including but not
limited to connections to POP's of purchasers of Excess Capacity and
Pathnet shall furnish and install all cables required to interconnect
project equipment within the System.
(j) Transmission Lines. Pathnet shall (i) furnish and install all
required transmission lines on the towers, (ii) route such transmission
lines to the equipment racks in the shelters, (iii) connect both ends of
such transmission lines, and (iv) interface such transmission lines to the
radio equipment in accordance with the Specifications.
(k) Equipment Racks. Pathnet shall furnish and install all equipment
racks necessary for the Equipment installed by Pathnet in accordance with
the Specifications.
(l) Network Management System. Pathnet shall furnish and install the
Network Management System, including, but not limited to, all required
alarms, panels, terminals, software and cables at all appropriate
demarcation points in accordance with the Specifications.
(m) Spurs. Pathnet shall furnish and install all of the necessary
equipment to build-out Pathnet's spurs and, at LLC's expense and upon
reasonable request, LLC's spurs, each as set forth in Exhibit A-8 to this
Schedule A in accordance with the Specifications.
(n) Deconstruction of Existing System. As required at each site,
Pathnet shall move LLC's existing system to one side, as agreed upon by
LLC, providing space for permanent installation of the new System;
provided Incumbent or LLC shall decommission any tower not used at any
Facility.
(o) Pre-Commissioning System. Pathnet shall install an "initial"
digital System in such a way that it can be operated and tested without
interfering with LLC's
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existing system performance.
(p) Parallel Systems. In order to minimize system downtime, Pathnet
shall parallel the Incumbent's existing analog system with the digital
equipment using new frequencies and antenna configurations.
4.3 Cooperation During Installation. During installation, LLC shall and
shall cause Incumbent to provide all necessary cooperation to Pathnet,
including, but not limited to, posting at each site any Permits or licenses for
building or tower work related to the construction at such site and providing
reasonable access to its Facilities as set forth in Section 5.
4.4 Installation by LLC. LLC shall furnish and install all required
equipment and materials at each point of demarkation to meet LLC's or
Incumbent's internal communication needs, including, but not limited to,
furnishing and installing all 1/0 Multiplexers as set forth in Section 3 of this
Schedule A and all other interconnection equipment relating to LLC's spurs set
forth in Exhibit A-8 to this Schedule A.
SECTION 5. PRE-COMMISSIONING TESTING.
5.1 Factory Acceptance Test.
5.1.1 Tests to be Performed. Pathnet shall coordinate all factory
acceptance testing on the Equipment. Such factory acceptance testing shall
include, but not be limited to, (i) linking together of all racks in each
Switched Mod Section to simulate the System as it will be configured in
the field, (ii) testing at the panel terminal and System level for
certification and compliance with the Specifications, (iii) connecting the
radio bays by coaxial cables through attenuators to simulate "RSL"
conditions as encountered in the field, (iv) testing on a path basis to
the applicable configuration of the System, (v) testing of all
miscellaneous Equipment such as supervisory fault alarm and control and
service channel units, and (vi) testing the equipment as a System to
resolve all interface problems.
5.1.2 Observing Factory Testing. The members of LLC shall have the
right, at their own expense, to witness in person the factory testing of
the Equipment.
5.2 Rack Test. Pathnet shall perform a rack test once the radio cabinet
has been installed.
5.3 Path Test. Pathnet shall perform a path test after each site has been
turned up.
5.4 End-To-End Test. Pathnet shall perform an end-to-end test for each
Switched Mod Section on the System once all sites have been turned up.
5.5 Field Test. Once the Equipment is installed and operational, Pathnet
shall test
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each path pursuant to the following field tests to ensure performance of the
tile Equipment over the designated path in accordance with the criteria and
standards set forth in this Schedule A.
(a) Radio Hop Test: Pathnet shall (i) align all digital microwave
paths, (ii) measure and record transmitter frequency, (iii) measure and
record transmitter power, (iv) measure and record receiver fade margin,
(iv) perform Bit Error Rate checks and (v) record results of such Bit
Error Rate checks.
(b) Digital Multiplex Test: Pathnet shall (i) perform standard
loop-back tests and (ii) verify the performance of all local alarm points
to the DS-1 level.
(c) System Test: Pathnet shall (i) perform an end-to-end Bit Error
Rate test of the Non-Protect Radio for a 24-hour period and an end-to-end
Bit Error Rate test of the Protect Radio for a 24-hour period, (ii) verify
equipped channel units through microwave system, (iii) verify performance
of Order Wires and Wayside Channels, and (iv) verify performance of the
alarm points function throughout the System.
5.6 Site Acceptance Testing. Pathnet, with LLC's assistance, shall perform
all site acceptance tests as recommended by the manufacturers of the Equipment
and Pathnet shall provide the results of any such site acceptance testing to LLC
promptly after completion of such testing.
5.7 Acceptance Procedure. After completion of site acceptance testing as
set forth in Section 5.6 of this Schedule A, Pathnet shall implement the
following acceptance procedure:
(a) LLC shall promptly perform an installation inspection and
deliver to Pathnet a written list of all material deficiencies from the
Specifications to be corrected by Pathnet (the "Deficiency List").
(b) Pathnet shall promptly correct such material deficiencies on the
Deficiency List and shall, upon completion, certify to LLC that such items
have been corrected.
(c) Pathnet shall submit to LLC all of the test data collected
through the performance of the tests set forth in Section 5 of this
Schedule A for LLC's approval, which approval shall not be unreasonably
withheld.
(d) LLC shall deliver to Pathnet a Certificate of Acceptance
substantially in the form of Exhibit A-9 to this Schedule A.
5.8 Equipment Required for Pre-Commissioning Testing. Pathnet shall
furnish all Pre-Commissioning Test Equipment.
SECTION 6. COMMISSIONING.
A-13
6.1 Commissioning
6.1.1 LLC Responsibilities. LLC, with Pathnet's coordination, shall
(i) manage the cutover process for its allocated channels onto the System
and (ii) perform such cutover in accordance with commercially reasonable
practices and avoid any adverse impact to the operation of the System in
accordance with the performance standards and Specifications hereunder.
6.1.2 LLC Responsibilities. LLC shall cooperate and coordinate its
cutover of its voice and data circuits with Pathnet.
6.2 Station Log Books. Pathnet shall establish station logs books in
accordance with all FCC rules and regulations (each a "Station Log Book") and at
Commissioning shall deliver to LLC an original of each Station Log Book at
Commissioning.
SECTION 7. SYSTEM OPERATION.
7.1 Increases in Capacity. At any time, and from time to time, Pathnet
shall have the right, at its sole discretion, to increase the capacity of the
System beyond the capacity created in the initial build-out up to a 1 x 7
system; provided that Pathnet fulfills the following conditions before
Commissioning any such proposed Capacity Expansion:
(a) Capacity Expansion Schedule. At least forty-five (45) days prior
to any Capacity Expansion, Pathnet shall provide to LLC a capacity
expansion schedule (each, a "Capacity Expansion Schedule") setting forth
the amount of capacity to be included in such Capacity Expansion, the
specific paths to be expanded, the expansion name (including each path
that is affected), and the expected Commissioning of such Capacity
Expansion.
(b) Performance of Capacity Expansion. Prior to the Commissioning of
any Capacity Expansion, (i) Pathnet shall perform all required testing on
such Capacity Expansion to confirm that any such Capacity Expansion will
not degrade the System below the Specifications, (ii) Pathnet shall
provide the results of such testing upon receipt of such test results to
LLC for its review and approval, and (iii) Pathnet shall obtain from LLC a
Certificate of Acceptance substantially in the form attached hereto as
Exhibit A-9 to this Schedule A with respect to such Capacity Expansion.
(c) LLC's Right to Contest Capacity Expansion. In the event, after
receipt of the test results as set forth above, LLC reasonably determines
that a proposed Capacity Expansion will degrade the System below the
Specifications, LLC shall have the right to withhold delivery of any
Certificate of Acceptance with respect to such Capacity Expansion and
shall hire an independent third party approved by Pathnet (which approval
shall not be unreasonably withheld) to perform additional testing on such
Capacity
A-14
Expansion. In the event such independent third party reports that the
proposed Capacity Expansion will not result in the degradation of the
System below the Specifications, LLC shall promptly deliver to Pathnet a
Certificate of Acceptance with respect to such proposed Capacity Expansion
and shall pay for the reasonable costs of such independent third party
evaluation. In the event that such independent third party reports that
the proposed Capacity Expansion will result in the degradation of the
System below the Specifications (i) Pathnet shall make all required
modifications to the System and the proposed Capacity Expansion such that,
in the opinion of such independent third party, the proposed Capacity
Expansion shall not degrade the system below the Specifications, (ii) upon
verification by such independent third party that the proposed Capacity
Expansion, as modified by Pathnet, shall not degrade the System below the
Specifications, LLC shall promptly deliver to Pathnet a Certificate of
Acceptance substantially in the form attached as Exhibit A-8 to this
Schedule A with respect to such Capacity Expansion and (iii) Pathnet shall
pay for the reasonable costs of such independent third party evaluation.
7.2 Maintenance of System. Within thirty (30) days after the Effective
Date, Pathnet, Incumbent and LLC shall execute and deliver the Maintenance
Services Agreement, a form of which is attached in Schedule L. Pathnet shall
have the right to supplement at its own expense at any time, and from time to
time, any maintenance performed on the System including any Capacity Expansion,
as determined by Pathnet in its sole discretion.
7.3 Additional Transmission Lines and Antennas. After Commissioning, if
the System is expanded pursuant to any Capacity Expansion, Pathnet shall have
the right to elect to install a second transmission feed line or a third antenna
to any tower. In such instance, Pathnet shall (i) perform any tower analysis
that may be required before the installation of such transmission line or
antenna, (ii) furnish and install such additional transmission line and any
associated connectors and mounting hardware for securing such transmission line
to the towers, (iii) furnish and install such antenna and other devices and
equipment associated with such antenna, and (iv) perform strengthening to the
tower required for such transmission line or third antenna.
7.4 Additional Order Wires and Diagnostic Circuits. At any time and from
time to time, Pathnet shall have the right to install additional Order Wires and
diagnostic circuits at System sites, which Order Wires and diagnostic circuit
may or may not be carried as part of the System payload as determined to be
necessary or appropriate by Pathnet in its sole discretion.
7.5 24-Hour Network Monitoring Center. Upon Commissioning and for the
period thereafter until the Expiration Date, Pathnet shall operate a network
monitoring center (the "Network Monitoring Center") twenty-four (24) hours a
day, seven (7) days a week, which Network Monitoring Center shall, among other
things, handle all problems and trouble reports that may arise and monitor the
System as set forth in Section 7.6 of this Schedule A.
7.6 Network Management System. At all times after Commissioning until the
Expiration Date, Pathnet shall provide a network management system to be
operated at the
A-15
Network Monitoring Center (the "Network Management System") which Network
Management System will, among other things, (i) manage all network elements
within the System (21 SMX or equivalent), (ii) monitor and control the
facilities system, the radio system, and the OC-3/DS-1 multiplex system, (iii)
collect performance data such as Errored Seconds, Severely Errored Seconds,
frame loss and Failed Seconds consistent with the manufacturer's specifications
set forth in Exhibit A-2 to this Schedule A, (iv) monitor the shelter
environments (including commercial power failure, door alarms, charger failures,
low waveguide pressure, air conditioner failure, tower light alarms, generator
runs (if any), waveguide dehydrator excessive runs, smoke alarms, high
temperature and low temperature), radio equipment, multiplexing equipment, and
LLC equipment (as reasonably requested by LLC) and (v) provide LLC with the
ability to monitor the System separately from the overall Pathnet network.
7.7 Alarm and Event Logging and Reports. Within thirty (30) days after the
end of each calendar quarter, Pathnet shall provide to LLC a report (each an
"Alarm and Event Report") setting forth a log of all alarms and events recorded
by the Network Management System during the prior calendar quarter.
7.8 System Outages. Each Party shall use its best efforts to avoid
unscheduled System Outages in the performance of each Party's respective rights
and obligations under this Agreement.
7.9 Replacement of Radios. Beginning in the fifteenth (15th) year after
Commissioning, Pathnet shall begin replacing the radios and radio software
relating to the System and shall replace such radios and radio software at a
minimum rate often percent (10%) a year for ten (10) years.
7.10 Network Loops. In the event in the construction of the Pathnet
network a network loop is created relating to the System, Pathnet shall
facilitate allowing LLC, at LLC's request, to benefit from the existence of such
network loop in the event of a System Outage.
SECTION 8. GENERAL.
8.1 Access to Sites. In addition to any access rights relating to the
Leased Premises set forth in Section 5 of the Agreement, LLC shall or shall
cause Incumbent to provide upon the reasonable request of Pathnet, road access
for all construction vehicles to the Leased Premises.
8.2 Parking at Sites. At the request of Pathnet and where reasonably
available, LLC shall provide for vehicular parking at each site at no charge to
Pathnet for use during the term of this Agreement; provided, however in the
event sites are located in urban areas where vehicles are parked in privately
operated lots or garages, Pathnet shall be responsible for any and all parking
charges it incurs in connection with the performance of its obligations under
this Agreement with respect to such urban sites.
8.3 Use of Telecommunications Devices. While visiting the sites, LLC shall
allow
A-16
Pathnet to use existing telephone lines or Order Wires in connection with
Pathnet's performance of its rights and obligations under this Agreement.
8.4 Fuel Tanks. LLC shall or shall cause Incumbent to ensure that all
liquid petroleum, diesel or natural gas tanks, as the case may be, are
adequately supplied throughout the term of this Agreement
8.5 Retaining of Records. All records and reports required pursuant to
this Schedule A shall be retained by Pathnet or LLC, as the case may be, for at
least five (5) years or any longer period as may be required by law.
8.6 Work Permits. LLC shall or shall cause Incumbent to obtain all
necessary local, state and Federal construction and work permits as required to
perform all of the services set forth in this Agreement
8.7 Hazardous Material.
8.7.1 Existence of Hazardous Material. Without the consent of LLC as
described below, Pathnet shall not bring or cause or permit, knowingly or
unknowingly, any Hazardous Material in violation of Requirements of Law to
be brought or remain upon, kept, used discharged, leaked or emitted on any
of LLC's sites or Facilities.
8.7.2 Compliance with Environmental Laws. In the event that LLC
allows Pathnet to bring Hazardous Materials to LLC's sites as set forth in
the environmental audit, Pathnet shall strictly obey and adhere to any and
all Federal, state or local laws, ordinances, orders, rules, regulations,
codes or any other government restrictions or requirements (including, but
not limited to, CERCLA and RCRA) which in any way regulates, governs, or
impacts Pathnet's possession, use, storage, treatment or disposal of such
Hazardous Material.
8.8 Transportation. Pathnet shall provide transportation for all Pathnet
personnel or Subcontractors to each of LLC's sites and between such sites in
connection with the performance of the Services.
8.9 Storage. Where reasonably requested by Pathnet, LLC shall or shall
cause Incumbent to provide at no charge to Pathnet or any vendor providing
materials for use in the System, secure appropriate storage, to the extent such
storage is reasonably available, for all equipment and materials to be installed
or used for the installation, testing or operation of the System, which storage
facilities shall also serve as the drop-ship point for staging all installation
equipment used in the System. Pathnet and its Subcontractors will provide
adequate insurance for any Equipment stored at such Facilities and will bear any
risk of loss for such Equipment.
8.10 Unpacking and Trash Removal. Pathnet shall (i) unpack all crates and
boxes, (ii) remove all trash created by such unpacking or other installation
activities from LLC's sites, and (iii) shall verify all packing lists. LLC shall
regularly remove all other trash from its sites
A-17
and Facilities.
8.11 Manufacturing and Ordering of Equipment. As the System is installed
on a Segment-by-Segment basis or upgraded after Commissioning, Pathnet shall
order all required equipment and materials, including, but not limited to, all
required installation materials, from the respective manufacturers in accordance
with the timing set forth in the Project Schedule.
8.12 Ship and Delivery Schedules. At least two (2) weeks prior to receipt
of any equipment or materials to be used in the modifications or installation
set forth in Section 2 and Section 4 to this Schedule A respectively, Pathnet
shall provide to LLC detailed ship and delivery schedules relating to such
equipment and materials.
8.13 Electricity. LLC shall provide all required electricity for the
design, modification, installation, operation and monitoring of the System in
accordance with the specifications set forth in Exhibit A-3 to this Schedule A.
A-18
EXHIBIT A-1
SYSTEM EQUIPMENT
SEGMENT A
- ----------------------------------------------------------------------------------
Equipment Hansen Twin Lower Mountain Bonneville Squaw
Butte Falls Salmon Home Point Boise HQ Butte
- ----------------------------------------------------------------------------------
Generators: 0 0 1 0 0 0 1
DC Charger
Systems: 1 1 1 1 1 1 1
Battery
Plants: 1 1 1 1 1 1 1
Antennas: 3 1 4 4 5 1 4
Waveguide: 190' 100' 300' 280' 510' 172' 420'
NEC 2000 2 1 2 2 3 1 2
Sonet
Radios:
OC-3
Multiplexers: 1 1 0 0 2 1 1
Towers 1 0 1 1 1 0 1
Shelters 1 0 1 1 1 0 1
- ----------------------------------------------------------------------------------
- --------------------------------------------------------------------
Equipment
Payette Lime Baker Legrande Relay Lagrande
- --------------------------------------------------------------------
Generators: 0 1 1 1 0
DC Charger
Systems: 1 1 1 1 1
Battery
Plants: 1 1 1 1 1
Antennas: 4 4 4 3 1
Waveguide: 460' 260' 260' 275' 55'
NEC 2000 2 2 2 2 1
Sonet
Radios:
OC-3
Multiplexers 1 0 0 1 1
Towers 1 1 1 1 1
Shelters 1 1 1 1 1
- --------------------------------------------------------------------
A-19
A. Segment B
LLC Segment B extends from Hanson Butte, Idaho to Pocatello, with
Facilities at the sites listed below.
SEGMENT B
- --------------------------------------------------------------------------------------------------------------------
Equipment Pocatello Pocatello P.R. Kinport American Falls Cotteral Mtn. Hanson Butte
- --------------------------------------------------------------------------------------------------------------------
Generators: 0 0 0 0 1 0
DC Charger
Systems: 1 0 1 1 1 0
Battery
Plants: 1 0 1 1 1 0
Antennas: 2 0 4 4 4 2
Waveguide: 142' 0 275' 280' 280' 380'
NEC 2000
Sonet
Radios: 1 0 2 2 2 1
OC-3
Multiplexers: 1 0 1 1 0 1
Towers 0 0 1 1 1 0
Shelters 0 0 1 1 1 0
- --------------------------------------------------------------------------------------------------------------------
A-20
EXHIBIT A-2
MANUFACTURERS SPECIFICATIONS FOR RADIOS
NEC OC-3 MULTIPLEXER SPECIFICATIONS
IMT-15O
- ------------------------------------------------------------------------------------------------
Power
Physical: Requirements: Interface: Features:
- ------------------------------------------------------------------------------------------------
Mounts in a 23-inch -48 volts DC High Speed: OC-3 Software Provisioning
EIA rack Approximately 125 Optical Full Bandwidth Time
Height 11.4 inches watts (ADM Low Speed: OC-1, Slot Assignment
Width 21.4 inches configuration) STS-1, D53, or DS1 X.25 Gateway for OSS
Depth 10 inches DS 1 PM Monitoring
Capability
- ------------------------------------------------------------------------------------------------
NEC 2000 SERIES
Specifications:
Physical:
One cabinet (600 mm wide, 300 mm deep and 2.2 m high) for 4 radio channels
(Includes OC-3 interface per channel, space diversity receiver, order wire and
wayside DS1 interface, and 1:N switch).
Power Requirements:
- -24 or -48 volts DC
Approximately 200 watts per radio channel for a terminal configuration
Approximately 150 watts per radio channel direction (1 TRR) for a repeater
configuration
Interface:
OC-3
Operating Specifications:
Frequency Band: 5.945 to 6.425 GHz
Modulation: 128 QAM MLCM
Capacity: 155.52 Mb/s plus radio overhead (Wayside DS1, Order Wires, ATPC
signals, 1:N
A-21
commands, monitoring)
Transmit Power at interface to transmit waveguide: +29.7 dBm
System Gain (Waveguide interface to waveguide interface - no ATPC): 101.1 dB
System Gain (Waveguide interface to waveguide interface - with ATPC): 103.1 dB
Dispersive Fade Margin (l0^-3): 48 dB
FCC Identifier: BSF6P155-S02A
Emission Designator: 30M0D7W
NEC 2600 SERIES DIGITAL MICROWAVE RADIO SPECIFICATIONS
Models Available:
8 DS-1: 6G13MB
12 DS-1: 6G19MB
16 DS-1: 6G26MB
32 DS-1: 6G52MB
Physical:
One Hot-Standby with Space Diversity receiver (2 TRR) Subsystem is 482 mm (19")
Wide by 798.5 mm (31.5") High weighing 75 lbs. A total of two (2) HSB systems
for a repeater or a terminal 3:1 multiline system (4 TRR) will fit in a standard
19" by 7'6" Rack.
Power Requirements:
- -24 or -48 volts DC
Approximately 130 watts per HSB radio system. (2TRR)
Approximately 150 watts per HSB radio system for 32 DS-1 model.
System Configuration Options:
The following system configurations are available for 8, 12, 16, or 32 DS-1
capacity systems:
HS/HS=Hot Standby Transmitter and Hot Standby Receiver (2 TR)
HS/SD= Hot Standby Transmitter and Space Diversity Receiver (2 TR)
1+0/SD= Single Transmitter with Space Diversity Receiver (1 TRR)
1+0= Single Transmitter and Single Receiver (1 TR)
Features:
Automatic Transmit Power Control (ATPC)
Can be site configured for a Terminal or Regenerative Repeater with any channel
drop and insert capabilities.
Forward Error Correction (FEC)
Decision Feedback Equalizer (DEE) for fading countermeasures.
In-Service capacity upgrades.
Two (2) VF Orderwire channels Per Radio
One (1) Data channel up to 9.6Kbs
A-22
Operating Specifications:
Frequency Band: 5.925 to 6.425 Ghz or 6.525 to 6.825 Ghz
Modulation: 128 QAM
Transmit Power at Interface to waveguide: +30 dBm
- -------------------------------------------------------------------------------------------------------
DS-1 2 DS-1 6 DS-1 2 DS-1
- -------------------------------------------------------------------------------------------------------
System Gain: 06.0 dB 04.0 dB 03.0 dB 00.0 dB
- -------------------------------------------------------------------------------------------------------
Receiver Threshold: -80.0 dBm -78.0 dBm -77.0 dBm -74.0 dBm
(BER 10^-6)
- -------------------------------------------------------------------------------------------------------
Dispersive Fade margin: 64.0 dB 63.0 dB 62.0 dB 59.0 dB
(BER 10^-6)
- -------------------------------------------------------------------------------------------------------
Emission Designator: 10MOD7W 50MOD7W 3M7507W 2M50D7W
- -------------------------------------------------------------------------------------------------------
FCC Identifier: BSF89N6P52-SO1A BSF89N6P26-SO1A BSF89N6P19-SO1A BSF89N6P7-SO1A
- -------------------------------------------------------------------------------------------------------
A-23
EXHIBIT A-3
ELECTRICITY AND POWER SPECIFICATIONS OF THE SYSTEM
- --------------------------------------------------------------------------------------------
DC POWER SPECIFICATIONS
- --------------------------------------------------------------------------------------------
Site Radio Mux Channel Incum. Site Site Total Battery Size
Config 7:1 OC-3 bank Equip Total DC 10 Hour
(Watts) (Watts) (Watts) (Watts) WATTS AMPS Reserve
- --------------------------------------------------------------------------------------------
Terminal 1:3 800 330 250 720 2,100 44 Amps 440 AH
End
- --------------------------------------------------------------------------------------------
Terminal 1:7 1,600 770 250 720 3,340 70 Amps 700 AH
End
- --------------------------------------------------------------------------------------------
Repeater 1:3 1,200 None 250 720 2,170 45 Amps 530 AH
- --------------------------------------------------------------------------------------------
Repeater 1:7 2,400 None 250 720 3,370 70 Amps 700 AH
- --------------------------------------------------------------------------------------------
2 Way 1:3 1,600 125 250 720 2,695 56 Amps 600 AH
Junction
- --------------------------------------------------------------------------------------------
2 Way 1:7 3,200 125 250 720 4,295 90 Amps 900 AH
Junction
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
AC POWER SPECIFICATIONS
- --------------------------------------------------------------------------------------
DC Heat & Total AC Total Amps
Site Configuration Chargers Air Cond. Lights Misc. Watts AC @ 220 VAC
- --------------------------------------------------------------------------------------
Terminal End 3,696 3,000 300 1,500 8,496 39
Nominal
- --------------------------------------------------------------------------------------
Terminal End 8,712 6,000 1,600 2,800 19,112 87
Maximum
- --------------------------------------------------------------------------------------
Repeater 3,696 4,500 300 1,500 9,996 45
Nominal
- --------------------------------------------------------------------------------------
Repeater 8,712 9,000 1,600 2,800 22,112 101
Maximum
- --------------------------------------------------------------------------------------
2 Way Junction 4,752 6,000 500 1,800 13,052 59
Nominal
- --------------------------------------------------------------------------------------
2 Way Junction 8,712 12,000 2,000 3,200 2,512 118
Maximum
- --------------------------------------------------------------------------------------
Note: All New Shelters are AC equipped for 200 Amps, single phase, 220 VAC
Service
A-24
EXHIBIT A-4
-----------
INITIAL DS-1 REQUIREMENTS
-------------------------
Site Name DS-1's Wired DS-1's Equipped
- --------- ------------ ---------------
Segment A
Hansen Butte [***]
Twin Falls [***]
Lower Salmon [***]
[***]
Mountain Home [***]
Bonneville Point [***]
Boise HQ [***]
Squaw Butte [***]
Payette [***]
Lime [***]
Baker [***]
LaGrande Relay [***]
LaGrande [***]
Segment B
Pocatello [***]
Pocatello P.R [***]
Kinport [***]
A-25
American Falls [***]
Cotterel Mtn. [***]
Hansen Butte [***]
A-26
EXHIBIT A-5
EQUIPMENT SHELTERS SPECIFICATIONS AND DESIGN
1. Summary
This "Equipment Shelter Specification" applies to concrete pre-cast,
pre-equipped, transportable equipment shelters for use in conjunction with
equipment installed by Pathnet, Inc. and covers material and workmanship
standards. This document is designed to assist the user in defining your
specific equipment shelter requirements. The shelter must be designed for the
explicit purpose of housing electronic equipment, fiberoptics equipment,
measuring devices and other related components, within a controlled environment
required for the proper operating conditions for the equipment. The shelter
manufacturer must adhere to compliance with all national building codes. All
shelters will be assumed to be placed within ten (10) feet of the base of the
tower.
2. Foundation
The shelter shall be designed for any of the following foundation types:
-- Pier & Beam
-- Slab
-- Perimeter Beam
3. Shelter Type
The shelter shall be constructed of pre-cast, pre-assembled Portland concrete
and shall be manufactured in a controlled environment.
4. Shelter Size
The shelter should conform to the following dimensions unless otherwise noted:
-- One room shelter (no generator) - 12' X 20' OD
-- Two room shelter (equipment room and generator room) - 12' X 28' OD
5. Operating Environment
5.1. Temperature
The optimum operating temperature of the equipment to be installed is 75
degrees F (24 degrees C) unless otherwise specified by Pathnet.
A-27
5 5.2. HVAC
The heating and cooling requirements for a shelter are based upon the
outside maximum and minimum temperature expected for the shelter location
and the equipment heat output specified by Pathnet. Typical heat load
values are 12,000 to 18,000 BTU/HR. Design heat loads for specific
shelters will be provided by Pathnet. Two wall-mounted air conditioners
are required. The units are to be sized so that one unit will maintain an
interior temperature of 75 degrees F with the highest exterior temperature
expected for shelter location.
6. Hardware
All external hardware will be galvanized or coated to protect against corrosion.
7. Structural
Structural design and manufacturing shall conform to ACI 318-89 requirements.
7.1. floor
The floor section shall be constructed of 8" waffled structural pre-cast
concrete. The ribs shall be 2'-0" O.C. transverse and 4'-0" O.C
longitudinal. All surfaces shall be smooth. The interior surface shall be
covered with 1/8" X 12" X 12" square vinyl floor covering, bonded with a
waterproof contact adhesive.
7.2. Roof
The roof section shall be constructed of pre-cast concrete with 1/4" per
foot drainage slope. The ceiling insulation and finish shall be foamboard
insulation with 3/8" vinyl coated board. All joints will be covered by
plastic joint or corner trim. The roof section shall provide a 2" overhang
on all sides. The roof will be a hip type sloping in 4 directions. It
shall be constructed as a cap and should fit over the walls, leaving no
exposed roof-to-wall joint.
7.3. Wall
The wall section shall be constructed of 4" solid concrete, cast in one
piece to minimize joints, with an exposed aggregate exterior finish and
capable of withstanding gun fire from a 30.06 at 50 feet. The wall
insulation and finish shall be foamboard insulation with 1/2" vinyl coated
board. All joints will be covered by plastic joint or corner trim. All
floor/wall intersections will be finished with 4" vinyl baseboard. There
will be no exposed wall-to-floor joint.
8. Thermal
Standard wall and ceiling thickness shall be 1" foamboard insulation. The
calculated system value is R9.6 with 4" thick lightweight concrete walls/roof
sections, 1" foamboard insulation covered by 1/2" fiberglass reinforced plastic
surfaced board. (Thicker insulation and higher R-
A-28
values must be specified according to the locality.)
9. Concrete
All sections must be constructed of concrete with a compressive strength of 3000
PSI at 28 days.
9.1. Cement Type
Cement used in concrete shall be standard Portland cement conforming to
the requirements of the "Standard Specifications for Portland Cement",
ASTM Designation C150.
9.2. Mix
The mix design shall be 114-118 lbs./cu. ft. structural lightweight
concrete using expanded shale or expanded clay aggregate and shall be
homogeneous. Seeding of aggregates for exposed aggregate finish is not
allowed.
Water will be free from injurious quantities of oil, alkali, vegetable
matter and salt. Non-potable water shall not be used in mixing concrete.
9.3. Concrete Standards
Concrete aggregates will conform to one of the following standards:
-- Specifications for Concrete Aggregates (ASTM Designation: C33)
-- Specifications for Lightweight Aggregates for Structural Concrete
-- (ASTM Designation: C330)
9.4. Reinforcement
Reinforcement bars shall be deformed steel bars conforming to the
requirements of the "Specifications for Deformed and Plain Billet-Steel
Bars for Concrete Reinforcement", ASTM Designation: A615. Welded smooth
wire fabric shall be steel wire fabric conforming to the "Specifications
for Welded Steel Wire Fabric for Concrete Reinforcement", ASTM
Designation: A185.
10. Sealing
-- The shelter shall be sealed to resist dust and water infiltration.
-- All joints shall be sealed with a compressible resilient sealant.
-- There shall be no exposed roof-to-wall or wall-to-floor joints.
-- Exterior surfaces of walls and roof shall be sealed with two (2) coats
of Thoroglaze H Sealer, or acceptable equivalent unless otherwise
noted.
A-29
10. Door
11.1. Door Construction
The door shall be 3' X 7' X 3/4", 18 gauge galvanized steel, insulated
(minimum R12), primed, painted and installed flush with the door check,
door stop, weather stripping, mortise lockset and stainless steel ball
bearing hinges.
11.2. Door Frame
The doorframe shall be of at least 16 gauge galvanized steel, primed,
painted and cast into the wall panel.
11.3. Door Locks
All doors shall have a deadbolt locking mechanism with a minimum 1" throw
and an anti-pick lock guard.
11. Structural Loading
12.1. Floor
A minimum of 140 lbs. per sq. ft. as defined in "Uniform Distributed
Load", ASCE 7-88. The battery area should be reinforced to support 5000
lbs. per battery rack. The battery area will be shown on the floor plan.
12.2. Roof
A minimum of 50 lbs. per sq. ft. as defined in "Roof Snow Load
Specification", ASCE 7-88.
12.3. Wind
A minimum of 115 MPH as defined in "Basic Wind Speed Specifications", ASCE
7-88.
12.4. Earthquake
Shelters shall be designed for the most stringent earthquake rating
conditions as defined in ASCE 7-88, Zone 4.
13. Electrical System
Electrical installation and wiring shall conform to the latest edition of the
National Electrical Code (NEC) and shall consist of the following as a minimum:
A-30
13.1. Minimum Requirements
-- 200 Amp, 220 VAC Single Phase Main
-- 200 Amp Manual Transfer Switch
-- 200 Amp Generator Interface
-- Forty (40) Position Breaker Box (With 32 single pole, 20 Amp
breakers.)
-- 120/24OVAC 3-Wire Arrester With Alarms (65kVA Peak Capacity)
-- Surface Mounted EMT Conduit
-- Grounded Duplex Outlets (One every 4 ft. on 3 walls.)
-- Four (4) Fluorescent Lights (2 bulb fixtures with inside switch
mounted by door.)
-- Incandescent Porch Light (With 0-30 minute timer)
13.2. Surge Arresters
An interior-mounted surge arrester is designed to protect against
transients caused by lightning or power switching surges. Primary
arresters protect the building's electrical components and are
automatically restored following activation due to a surge. It should be
installed across the main breaker on the line side unless otherwise
specified by Pathnet. Secondary arresters protect individual branch
circuits. Visual inspection is required to determine whether the arrester
must be replaced following a surge.
14. Grounding
A halo ground system should consist of at least a #2 AWG green insulated
stranded copper wire mounted around the perimeter of the interior wall just
below the ceiling. A 1/4" X 4" X 24" copper ground bar should be located
externally just below each waveguide entry plate. A #2 AWG green insulated
copper jumper should be used to bond the ground bar to the exterior halo ring.
Bonding on either interior or exterior grounding systems will be clean of dirt
and corrosion and applied with non-oxidizing grease.
14.1. Interior Halo Grounding
All cable ladder, racks, lights, equipment and exterior ground are to be
bonded to an interior halo grounding system.
The following items are required for halo grounding:
-- #2 Green Insulated Stranded Copper Halo
-- One (1) Master Ground Bar 1/4" X 4" X 24"
-- Four (4) #2 Tinned Solid Copper Drops with 10' Pigtails
-- Eight (8) #2 Green Insulated Stranded Copper Equipment Ground Drops
14.2. External Ground System
An exterior halo ring is required and will be bonded to the interior halo
grounding system with 8' pigtails listed above.
A-31
14.3. Conduit Grounding
All conduit, conduit couplings, light fixtures, junction boxes and service
equipment shall be grounded with mechanical clamps to electrically bond the
conduit. The bonding wire will be a minimum #10 AWG green insulated copper wire
for all except light fixtures. The minimum for light fixtures is #12 AWG green
insulated copper wire.
15. Waveguide Entrance
The shelter will have two 8 port waveguide entry panels and two blank panels
located on opposite walls. Two waveguide entry panels will be installed on one
wall and two blank panels mounted on the opposite wall. Pathnet will define the
location of the waveguide entry panels. Each waveguide port shall have a minimum
interior diameter of 4 inches.
16. Alarms
The shelter will have general housekeeping alarms wired to a central location
associated with the following:
-- Door Open
-- Smoke Detection
-- AC Electrical Fail (sense before manual or automatic transfer switch)
-- Surge Protector Fail
-- Air-conditioning Fail
-- High Temperature
-- Low Temperature
-- Charger Fail
-- Breaker Alarm
-- Fuse Alarm
-- Low Waveguide pressure
-- Dehydrator excess run alarm
-- Generator Fail
-- Generator Run
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EXHIBIT A-6
GROUNDING AND LIGHTING PROTECTION GUIDELINES AND SPECIFICATIONS
FOR COMMUNICATIONS SHELTERS
Preface
An effective ground system for a communications equipment shelter is necessary
to ensure protection of personnel and equipment when a fault occurs. The ground
system limits excessive voltages from various electrical conditions such as
lightning and utility switching, and contributes to superior performance of the
electronic equipment by reducing noise induction
1. Grounding Introduction
Communications equipment shelters are subject to electrical noise and
high-voltage surges. These transients occur predominantly in the common mode
(line to ground), and are typically caused by lightning or power switching.
1.1 Lightning
When lightning induced surges appear at the point of connection to a
building (the service entrance), a high common mode potential is generated
between the current carrying conductors and ground. This potential
produces a flow of current that seeks a path to earth to complete the
circuit.
Lightning can easily induce a 3000-ampere transient into a power line.
When this transient reaches a building, the building ground at the service
entrance can rise to 60,000 volts (assuming a building earth resistance of
20 ohms). The reference potential for ground in the rest of the building
would rise proportionately.
In order to protect the building against these high voltage surges, it is
important to establish a low resistance earth ground at the service
entrance. The National Electrical Code (Article 250, Part 4) specifies
that the grounding at a building's service entrance should have a
resistance to ground of 25 ohms or less. The IEEE Green Book (Recommended
Practice for Grounding, ANSI/IEEE Standard 142-1982) recommends that the
ground resistance be less than 5 ohms. If the building contains highly
sensitive electronic communications equipment, a ground resistance of 5
ohms or less is recommended if this value can be practically achieved with
the given site conditions.
1.2 Types of Grounding
There are two major types of grounding that should be considered when
designing an electrical system: power distribution system grounding and
telecommunications
A-33
equipment grounding.
1.2.1. Power Distribution System Grounding
The power distribution system pertains to the incoming AC service,
service entrance equipment, power panels, and electrical conductors
providing the power to various electrical/mechanical equipment.
Grounding of the power distribution system is essential to:
-- protect occupants from exposure to dangerous shock voltage
-- provide a path for ground fault current
-- limit excessive voltages due to lightning or utility switching
Typical grounding components for the power distribution system
include:
-- grounding electrode at the service entrance
-- ground bus in the power panel
-- ground lugs in the other service entrance equipment such as
the safety disconnect or transfer switch
-- third wire grounding conductor for all the electrical equipment
-- lightning and surge arresters.
1.2.2. Telecommunications Equipment Grounding
Electronic equipment such as radio systems, telephone switches,
battery chargers and rectifiers, uninterrupted power supply (UPS)
equipment, and any other equipment that encloses or is adjacent to
energized conductors require additional grounding. This sensitive
electronic equipment must be protected from the following:
-- excessive transients caused by lightning or utility switching
-- degraded performance due to electromagnetic noise
Equipment grounding frequently utilizes a ground ring encircling the
interior of the shelter (halo ground ring). Ground lugs attached to
the various equipment housings and racks are connected to the ground
ring. Ground bars at the waveguide entry and at each section of the
cable ladder are also tied to the ground ring. Multiple external
drops connect the internal ground ring to the exterior site pound
ring.
2. Grounding Practices
2.1. The Grounding Conductor
In order to reduce inductance and surge voltages in a power distribution
system, a ground path for protected devices should be provided. One method
is to rely upon the conduit
A-34
system to carry these transient currents. This is allowed by the National
Electrical Code in Article 250-91 (b). The best method, however, is to
include an extra conductor in the same conduit or raceway as the current
carrying conductor. The grounding conductor should extend to the ground
connection in the service entrance equipment.
2.2. Equipment Ground Wires
When lightning strikes, it takes the path of least impedance (resistance
and inductance). Cable bends increase inductance. Therefore, equipment
ground wires should be large, and run straight for minimum inductance and
voltage drop. The recommended bending radius is 6" when bends are
unavoidable. Equipment ground wires should be separated from all other
conductors, and should not be run through metal conduit unless the conduit
and ground wires are bonded at both ends.
2.3. Bonding
Even when the ground to earth connection's impedance of the service
entrance is minimized and grounding conductors are used in the feeder and
branch circuits, high transient voltages can still occur in the power
distribution system as a result of utility power switching. An effective
method of limiting this noise (especially common mode voltage
differentials) is to bond all the equipment ground wires to a halo ground
system that is connected to the site ground system and power distribution
system ground.
Bonding is the connection of all potential ground conductors (including
racks, frames, cable ladder, conduits, metal enclosures, and exposed
metallic members of the building structure) to each other. Bonding does
not eliminate voltage drops since transient currents will continue to take
the path of least inductance. However, the current is sufficiently
distributed throughout the bonded system to reduce the voltage gradients
in any area to levels that prevent personal injury or equipment damage.
Proper bonding procedures produce cross connections of all equipment and
structures. It provides many paths to ground from any one point. Since the
bonded ground network does not form a part of the normal electrical power
path, multiple inductive loops are not a concern. Only transient or fault
currents can flow in the ground network.
In addition to preventing the development of voltage gradients, cross
connection reduces the system's susceptibility to high frequency noise.
Since all conductors have some impedance, resonance will occur at some
frequencies. At those frequencies, the impedance of the grounding
conductor may be very high, and allow noise currents to develop increased
voltage drops. By bonding the ground network, however, there may be other
conductors nearby that are not resonating, and a low impedance path for
the noise signal can be maintained.
A-35
2.4. Faraday Cage
A Faraday cage provides an EMI shield to further reduce noise. The cage
usually consists of multiple conductors in a box like configuration. A
halo ground system with multiple down conductors can act as a quasi
Faraday cage, and give some low frequency shielding.
When lightning hits the tower, the tower will pass the current to ground
and radiate RF energy. A Faraday cage can reduce this energy by adding
distance (as seen by the magnetic field) between the tower and the
equipment shelter. The steel reinforcing in the concrete shelter walls can
form a highly effective Faraday cage if bonded to the grounding system.
The amount of shielding depends on the size and spacing of the welded
wire fabric. Additionally, all rebar must be bonded together.
2.5. Site Ground System
When a tower is struck by lightning, equipotential voltage rings form
around the tower until the energy is diffused into the surrounding ground
soil via the grounding system.
The tower ground ring will disperse the energy away from the tower base or
guy wires. The ground rods will transfer the energy deeper into more
conductive soil layers. This is important to keep lightning surges out of
the equipment shelter. Unless the energy is properly dispersed into the
soil, the voltage will build up in the tower, and attempt to go to
another, less desirable path.
The equipment shelter is protected by a perimeter ground system that forms
an equipotential plane. Also, ground rods should be driven into the soil
at the following points:
-- each corner of the shelter
-- the service entrance
-- the waveguide entry port
-- each external halo ground drop
-- every 10' (or less) along the exterior ground ring
The shelter ground ring system should have a connection to the tower
ground system just below the coaxial cable runs. A second connection
between the two ground systems should be installed for redundancy. All
metal work (waveguide bridge and supporting posts) should be bonded to the
ring/radial ground system.
2.6. Grounding System Performance Check
Test the original installation periodically to determine whether
resistance is remaining constant or is increasing. An increase in
resistance can be caused by several factors.
A-36
In lower conductive soils, high electric fields can develop at the ends of
the ground rods, which can cause arcing in the soil. This arcing can cause
glassification around the rods, beginning at the tip, and working its way
upward. This glassification of the silica in the soil acts as an
insulator, severely impairing the grounding characteristics of the rod. If
resistance increases over time to an undesirable level, reduce the
resistance by adding electrodes or chemically treating the soil to
increase moisture content.
2. Computing Resistance to Ground
3.1. Resistance to Earth
The resistance of a grounding electrode is dependent on the:
-- resistance of the electrode,
-- contact resistance between the electrode and the soil, and
-- resistance of the soil from the electrode surface outward as
described by the geometry set up by the flow of current from the
electrode to infinite earth.
The first two resistances are negligible, and can be disregarded. The
third resistance is larger and must be considered.
Around a ground rod this resistance is the sum of the series resistances
of virtual shells of earth, located progressively outward from the rod.
The shell nearest the rod has the smallest circumferential area or cross
section, so it has the highest resistance. Each successive shell has
progressively larger areas, and thus, progressively lower resistances. For
an 8-foot ground rod, the incremental increase in resistance decreases to
nearly zero when the rods are spaced 16 feet apart. Therefore, when using
multiple ground rods, the optimal spacing between rods should be double
the length of the rod.
3.2. Resistance Calculations
When computing resistance to ground, treat the tower grounding and the
shelter grounding as two separate systems. Within each of these two
systems are two subsystems. The shelter has a grounding ring and the
grounding rods. The tower has a grounding ring, grounding rods, and
occasionally, grounding radials.
The IEEE Green Book provides several formulas for calculating the
resistance to ground for several different systems.
4. Typical Grounding Configurations
Several options are available when deciding on a ground system for a
communication shelter, depending upon the soil conditions and thunderstorm
activity of a particular site. The U.S. Weather Bureau publishes an isoplethic
map of the United States showing the average number of days each year on which
thunderstorms occur. Any area with an isoplethic level above 90 should be
considered a high-risk area, and serious consideration should be given to
providing a more
A-37
stringent grounding system.
4.1. Ground Bar System
In shelters where very little lightning protection is needed, a simple
ground bar system can be used. A system of this type would consist of a
single copper ground bar located under the waveguide port, telephone
entry, or both, with an external drop to be connected to the external
ground system. Transmission lines should be grounded to this ground bar.
4.2. Halo Ground System
Pathnet shelters will use a halo ground system. This system includes a #2
AWG copper wire completely encircling the equipment room. The halo is
located 3 to 6 inches below the ceiling. External drops are located at
each corner of the shelter. Wall penetrations should be angled at 45
degrees to minimize bending.
4.3. External Ground System
The external ground system for all shelters consists of ground rods placed
at each corner of the shelter and 10' intervals along the ground ring,
below the waveguide entry, and at the AC service entrance. The rods should
be exothermically welded to a perimeter ground ring of #2 AWG solid tinned
copper wire. (Tinned copper is recommended to reduce corrosion of the
wire). The wire should be buried below the frost line (minimum 30", deep
per NEC Sec 250-8(d)), and at least 24", away (measured horizontally) from
the foundation. The ground ring should be bonded to the tower ground
system at two locations, to the externally mounted ground bars under the
waveguide ports and to the AC service ground as close as possible to the
service entrance.
5. General Specifications
This section covers grounding and lightning protection of pre-cast,
pre-equipped, and transportable equipment shelters. It establishes minimum
standards for grounding of all Pathnet Equipment Shelters, and provides
standards for additional customer grounding options.
5.1. General Guidelines
5.1.1 Workmanship
Equipment grounding wire conductor runs will be as short and
straight as possible. All equipment and bonding grounding conductors
will have radii bends 6" or greater.
5.1.2. Design
Where possible, the AC service entrance, waveguide entry port, and
telephone line entry will all be located in close proximity to each
other, and their associated
A-38
grounding systems will be bonded together.
5.1.3. Connections
Unless specified otherwise, minimum connection requirements will be
of the mechanical type made with a crimp type connector. A one hole
copper ground lug will be used for equipment connections. An
oxidizing preventative compound will be applied to all mechanical
connections, and paint will be removed as necessary to insure
positive bonding of all grounded equipment.
All external, buried connections will be of the exothermically
welded type. These include, but are not limited to, halo drops to
ground rod, buried ground ring to ground rod, halo drops to ground
ring, service entrance ground to ground rod.
5.1.4. Wire
All equipment grounds will be #6 AWG. Circuit grounding conductors
will be no more than two wire sizes smaller than the current
carrying conductors of the same circuit (minimum #12 AWG). All
external ground wire, including but not limited to the external
ground ring and external halo drops, will be #2 AWG solid tinned
copper.
5.2 Interior Grounding
5.2.1. Halo Ground
The halo ground will consist of a minimum #2 AWG wire located 3" to
12", below the finished ceiling, and will completely encircle the
equipment room. The wire will be green insulated stranded copper,
bare stranded copper, or bare tinned solid copper. Each corner of
the equipment room will have an omni-directional drop to the floor
of the same wire size and type as the halo ring. Connection of these
drops to the halo will be at least the defined minimum (see section
5.1.3). If solid tinned wire is used, the drop will be one
continuous wire that is long enough to extend 8 feet beyond the
exterior of the shelter. If insulated wire is used, the drop will
extend to the floor, and then be connected in the same manner as the
halo, to an 8 foot length of solid tinned wire of the same size. The
exterior penetrations will be at 45 degree angles (to minimize
ground drop bend radii) and approximately one (1) inch in diameter.
5.2.2. Waveguide Entry Ground Bar
There will be a 1/4" x 4" x 20" (minimum) copper ground bar located
outside the shelter approximately 6" below the waveguide entry plate
(NEC Sec 800-33). This bar will be connected to the exterior ground
ring exothermic weld. The grounding conductor will be of the same
size and type as the halo ring.
A-39
5.2.3. AC Service
The AC service ground conductor will be bonded to the ground rod
located at the service entrance. Ground lugs provided in all service
entrance equipment will be bonded to the service ground conductor.
The system ground and neutral will be bonded at one location, as
close as practicable to the service entrance. All service grounding
shall conform to Article 250 of the National Electrical Code.
5.2.4. Primary Surge Arrester
There will be a surge protective device applied at the first piece
of service equipment inside the equipment shelter. This device will
be considered the primary surge protector. Conductors connecting the
surge protective device will be as short as possible, and will
contain no sharp bends or loops.
The operating characteristics of the primary surge arrester will
coordinate with the equipment surge withstand voltage capabilities.
The surge arrester should be capable of suppressing up to 65kVA, be
self restoring after operation, and may be equipped with a failure
alarm over current protective device and visual status indicators.
5.2.5. Cable Ladder
Cable ladder assemblies will be bonded to the halo ring with a #6
AWG or larger ground conductor. All cable ladder splices and
junctions will be bonded on at least one side with a #6 AWG or
larger conductor, and use grounding clips suitable for the purpose.
Paint will be removed as necessary for an electrically sound
connection.
5.2.6. Conduit Grounding
Each conduit discontinuity, including but not limited to conduit
couplings, junction boxes, light fixtures, and service equipment,
will be provided with ground clamps to electrically bond the
conduit. The bonding wire will be green insulated #6 AWG or larger.
5.2.7. Tower Light Controller Penetration
There will be a 1-1/2" penetration cast in place near the waveguide
entry port to allow for connection of the tower light controller.
The penetration will be lined with a 1" PVC running thread to
provide isolation between the interior and exterior conduit. The
running thread will be connected to interior and waterproof exterior
6" x 6" junction boxes.
A-40
5.3. Exterior Grounding
5.3.1. Ground Rods
There will be driven ground rods located at each corner of the
building, and at the AC service entrance and waveguide entry port.
These rods will be made of copper clad high strength steel with
minimum dimensions of 5/8" x 8'. The rods will be located at least
24" from the edge of the foundations, and driven such that the top
of the rod is below the frost line of the installation site. The
rods will be exothermically welded to the external halo drops.
5.3.2. Ground Ring
There will be a buried horizontal wire completely encircling the
equipment shelter. This wire will be solid tinned copper wire of #2
AWG or larger. The ground ring will not be closer than 24" from the
shelter foundations, and will be exothermically welded to each
ground rod. The ring will be buried 30" below grade or below the
frost line of the installation, whichever is greater.
The ground ring will be connected to the tower ground system from
the ground rod located at the waveguide port to the nearest ground
rod of the tower system. A second connection will be made from a rod
at a corner of the shelter to an alternate rod of the tower. These
connections will be made with a #2 AWG wire, or a wire of the same
size as the tower ground ring, whichever is larger.
5.3.3. Testing
The external ground system will be tested after installation, and
its resistance to earth ground will be less than 10 ohms. It is
recommended that tests be performed twice a year to insure ground
system integrity.
Biddle Instruments Model DET2/2 Digital Ground Tester, or
equivalent, will be used for testing and all manufacturers'
instructions will be followed.
A-41
EXHIBIT A-7
NETWORK INTERCONNECTIONS SCHEDULE
SYSTEM SITE CODE OTHER SYSTEM SITE CODE HEIGHT AZIMUTH
- ---------------- ---------------------- ------ -------
[TO BE AMENDED BY THE PARTIES]
A-42
EXHIBIT A-8
SYSTEM SPURS
PATHNET SPURS
The System shall contain the following spurs as amended from
time-to-time, which shall be installed and operated for Pathnet's network
purposes:
Facility Name Latitude Longitude Spur to:
- ------------- -------- --------- --------
Segment A
Hansen Butte 42-29-35 114-13-47 Future
Bonneville Point 43-29-17 116-01-45 Future
LaGrande Relay 45-13-03 118-00-00 Future
Segment B
Kinport 42-53-36 112-33-31 Future
LLC SPURS
The System shall contain the following spurs as amended from
time-to-time, which shall be installed and operated for LLC's internal
communications needs:
Facility Name Latitude Longitude Spur to:
- ------------- -------- --------- --------
A-43
EXHIBIT A-9
CERTIFICATE OF ACCEPTANCE
The undersigned, _____________________, who is ___________________ of
Pathnet/Idaho Power Equipment LLC, an Idaho limited liability corporation
("LLC") hereby certifies as follows:
1. LLC has received from Pathnet, Inc., a Delaware corporation ("Pathnet")
the results of all acceptance testing performed pursuant to Section 5 of
Schedule A of the Fixed Point Microwave Services Agreement between Pathnet and
LLC (the "FPM Agreement").
2. LLC has reviewed the results of such acceptance testing and hereby
acknowledges that the System (as defined in the FPM Agreement), as tested,
performs in accordance the Specifications, as set forth in the FPM Agreement.
3. If and to the extent within one (1) year after Commissioning acceptance
testing pursuant to Section 5 of Schedule A, the results from the Network
Monitoring Center indicate operations below Specifications, which deficiencies
in operations are, in the reasonable opinion of an independent third party, the
results of design deficiencies, LLC shall have the right to request performance
of additional design review, the scope of which review will be agreed to by the
Parties.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Acceptance as of the ___ of ___, 199__.
-----------------------------
A-44
EXHIBIT A-10
STATEMENT OF WORK
A. GENERAL
1) SITE ACQUISITION
Incumbent is responsible for obtaining usage permits/permission for all
property that is required to implement all new construction. The
assumption has been made that Incumbent will obtain the necessary land for
the proposed new towers and shelters. The sites that are of particular
concern are: Mountain Home, Squaw Butte, Payette, LaGrande, and Cotterel
Mtn. In cases where existing structures are to be re-used Incumbent will
obtain necessary building permits for the work effort required. The sites
in question are Pocatello, Kinport, Twin Falls, Boise HQ and Payette.
A-45
SEGMENT A
B. HANSEN BUTTE
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. Existing fencing will need to be removed and
extended to include new construction area.
2) TOWERS
Installing a new 130' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. LLC or Incumbent to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX antenna (Twin Falls), two 10' UHX antennas (Cotterel Mtn.) and two
10' UHX antennas (Lower Salmon) are being provided.
7) WAVEGUIDE
570' of waveguide with accessories provided.
8) RADIO
Non Space-Diversity Terminal (Twin Falls) and Space-Diversity repeater (Cotterel
Mtn. & Lower Salmon).
9) MULTIPLEX
New OC-3 Terminal. 28 DSI (28 wired. 12 equipped).
New OC-3 ADM, 28 DSI (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-46
C. TWIN FALLS
1) SITE WORK
No site work is required. Location inside of a downtown Dispatch yard belonging
to Incumbent.
2) TOWERS
Project Scope to use existing tower if analysis proves it is adequate.
3) BUILDINGS
Project Scope to locate new equipment in existing building. Incumbent or LLC to
provide space in radio room with computer flooring. Incumbent will also provide
space in basement for DC plant installation and DC breaker in the radio room.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX antenna (Hansen Butte) is provided.
7) WAVEGUIDE
100' of waveguide with accessories provided.
8) RADIO
Non Space-diversity Terminal (Hansen Butte).
9) MULTIPLEX
New OC-3 Terminal, 28 DS1 (28 wired, 12 equipped)
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-47
D. LOWER SALMON
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. Access to site is over dirt road thru
farmland and needs to be graded prior to commencement of work efforts.
2) TOWERS
Installing a new 80' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 10' UHX antennas (Hansen Butte) and two 10' UHX antennas (Mountain Home) are
being provided.
7) WAVEGUIDE
300' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Hansen Butte & Mountain Home).
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-48
E. MOUNTAIN HOME
I) SITE WORK
Site work required to prepare site for installation of new tower and shelter.
Incumbent or LLC to acquire property (BLM) to the immediate west of existing
shelter/tower needed thru lease. Change in location will effect the site work
pricing exhibit.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Lower Salmon) and two 8' UHX antennas (Bonneville Point)
are being provided.
7) WAVEGUIDE
280' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Lower Salmon & Bonneville Point).
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-49
F. BONNEVILLE POINT
1) SITE WORK
Site work required to prepare site for installation of new tower and shelter.
Incumbent or LLC to acquire property.
2) TOWERS
Installing a new 80' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antenna (Squaw Butte), two 8' UHX antennas (Mountain Home), one 8'
11GHz (CHQB) are being provided.
7) WAVEGUIDE
430' of waveguide with accessories provided.
8) RADIO
Space-Diversity, 6GHz Terminals (Mountain Home & Squaw Butte), Non Space-
diversity 11GHz Terminal (CHQB).
9) MULTIPLEX
New OC-3 Terminal, 28 DS1 (28 wired, 12 equipped).
New OC-3 ADM, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-50
G. BOISE HQ
1) SITE WORK
No site work is required. Location at a downtown Office building belonging to
Incumbent.
2) TOWERS
Project Scope to wall mount antenna on penthouse on roof.
3) BUILDINGS
Project Scope to locate new equipment in existing building. Incumbent or LLC to
provide space in radio room with computer flooring.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX, 11GHz antenna (Bonneville Point) is provided.
7) WAVEGUIDE
172' of waveguide with accessories provided. Waveguide run to be stripped of
jacketing for run thru plenum areas within building.
8) RADIO
Non Space-diversity Terminal (Bonneville Point).
9) MULTIPLEX
New OC-3 Master Terminal, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-51
H. SQUAW BUTTE
1) SITE WORK
Site work required to prepare site for installation of new tower and shelter.
Extensive grading and leveling required. Access is up a winding narrow road.
Incumbent or LLC to acquire property (BLM) to the immediate northwest of
existing shelter/tower needed thru lease. Change in location will significantly
effect the site work pricing exhibit. Approval from adjacent fire lookout
station will be necessary for planned construction.
2) TOWERS
Installing a new 100' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil and location is sensitive.
3) BUILDINGS
Installing new shelter/foundation (it is possible that a new structure may need
to be built on-site). Incumbent or LLC to provide 200A power to within 50' of
new shelter location. Installation location is sensitive.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and
testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Bonneville Point) and two 8' UHX antennas (Payette) are
being provided.
7) WAVEGUIDE
420' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Bonneville Point & Payette).
9) MULTIPLEX
New OC-3 ADM, 28 DSI (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-52
I. PAYETTE
1) SITE WORK
Site work required to prepare site for installation of new tower and shelter.
Incumbent or LLC to provide space for construction in vehicle repair bay at the
rear of parking area. Tower to be located to the northwest of garage area. Area
of construction is inside Dispatch yard. Change in location will significantly
effect the site work pricing exhibit.
2) TOWERS
Installing a new 120' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil and location is sensitive due to
apparent obstruction from Clay Peak. The 120' height is an estimate, path study
is required to determine actual required height.
3) BUILDINGS
Installing new equipment room in garage bay. Incumbent or LLC to provide 200A
power to new location. Installation location is sensitive and does not account
for any major construction to adapt to existing heating and air conditioning
duct work.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Squaw Butte) and two 8' UHX antennas (Lime) are being
provided.
7) WAVEGUIDE
420' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Squaw Butte & Lime).
9) MULTIPLEX
New OC-3 ADM, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-53
J. LIME
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. Access to site is over gravel and dirt
roads. The road is winding and steep at various locations and needs to be graded
prior to commencement of work efforts.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Access prohibits the delivery of a pre-fabricated shelter so a new shelter will
need to be built on-site. Incumbent or LLC to provide 200A power to within 50'
of new shelter location.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700 AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Payette) and two 8' UHX antennas (Baker) are being
provided.
7) WAVEGUIDE
260' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Payette & Baker).
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-54
K. BAKER
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. Access to site is over gravel and dirt
roads. The road is winding and steep at various locations and needs to be graded
prior to commencement of work efforts. Also, access is hampered by a long (160')
narrow underpass (12'w x 13'- 6"h) that will not allow large vehicles to get to
the site.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Access prohibits the delivery of a pre-fabricated shelter so a new shelter will
need to be built on-site. Incumbent or LLC to provide 200A power to within 50'
of new shelter location.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Lime) and two 8' UHX antennas (LaGrande Relay) are being
provided.
7) WAVEGUIDE
360' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Lime & LaGrande Relay).
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-55
L. LaGRANDE RELAY
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. Access to site is over very rocky and dirt
roads thru pasture land. The road is winding and steep at various locations and
needs to be graded prior to commencement of work efforts. Also, access is
hampered by narrow fence gates that will need to be removed/replaced to allow
large vehicles to get to the site.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Access prohibits the delivery of a pre-fabricated shelter so a new shelter will
need to be built on-site. Incumbent or LLC to provide 200A power to within 50'
of new shelter location.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Baker) and one 8' UHX antenna (LaGrande) are being
provided.
7) WAVEGUIDE
265' of waveguide with accessories provided.
8) RADIO
Non Space-Diversity Terminal (LaGrande) and Space-Diversity Terminal (Baker).
9) MULTIPLEX
New OC-3 ADM, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-56
M. LaGRANDE
1) SITE WORK
No site work is required. Location inside of a substation yard belonging to
Incumbent.
2) TOWERS
Installing a new 25' monopole/foundation.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX antenna (LaGrande Relay) is provided.
7) WAVEGUIDE
55' of waveguide with accessories provided.
8) RADIO
Non Space-diversity Terminal (LaGrande Relay).
9) MULTIPLEX
New OC-3 Terminal, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-57
SEGMENT B
A. POCATELLO
1) SITE WORK
No site work is required. Location inside of a downtown Dispatch yard belonging
to Incumbent or LLC. No access issues.
2) TOWERS
Project Scope to use existing tower if analysis proves it is adequate.
3) BUILDINGS
Planning to locate new equipment in existing building. Incumbent or LLC to clear
out current storage area for use and provide adequate power. Area provided will
require new overhead cable tray and electrical work for AC power to DC plant
and necessary lighting/outlets. Additional Air Conditioning is not planned at
this time.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX antenna (Kinport thru passive repeater) is provided.
7) WAVEGUIDE
142' of waveguide with accessories provided.
8) RADIO
Non Space-diversity Terminal to Kinport thru passive repeater.
9) MULTIPLEX
New OC-3 Terminal, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-58
B. POCATELLO PASSIVE REPEATER
1) SITE WORK
N/A
2) TOWERS
N/A
3) BUILDINGS
N/A
4) GENERATORS
N/A
5) DC PLANT
N/A
6) ANTENNAS
Utilizing the existing 30' x 48' Passive Reflector. Only minor adjustment, if
any, should be required.
7) WAVEGUIDE
N/A
8) RADIO
N/A
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
N/A
A-59
C. KINPORT
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower/foundation to the north of the existing tower. Any underground cabling
concerns must be addressed prior to commencing activities. Also, overhead power
lines may provide some interference, as well as safety concerns, with tower
erection
2) TOWERS
Installing a new 120' self-supporting tower and appropriate waveguide bridge.
Installation based on normal soil.
3) BUILDINGS
Planning to locate new equipment in existing building. Incumbent or LLC to clear
out current radio room to accommodate new equipment. Customer will also clear
basement storage area for use as a DC plant location and provide DC breaker in
radio room. Radio room will not require any additional air conditioning as the
new equipment will be installed in place of existing equipment to be removed.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
One 8' UHX antenna (Pocatello thru passive) and two 8' UHX antennas (American
Falls) are being provided.
7) WAVEGUIDE
365' of waveguide with accessories provided.
8) RADIO
Non Space-Diversity Terminal 6GHz (Pocatello thru passive) and Space-Diversity
Terminal 11GHz (American Falls).
9) MULTIPLEX
New 0C-3 ADM, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-60
D. AMERICAN FALLS RELAY
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
No generator required at this time.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' 11GHz UHX antennas (Kinport) and two 8' 6GHz UHX antennas (Cotterel Mtn.)
are being provided.
7) WAVEGUIDE
280' of waveguide with accessories provided.
8) RADIO
Space-Diversity Terminals (Kinport, 11GHz & Cotterel Mtn., 6GHz).
9) MULTIPLEX
New OC-3 ADM, 28 DS1 (28 wired, 12 equipped).
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-61
E. COTTEREL MTN.
1) SITE WORK
Site work (grading/leveling) required to prepare site for installation of new
tower and shelter with foundations. No power and access to the sites is provided
by Incumbent at this time.
2) TOWERS
Installing a new 60' self-supporting tower/foundation and appropriate waveguide
bridge. Installation based on normal soil.
3) BUILDINGS
Installing new shelter/foundation. Incumbent or LLC to provide 200A power to
within 50' of new shelter location.
4) GENERATORS
Providing and installing a 35KW generator and associated Transfer Panel. Budget
pricing only includes materials and efforts to install the generator in the
shelter and stub the piping to just outside the shelter at a provided second
stage regulator. The cost for the propane tank, necessary piping, first stage
regulator and all associated installation and testing is not included.
5) DC PLANT
New DC Power bay (dual 50A) and 700AH battery plant is to be provided at this
location.
6) ANTENNAS
Two 8' UHX antennas (Kinport) and two 8' UHX antennas (Hansen Butte) are being
provided.
7) WAVEGUIDE
280' of waveguide with accessories provided.
8) RADIO
Space-Diversity Repeater (Kinport & Hansen Butte).
9) MULTIPLEX
N/A
10) MISCELLANEOUS EQUIPMENT
Orderwire, Alarm, Interconnect, Fuse Panel.
A-62
SCHEDULE B
THE SYSTEM
Segment A
Segment A extends from LaGrande, Oregon to Twin Falls, Idaho, with
Facilities at the sites listed below.
SEGMENT A
Facility Name Latitude Longitude Path to:
- ------------- -------- --------- --------
Hansen Butte 42-29-35 114-13-47 Lower Salmon
Twin Falls
Twin Falls 42-32-43 114-27-32 Hansen Butte
Lower Salmon 42-51-05 114-54-47 Hansen Butte
Mountain Home
Mountain Home 43-12-18 115-33-49 Lower Salmon
Bonneville Point
Bonneville Point 43-29-17 116-01-45 Squaw Butte
Boise HQ
Mountain Home
Boise HQ 43-37-08 116-12-25 Bonneville Point
Squaw Butte 44-00-13 116-24-38 Bonneville Point
Payette
Payette 44-03-25 116-55-32 Squaw Butte
Lime
Lime 44-25-54 117-14-54 Payette
Baker
Baker 44-44-19 117-44-45 Lime
LaGrande Relay
LaGrande Relay 45-13-03 118-00-00 Baker LaGrande
B-1
LaGrande 45-18-46 118-04-13 LaGrande Relay
Segment B
LLC Segment B extends from Hanson Butte, Idaho to Pocatello, Idaho, with
Facilities at the sites listed below. Such Facilities are subject to change
pursuant to Section 3.1.5 of the Agreement.
SEGMENT B
Facility Name Latitude Longitude Path to:
- ------------- -------- --------- --------
Pocatello 42-51-38 112-26-26 Pocatello P.R.
Pocatello P.R. 42-55-14 112-20-44 Pocatello
Kinport
Kinport 42-53-36 112-33-31 Pocatello P.R.
American Falls
American Falls 42-45-25 112-48-38 Kinport
Cotteral Mtn.
Cotteral Mtn. 42-23-55 113-27-54 American Falls
Hansen Butte
Hansen Butte 42-29-35 114-13-47 Cotteral Mtn.
B-2
SCHEDULE C
ESTIMATED COSTS
SECTION 1. LLC ESTIMATED COSTS FOR LLC ITEMS
The LLC Estimated Costs shall be allocated as follows, as detailed in
Exhibit C-1:
Segment A
Item Estimated Cost
- ---- --------------
SITE SURVEY [***]
SITE WORK [***]
TOWERS [***]
BUILDINGS [***]
GENERATORS [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
LLC ESTIMATED COSTS [***]
Segment B
Item Estimated Cost
- ---- --------------
SITE SURVEY [***]
SITE WORK [***]
TOWERS [***]
BUILDINGS [***]
GENERATORS [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
LLC ESTIMATED COSTS [***]
LLC TOTAL ESTIMATED COSTS [***]
C-1
SECTION 2. PATHNET ESTIMATED COSTS FOR PATHNET ITEMS
The Pathnet Estimated Costs shall be allocated as follows as defined in
Exhibit C-2:
Segment A
Item Estimated Cost
- ---- --------------
PCN COORDINATION [***]
PROTECT RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET ESTIMATED COSTS [***]
Segment B
Item Estimated Cost
- ---- --------------
PCN COORDINATION [***]
PROTECT RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET ESTIMATED COSTS [***]
PATHNET TOTAL ESTIMATED [***]
COSTS
C-2
EXHIBIT C-1
LLC ESTIMATED COSTS DETAIL
SEGMENT A
HANSEN TWIN FALLS LWR. MTN. HOME BONNEVILLE CHQB
BUTTE SALMON
SITE SURVEY
Site Survey [***]
Taxes [***]
SITE SURVEY [***]
SITE WORK
Soil Reports [***]
Site Clearing/Level [***]
Fence & Gate Mods [***]
Road Const/Repair [***]
Taxes [***]
SITE WORK [***]
TOWERS
Tower/Building [***]
Analysis [***]
New Tower [***]
Tower Strength Material [***]
Tower Labor [***]
Waveguide Bridge [***]
Tower Ground [***]
Freight [***]
Taxes [***]
TOWERS [***]
BUILDINGS
Exist Bldg. Mods [***]
New Building [***]
New Bldg Delivery [***]
New Bldg Foundation [***]
Building Ground [***]
AC Power [***]
Freight (incl. in Bldg [***]
Delivery)
Taxes [***]
BUILDINGS [***]
GENERATORS
25KW MOBILE [***]
35KW [***]
Transfer Panel [***]
Install & Test Labor [***]
Freight [***]
Taxes [***]
GENERATORS [***]
D.C. PLANT
Chargers [***]
Chargers Spares [***]
Batteries [***]
Power Board/Panel [***]
Install & Test Labor [***]
Freight [***]
Taxes [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
C-3
LLC ESTIMATED COSTS [***]
C-4
SQUAW PAYETTE LIME BAKER LA GRANDE LA GRANDE TOTAL
BUTTE RLY
SITE SURVEY
Site Survey [***]
Taxes [***]
SITE SURVEY [***]
SITE WORK
Soil Reports [***]
Site Clearing/Level [***]
Fence & Gate Mods [***]
Road Const/Repair [***]
Taxes [***]
SITE WORK [***]
TOWERS
Tower/Building [***]
Analysis [***]
New Tower [***]
Tower Strength [***]
Material [***]
Tower Labor [***]
Waveguide Bridge [***]
Tower Ground [***]
Freight [***]
Taxes [***]
TOWERS [***]
BUILDINGS
Exist Bldg. Mods [***]
New Building [***]
New Bldg Delivery [***]
New Bldg Foundation [***]
Building Ground [***]
AC Power [***]
Freight (incl. in Bldg [***]
Delivery) [***]
Taxes [***]
BUILDINGS [***]
GENERATORS
25KW MOBILE [***]
35KW [***]
Transfer Panel [***]
Install & Test Labor [***]
Freight [***]
Taxes [***]
GENERATORS [***]
D.C. PLANT
Chargers [***]
Chargers Spares [***]
Batteries [***]
Power Board/Panel [***]
Install & Test Labor [***]
Freight [***]
Taxes [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
LLC ESTIMATED COSTS [***]
C-5
SEGMENT B
POCATELLO POCATELLO KINPORT AMER. FALLS COTTEREL
PR MTN.
SITE SURVEY
Site Survey [***]
SITE SURVEY [***]
SITE WORK
Soil Reports [***]
Site Clearing/Level [***]
Fence & Gate Mods [***]
Road Const/Repair [***]
SITE WORK [***]
TOWERS
Tower/Building [***]
Analysis [***]
New Tower [***]
Tower Strength Material [***]
Tower Labor [***]
Waveguide Bridge [***]
Tower Ground [***]
Freight [***]
TOWERS [***]
BUILDINGS
Exist Bldg. Mods [***]
New Building [***]
New Bldg Delivery [***]
New Bldg Foundation [***]
Building Ground [***]
AC Power [***]
Freight (incl. in Bldg [***]
Delivery) [***]
BUILDINGS [***]
GENERATORS
25KW MOBILE [***]
35KW [***]
Transfer Panel [***]
Install & Test Labor [***]
Freight [***]
GENERATORS [***]
D.C. PLANT
Chargers [***]
Chargers Spares [***]
Batteries [***]
Power Board/Panel [***]
Install & Test Labor [***]
Freight [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
LLC ESTIMATED COSTS [***]
C-6
HANSEN TOTAL
BUTTE
SITE SURVEY
Site Survey [***]
SITE SURVEY [***]
SITE WORK
Soil Reports [***]
Site Clearing/Level [***]
Fence & Gate Mods [***]
Road Const/Repair [***]
SITE WORK [***]
TOWERS
Tower/Building [***]
Analysis
New Tower [***]
Tower Strength [***]
Material
Tower Labor [***]
Waveguide Bridge [***]
Tower Ground [***]
Freight [***]
TOWERS [***]
BUILDINGS
Exist Bldg. Mods [***]
New Building [***]
New Bldg Delivery [***]
New Bldg Foundation [***]
Building Ground [***]
AC Power [***]
Freight (incl. in Bldg [***]
Delivery)
BUILDINGS [***]
GENERATORS
25KW MOBILE [***]
35KW [***]
Transfer Panel [***]
Install & Test Labor [***]
Freight [***]
GENERATORS [***]
D.C. PLANT
Chargers [***]
Chargers Spares [***]
Batteries [***]
Tower Board/Panel [***]
Install & Test Labor [***]
Freight [***]
D.C. PLANT [***]
PROJECT ENGINEERING [***]
LLC ESTIMATED COSTS [***]
C-7
EXHIBIT C-2
PATHNET ESTIMATED COSTS DETAIL
SEGMENT A
HANSEN TWIN FALLS LWR. MTN. HOME BONNEVILLE CHQB
BUTTE SALMON
PCN COORDINATION
PCN Coordination [***]
PCN COORDINATION [***]
RADIOS (PROTECT)
1:1 Terminal: 2 & 3 Way [***]
1:1 Repeater [***]
Add RF Channel (2:1) [***]
OAM&P Software/LT [***]
Maint Accessory Kit [***]
Basic Radio Spares [***]
Enhanced Radio Spares [***]
Install [***]
Test & Turnup [***]
Freight [***]
RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET ESTIMATED COSTS [***]
C-8
SQUAW PAYETTE LIME BAKER LA GRANDE LA GRANDE TOTAL
BUTTE RLY
PCN COORDINATION
PCN Coordination [***]
PCN COORDINATION [***]
RADIOS (PROTECT)
1:1 Terminal: 2 & 3 Way [***]
1:1 Repeater [***]
Add RF Channel (2:1) [***]
OAM&P Software/LT [***]
Maint Accessory Kit [***]
Basin Radio Spares [***]
Enhanced Radio Spares [***]
Install [***]
Test & Turnup [***]
Freight [***]
RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET COSTS [***]
C-9
SEGMENT B
POCATELLO POCATELLO KINPORT AMER. FALLS COTTEREL
PR MTN.
PCN COORDINATION
PCN Coordination [***]
PCN COORDINATION [***]
RADIOS (PROTECT)
1:1 Terminal: 2 & 3 Way [***]
1:1 Repeater [***]
Add RF Channel (2:l) [***]
OAM&P Software/LT [***]
Maint Accessory Kit [***]
Basic Radio Spares [***]
Enhanced Radio Spares [***]
Install [***]
Test & Turnup [***]
Freight [***]
RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET COSTS [***]
C-10
HANSEN TOTAL
BUTTE
PCN COORDINATION
PCN Coordination [***]
PCN COORDINATION [***]
RADIOS (PROTECT)
1:1 Terminal: 2 & 3 Way [***]
1:1 Repeater [***]
Add RF Channel (2:1) [***]
OAM&P Software/LT [***]
Maint Accessory Kit [***]
Basic Radio Spares [***]
Enhanced Radio Spares [***]
Install [***]
Test & Turnup [***]
Freight [***]
RADIOS [***]
PATH ENGINEERING [***]
FCC LICENSE APPLICATION [***]
SYSTEM ENGINEERING [***]
PATHNET COSTS [***]
C-11
SCHEDULE D
INCUMBENT TRAINING
1. Pre-Commissioning Training. Prior to Commissioning of the System or at the
Incumbent's reasonable request (for certifying new employees), Pathnet shall
provide to Incumbent Field Technicians or other designees of Incumbent for
purposes of maintaining the LLC's Facilities, and Incumbent Field Technicians or
such designees shall be obligated to participate in, adequate training courses,
which training shall include, among other things, the following:
(a) comprehensive instruction for trouble-free operation maintenance;
(b) hands-on experience with the operation of the equipment deployed in
the System;
(c) review of the similarities and differences of an analog versus a
digital system;
(d) review of the latest state-of-the-art Technology and applications
used in the System;
(e) review of procedures designed to eliminate equipment damage,
incorrect handling of equipment and System downtime;
(f) comprehensive instruction in the use of all required test equipment
used in connection with the System;
(g) the distribution of manuals and other course materials that include
descriptive information publications, alignment procedures,
maintenance procedures, technical information publications,
schematic drawings, wiring lists and system assembly drawings; and
(h) a certificate of completion for each student who successfully
completes the training course.
2. Certification of Incumbent's Field Technicians. Each of Incumbent's Field
Technicians (as defined in the Maintenance Services Agreement) must either
successfully complete the training course described in Section 1 of this
Schedule D, or must be otherwise certified by Pathnet that such Field Technician
is qualified to perform services on the System.
3. Training for Upgrades. Upon any upgrade of the System, Incumbent may request
that Pathnet provide additional training with respect to such upgrade and
Pathnet shall provide such training to Incumbent as soon as practicable after
such request.
4. Training Locations. All such training shall be provided at Pathnet's
Richardson, Texas office, Washington D.C. metropolitan area headquarters or at
such other location as determined by
D-1
Pathnet.
5. Travel and Lodging. [***]
D-2
SCHEDULE E
OWNERSHIP OF SYSTEM EQUIPMENT ASSETS AND MATERIALS
NOTE: "LLC" means Pathnet/Idaho Power Equipment LLC
- -------------------------------------------------------------------------------------
System Component Owned or
Licensed
By
- -------------------------------------------------------------------------------------
Existing Shelters [***]
- -------------------------------------------------------------------------------------
New Shelters for System [***]
- -------------------------------------------------------------------------------------
New Shelters at Pathnet Spur sites [***]
- -------------------------------------------------------------------------------------
New Shelters at LLC Spur sites [***]
- -------------------------------------------------------------------------------------
Towers for System [***]
- -------------------------------------------------------------------------------------
Towers for LLC Spurs [***]
- -------------------------------------------------------------------------------------
Towers for Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
A.C. and D.C. Power system as set forth on Schedule J [***]
- -------------------------------------------------------------------------------------
Pressurizing Equipment for sites including manifolds and dehydrators. [***]
- -------------------------------------------------------------------------------------
1/0 Multiplexers [***]
- -------------------------------------------------------------------------------------
Environmental Control Systems of Shelters of System [***]
- -------------------------------------------------------------------------------------
Environmental Control Systems of Shelters of LLC Spurs [***]
- -------------------------------------------------------------------------------------
Environmental Control Systems of Shelters of Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
Common Equipment existing Before Effective Date [***]
- -------------------------------------------------------------------------------------
Common Equipment newly installed [***]
- -------------------------------------------------------------------------------------
Equipment Racks for System Radios [***]
- -------------------------------------------------------------------------------------
Antennas and Antenna Mounts relating to Initial System [***]
- -------------------------------------------------------------------------------------
Antennas and Antenna Mounts relating to LLC Spurs [***]
- -------------------------------------------------------------------------------------
Antennas and Antenna Mounts relating to Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
Waveguide and Waveguide bridges relating to Initial System [***]
- -------------------------------------------------------------------------------------
Waveguide and Waveguide bridges relating to LLC Spurs [***]
- -------------------------------------------------------------------------------------
Waveguide and Waveguide bridges relating to Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
Non-Protect Radios relating to Initial System [***]
- -------------------------------------------------------------------------------------
Protect Radios Relating to Initial System [***]
- -------------------------------------------------------------------------------------
Radios relating to any Capacity Expansion [***]
- -------------------------------------------------------------------------------------
Radios relating to LLC Spurs [***]
- -------------------------------------------------------------------------------------
Radios relating to Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
OC-3 Multiplexers [***]
- -------------------------------------------------------------------------------------
Radio Bays and Radio Bay Equipment relating to the Initial System [***]
- -------------------------------------------------------------------------------------
Radio Bays and Radio Bay Equipment relating to LLC Spurs [***]
- -------------------------------------------------------------------------------------
Radio Bays and Radio Bay Equipment relating to the Pathnet Spurs [***]
- -------------------------------------------------------------------------------------
Interconnection Equipment relating to Pathnet Spurs and Interconnections [***]
- -------------------------------------------------------------------------------------
E-1
- -------------------------------------------------------------------------------------
Interconnection Equipment relating to LLC Spurs and Interconnections [***]
- -------------------------------------------------------------------------------------
Results of the Preliminary Engineering Studies and Project Drawings
set forth in Section 6.2 [***]
- -------------------------------------------------------------------------------------
Upgraded equipment added to the System [***]
- -------------------------------------------------------------------------------------
Microwave Radio System Licenses [***]
- -------------------------------------------------------------------------------------
Panels, terminals, Software, Source Codes and other Assets and Equipment
relating to the Network Management System [***]
- -------------------------------------------------------------------------------------
Equipment required for Capacity Expansion [***]
- -------------------------------------------------------------------------------------
E-2
SCHEDULE F
FORM OF PATHNET SUBLICENSE AGREEMENT
F-1
PATHNET SUBLICENSE AGREEMENT
This Sublicense Agreement (the "Agreement") is made on _______________,
1998 (the "Effective Date") by and between Pathnet, Inc. ("Pathnet") and
Pathnet/Idaho Power Equipment, LLC ("LLC") for the use of VERTEL Corporation
("Licensor") programs.
WHEREAS, LLC desires to sublicense the programs as further defined herein;
and
WHEREAS, Pathnet is willing to grant such sublicense under the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Parties mutually agree as follows:
I. DEFINITIONS
1.1 "Licensed Program" shall mean each program in software or firmware
form provided by Pathnet to LLC pursuant to the Fixed Point Microwave Services
Agreement, dated the date hereof between LLC and Pathnet (the "FPM Agreement"),
as such Licensed Program is licensed by Pathnet from Licensor, including future
additions and updates to such Licensed Program. The term "Licensed Program"
shall specifically include documentation and related materials pertinent to such
program and any updated program or portion of a program hereinafter furnished to
LLC for use in connection with or replacement of the Licensed Programs.
1.2 "Equipment" shall mean Intel compatible servers running Windows NT.
1.3 "Use" shall mean the copying or duplication of any portion of a
Licensed Program from storage units or media into the Equipment for processing
or the utilization of any Licensed Program in the course of the operation of the
Equipment.
II. LICENSE GRANT
2.1 Use of Object/Binary Licensed Program with Designated Equipment.
Pathnet hereby grants LLC a non-exclusive, non-transferable (except as provided
in Section 5.1), non-licensable, non-assignable license to Use in machine
readable form, the Licensed Program specified in Section 1.1 solely on the
Equipment specified in Section 1.2. No license is granted to Use any Licensed
Program on any configuration of equipment which is different from or less than
the configuration indicated in Section 1.2.
III. PROPRIETARY RIGHTS
3.1 Proprietary Rights. The Licensed Program is owned by Licensor and/or
others
F-2
and is proprietary in nature. LLC shall respect such proprietary rights and
shall not use such Licensed Program except for the purposes for which it is
being made available as set forth in this Agreement and shall not reproduce,
print, sublicense, duplicate, reverse engineer, distribute, disclose, or
otherwise make the Licensed Program available to any third party, in whole or in
part, in whatever form.
3.2 Confidentiality. LLC shall take all actions required to maintain
control of the Licensed Program including securing written records, agreements,
and other reasonable measures with its employees and agents to satisfy its
obligations under this Agreement with respect to the use, copying, protection,
and security of the Licensed Program.
IV. LIMIT OF LIABILITY
4.1 NO WARRANTY. LICENSOR GRANTS A WARRANTY IN THE LICENSED PROGRAM ONLY
TO PATHNET AND DOES NOT EXTEND ITS WARRANTY TO LLC OR ANY OTHER END USER.
WARRANTY OF THE LICENSED PROGRAM IS PROVIDED BY LICENSOR DIRECTLY TO PATHNET.
LICENSOR AND PATHNET MAKE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
INCLUDING WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE WITH REGARD TO ANY LICENSED PROGRAM AND/OR RELATED MATERIALS TO BE
FURNISHED BY VERTEL.
4.2 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL LICENSOR OR PATHNET BE
LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR
ARISING OUT OF THE EXISTENCE, FURNISHING, FAILURE TO FURNISH, OR USE OF ANY
LICENSED PROGRAM AND/OR RELATED MATERIAL AND/OR DEVISE.
4.3 Licensor shall have no liability for any claim of copyright or patent
infringement based on (1) use of other than a current unaltered release of the
Licensed Program available from Licensor if such infringement would have been
avoided by the use of such current unaltered release of the Licensed Program or
(2) Use or combination of the Licensed Program with programs not supplied by
Licensor and which Use or combination results in the infringement of any patent
or copyright.
V. TRANSFER OF LICENSE
5.1 Terms for Transfer of License. This license may only be transferred
upon written approval of Pathnet and in connection with the transfer of all of
the Equipment; provided all copies of the Licensed Program are delivered to the
transferee and no copies or related materials are retained by LLC and provided
further that the transferee agrees to be bound by all the Terms and Conditions
of this Agreement.
F-3
NOW THEREFORE, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives.
PATHNET, INC.
By:
---------------------------
Title:
------------------------
Date:
-------------------------
PATHNET/IDAHO POWER
EQUIPMENT, LLC
By:
---------------------------
Title:
------------------------
Date:
-------------------------
F-4
SCHEDULE G
FACILITY ENCUMBRANCES
A. Facility Encumbrances
1. Certain Indenture of Mortgage and Deed of Trust, dated as of October
1, 1937 between Idaho Power Company and Banker's Trust Company and
R.G. Page (Stanley Burg, successor trustee), as trustee.
2. Certain encumbrances relating to Pathnet vendor creditor and lender
encumbrances, excluding any encumbrances on the Initial System.
G-1
SCHEDULE H
FORM OF PLEDGE AGREEMENT
H-1
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement"), dated as of _________, 1998,
between Pathnet, Inc., a Delaware corporation ("Pathnet") and Pathnet/Idaho
Power Equipment LLC, a Delaware limited liability company with its principal
place of business at the address set forth below ("LLC").
RECITALS
WHEREAS, Pathnet is the owner, beneficially and of record, of all of the
issued and outstanding interests in Pathnet/Idaho Power License LLC, a Delaware
limited liability company ("License LLC");
WHEREAS, such interests in License LLC (the "Pledged Securities") are
evidenced by the certificates and other instruments, if any, identified on
Exhibit A attached hereto (the "Certificates");
WHEREAS, Pathnet and Incumbent have entered into a limited liability
company agreement relating to License LLC (the "LLC Agreement") pursuant to
which, among other things, Pathnet shall hold the FCC Licenses required to
operate the Initial System.
WHEREAS, Pathnet and Pathnet/Idaho Power Equipment LLC ("Equipment LLC")
have entered into a Fixed Point Microwave Services Agreement and Pathnet,
Incumbent and Equipment LLC have entered into a Contingent Radio Revenue
Agreement, dated as of the date hereof ("the FPM Agreement" and "Revenue
Agreement", respectively) pursuant to which LLC and Incumbent have agreed, among
other things, to engage Pathnet as, and Pathnet has agreed to act as, Incumbent
and LLC's sole representative for the purpose of, (i) installing, managing and
operating a high capacity digital microwave system along LLC's current microwave
paths (the "System"), and (ii) marketing and selling any excess capacity created
by such high capacity digital microwave system;
WHEREAS, following the installation of the high-capacity, digital
communications system described in the FPM Agreement, Incumbent and LLC will be
granted capacity on channels from the Initial System (as defined in the FPM
Agreement) for the necessary expansion and enhancement of LLC's internal
communications and operational needs;
WHEREAS, given the critical nature of the operational communications
contemplated to be conducted by LLC Through the high capacity digital microwave
system to be installed by Pathnet, the parties recognize that any interruption
in LLC's communications service, other than as may be provided by the terms
hereof, would be materially adverse to the public interest and could involve
adverse public safety consequences;
WHEREAS, the intentions of the parties hereto are to provide Incumbent and
LLC with a
H-2
reliable long-term communications capability and, in this regard, a condition to
the execution, delivery and the consummation of the transactions contemplated by
the FPM Agreement is the execution and delivery of this Agreement; and
WHEREAS, all capitalized terms used herein and not defined herein shall
have the meanings ascribed to such terms in the FPM Agreement;
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
1. Pledge. In order to induce LLC and Incumbent, as the case may be, to
execute, deliver and perform the FPM Agreement and Revenue Agreement and as
security for Pathnet's or Pathnet's successors' performance of Pathnet's
obligations under the FPM Agreement, Revenue Agreement and the LLC Agreement,
Pathnet hereby pledges, hypothecates, mortgages, assigns, transfers, delivers,
deposits, sets over and grants a security interest in the Pledged Securities
unto LLC and its successors and assigns, and except as otherwise provided
hereunder, all cash and other property or securities at any time and from time
to time receivable or otherwise distributed in respect of or in exchange for any
or all of the Pledged Securities, TO HAVE AND HOLD the Pledged Securities,
together with all rights, title, interests, powers and privileges appertaining
or incidental thereto, unto LLC, and its successors and assigns forever, subject
to the terms, covenants and conditions hereinafter set forth.
2. LLC Appointed Attorney-in-Fact. Upon the occurrence of an Event of
Default (as hereinafter defined), Pathnet hereby authorizes and appoints LLC as
its attorney-in-fact to transfer the Pledged Securities to LLC and to take any
action and to execute any instrument which LLC may deem necessary or advisable
to accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest. Without limiting the generality of the foregoing, upon the
occurrence of an Event of Default, LLC shall have the right and power to
receive, endorse, and collect all checks and other orders for the payment of
money made payable to Pathnet, or any assignee of, or successor to, Pathnet
representing any payment or other distribution in respect of the Pledged
Securities, or any part thereof, and to give full discharge therefor.
3. Voting Rights: Dividends: etc. Unless and until an Event of Default
shall have occurred:
(a) Pathnet shall be entitled to exercise any and all voting and/or
consensual rights and powers accruing to an owner of the Pledged
Securities or any part thereof for any purpose not inconsistent with the
terms hereof.
(b) Any cash dividends paid in respect of the Pledged Securities
shall be paid to Pathnet. Any additional shares issued as a result of a
stock split or stock dividend or other such reclassification shall be and
become part of the Pledged Securities pledged hereunder and shall
forthwith be delivered to LLC to be held subject to the terms of this
Agreement.
H-3
4. Events of Default. The occurrence of any of the following events or
circumstances shall constitute an Event of Default under this Agreement:
(a) License LLC filing a voluntary petition in bankruptcy.
(b) License LLC consenting to an involuntary bankruptcy petition.
(c) License LLC consenting to a petition seeking liquidation,
reorganization or other relief under any applicable law of any
jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors.
(d) License LLC consenting to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of License LLC for a substantial part of its
property.
e) License LLC making any assignment for the benefit of creditors
or permitting or suffering to exist any lien, pledge, equity.
charge, security interest, or encumbrance against any of the
Pledged Securities, except the pledge to LLC, each as provided
in this Agreement.
(f) License LLC consenting to any merger, consolidation or other
business combination involving the License LLC.
(g) License LLC entering into or becoming bound by any
understanding or arrangement to do any of the foregoing.
(h) The liquidation or dissolution of Pathnet under the Delaware
general corporation law, or
(i) The default by Pathnet under its financing arrangement with
its vendor and the vendor's syndicate of lenders and LLC's
receipt of written notice from such vendor or such vendor's
syndicate of lenders stating its or their intention to waive
its or their right to operate the System for the purpose of
generating Revenue from the sale of Excess Capacity.
5. Remedies Upon Default. If an Event of Default shall have occurred, LLC
may foreclose upon and take possession of the Certificates by providing written
certification to Pathnet that an event of Default has occurred and transferring
the Pledged Securities to LLC, free and clear of all claims or encumbrances, and
exercise all of the rights, title and interest in Pathnet as represented by the
Certificates.
6. Securities Act. etc. LLC understands that compliance with applicable
securities laws may very strictly limit the course of conduct of LLC if LLC were
to attempt to dispose of
H-4
all or any part of the Pledged Securities, and may also limit the extent to
which or the manner in which any subsequent transferee of any Pledged Securities
may dispose of the same. Similarly, LLC acknowledges and understands that there
may be other legal restrictions or limitations affecting LLC in any attempt to
dispose of all or any part of the Pledged Securities under applicable Blue Sky
or other state securities laws or similar laws analogous in purpose or effect.
7. Termination of Pledge. The pledge set forth in Section 2 above shall
terminate upon the expiration of the FPM Agreement. Upon expiration, LLC shall
take possession of the Pledged Securities free and clear of all claims or
encumbrances, and exercise all of the rights, title and interest of Pathnet as
represented by the Certificates, including the right to vote the shares
represented by Certificates.
8. Representations. Warranties and Covenants of Pathnet. Pathnet hereby
represents, warrants and covenants that:
(a) Pathnet is the owner, beneficially and of record, of the Pledged
Securities, free and clear of all liens, pledges, equities, charges,
security interests, and encumbrances whatsoever except those arising
under this Agreement;
(b) Pathnet has full corporate power and authority to execute and
deliver and perform its obligations under this Agreement and this
Agreement is Pathnet's valid and binding obligation, enforceable in
accordance with its terms, except as such enforcement may be limited
by (i) applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally, (ii) equitable
rules or principles affecting the enforcement of obligations
generally, whether at law or in equity, or (iii) the exercise of the
discretionary powers of any court before which may be brought any
proceeding seeking equitable remedies, including, without
limitation, specific performance and injunctive relief. This
Agreement does not violate any of Pathnet's stock restrictions
shareholder agreements or similar restrictions presently existing;
(c) The authorized interest stock of License LLC is as set forth on
Exhibit A. All of the interest of Licensee LLC that are issued and
outstanding are owned of record and beneficially owned by Pathnet
are as set forth on Exhibit A. All of the Pledged Securities are
duly authorized for issuance, validly issued, fully paid and
nonassessable; and
(d) Pathnet shall not, without the prior written consent of LLC take any
of the following actions: (i) permit or suffer to exist any lien,
pledge, equity, charge, security interest, or encumbrance whatsoever
against any of the Pledged Securities, except the pledge to LLC,
each as provided in this Agreement; (ii) redeem or retire, directly
or indirectly, or make any change in the capital structure of
License LLC; (iii) cause License LLC to create, incur,
H-5
assume or suffer to exist any indebtedness, whether direct or
indirect or through a guaranty, which is unrelated to License LLC's
business purpose as stated in the LLC Agreement; (iv) cause License
LLC to consolidate with or merge into any other person or entity or
permit any other person or entity to merge into it; or (v) cause
License LLC to advance funds (whether by way of loan, stock
purchase, capital contribution or otherwise) to any other person or
entity.
9. Waiver of Notice. etc. Except as specifically provided for herein,
Pathnet waives demand, notice, protest, notice of acceptance of this Agreement,
notice of any extensions granted, collateral received or delivered or any action
taken in reliance hereon; all demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of any obligation and
all other demands and notices of any description; and assents to any extension
or postponement of the time of payment of any of the obligations created
hereunder or any other indulgence.
10. Governing Law. This Agreement is to be governed by and construed in
accordance with the laws of the State of Delaware. The Parties agree that any
action or proceeding brought by LLC under this Agreement (a) will be litigated
under the laws of the State of Delaware and agree to be subject to the
jurisdiction of the Courts of the State of Delaware or (in a case involving
diversity of citizenship) the United States District Court for Delaware, (b)
that service of process of any summons and complaint in any such action or
proceeding may be made by registered or certified mail directed to Pathnet at
the address hereafter set forth, Pathnet waiving personal service thereof, and
(c) within forty-five (45) days after summons and complaint, and should the
Parties so served fail to appear or answer within said forty-five (45) day
period, Pathnet shall be deemed in default and judgment entered against Pathnet
for the amount demarked in any summons and complaint so served.
11. Succession. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns and shall also inure to the benefit of
the holders from time to time of the obligations.
12. Invalidity of Provisions, In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
13. Amendments. This Agreement may not be changed orally, but only by an
agreement in writing signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.
14. Notices. All communications under or with respect to this
H-6
Agreement shall be in writing and shall be delivered to the parties in the
manner prescribed and addressed as designated in the FPM Agreement, subject to a
change thereof by written notice.
15. Counterparts. This Agreement may be executed in two or more
counterparts, all of which together shall constitute one and the same
instrument.
16. Entire Agreement. This Agreement embodies the entire understanding of
the parties with respect to the subject matter of this Agreement and no oral
understandings exist among the parties hereto with respect to the subject matter
hereof except as herein expressly set forth.
17. Captions. The captions of this Agreement are for convenience only and
shall neither limit nor enlarge the provisions hereof.
18. FCC Consent. Notwithstanding anything to the contrary contained herein
or in the FPM Agreement, LLC will not take any action pursuant to this Agreement
or the FPM Agreement that would constitute or result in any assignment of or a
transfer of control of any FCC authorization(s) held by Pathnet if such
assignment or transfer of control would require under then existing law
(including the written rules and regulations promulgated by the FCC), the prior
approval of the FCC, without first obtaining such approval of the FCC. LLC
specifically agrees that (a) the voting rights of the Pledged Securities will
remain with Pathnet upon and following the occurrence of an Event of Default
unless and until any required prior approvals of the FCC to the transfer of such
voting rights to LLC shall have been obtained; and (b) prior to the exercise of
voting rights by the LLC, the prior consent of the FCC pursuant to, and as and
to the extent required by, 47 U.S.C. 310(d) will be obtained. Pathnet agrees to
take any action which LLC may reasonably request in order to obtain and enjoy
the full rights and benefits granted to LLC by this Agreement including
specifically the use of the best efforts of Pathnet to assist in obtaining
approval of the FCC for any action or transaction contemplated by this Agreement
which is then required by law, and specifically, without limitation, upon
request following the occurrence of an Event of Default, to prepare, sign and
file (or cause to be prepared, signed or filed) with the FCC any portion of any
application or applications for consent to the assignment of an authorization or
transfer of control required to be signed by Pathnet and necessary or
appropriate under the FCC's rules and regulations for approval of any sale or
transfer of any of the capital stock or assets of Pathnet or any transfer of
control of any FCC authorization.
PATHNET, NC. PATHNET/IDAHO POWER
EQUIPMENT LLC
By: By:
--------------------------------- -----------------------------
Name: Name:
------------------------------- ---------------------------
Title: Title:
----------------------------- --------------------------
H-7
EXHIBIT A
CERTIFICATES
[NONE ATTACHED]
H-8
SCHEDULE I
FORM OF SECURITY AGREEMENT
I-1
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"), dated as of ____, 1998,
between Pathnet, Inc., a Delaware corporation with its principal place of
business at the address set forth below ("Pathnet") and Pathnet/Idaho Power
Equipment LLC, a Delaware limited liability company with its principal place of
business at the address set forth below ("LLC").
RECITALS
WHEREAS, Pathnet and LLC have entered into a Fixed Point Microwave
Services Agreement and Pathnet, LLC and Incumbent have entered into a Contingent
Radio Revenue Agreement, each dated as of date hereof ("the FPM Agreement" and
"Revenue Agreement", respectively) pursuant to which LLC and Incumbent has
agreed, among other things, to engage Pathnet as, and Pathnet has agreed to act
as, Incumbent and LLC's sole representative for the purpose of, (i) installing,
managing and operating a high capacity digital microwave system along LLC's
current microwave paths (the "System"), and (ii) marketing and selling any
excess capacity created by such high capacity digital microwave system;
WHEREAS, following the installation of the high-capacity, digital
communications system described in the FPM Agreement, LLC will be allocated
capacity on channels from the Initial System (as defined in the FPM Agreement)
for the necessary expansion and enhancement of LLC's internal communications and
operational needs;
WHEREAS, given the critical nature of the operational communications
contemplated to be conducted by LLC through the high capacity digital microwave
system to be installed by Pathnet, the parties recognize that any interruption
in LLC's communications service, other than as may be provided by the terms
hereof, would be materially adverse to the public interest and could involve
adverse public safety consequences;
WHEREAS, the intentions of the parties hereto are to provide LLC with a
reliable long-term communications capability and, in this regard, a condition to
the execution, delivery and the consummation of the transactions contemplated by
the FPM Agreement is the execution and delivery of this Agreement; and
WHEREAS, Pathnet is the owner of the Initial System's eighty-four (84)
DS-1 protect channel radios necessary to operate the Initial System in a
protected format (collectively, the "Assets"); and
WHEREAS, a condition to the execution, delivery and consummation of the
transactions contemplated by the FPM Agreement and Revenue Agreement is the
execution and delivery of this Agreement.
WHEREAS, all capitalized terms used herein and not defined herein shall
have the meanings ascribed to such terms in the FPM Agreement;
I-2
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
1. Grant of Security Interest in Assets. In order to induce LLC to
execute, deliver and perform the FPM Agreement and as security for Pathnet's or
LLC's successors' performance of Pathnet's obligations under the FPM Agreement,
Pathnet hereby assigns, conveys, mortgages, pledges, hypothecates, transfers and
confirms to LLC, its successors and assigns, and hereby grants to LLC a lien on
and security interest in all of Pathnet's right, title, interest and powers in
the Assets. This Agreement constitutes a valid and continuing lien on and
security interests in the Assets in favor of LLC, prior to all other liens,
encumbrances, security interest and rights of others and is enforceable as such
as against creditors of and purchasers from the Pathnet. All such action
necessary or desirable to protect and perfect such security interest in each
item of the Assets will have been duly taken prior to the date the Assets are
installed, including but not limited to Pathnet, at its expense, causing UCC-1
Financing Statements with respect to the Assets to be filed and recorded in all
places necessary to establish create and perfect the lien intended to be created
hereby.
2. Events of Default. The occurrence of any of the following events or
circumstances shall constitute an Event of Default under this Agreement:
(a) the liquidation or dissolution of Pathnet under the
Delaware general corporation law,
(b) the default by Pathnet under its financing arrangement
with its vendor and LLC's receipt of written notice from such vendor
stating its intention to waive its right to operate the System for
the purpose of generating Revenue from the sale of Excess Capacity;
or
(c) the physical removal of the Assets from the Facilities by
Pathnet or the granting or suffering of a lien by Pathnet against
the Assets, except as approved by Incumbent
3. Remedies Upon Default. If an Event of Default shall have occurred, the
LLC may, in addition to any remedies it may have under the FPM Agreement, (a)
take possession or control of, store, lease, operate, manage, sell or otherwise
dispose of all or any part of the Assets, (b) notify all parties under any
account or contract forming all or any part of the Assets to make any payments
due to Pathnet directly to LLC, (c) in the name of Pathnet or in the name of
LLC, demand, collect, receive, sue for and give receipts and releases for any
and all amounts due under such account and contract rights, (d) endorse as the
agent of Pathnet any check, note, chattel paper, documents or instruments
forming all or any part of the Assets, (e) make formal application for the
transfer to LLC of all of Pathnet's Permits, licenses, approvals and the like
relating to the Assets and (f) take any action which LLC deems necessary or
desirable to protect and realize upon the security interest in the Assets.
4. Termination of Security Interest. The security interest set forth in
Section 1 above
I-3
shall terminate simultaneously with the expiration of the FPM Agreement
5. Representations, Warranties and Covenants of the Pathnet. Pathnet
hereby represents, warrants and covenants that:
(a) The Pathnet has full corporate power and authority to execute
and deliver and perform its obligations under this Agreement
and this Agreement is the Pathnet's valid and binding
obligation, enforceable in accordance with its terms, except
as such enforcement may be limited by (i) applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally, (ii) equitable
rules or principles affecting the enforcement of obligations
generally, whether at law or in equity, or (iii) the exercise
of the discretionary powers of any court before which may be
brought any proceeding seeking equitable remedies, including,
without limitation, specific performance and injunctive
relief.
(b) It is or will be before Commissioning (as such term is defined
in the FPM Agreement) the owner of the Assets and has good and
marketable title to the Assets, free and clear of all liens,
security interests and other encumbrances, except for those in
favor of the LLC.
(c) It will not sell, lease, transfer, exchange or otherwise
dispose of the Assets, or any part thereof, without the prior
written consent of LLC, and will not permit any lien, security
interest or other encumbrance to attach to the Assets, or any
part thereof, other than those in favor of the LLC or those
permitted by LLC in writing.
(d) No approval, consent or other action by the stockholders and
Pathnet or by any governmental authority, or by any other
person or entity, is or will be necessary to permit the valid
execution, delivery and performance by the Pathnet of this
Agreement or any other instruments or agreements executed in
connection herewith.
6. Waiver of Notice, Etc. Except as specifically provided for herein,
Pathnet waives demand, notice, protest, notice of acceptance of this Agreement,
notice of any extensions granted, collateral received or delivered or any action
taken in reliance hereon; all demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of any obligation and
all other demands and notices of any description; and assents to any extension
or postponement of the time of payment of any of the obligations created
hereunder or any other indulgence.
7. Governing Law. This Agreement is to be governed by and construed in
accordance with the laws of the State of Delaware. Pathnet agrees that any
action or proceeding brought by the LLC under this Agreement (a) will be
litigated under the laws of the State of
I-4
Delaware and agrees to be subject to the jurisdiction of the Courts of the State
of Delaware or (in a case involving diversity of citizenship) the United States
District Court for Delaware, (b) that service of process of any summons and
complaint in any such action or proceeding may be made by registered or
certified mail directed to Pathnet at the address hereafter set forth, Pathnet
waiving personal service thereof, and (c) within forty-five (45) days after
summons and complaint, and should Pathnet so served fail to appear or answer
within said forty-five (45) day period, Pathnet shall be deemed in default and
judgment entered against Pathnet for the amount demarked in any summons and
complaint so served.
8. Succession. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns and shall also inure to the benefit of
the holders from time to time of the obligations.
9. Invalidity of Provisions, In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10. Amendments. This Agreement may not be changed orally, but only by an
agreement in writing signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.
11. Notices. All communications under or with respect to this Agreement
shall be in writing and shall be delivered to the parties in the manner
proscribed and addressed as designated in the FPM Agreement, subject to a change
thereof by written notice.
12. Counterparts. This Agreement may be executed in two or more
counterparts, all of which together shall constitute one and the same
instrument.
13. Entire Agreement. This Agreement embodies the entire understanding of
the parties with respect to the subject matter of this Agreement and no oral
understandings exist among the parties hereto with respect to the subject matter
hereof except as herein expressly set forth.
14. Captions. The captions of this Agreement are for convenience only and
shall neither limit nor enlarge the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
PATHNET, INC. PATHNET/IDAHO POWER
EQUIPMENT LLC
I-5
By: By:
----------------------------- --------------------------
Name: Name:
----------------------------- --------------------------
Title: Title:
----------------------------- --------------------------
I-6
SCHEDULE J
FORM OF PATHNET IRU AGREEMENT
J-1
PATHNET
INDEFEASIBLE RIGHT TO USE AGREEMENT
THIS INDEFEASIBLE RIGHT TO USE AGREEMENT (this "Agreement") is made and
entered into as of the _____ day of ________________, 1998 (the "Effective
Date"), by and between Pathnet/Idaho Power Equipment LLC, a Delaware limited
liability company (the "LLC"), and Pathnet, Inc., a Delaware corporation
("Pathnet").
WITNESSETH:
WHEREAS, the LLC owns certain equipment used for the purpose of creating
high capacity, digital, microwave communications;
WHEREAS, Pathnet is engaged in the business of creating high capacity,
digital, microwave communications systems for purposes of marketing and selling
the excess long distance telecommunications capacity created by such systems.
WHEREAS, the LLC has agreed to provide certain digital microwave capacity
to Pathnet in exchange for certain services and other consideration to be
performed and delivered by Pathnet pursuant to the Fixed Point Microwave
Services Agreement by and between Pathnet and the LLC dated as of the date
hereof (the "FPM Agreement").
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the Parties agree as follows:
SECTION 1. DEFINITIONS
1.1 Affiliate: With respect to any Person, any other Person that directly
or indirectly controls, is controlled by, or is under common control with such
Person. For the purposes of this definition, "control" (including the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract, or otherwise.
1.2 Channel Plan: The T-1 plan for channelization of the microwave
communications system owned by the LLC.
1.3 Commissioning Date: With respect to each path or Segment, the date on
which the circuits of such path or Segment are available for service after
completion of all required site acceptance testing on the system.
1.4 DS-0: 64,000 bits per second; the world-wide standard speed for
digitizing one voice conversation using pulse code modulation, which is
approximately equivalent to a single voice or data channel.
1.5 DS-1: 24 DS-0's
1.6 Person: An individual, corporation, partnership, limited liability
corporation, trust, incorporated or unincorporated association, joint venture,
joint stock company, or other entity of any kind or any governmental authority.
1.7 Segment: The portion of the microwave communications network existing
between two geographic points.
1.8 Segment A: The portion of the microwave communications network between
LaGrande, Oregon and Twin Falls, Idaho, including Hansen Butte, Idaho and Boise,
Idaho, as set forth in Schedule A.
1.9 Segment B: The portion of the microwave communications network between
Hansen Butte, Idaho and Pocatello, Idaho, as set forth in Schedule A.
SECTION 2. INDEFEASIBLE RIGHT TO USE
The LLC hereby grants to Pathnet and Pathnet hereby purchases from the LLC
an indefeasible right of use ("IRU") as to forty-eight (48) DS-1's (the
equivalent of 1,152 DS-O's) of digital capacity from the non-protect radio owned
by the LLC along Segment A and, if developed by the Parties, along Segment B, as
set forth and contemplated in the Channel Plan. The IRU shall commence on the
Commissioning Date and continue until the Expiration Date of this Agreement.
SECTION 3. TERM
This Agreement shall commence on the Effective Date and shall be in full
force and effect with respect to each Segment until the termination of the FPM
Agreement, as to each such Segment ("Expiration Date").
SECTION 4. MISCELLANEOUS
4.1 Tax Treatment: LLC and Pathnet agree that this Agreement shall not be
treated as the sale or exchange of property for Federal income tax purposes.
4.2 Notices: All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when delivered to, or on
the fifth day after being deposited in the United States mail, certified mail,
return receipt requested, postage prepaid, to the person at the address first
listed above or to such other person and/or address as may be designated from
time to time in writing.
4.3 Amendment: No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be agreed to in
writing and signed by a person duly authorized by each party. Any waiver by
either party of any breach of any of the terms of this Agreement shall not be
considered a waiver of any subsequent breach.
2
4.4 Severability: In the event that any provision of this Agreement shall
be held invalid or unenforceable for any reason whatsoever, such provision shall
be deleted and the remainder of the Agreement shall not be affected and shall be
valid and enforceable to the fullest extent permitted by law without the deleted
provision or provisions.
4.5 Entire Agreement: This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof.
4.6 Binding Nature; Assignment: Pathnet and the LLC acknowledge that (i)
each has read and understands the terms and conditions of this Agreement and
agrees to be bound by such terms and conditions, (ii) this Agreement shall be
binding on each of Pathnet and the LLC and their respective successors and
assigns, (iii) this Agreement together with any agreements or documents executed
in connection and contemporaneously herewith is the complete and conclusive
statement of the agreement between the Parties, (iv) this Agreement together
with any agreements or documents executed in connection and contemporaneously
herewith supersedes any and all prior agreements and arrangements between the
Parties and all understandings and agreements, oral and written, heretofore made
between the LLC and Pathnet are merged in this Agreement which together with any
agreements or documents executed in connection and contemporaneously herewith,
fully and completely expresses their agreement on the subject matter of this
Agreement.
At any time and from time to time, Pathnet shall have the right to assign
this Agreement or any of Pathnet's rights and obligations under this Agreement
to an assignee, which assignee shall be bound by the terms and conditions of
this Agreement; provided, that in no event shall any such assignment relieve
Pathnet of its obligations under this Agreement. The LLC may not assign this
Agreement or any of its rights and obligations hereunder without the prior
written consent of Pathnet, which consent shall not be unreasonably withheld;
provided, however, the LLC may assign its rights and obligations, in whole but
not in part, under this Agreement without the approval of Pathnet, to any entity
which acquires all or substantially all of the assets of the LLC or to any
subsidiary, Affiliate or successor in a merger or consolidation of the LLC;
provided, that in no event shall any such assignment relieve the LLC of its
obligations under this Agreement.
4.7 Governing Law: This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Idaho (other than the
choice of law rules thereof).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PATHNET/IDAHO POWER EQUIPMENT LLC PATHNET, INC.
BY BY
--------------------------------- --------------------------
NAME: NAME:
TITLE: TITLE:
3
SCHEDULE A
THE SYSTEM
A. Segment A
LLC Segment A extends from LaGrande, Oregon to Twin Falls, Idaho, with
Facilities at the sites listed below, as such Facilities may be amended.
SEGMENT A
Facility Latitude Longitude Path To
- -------- -------- --------- -------
Hansen Butte 42-29-35 114-13-47 Cotteral Mtn.
Lower Salmon
Twin Falls
Twin Falls 42-32-43 114-27-32 Hansen Butte
Lower Salmon 42-51-05 114-54-47 Hansen Butte
Mountain Home
Mountain Home 43-12-18 115-33-49 Lower Salmon
Bonneville Point
Bonneville Point 43-29-17 116-01-45 Squaw Butte
Boise HQ
Mountain Home
Boise HQ 43-37-08 116-12-25 Bonneville Point
Squaw Butte 44-00-13 116-24-38 Bonneville Point
Payette
Payette 44-03-25 116-55-32 Squaw Butte
Lime
Lime 44-25-54 117-14-54 Payette
Baker
Baker 44-44-19 117-44-45 Lime
LaGrande Relay
LaGrande Relay 45-13-03 118-00-00 Baker
LaGrande
LaGrande 45-18-46 118-04-13 LaGrande Relay
A-1
B. Segment B
LLC Segment B extends from Hanson Butte, Idaho to Pocatello, Idaho with
Facilities at the sites listed below, as such Facilities may be amended.
SEGMENT B
Facility Name Latitude Longitude Path to:
- ------------- -------- --------- --------
Pocatello 42-51-38 112-26-26 Pocatello P.R.
Pocatello P.R. 42-55-14 112-20-44 Pocatello
Kinport
Kinport 42-53-36 112-33-31 Pocatello P.R.
American Falls
American Falls 42-45-25 112-48-38 Kinport
Cotteral Mtn.
Cotteral Mtn. 42-23-55 113-27-54 American Falls
Hansen Butte
Hansen Butte 42-29-35 114-13-47 Cotteral Mtn.
A-2
SCHEDULE K
FORM OF SPECTRUM LICENSE AGREEMENT
K-1
SPECTRUM LICENSE AGREEMENT
THIS SPECTRUM LICENSE AGREEMENT (this "Agreement") executed as of
the ___ day of ______, 1998, by and between Pathnet/Idaho Power License LLC, a
Delaware limited liability company ("Carrier") and Pathnet/Idaho Power Equipment
LLC, a Delaware limited liability company ("Customer"),
W I T N E S S E T H:
WHEREAS, Carrier is the holder of those certain licenses (the
"Licenses") issued by the Federal Communications Commission (the "FCC") for the
operation of certain specified microwave channels (the "Channels"), which
stations operates from a transmitters at the Latitudes and Longitudes set forth
on Exhibit A attached hereto (the "Stations"); and
WHEREAS, Customer desires to have the use of substantially all of
the Carrier's channel capacity on the Channels and Carrier is willing to lease
such channel capacity to Customer upon the terms and conditions contained herein
and consistent with the rules and policies of the FCC and Carrier's FCC licensee
responsibilities;
NOW, THEREFORE, in consideration of the recitals and the mutual
promises set forth below, the parties agrees as follows:
1. Term. This Agreement shall be effective as of the date of
execution hereof. The term of this Agreement shall commence on the date of
Commissioning of Segment A of the Initial System (as such term is defined in the
Fixed Point Microwave Services Agreement, dated as of the date hereof) and shall
continue for a period of one hundred eighty (180) months, unless sooner
terminated in accordance with the terms of Section 13 hereof. This Agreement
shall automatically renew for a single term of one hundred twenty (120) months
under the same terms and conditions as contained herein, unless all the Members
of the Pathnet/Idaho Power Equipment LLC deliver to Carrier a notice of its
intention to not renew no later than one (1) month prior to the end of the
initial term. Any renewal shall be conditioned upon Carrier's continued
authorization from the FCC to operate the Channels.
2. Lease of the Channels. Commencing on the first day of the term of
this Agreement, Carrier hereby leases to Customer all transmission time on the
Channels, including all subcarriers and blanking intervals, twenty-four hours a
day, seven days a week, every week. Customer or its permitted assigns or
sublessees shall have the right to utilize the Channels for the provision of
long distance telecommunications service and uses ancillary thereto (the
"Service"). Upon FCC authorization to use any or all capacity on the Channels
for the provision of communications services other than the Service, Customer
shall have the right to lease from Carrier for the use by Customer or its
permitted assigns or sublessees any or all of the capacity on the Channels for
the provision of such additional or alternative communication services.
3. Control of Facilities. Notwithstanding anything in this Agreement
to the
K-2
contrary, Carrier, as the FCC licensee of the Channels, shall be responsible for
compliance with all applicable FCC rules and policies. Carrier shall have
control, in accordance with FCC rules and policies, of the construction,
operation, management and maintenance of the equipment and facilities owned or
leased by Customer and used to transmit on the Channels (the "Transmission
Facilities") to the extent necessary to comply with such rules and policies.
4. Consideration. In consideration of Carrier's agreement to lease
the Channels to Customer, Customer agrees to pay to Carrier the fee of one
hundred dollars ($100) on the date hereof.
5. Operation and Maintenance. Subject to the provisions of Section 3
Customer shall, at its sole cost and expense, operate and maintain the Stations
in good operating condition and repair. All persons performing maintenance,
repairs or other duties at the Stations shall be technically qualified to
perform such duties and shall work under Customer's direct and continuing
supervision in accordance with good engineering practices consistent with good
industry standards. Customer, at its own expense, may make alterations or
install attachments to the Stations as may be reasonably required by the
exigencies of its business from time to time, provided that (a) such alterations
and attachments do not violate any FCC rules or regulations, (b) that Carrier
has been notified of such proposed alterations and has consented to them or, if
such prior notice is impossible due to an emergency, that Carrier has been
notified as expeditiously as possible of such alterations and has consented to
them, and (c) that prior FCC authorization, if required, has been obtained by
Carrier.
6. FCC Compliance. Customer and Carrier shall each use their
reasonable efforts to cooperate with any written request by FCC to Customer or
Carrier to inspect the facilities, equipment and records of the Station for
compliance with the rules and regulations promulgated by the FCC, and the
parties further agree to (a) take all necessary actions to comply with the
results of such inspection by the FCC, and (b) comply with in all material
respects all laws, regulations, orders, judgments, or decrees of any court,
governmental authority or agency application to the Channels, the Station or the
obligations assumed by Customer pursuant to this Agreement.
7. Supplemental Information. The parties agree to cooperate in
promptly responding to any request by the FCC or any other state or federal
regulatory agency having jurisdiction over the Channels or the parties to this
Agreement for information concerning the operations of the Channels or the
financial condition of the entity operating the Channels under Carrier's
ultimate supervision and control. If requested by either party hereto, the other
party agrees to cooperate in either (a) opposing the disclosure of any
information determined by the requesting party to be confidential, proprietary
or business or trade secret and not subject to disclosure under applicable law;
or (b) if the disclosure of such information is required by law, requesting the
confidential treatment thereof by the state or federal regulatory agency. The
costs and expenses of such opposition or request for confidential treatment
shall be borne by the party from whom the information is sought.
8. Notices. All notices, requests, consents or other communications
K-3
hereunder shall be in writing, and shall be effective upon receipt, in each case
addressed:
If to Carrier, to:
Pathnet/Idaho Power License, LLC
1015 - 31st Street, N.W.
Washington, D.C. 20007
Attn: Michael A. Lubin
If to Customer, to:
Pathnet/Idaho Power Equipment, LLC
1221 West Idaho Street
P.O. Box 70
Boise, ID 83702-5627
provided, however, that if any party shall have designated a different address
by notice to the others, then to the last address so designated.
9. Waivers. Any waiver by any party of any breach of or failure to
comply with any provision of this Agreement by the other party shall not be
construed as, or constitute, a continuing waiver of such provision, of this
Agreement.
10. Complete Agreement. This Agreement sets forth the entire
understanding of the parties hereto with respect to the lease of the Channels
and supersedes all prior agreements, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any party (or any
officer, employee or representative of any party) relating thereto.
11. Governing Law; Construction. This Agreement shall be construed
and enforced in accordance with and governed by the internal substantive laws of
the State of Delaware. The heading of the Sections of this Agreement are
inserted for convenience of reference only and shall not be deemed to constitute
a part hereof. Unless otherwise stated, references in this Agreement to sections
refer to the Sections of this Agreement.
12. Amendment. This Agreement may be amended only by an instrument
in writing duly executed by the parties.
13. Termination of FCC authorization. Customer may terminate this
Agreement without further liability upon thirty (30) days prior written notice
to Carrier only in the event that Carrier's authorization to operate the
Channels as contemplated by this Agreement is revoked, forfeited or surrendered
by FCC Final Action. Carrier may terminate the Agreement without further
liability upon thirty (30) days prior written notice to Customer in the event
that the FCC determines that Customer is not authorized to provide Service or
otherwise carry out its obligations as contemplated by this Agreement. If
termination shall occur pursuant to this
K-4
Section 13, such termination shall extinguish and cancel this Agreement without
further liability on the party of either party to the other, except for claims
or causes of action arising prior to termination. For purposes of this
Agreement, "Final Action" shall mean an action of the FCC that has not been
reversed, stayed, enjoined, set aside, annulled, or suspended, with respect to
which no timely petition for reconsideration or administrative or judicial
appeal or sua sponte action of the FCC with comparable effect is pending, and as
to which the time for filing any such petition or appeal (administrative or
judicial) or for the taking of any such sua sponte action of the FCC has
expired.
14. Force Majeure. Notwithstanding anything contained in this
Agreement to the contrary, neither party shall be liable to the other for
failure to perform any obligation under this Agreement (nor shall any charges or
payments be made or required in respect of the period during which such failure
has occurred and is continuing) if such failure is the result of fires, civil
unrest, rationing or other orders or requirements, acts of civil or military
authorities, acts of God, or other contingencies beyond the reasonable control
of the nonperforming party which would permit the cessation of operations or
transmission by a licensee under the applicable FCC rules, regulations, and
policies; provided, however that the party so prevented from complying herewith
shall not have procured such event of Force Majeure, shall have used reasonable
diligence to avoid such event of Force Majeure and ameliorate its effects, and
shall continue to take all actions within its power to comply as full as
possible with the terms of this Agreement. All requirements as to notice and
other performance required hereunder within a specified period shall be
automatically extended by a period equal in length to the period during which
such contingency has interfered with or prevented performance hereunder.
15. Specific Performance. The parties acknowledge and agree that the
rights reserved to each of them hereunder are of a special, unique, unusual and
extraordinary character, which gives them a particular value, the loss of which
cannot be adequately or reasonably compensated for in damages in an action at
law, and that the breach by either of the parties of any of the provisions
hereof will cause the other party irreparable injury and damage. In the event of
a default by any of the parties hereunder, the non-defaulting party shall be
entitled, as a matter of right, without further notice, to require of the
defaulting party specific performance of all of the acts, services and
undertakings required hereunder including the obtaining of all requisite
authorizations to execute or perform this Agreement and injunctive and other
equitable relief, without the posting of a bond, in any competent court to
prevent the violation of any of the provisions hereof. Neither this provision
nor any exercise by any party of rights to equitable relief or specific
performance herein granted shall constitute a waiver of any other rights which
it may have to damages or otherwise.
16. Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed one and the same original.
17. Dealings with Third Parties. Neither party is, nor shall either
party hold itself out to be, vested with any power or right to contractually
bind, act on behalf of the other as its contracting broker, agent or otherwise
for committing, selling, conveying or transferring any
K-5
of the other party's assets, or property, contracting for or in the name of the
other party, or making any contractually binding representations as to the other
party which shall be deemed representations contractually binding upon such
party.
18. Severability. If any provision of this Agreement is declared
void by any court of competent jurisdiction, the validity of any other provision
of this Agreement shall not be affected.
19. Survival. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective assigns, successors and
legal representatives. Carrier may not assign its rights and obligations
hereunder without Customer's prior written consent, which may be withheld in
Customer's sole discretion. Customer may assign its rights and obligations
hereunder to any person which agrees in writing to be bound hereby. Any
obligations that have arisen prior to the expiration or termination of this
Agreement and the obligations of the parties under Section 6 and Section 7 shall
survive expiration or termination of this Agreement.
20. No Third Party Beneficiaries. It is not the intent of either
Carrier or Customer that there be any third party beneficiary to this contract,
and this contract is exclusively for the benefit of Customer or Carrier or their
respective assigns.
21. Independent Relationships. Nothing in this contract shall be
construed as creating an employer-employee relationship by and between Carrier
and Customer, and Carrier shall not be held or responsible for the acts or
omissions of the Customer.
K-6
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
PATHNET/IDAHO POWER LICENSE, LLC
By:
------------------------------
Name:
-------------------------
Title:
------------------------
PATHNET/IDAHO POWER EQUIPMENT, LLC
By:
------------------------------
Name:
-------------------------
Title:
------------------------
K-7
EXHIBIT A
STATIONS
Facilities Latitude Longitude
- ---------- -------- ---------
Segment A
Hansen Butte 42-29-35 114-13-47
Twin Falls 42-32-43 114-27-32
Lower Salmon 42-51-05 114-54-47
Mountain Home 43-12-18 115-33-49
Bonneville Point 43-29-17 116-01-45
Boise HQ 43-37-08 116-12-25
Squaw Butte 44-00-13 116-24-38
Payette 44-03-25 116-55-32
Lime 44-25-54 117-14-54
Baker 44-44-19 117-44-45
LaGrande Relay 45-13-03 118-00-00
LaGrande 45-18-46 118-04-13
Segment B (if any)
Pocatello 42-51-38 112-26-26
Pocatello P.R. 42-55-14 112-20-44
Kinport 42-53-36 112-33-31
American Falls 42-45-25 112-48-38
Cotteral Mtn. 42-23-55 113-27-54
K-8
SCHEDULE L
FORM OF MAINTENANCE AND PROVISIONING SERVICES AGREEMENT
K-9
MAINTENANCE AND PROVISIONING SERVICES AGREEMENT
This MAINTENANCE AND PROVISIONING SERVICES AGREEMENT (the "Maintenance
Agreement" or "Agreement") is made and entered into as of the ____ day of
_____________, 1998 (the "Effective Date"), by and between PATHNET, INC.
(hereinafter "Pathnet"), a Delaware corporation, having its principal place of
business at 1015 31st Street, NW, Washington, D.C., 20007, PATHNET/IDAHO POWER
EQUIPMENT, LLC (hereinafter "LLC"), a limited liability company having its
principal place of business at, and IDAHO POWER COMPANY (hereinafter,
"Incumbent"), an Idaho having its principal place of business
at____________________ (collectively, the "Parties" and each, a "Party").
WITNESSETH:
WHEREAS, Pathnet is engaged in the business of creating high-capacity,
digital microwave communications systems for purposes of marketing the long
distance telecommunications capacity created by such systems;
WHEREAS, LLC and Pathnet have entered into a Fixed Point Microwave
Services Agreement pursuant to which, among other things, Pathnet has agreed to
construct and install a high-capacity digital microwave system utilizing
Incumbent's microwave telecommunications assets;
WHEREAS, Incumbent, LLC and Pathnet have entered into a Contingent Radio
Revenue Agreement, dated as of the date hereof to which, among other things,
Pathnet has agreed to operate and install Capacity Expansion Radios for the
purpose of deriving and selling capacity on the System
WHEREAS, Pathnet wishes to engage the services of Incumbent to provide
routine and corrective maintenance and provisioning services on Incumbent's
Equipment and System and to maintain Incumbent's Segment of the Pathnet network
at a minimal level of acceptability to ensure overall effective operations;
WHEREAS, Incumbent wishes to perform Maintenance and Circuit Provisioning
for such System for Pathnet,
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. DEFINITIONS:
1.1 Certain Definitions
1
1.1.1 "Build-Out Period" shall mean the period of time commencing on
the Effective Date and expiring on the date on which the Initial
System is Commissioned.
1.1.2 "Circuit Provisioning" shall mean the process of adding
additional circuits to the System, and shall include installation of
wiring, circuit pack placement and coordinated testing to ensure
that such additional circuitry meets all technical operating
services standards.
1.1.3 "Commissioning" shall be as defined in the FPM Agreement.
1.1.4 "Critical Service Levels" shall mean the service levels and
standards of operations set forth in Schedule B that are essential
for Pathnet to provide reliable, error free traffic to IXCs or other
customers for capacity.
1.1.5 "Dispatch Charge" shall mean the dispatch fee for Circuit
Provisioning paid by Pathnet to Incumbent upon successful completion
of a Circuit Provisioning dispatch, as more particularly described
in Schedule C attached hereto.
1.1.6 "Equipment" shall mean the equipment described in Schedule D
attached hereto.
1.1.7 "Facilities" shall mean the facilities described in Schedule F
attached hereto.
1.1.8 "Field Technician" shall mean Incumbent's employees, agents or
subcontractors certified by Pathnet to provide Services pursuant to
the procedures described in Schedule G attached hereto, as such
standards may be modified from time to time.
1.1.9 "Force Majeure" shall mean an event as defined in Section 14.3
of this Maintenance Agreement.
1.1.10 "FPM Agreement" shall mean the Fixed Point Microwave Services
Agreement by and between Pathnet and Incumbent, dated as of the date
hereof.
1.1.11 Maintenance" shall mean the ongoing and scheduled
inspections, ongoing and scheduled repair, ongoing and scheduled
prevention of repair, and unscheduled, on-call corrective action of
any and all Equipment necessary for the System to operate in
accordance with the Performance Standards as set forth in this
Maintenance Agreement and its Schedules.
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1.1.12 "Maintenance and Provisioning Test Equipment" shall mean all
equipment used or owned (including methods and tools) in connection
with the testing and maintenance of the Equipment and System in
accordance with the Performance Standards of this Maintenance
Agreement and its Schedules.
1.1.13 "Monthly Services Charge" shall be as set forth in Section 5
of this Maintenance Agreement and Schedule C, attached hereto.
1.1.14 "Network Operating Center" shall mean the center established
by Pathnet to monitor Incumbent's System and other Systems
comprising the Pathnet network.
1.1.15 "Non-Incumbent Site" shall mean Sites not owned or leased by
Incumbent and not located at Incumbent's Facilities.
1.1.16 "Outage" shall mean an unscheduled interruption in
telecommunications services on the System, including any period of
ten (10) consecutive Severely Errored Seconds (as defined in
Schedule B attached hereto).
1.1.17 "Pass-Through Expenses" shall mean Incumbent's reasonable and
actual out-of-pocket expenses that are required to be reimbursed by
Pathnet hereunder, and that are incurred by Incumbent for Services
required to operate the System but are not accounted for in the
payments to Incumbent pursuant to this Agreement.
1.1.18 "Path" shall mean the physical spatial separation
representing a portion of the System between two contiguous Sites.
1.1.19 "Performance Standards" shall mean individually and
collectively the quantitative and qualitative performance standards
and commitments for the services contained in this Maintenance
Agreement, including, but not limited to, the Critical Service
Levels.
1.1.20 "Preventive Maintenance" shall mean the ongoing and scheduled
Maintenance required for the normal operations of the Equipment and
System, as more fully described in Schedule A.
1.1.21 "Remedial Maintenance" shall mean unscheduled, on-call
Maintenance (i) to correct an Outage, (ii) to restore operations to
above Critical Service Levels, or (iii) to restore the Equipment and
the System to good operating condition, all as more fully described
in Schedule A.
1.1.22 "Services" shall be as defined in Section 3 of this
Maintenance Agreement and Schedule A attached hereto.
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1.1.23 "Site" shall mean a physical location on which a tower or
other structure is located which houses the Equipment.
1.1.24 "Stocking Depot" shall mean an enclosed and reasonably
protected storage facility required for housing the Spare Parts
inventory, or set forth in Schedule E-1, attached hereto.
1.1.25 "System" shall mean the high-capacity digital SONET microwave
radio equipment (6 Hz/30 MHz) antenna, waveguides, components,
Facilities and FCC licenses, installed and assembled capable of
transmitting, receiving and transporting telecommunications signals,
as set forth in Schedule F, attached hereto, as more particularly
described in the FPM Agreement.
1.1.26 "Trouble Ticket" shall mean a tracking ticket generated by
the Network Operating Center describing a System event that requires
Service.
1.1.27 "Work Order" shall mean an order for Circuit Provisioning
sent electronically or by facsimile by Pathnet to Incumbent.
1.2 Other Terms
Capitalized terms used in this Maintenance Agreement but not defined
herein shall have the definitions set forth in the FPM Agreement unless
the context dictates otherwise. References herein to Schedules are to the
Schedules attached to this Maintenance Agreement unless otherwise
specified. Other Terms used in this Maintenance Agreement are defined in
the context in which they are used and shall have the meaning, there
indicated.
2. TERM
2.1 Term
The term of this Maintenance Agreement shall commence on the Effective
Date and shall expire on the second anniversary of the Effective Date (the
"Term"). Subject to the terms of Section 3.1.3 below, Incumbent's
obligation to provide Services, and Pathnet's obligation to pay Monthly
Service Charges shall commence as to each Segment upon the Commissioning
of such Segment. The Commissioning shall occur as agreed upon by Pathnet
and Incumbent pursuant to the acceptance procedures of the FPM Agreement,
as set forth in Schedule H, attached hereto.
2.2 Extension
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Upon expiration of the Term, this Maintenance Agreement shall renew
automatically for successive, one-year renewal terms unless and until
Incumbent elects not to renew this Agreement as provided in Section 9.2
hereof. This Maintenance Agreement may be terminated (i) by Pathnet for
cause pursuant to Section 7.2 hereof; or (ii) by either Party for cause
pursuant to Section 9.1 hereof. Notwithstanding the foregoing, this
Maintenance Agreement shall automatically terminate upon expiration or
termination of the FPM Agreement.
3. SERVICES
3.1 Provision of Services
3.1.1 General. Upon Commissioning of the Initial System, Incumbent
shall provide the following Maintenance and Circuit Provisioning
services, functions and responsibilities on the Equipment and at the
Facilities, as such Facilities and Equipment may evolve or be
supplemented, enhanced, modified or replaced during the Term (the
"Services"):
(a) the services, functions and responsibilities described
in this Maintenance Agreement and its Schedules; and
(b) the services, functions and responsibilities performed
during the twelve (12) months preceding the Effective
Date, by or on behalf of Incumbent, on those portions of
Incumbent's existing microwave network that are or will
be included in the System, even if such service,
function or responsibility is not specifically described
in this Maintenance Agreement.
3.1.2 Implied Services. If any services, functions or
responsibilities not specifically described in this Maintenance
Agreement are required for the proper performance and provision of
the Services, they shall be deemed to be implied by and included
within the scope of the Services to the same extent and in the same
manner as if specifically described in this Agreement. Except as
otherwise expressly provided in this Maintenance Agreement,
Incumbent shall be responsible for providing the facilities,
personnel and other resources required to perform the Services.
3.1.3 Services during Build-Out Period. Notwithstanding anything to
the contrary contained herein or in the FPM Agreement, during the
Build-out Period Incumbent shall continue to perform the maintenance
duties and other services that were performed on the Facilities by
or on behalf of Incumbent during the twelve (12) month period
preceding the Effective Date.
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3.2 Services Requirements
3.2.1 Timing of Service.
(a) General. Incumbent shall perform all Services in at
least the intervals and time periods set forth in
Section 3 of Schedule A.
(b) Circuit Provisioning. Upon receipt of a Work Order,
Incumbent shall dispatch a Field Technician to perform
the work function designated in the Work Order, and
shall complete such function by the date designated in
the Work Order.
3.2.2 Dispatch and Notification.
(a) Dispatch. Incumbent shall make Field Technicians
available to provide Maintenance and Circuit
Provisioning between the hours of ___ to ___, Monday
through Friday and at other times upon the reasonable
request of Pathnet. Incumbent shall make Field
Technicians available to provide Remedial Maintenance
twenty-four (24) hours a day, seven (7) days a week.
Pathnet shall provide System monitoring from the Network
Operating Center twenty-four (24) hours a day, seven (7)
days a week for reporting of System failures. Incumbent
shall include in Exhibit A-1 to Schedule A, a list of
procedures and personnel involved in providing Services,
including an escalation list of individuals who will be
available and who will be responsible for repairing the
System to normal operations. Dispatch procedures
affecting Remedial Maintenance shall be subject to the
prior approval of Pathnet, not to be unreasonably
withheld.
(b) Notification. Notification of a Trouble Ticket shall be
deemed to be received by Incumbent (i) in the event that
Pathnet initiates the Trouble Ticket, upon electronic or
facsimile receipt by Incumbent; and (ii) in the event
that Incumbent notifies Pathnet of a situation requiring
Remedial Maintenance hereunder and a Trouble Ticket is
thereafter generated in connection with such situation,
upon notification of such situation by Incumbent to
Pathnet. The Network Operating Center shall initiate or
monitor (in the case Incumbent advises Pathnet of a
situation requiring initiation of a Trouble Ticket) a
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Trouble Ticket pursuant to the procedures set forth in
Section 3.2.6 of Schedule A.
3.3 Services Exclusions
3.3.1 Towers and Shelters. Except as provided in Section 2 of
Schedule A, this Maintenance Agreement does not include maintenance
obligations for any portion of the Facilities, including any tower,
tower lighting, FCC or FAA tower regulatory requirement or equipment
shelter, each of which Incumbent shall maintain outside the scope of
the Services as required to support the continuous and reliable
operation of the System without material degradation to either the
Facilities, the Equipment or the System.
3.3.2 Other Exclusions. In the event that telephone lines, equipment
or interconnections provided by or required by third parties are
used in conjunction with the Equipment, such equipment shall, upon
request by Pathnet, be incorporated into the Equipment and Incumbent
shall provide Services as to such equipment, provided that Pathnet
shall adjust the Monthly Service Charge pursuant to Section 5.4 of
this Maintenance Agreement to reflect such additional Services.
4. EQUIPMENT; FACILITIES
4.1 Equipment
The Equipment that Incumbent shall be responsible for performing
Maintenance and Circuit Provisioning in the performance of the Services is
set forth in Schedule D, and Schedule D may be amended from time to time
as such Equipment may change or may be replaced, modified, or enhanced
over time; provided that Pathnet shall provide written notice to Incumbent
of any such amendment. In the event of a Capacity Expansion under the FPM
Agreement, Pathnet shall supplement and modify Schedule D to include any
additional Equipment required for such Capacity Expansion.
4.2 Spare Parts; Replacement Equipment
4.2.1 Snare Parts. Pathnet shall provide and Incumbent shall store
Spare Parts for the Equipment at the Stocking Depot in the type and
quantity as set forth in Schedule E, attached hereto; provided that
Incumbent may supplement the Spare Parts beyond Incumbent's
designated allocation of Spare Parts at its sole discretion.
Incumbent shall store such Spare Parts at appropriate Stocking
Depots to allow for a response within the time parameters set forth
in Section 3.2 of this Maintenance Agreement and Schedule A,
attached hereto. Pathnet, through the Network Operating Center,
shall assist Incumbent in identifying modules or Spare Parts
necessary to expedite any required repairs. Incumbent shall utilize
the
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modular exchange program that Pathnet has established in order to
maintain an adequate inventory of Spare Parts. Incumbent shall be
responsible for notifying Pathnet promptly of any shortages in type
or quantities of Spare Parts required to meet Incumbent's
obligations under this Maintenance Agreement. Upon such
notification, Pathnet shall ship any required Spare Parts in
accordance with the Spare Parts shipping procedures set forth in
Schedule G, attached hereto.
4.2.2 Replacement Equipment. At its sole discretion, Pathnet may
replace any Equipment, provided that such replacement Equipment does
not materially degrade the performance of the Initial System. Upon
reasonable notice to Incumbent that any such Equipment requires
replacing, Incumbent shall be responsible for providing the labor
and other associated costs of installing any such Equipment, in
which event Monthly Services Charges shall, if necessary, be
adjusted as set forth in Section 5.4 of this Maintenance Agreement.
4.3 Facilities
Incumbent shall be responsible for performing the Services at the
Facilities as set forth in Schedule F, and Schedule F may be amended from
time to time as such Facilities are added to the System. In the event of a
Capacity Expansion under the FPM Agreement, Pathnet shall supplement and
modify Schedule F to include any additional Facilities required for such
Capacity Expansion. Pursuant to the FPM Agreement, the Facilities shall be
maintained at the environmental conditions necessary to support the
Equipment, in accordance with the manufacturers' specifications, as set
forth in the FPM Agreement.
5. CHARGES
5.1 General
All Monthly Services Charges to be paid by Pathnet to Incumbent pursuant
to this Maintenance Agreement are set forth in this Section 5 or in
Section 2.1 of Schedule C, attached hereto. Pathnet shall not be required
to pay Incumbent any amounts for the Services in addition to those payable
to Incumbent under this Section 5 or Schedule C, except as provided for in
Section 2.2 of Schedule C.
5.2 Pass-Through Expenses
Upon presentment to Pathnet of an original invoice showing Pass-Through
Expenses incurred, Pathnet shall pay such Pass-Through Expenses directly
to the payee or shall reimburse Incumbent for Pass-Through Expenses paid
by Incumbent.
5.3 Taxes
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Each Party shall be responsible for any personal or real property taxes on
property it owns, for franchise and privilege taxes on its business, and
for taxes based on its net income or gross receipts. As to leased
property, the party with the superior leasehold interest shall be
responsible for all taxes owing in connection with such leased property.
5.4 New Services
Pathnet shall pay Incumbent for the performance of any services requested
by Pathnet and agreed to by Incumbent that are not included in the
Services. Pathnet shall pay for such new services as agreed upon by the
Parties based on the procedures set forth in Section 2.4 of Schedule C,
and thereafter, the Services shall include such new services. Such new
Services may include, without limitation: (i) performance of maintenance
services at the interconnection facilities between Pathnet's network and
the System, and (ii) any other services not included in the Services as
defined in this Maintenance Agreement.
6. INVOICING AND PAYMENT
Promptly after the expiration of each calendar quarter, Incumbent shall send
Pathnet an invoice covering the Dispatch Charges, Monthly Service Charges,
Pass-Through Expenses and fees for new Services for the prior three months'
Services. Subject to Section 7.2.1, Pathnet shall pay the amount of each
quarterly invoice within thirty (30) days after receipt by Pathnet. Any and all
disputes with regard to charges payable under this Maintenance Agreement shall
be settled in accordance with Section 15 of this Agreement.
7. PERFORMANCE STANDARDS
7.1 General
Incumbent shall perform the Services at a level of accuracy, quality,
completeness, timeliness, responsiveness and efficiency sufficient to
prevent degradation of the operation of the System. At all times,
Incumbent's level of performance shall be sufficient to attain the
Performance Standards as identified in this Maintenance Agreement and its
Schedules and shall otherwise be consistent with industry standards.
7.2 Failure to Perform
7.2.1 Incumbent recognizes that its failure (i) to maintain the System
such that the System, at all times, operates at or above all Critical
Service Levels, (ii) correct any Outage within the time required
hereunder, (iii) remedy any other problem that threatens to adversely
impact the operation of the System or (iv) perform Circuit Provisioning in
a timely manner, may have a material adverse impact on the business and
operations of Pathnet. Accordingly, in the event that
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Incumbent repeatedly fails (i) to meet any Critical Service Level, (ii)
correct any Outage, (iii) remedy any other problem that threatens to
adversely impact the operation of the System or (iv) perform Circuit
Provisioning in a timely manner for reasons other than circumstances that
constitute Force Majeure under this Maintenance Agreement, Pathnet, at its
sole discretion, may elect (i) to not renew this Maintenance Agreement,
(ii) to supplement the provision of Services as provided by Incumbent by
appointing a new Maintenance provider, and/or (iii) to suspend payment of
the Monthly Services Charges.
7.2.2 In the event of any problem affecting the operation of the System
(including, without limitation, the events listed in Section 7.2.1),
Incumbent shall (i) investigate and report to Pathnet the causes of such
problem; (ii) advise Pathnet of the status of remedial efforts being
undertaken with respect to such problems; (iii) correct the problem as
soon as practical and restore the System's operation to the Critical
Service Levels; and (iv) take appropriate preventive measures so that the
problem does not recur.
7.2.3 Pathnet and its designees shall have the right to free, full and
immediate access to any and all affected Facilities to repair, replace,
update, or otherwise modify the Equipment or System and to supplement the
Services (including provisioning or other Services required to operate the
Pathnet network); provided such supplemental Maintenance will not
materially degrade the operation of the Initial System. Upon Pathnet's
prior notification, Incumbent shall reasonably cooperate with Pathnet or
its designee, including providing any escorts necessary for Pathnet to
supplement the Services.
7.2.4 In the event (i) this Agreement is terminated by either party, or
either party elects not to renew this Agreement, or (ii) Pathnet
supplements the Services with another Maintenance Provider. Incumbent
shall have the right to continue to maintain the Initial System at
Incumbent's sole expense, so long as such maintenance shall not degrade
the operation of the System or impact Pathnet's ability to maintain the
System.
8. PERIODIC REVIEWS; AUDIT RIGHTS; SAVINGS CLAUSE
8.1 Reviews
8.1.1 Annual Review. As part of the annual renewal of this
Maintenance Agreement, Pathnet and Incumbent may review the Critical
Service Levels and the Monthly Service Charges paid to Incumbent.
Pathnet and Incumbent shall mutually agree to make adjustments to
the Critical Service Levels, as appropriate, to reflect (i) improved
performance capabilities associated with advances in technology and
methods to perform the Services and (ii) modifications in the
performance requirements of Pathnet's customer. The Parties expect
and
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understand that the Critical Service Levels may be made more
demanding over time. Pathnet and Incumbent shall mutually agree to
make adjustments pursuant to Schedule C to the Monthly Service
Charges to reflect the material changes in the performance of the
Services in accordance with any such revised Critical Service
Levels.
8.1.2 Maintenance and Provisioning Test Equipment. Incumbent shall
obtain and utilize the necessary measurement and monitoring tools
and procedures, including, but not limited to, the Maintenance and
Provisioning Test Equipment as set forth in Exhibit E-2 to Schedule
E and other equipment necessary to measure and to report operational
performance of the System against the applicable Critical Service
Levels. Such measurement and monitoring tools and equipment shall
permit reporting at a level of detail sufficient to verify
compliance with Critical Service Levels and shall be subject to
Pathnet's reasonable approval. Upon request by Pathnet, Incumbent
shall provide Pathnet with information and access to such tools and
procedures for purposes of verification.
8.2 Audit and Inspection Rights
8.2.1 Incumbent shall maintain accurate logs and dispatch reports,
recording the date and description of Services performed, the
occurrence of any Outages or operations below Critical Service
Levels, and the appropriate actions taken to restore service.
Pathnet shall have the right to audit any and all reports maintained
by Incumbent. These reports shall be available to Pathnet for its
inspection at Incumbent's Facilities and a copy of the compilation
of these reports is to be forwarded to Pathnet on a quarterly basis.
8.2.2 Pathnet shall have the right to inspect the Facilities,
Equipment and Circuit Provisioning at any time upon reasonable
notice to Incumbent and to supplement the Services during Pathnet's
inspection, provided Pathnet complies with any and all Incumbent
security procedures.
8.3 Savings Clause
Notwithstanding anything to the contrary contained herein, Pathnet's
failure to perform any of its responsibilities set forth in this Agreement
(other than as provided in Section 9.1.2) shall not be deemed to be
grounds for non-performance by Incumbent; provided, however, that
Incumbent's non-performance of its obligations under this Agreement shall
be excused if, and to the extent, (i) Incumbent is unable to perform
Services, despite commercially reasonable efforts to perform, directly as
a result of Pathnet's failure to perform its obligations hereunder, and
(ii) Incumbent provides Pathnet with reasonable notice of any failure by
Pathnet that prevents, or may prevent, Incumbent from performing Services.
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9. TERMINATION
9.1 Termination for Cause
9.1.1 In the event that Incumbent: (i) commits a material breach of
this Maintenance Agreement, which breach is not cured within thirty
(30) days after notice of breach from Pathnet to Incumbent or (ii)
commits multiple breaches of its duties or obligations which, in the
commercially reasonable judgment of Pathnet, collectively constitute
a material breach of this Maintenance Agreement, Pathnet may, by
giving reasonable written notice to Incumbent, terminate this
Maintenance Agreement as of the date specified in the notice of
termination.
9.1.2 In the event that Pathnet fails: (i) to pay Incumbent any
undisputed charge due under this Agreement totaling at least Five
Thousand ($5,000) Dollars and fails to make such payment within
forty-five (45) days of notice from Incumbent of Pathnet's failure
to make such payment or (ii) to fulfill any other obligation of
Pathnet hereunder, and such failure continues for a period of thirty
(30) days after written notice from Incumbent to Pathnet of such
failure, Incumbent may, by giving written reasonable notice to
Pathnet, terminate this Maintenance Agreement as of the date
specified in the notice of termination.
9.2 Election Not to Renew
Incumbent may elect not to renew this Maintenance Agreement for any reason
by giving Pathnet at least one-hundred and twenty (120) days prior written
notice before the end of the Term of this Maintenance Agreement indicating
that Incumbent will not renew this Maintenance Agreement. In such event,
Pathnet or its designees may elect to supplement or perform the Services,
or such additional Services as may be necessary to maintain and operate
the System as provided hereunder.
9.3 Termination or Expiration Assistance
In the event that (i) either party elects not to renew this Maintenance
Agreement, or (ii) this Maintenance Agreement expires, Pathnet shall
propose and Incumbent shall approve, which approval shall not be
unreasonably withheld, a third-party, independent Maintenance and Circuit
Provisioning provider, at least forty-five (45) days before termination or
expiration of this Agreement to provide the Services at Incumbent's
Facilities. Such independent Maintenance and Circuit Provisioning provider
shall provide the services and assume the obligations of Incumbent
hereunder for any successive terms coterminous with the remaining term of
the FPM Agreement, unless such provider is replaced by Pathnet before the
expiration of the term of this Maintenance Agreement or any extension
thereof. In the event either Party terminates this Agreement
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for cause as provided in Section 9.1 hereof, Pathnet shall provide a
third-party Maintenance and Circuit Provisioning provider to perform the
Services, and Incumbent shall reasonably cooperate with such provider.
Upon termination for any reason or expiration of this Maintenance
Agreement, Pathnet shall have the right to full and free access to all
Facilities to supplement or perform the Services as required hereunder.
10. RELATIONSHIP OF THE PARTIES
Nothing in this Maintenance Agreement will imply a joint venture, partnership,
or principal-agent relationship between the Parties. Neither Party will have any
right, power or authority to act or create any obligation, express or implied,
on behalf of the other Party, pursuant to this Maintenance Agreement.
11. PROPRIETARY RIGHTS AND COPYRIGHTS
11.1 Maintenance software, training materials, manuals or other
proprietary information furnished by Pathnet ("Maintenance Aids") for
Incumbent's use are either Pathnet's property or property of third parties
and, in either case, are proprietary and confidential. Incumbent agrees to
keep such Maintenance Aids confidential and to use its best efforts to
prevent the unauthorized disclosure and use of such Maintenance Aids.
11.2 Incumbent agrees to use its best efforts not to allow copies of any
Maintenance Aids furnished by Pathnet to be made without the prior written
consent of Pathnet. Notwithstanding the foregoing, Incumbent may make
copies of Maintenance Aids to the extent necessary to enable Incumbent to
perform the Services, provided that Incumbent uses its best efforts to
prevent the unauthorized disclosure and use of such Maintenance Aids.
12. REPRESENTATIONS AND WARRANTIES
12.1 Warranties of Incumbent
Incumbent represents and warrants that:
(a) the Services shall be rendered with promptness and diligence
and shall be executed in a workmanlike manner, in accordance
with the practices and high professional standards used in
well-managed commercial telecommunications operations
performing services similar to the Services. Incumbent
represents and warrants that it shall use adequate numbers of
qualified individuals with suitable training, education,
experience, and skill to perform the Services.
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(b) it shall perform Maintenance and Circuit Provisioning on the
Equipment so that it operates in accordance with all
applicable specifications, including (i) maintaining equipment
in good operating condition, subject to normal wear and tear
(ii) undertaking repairs and preventive maintenance on
Equipment, and (iii) performing Circuit Provisioning Services
in accordance with the applicable Equipment manufacturers'
recommendations.
(c) it shall use its best efforts to use efficiently the resources
or services necessary to provide the Services. Incumbent shall
use its best efforts to perform the Services in the most
cost-effective manner consistent with the required level of
quality and performance as set forth in this Agreement.
12.2 Warranties of Each Party
Each Party represents and warrants to the other that:
(a) it has the requisite corporate or partnership power and
authority to enter into this Maintenance Agreement and to
carry out the transactions contemplated by this Maintenance
Agreement; and
(b) the execution, delivery and performance of this Maintenance
Agreement and the consummation of the transactions
contemplated by this Maintenance Agreement have been duly
authorized by the requisite corporate or partnership action on
the part of such Party.
12.3 Insurance
Incumbent warrants and represents that during the Term of this Maintenance
Agreement and any extension or renewal thereof, Incumbent shall maintain
at Incumbent's expense all of the necessary insurance for all Incumbent's
employees, agents or affiliates required to perform the Services,
including, but not limited to, Worker's Compensation, disability, and
unemployment insurance, and to provide Pathnet with certification thereof
upon request.
12.4 Security and Safety Procedures
In the event Pathnet is required to supplement the Services, Pathnet shall
comply with all reasonable Incumbent security and safety procedures as
provided by the Incumbent in fulfilling its obligations.
12.5 Disclaimer
EXCEPT AS PROVIDED IN THIS MAINTENANCE AGREEMENT, THERE ARE
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NO OTHER EXPRESS WARRANTIES AND THERE ARE NO IMPLIED WARRANTIES, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ON THE PART OF EITHER PARTY.
13. INDEMNITIES
13.1 Indemnification by Incumbent
Incumbent agrees to indemnify, defend and hold harmless Pathnet and its
Affiliates and their respective officers, directors, employees, agents,
successors and assigns from and against any and all Losses and threatened
Losses arising from, in connection with, or based on allegations of, any
of the following:
(a) any claims of infringement of any patent, trade secret,
copyright or other proprietary rights alleged to have occurred
because of systems or other resources provided to Incumbent by
Pathnet.
(b) the untruth, inaccuracy or breach of any representation or
warranty of Incumbent set forth in this Agreement.
(c) the liability of Pathnet for (i) any personal injury, disease
or death of any person, (ii) damage to or loss of any
property, money damages or specific performance owed to any
third party (by contract or operation of law), or (iii) any
fines, penalties, taxes, claims, demands, charges, actions,
causes of action, assessments, environmental response costs,
environmental penalties, injunctive obligations caused by,
arising out of, or in any way incidental to, or in connection
with, actions or omissions of Incumbent, its employees,
Subcontractors or agents.
13.2 Indemnification by Pathnet
Pathnet agrees to indemnify, defend and hold harmless Incumbent and its
Affiliates and their respective officers, directors, employees, agents,
successors and assigns from and against any and all Losses and threatened
Losses arising from, in connection with, or based on allegations of, any
of the following:
(a) any claims of infringement of any patent, trade secret,
copyright or other proprietary rights alleged to have occurred
because of systems or other resources provided to Pathnet by
Incumbent.
(b) the untruth, inaccuracy or breach of any representation or
warranty of Pathnet set forth in this Agreement.
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(c) the liability of Incumbent for any (i) personal injury,
disease or death of any person, (ii) damage to or loss of any
property, money damages or specific performance owed to any
third party (by contract or operation of law), or (iii) any
fines, penalties, taxes, assessments, environmental response
costs, environmental penalties or injunctive obligations
caused by, arising out of, or in any way incidental to, or in
connection with, actions or omissions of Pathnet, its
employees, Subcontractors or agents.
(d) the liability of Incumbent arising out of any or all
obligations to or contracts between Pathnet and its customers
concerning the purchase of Excess Capacity.
13.3 Indemnification Procedures
Any third party claims for indemnification, shall follow the
indemnification procedures of Section 16.3 of the FPM Agreement which are
hereby incorporated by reference:
13.4 Subrogation
In the event that an indemnitor shall be obligated to indemnify an
indemnitee pursuant to Section 13.1 or Section 13.2, the indemnitor shall,
upon payment of such indemnity in full, be subrogated to all rights of the
indemnitee with respect to the claims to which such indemnification
relates.
14. LIABILITY
14.1 General Intent
Subject to the specific provisions of this Article 14, it is the intent of
the Parties that each Party shall be liable to the other Party for any
actual damages incurred by the non-breaching Party as a result of the
breaching Party's failure to perform its obligations in the manner
required by this Maintenance Agreement.
14.2 Liability Restrictions
14.2.1 SUBJECT TO SECTION 14.2.2 BELOW, IN NO EVENT, WHETHER IN
CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND
STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL
DAMAGES, ARISING OUT OF OR IN CONJUNCTION WITH THIS MAINTENANCE
AGREEMENT.
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14.2.2 The limitations set forth in Section 14.2.1 shall not apply
with respect to (i) damages occasioned by willful misconduct or
gross negligence of a Party or (ii) damages occasioned by a breach
of Section 16.7.
14.3 Force Majeure
14.3.1 No Party shall be liable for any default or delay in the
performance of its obligations under this Maintenance Agreement if
and to the extent such default or delay is caused, directly or
indirectly, by: fire, flood, earthquake, elements of nature or acts
of God, riots, civil disorders, rebellions or revolutions in any
country; or any other cause beyond the reasonable control of such
Party (a "Force Majeure" event), provided the non-performing Party
is without fault in causing such default or delay, and such default
or delay could not have been prevented by reasonable precautions and
can not or could not reasonably be circumvented by the
non-performing Party through the use of alternate sources,
workaround plans or other means.
14.3.2 In such event, the non-performing Party shall be excused from
further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and such Party continues
to use its best efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any Party so
delayed in its performance shall immediately notify the Party to
whom performance is due by telephone (to be confirmed in writing
within two (2) days of the inception of such delay) and describe at
a reasonable level of detail the circumstances causing such delay.
15. DISPUTE RESOLUTION
15.1 Arbitration; Resolution of Disputes
Any and all disputes and controversies between Incumbent and Pathnet
concerning the negotiation, interpretation, performance, breach or
termination of this Agreement (each a "Dispute") shall be subject to
resolution by Section 17.2 of the FPM Agreement which is hereby
incorporated by reference.
16. MISCELLANEOUS
16.1 Notice Provision
Notice shall be served and deemed received in accordance with the
provisions of Section 18.1 of the FPM Agreement which is hereby
incorporated by reference.
16.2 Binding Nature; Entire Agreement
17
Pathnet and Incumbent acknowledge (i) that each has read and understands
the terms and conditions of this Maintenance Agreement and agrees to be
bound by such terms and conditions, (ii) that this Maintenance Agreement
is the complete and conclusive statement of the agreement between the
Parties, and (iii) that this Maintenance Agreement sets forth the entire
agreement and understanding between the Parties relating to the subject
matter hereof. All understandings and agreements, oral and written,
heretofore made between Incumbent and Pathnet relating to the subject
matter hereof are merged in this Maintenance Agreement which alone, fully
and completely expresses their agreement on the subject matter of
maintenance service to be provided by Incumbent. The provisions of this
Maintenance Agreement are separate and apart from the provisions of the
FPM Agreement and may not in any way affect either Party's obligations
with regard to the FPM Agreement.
16.3 Amendment
No modification of, additions to or waiver of this Maintenance Agreement
shall be binding upon Incumbent and Pathnet unless such modification is in
writing and signed by an authorized representative of each Party.
16.4 Severability
If any term or provision of this Maintenance Agreement shall to any extent
be held by a court or other tribunal to be invalid, void or unenforceable,
then that term or provision shall be inoperative and void insofar as it is
in conflict with law, but the remaining terms and provisions of this
Maintenance Agreement shall nevertheless continue in full force and effect
and the rights and obligations of the Parties shall be deemed to be
restated to reflect newly as possible the original intentions of the
Parties in accordance with applicable law.
16.5 Headings
Section and paragraph headings used in this Maintenance Agreement are for
reference and convenience only and are not to be deemed or construed to be
part of this Maintenance Agreement.
16.6 Consents and Approval
Except where expressly provided as being in the sole discretion of a
Party, where agreement, approval, acceptance, consent or similar action by
either Party is required under this Maintenance Agreement, such action
shall not be unreasonably delayed or withheld. An approval or consent
given by a Party under this Maintenance Agreement shall not relieve the
other Party from responsibility for complying with the requirements of
this Maintenance Agreement, nor shall it be construed as a waiver of any
rights under
18
this Maintenance Agreement, except as and to the extent otherwise
expressly provided in such approval or consent.
16.7 Compliance with Laws and Regulations
Each Party shall perform its obligations in a manner that complies with
the applicable Federal, state and local laws, regulations, ordinances and
codes (including identifying and procuring required permits, certificates,
approvals and inspections). If a charge of noncompliance by either Party
with any such laws, regulations, ordinances or codes occurs, the Party
charged with such non-compliance shall promptly notify the other Party of
such charges in writing.
16.8 Governing Law
This Maintenance Agreement and the rights and duties of the Parties shall
be governed and interpreted in accordance with the laws of the State of
_________, other than the choice of law rules thereof.
16.9 Binding Nature and Assignment
This Maintenance Agreement shall be binding on the Parties hereto and
their respective successors and assigns. Neither Party may or shall have
the power to assign this Maintenance Agreement without the prior written
consent of the other, except that either Party may assign its rights and
obligations under this Maintenance Agreement without the approval of the
other Party to an entity which acquires all or substantially all of the
assets of that Party to any subsidiary or Affiliate or successor in a
merger or acquisition of that Party; provided that in no event shall any
such assignment relieve that Party of its obligations under this
Maintenance Agreement.
16.10 Waiver
Failure or delay on the part of Incumbent or Pathnet to exercise any
right, power or privilege under this Maintenance Agreement shall not
constitute a waiver of any right power or privilege of this Maintenance
Agreement.
16.11 Time To Sue
No action shall be brought for any breach of this Maintenance Agreement
more than two (2) years after the accrual of such cause of action, except
where applicable law provides for a shorter limitation period, in which
event that period should apply.
16.12 Survival
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Any provision of this Maintenance Agreement which contemplates performance
or observance subsequent to any termination or expiration of this
Maintenance Agreement shall survive any termination or expiration of this
Maintenance Agreement and continue in full force and effect.
16.13 Covenant of Good Faith
Each Party agrees that in its respective dealings with the other Party
under or in connection with this Maintenance Agreement, it shall act in
good faith.
IN WITNESS WHEREOF, the Parties hereto have executed this Maintenance
Service Agreement, or caused it to be executed by a duly authorized officer, as
of the date first written above.
PATHNET, INC. IDAHO POWER COMPANY
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
PATHNET/IDAHO POWER EQUIPMENT, LLC
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Date:
-----------------------------
20
SCHEDULE A
MAINTENANCE AND CIRCUIT PROVISIONING SERVICES
1. INTRODUCTION
This Services Schedule describes certain services and functions that Incumbent
shall perform. Performance Standards relating to certain of the services and
functions described herein are set forth in Schedule B. Pathnet's
responsibilities with respect to particular services and functions described in
this Services Schedule, if any, are specifically indicated where such services
and functions are described.
The services and functions described in this Services Schedule are intended to
be comprehensive, but not necessarily all-inclusive. During the term, the
Parties may agree on different or additional services and amend this Services
Schedule in writing accordingly.
This Services Schedule is organized into three Sections: Preventive Maintenance,
Remedial Maintenance and Field Technicians Requirements.
2. PREVENTIVE MAINTENANCE
During the Term of this Maintenance Agreement, Incumbent shall perform
Preventive Maintenance (including (i) inspections and (ii) any and all
corrective action, if and where necessary) in accordance with the procedures set
forth below. Incumbent shall maintain at its premises a log recording any and
all Preventive Maintenance performed pursuant to Section 8.2 of the Maintenance
Agreement.
2.1 Antenna/Waveguide Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.1.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections from the ground:
a. Visually check the general appearance of the antenna and
waveguide for ice, wind and projectile damage.
b. Visually check the waveguide on the tower and waveguide
bridge for loose or broken waveguide hangers (i.e.
attach/replace as required).
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c. Visually check the antenna canvas (TEGLAR) radomes for
holes, tears and excessive wear. Replace if severely
torn to preempt feedhorn damage.
d. Check inside building waveguide pressure gages for 5-8
lbs/in(^2) per antenna (10 lbs/in(^2) maximum).
2.1.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following
inspections to supplement the monthly inspection:
a. Visually inspect waveguide grounds at the bend from the
tower and building entry buss bars. Inspect for
excessive corrosion and firm connectivity.
b. Visually inspect the waveguide port seals into the
building for excessive deterioration and insect/bird
infestation. Clean, replace and re-seal if required.
c. Check functional operation of the dehydrator and local
and remote alarms. Create a pressure leak so dehydrator
consistently runs for at least 10 minutes.
d. Visually check dehydrator air dryer/desiccant for
excessive moisture (i.e., desiccant color change).
e. Check functional operation of the dehydrator
low-pressure alarm, both local and remote indications.
Use dehydrator regulator valve to create alarms. (Low
alarm less than .5lb/iN2).
2.1.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Physically inspect antenna stiff arms (struts) for
indications of antenna movement, i.e., gouges in metal
around lock down bolts.
b. Physically inspect each antenna feedhorn guy wires by
spring tension at back of antenna. Broken feedhorn guy
lines will pull out from back of dish.
c. Check for loose, broken or missing waveguide hangers.
Repair or replace such waveguide hangers as required.
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d. Visually inspect waveguide grounds near antennas.
2.2 Battery Maintenance (Valve Regulated Batteries)
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.2.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Visually check the general appearance and cleanliness of
the batteries, the battery rack and the battery room.
Clean and dust as required.
b. Inspect for cracks in the cells or electrolyte leakage.
Notify Pathnet's monitoring center if corrective action
is required.
c. Inspect the load post plates and inter-cell post
connector plates for corrosion. Clean and apply NO-OX-ID
"A" grease, as required.
2.2.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following
inspections, to supplement the monthly inspection:
a. Check and record the voltage of each of the 24 cells.
b. Check battery plant float voltage at load plates (-53.52
to -54.48 VDC). Adjust charger float voltage to within
range.
c. Check pilot cell voltage. Range is 2.23-2.27 VDC.
Minimum is 2.20 VDC. Maximum is 2.35 VDC. Pilot cell is
lowest per cell voltage of the 24 cells. If below
minimum, equalize batteries for 12-24 hours. If above
2.27 VDC, decrease charger float voltage.
2.2.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
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a. Ensure load plate post bolts are torqued to 95-100 in
lbs.
b. Measure and record inter-cell connection resistance.
c. Check all alarm points for proper functionality.
2.3 Building Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.3.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Visually check the general appearance and cleanliness of
the building.
b. Check the building's exterior walls and roof for damage
due to ice or projectile damage. Repair and seal holes
as required.
c. Check inside the building for evidence of water leaks or
seepage. Re-seal as required.
d. Verify operation of building exterior entry light and
any other perimeter lights. Replace bulbs as required.
e. Verify ambient room temperature is >60(degrees)F and
less than 80(degrees)F. Verify and adjust thermostat
high and low settings.
2.3.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following
inspection, to supplement the monthly inspection:
a. Inspect building ground wires for excessive corrosion
and firm connectivity. Clean and tighten as required.
b. Verify operation of each air conditioner unit. Air
discharge should be a minimum of 10(degrees) cooler than
outside building temperature.
c. Clean or change each air conditioner's filter.
2.3.3 Annual Inspection.
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At least once a year, Incumbent shall perform the following
inspections:
a. Verify functional operation of the building high
temperature alarms both local and remote.
b. Inspect the building floor tile for bubbles, cracks and
tears. Repair and replace as required.
c. Check all alarm points for proper functionality.
d. Ensure all AC connections are tight and at the specified
torque.
e. Measure and record voltages at the building distribution
panel to verify that the input AC voltages are within
specifications.
f. Visual inspection for foundation erosion.
2.4 Charger/Rectifier Maintenance (Valve Regulated Batteries)
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.4.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Dust or wipe down top of rectifier shelf as required.
Remove dust from rear fan exhaust rings on each
rectifier unit.
b. Verify DC output amps of each rectifier unit is within
5% of each other. Adjust load sharing setting on
rectifiers to balance output load.
c. Visually inspect DC output cables for significant
insulation indentations and deterioration along cable
rack and other metal surfaces.
2.4.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following
inspections to supplement the monthly inspection:
A-5
a. Verify that float output voltage of each rectifier (at
battery plant) is -53.52 to DC. Adjust each rectifier to
within .1 VDC of each other.
b. Verify equalize voltage is -55.2VDC to -56.4VDC for
each rectifier. Adjust each rectifier to within .1 VDC
of each other.
c. Verify current limit setting and operation of each
rectifier.
d. Verify operation of forced paralleling. Adjust as
required.
e. Verify operation and accuracy of DC volts and amps
output monitor meters. Adjust meter monitor calibration
as required.
2.4.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Verify that AC and DC local and remote alarms are
functional for each rectifier.
b. Verify that local and remote high and low DC output
alarms are functional.
c. Visually inspect AC and DC power connections for
corrosion and firm connectivity. Clean and tighten as
required.
d. Use an oscilloscope and check AC ripple/noise on the DC
output terminals. Check charger grounds for spikes over
1 volt P/P.
e. Check all alarm points for proper functionality.
2.5 Generator Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.5.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
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a. On indoor units visually check the general appearance
and cleanliness of the generator room. Sweep and wipe
down as required.
b. On outdoor weatherproof housing units, verify that
access panels close properly and are latched. Clean
inside of housing and oil panel hinges as required.
c. Check engine oil and coolant levels. Fill as required.
d. Check fuel level. (Should not be below 40% of total fuel
capacity.) Refill as required.
e. Check 12VDC/24VDC starting battery's electrolyte level.
Fill with distilled water as required.
f. Check engine drip pan for indications of excessive oil
or coolant leakage.
2.5.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following
inspections to supplement the monthly inspection:
a. Visually check fan belts for fraying and cracks. Replace
as required.
b. Inspect starting battery terminals for corrosion and
firm connections. Clean and grease battery posts as
required.
c. Remotely start generator and transfer load. Run site on
generator for minimum of 30 minutes.
d. Ensure starring battery charger is operational.
2.5.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Once a year or every 250 hours of operation change the
engine oil, oil filter, fuel filter and coolant filter
(if equipped). Note changes in site log.
b. Inspect engine air filter cleaner. Clean or replace as
required.
A-7
c. If equipped, inspect and clean the generator building
intake and exhaust filters. Replace if required.
d. Simulate an AC power failure and load test the site for
at least one (1) hour. Record AC volts, AC amps,
frequency, engine RPM, oil pressure, and coolant
temperature. Compare readings with manufacturer's
tolerances.
e. Check all alarm points for proper functionality.
2.6 Multiplexer Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.6.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Wipe off or dust top of multiplexer shelves as required.
b. Push LED TST button and verify all red, yellow and green
indicators are lit. Replace any module unit that has an
un-lit indicator. (LED)
2.62 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Measure main and standby power supply unit's DC output
voltages. Verify measurements are within manufacturer's
tolerances.
b. If test points are available measure and record the main
and protection, optical TX laser bias current. Verify
measurements are within manufacturer's tolerances.
c. Check functional operation of the local and remote major
and minor alarms.
d. Check all alarm points for proper functionality.
2.7 Radio Maintenance
A-8
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.7.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Wipe off or dust the top shelves in the radio equipment
racks as required.
b. Push LED TST switch on each TX/RX logic control and
verify all red, yellow and green indicators are lit.
Replace any module that has an un-lit indicator.
c. Check and record all TX/RX meter readings for TX power,
AFC correction, RX in level, If level etc. Verify
readings are within manufacturer's tolerances.
2.7.2 Quarterly Inspection.
At least once each quarter, Incumbent shall perform the following to
supplement the monthly inspection:
a. Measure and record the DC-DC power converter and TX FET
power supply DC output voltages for each TX/RX unit.
Verify that measured voltages are within manufacturer's
tolerances.
b. Measure and record the RF output power of each
transmitter at the TX monitor connector. (This may
require disabling of automatic power level control).
Level should be within 1.0 dB of nominal.
c. Measure and record the TX RF frequency on each
transmitter at the TX monitor connector. Measured should
be within +/-.005% of assigned value.
d. Measure and record the receiver AGC voltage. Correlate
AGC voltage to receive signal level. Verify actual RSL
is within 3 dB of calculated.
2.7.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Measure and record each TX local oscillator frequency.
Measured value should be within +/- .001% of assigned
value.
A-9
b. Measure and record each RX local oscillator frequency.
Measured value should be within +/-.001% of assigned
value.
c. Perform "Transmit Fade Margin Test" to verify receiver
fade margin on the path. The measured value should be
within +/-2 dB of calculated.
d. Check all alarm points for proper functionality.
2.8 Site Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.8.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections:
a. Visually check the general appearance and cleanliness of
the site area.
b. Check gates for sagging and ground clearance. Lubricate
gate hinges as required.
c. Check gate and site locks for binding or sticking.
Lubricate as required.
d. Ensure perimeter fence is upright (vertical) and
unopened.
e. Inspect building, tower and guy anchor foundations for
excessive erosion.
2.8.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following to
supplement the monthly inspection:
a. Cut excessive grass and weed growth within site
perimeter fence.
b. If required spread vegetation killer chemicals within 10
feet of building area.
2.8.3 Annual Inspection.
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At least once a year, Incumbent shall perform the following
inspections:
a. Ensure large tree growth near AC power lines, guy wires
and buildings is cut or removed.
b. Inspect road condition, perimeter fence and gate
condition and foundation.
2.9 Tower Maintenance
Incumbent shall perform the following inspections and any and all
corrective actions, if required:
2.9.1 Monthly Inspection.
At least once a month, Incumbent shall perform the following
inspections to ensure compliance with current EIA requirements:
a. Visually check the general appearance of the tower and
waveguide bridge for loose or bent cross braces due to
ice or wind.
b. If a guyed tower is in use, visually check the guy
cables for fraying and ensure a linear slope (i.e., no
sag).
c. Cover photocell until tower lights come on. Visually
check to ensure all tower lights are operational. Notify
status center of burned out tower lights.
2.9.2 Quarterly Inspection.
At least once a quarter, Incumbent shall perform the following:
a. Visually inspect the tower base and guy anchor ground
wires for excessive corrosion and firm connectivity.
Clean and tighten as required.
2.9.3 Annual Inspection.
At least once a year, Incumbent shall perform the following
inspections:
a. Visually inspect the tower base and guy anchor
foundations for indications of movement and excessive
erosion (i.e., large gaps between concrete and earth).
b. Provide a detailed report on the tower paint condition
and any excessive metal corrosion.
A-11
2.9.4 Annual Inspection.
No less frequently than every two years, Incumbent shall perform the
following inspection:
a. Physically climb the tower and check for loose or
missing bolts and bent tower members. Replace all
regular incandescent tower light bulbs.
b. If a guyed tower is in use, check tower plumb and guy
tension.
2.10 Preventive Maintenance Reference Guide
In performing the Preventative Maintenance, Incumbent shall be subject to
the following parameters:
2.10.1 Parts.
Incumbent shall use Original Equipment Manufacturer's ("OEM") parts
or parts of equal quality.
2.10.2 Manuals.
Incumbent shall service Equipment at levels set forth in OEM's
product manuals provided that Incumbent has approval or permission
to use such manuals.
2.10.3 Modifications.
Pathnet may modify Preventive Maintenance procedures for the
Equipment from time to time as a result of modifications in OEM
procedures for such Equipment, provided that Incumbent has approved
such procedures. Incumbent shall not unreasonably withhold such
approval.
3. REMEDIAL MAINTENANCE
In addition to Preventive Maintenance, Incumbent shall perform Remedial
Maintenance in the event of an escalated problem that requires one-time,
unscheduled repair or corrective action upon notification and initiation
of a Trouble Ticket, as set forth below. Incumbent shall manage all
Remedial Maintenance and restore all Equipment and System functionality so
that the System operates in accordance with the Performance Standards.
Incumbent shall maintain at its premises a record log recording any and
all Remedial Maintenance performed pursuant to Section 8.2 of the
Maintenance Agreement. Such Remedial Maintenance shall supplement and be
in addition to Preventive Maintenance.
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3.1 Network Monitoring
3.1.1 Network Monitoring Center.
a. Pathnet shall operate a Network Monitoring Center
twenty-four (24) hours a day, seven (7) days a week to
handle all problem and trouble reports and to monitor
the Equipment and System. Pathnet shall monitor both
alarm and operations information to identify and to
correct degradation or interruption of the System. Upon
receipt of knowledge of any degradation of interruption,
Pathnet will initiate Remedial Maintenance as set forth
in Section 3.2 below.
b. Pathnet's Network Monitoring Center will collect
performance data (Errored Seconds, Severely Errored
Seconds, frame loss, Failed Seconds, etc.) consistent
with manufacturer's specifications and issue periodic
reports, as set forth in the FPM Agreement.
c. Pathnet's Network Monitoring Center will coordinate and
support Remedial Maintenance efforts by Incumbent's
Field Technicians provided that Incumbent has final
responsibility for such Remedial Maintenance. As
reasonably requested by Incumbent, Pathnet shall assist
Incumbent, to the extent within Pathnet's reasonable
control, in restoring operations including locating
Spare Parts or other supplies.
3.1.2 Performance Data.
a. Pathnet shall monitor performance data that will provide
information regarding the performance transport system
and will localize any trouble or degradation of service.
b. Performance data will be collected as follows:
(i) Current performance data will provide values for
performance data collected for the current time
presented in 15-minute increments of sites of
data; and
(ii) Historic performance data will provide a minimum
of sixteen (16) l5-minute and seven (7) 24-hour
sets of data.
c. Through the Network Monitoring Center, Pathnet shall
establish a network management system (the "Network
Management System"). Such Network Management System
shall collect, monitor and manage:
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(i) all network elements within the System;
(ii) performance data such as Errored Seconds, Severely
Errored Seconds, frame loss and Failed Seconds
consistent with the manufacturer's specifications,
and
(iii) the shelter environments (including commercial power
failure, door alarms, charger failures, low
waveguide pressure, air conditioner failure, tower
light alarms, generator runs (if any), waveguide
dehydrator excessive runs, smoke alarms, high
temperature and low temperature) for radio equipment
and multiplexing equipment.
d. The Network Monitoring System shall provide Incumbent with
the ability to monitor the System separately from the
overall Pathnet network.
3.1.3 Alarm/Event Logging and Reports.
Pathnet shall promptly forward all alarms, event logs, and related
reports to Incumbent upon compilation of such reports by Pathnet as
set forth in the FPM Agreement.
3.2 Dispatch and Restoration
In the event of (i) any Outage or (ii) operations of the System below any
Performance Standard (including, without limitation, Critical Service
Levels), Incumbent shall perform Remedial Maintenance upon notification of
such Outage or degraded operations. The Parties responsibilities in
identifying and managing any and all Remedial Maintenance shall be as set
forth below:
3.2.1 General.
In the event of (i) any Outage, (ii) degradation below Pathnet's
Critical Service Levels or (iii) any identified malfunctioning of the
Equipment or System, Incumbent shall dispatch an Incumbent Field
Technician as directed by the Network Monitoring Center.
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3.2.2 Outage.
Without limiting the foregoing, Incumbent Field Technicians shall be
on site as promptly as possible to restore operations after receipt of
a Trouble Ticket identifying such Outage and shall restore operations,
with a cumulative mean time to repair operations of two (2) hours from
receipt of the Trouble Ticket.
3.2.3 Critical Service Levels.
Without limiting the foregoing, Incumbent Field Technicians shall be
on site within as promptly as possible after receipt of a Trouble
Ticket identifying a System degradation below Critical Service Levels
and will restore operations with a cumulative mean time to repair
operations of two (2) hours from receipt of the Trouble Ticket.
3.2.4 Adverse Impacts to the System.
Without limiting the foregoing, Incumbent Field Technicians shall be
on site within as promptly as possible after receipt of a Trouble
Ticket identifying any problem that threatens to adversely impact the
System or the integrity of the System and will restore operations with
a cumulative mean time to repair operations of two (2) hours from
receipt of such Trouble Ticket Examples of such System failures that
threaten to degrade operations below Critical Service Levels include,
without limitation: (i) any failure in a radio that caused traffic to
be switched to the protection radio channel, (ii) any failure in the
protection radio channel that makes it unavailable for traffic, (iii)
failure of any one for one protected modules in radio or multiplex
equipment that could result in a system outage in a Segment, (iv) any
other problem that in connection with a second problem will cause an
Outage or operations below Critical Service Levels.
3.2.5 Other Failures.
For other problems or failures that may not impact Critical Service
Levels, Pathnet or Incumbent shall dispatch Incumbent Field
Technicians the next working day. Examples of other failures include,
without limitation: (i) failure of one of the two battery chargers or
(ii) failure of one of the air conditioners.
4. CIRCUIT PROVISIONING
During the term of this Maintenance Agreement, Incumbent shall perform Circuit
Provisioning in accordance with the procedures set forth below.
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4.1 Dispatch Performance
Incumbent shall dispatch Field Technicians to perform the following
functions associated with the Circuit Provisioning for both Incumbent
and Pathnet.
a. Upon receipt of a Work Order, Incumbent shall schedule and
coordinate a Field Technician to perform the work function by the
required date designated in the Work Order.
b. Such work functions shall include the completion of the following
site related functions: (i) placement of circuit packs; (ii)
placement of all cross wiring and cabling between radio,
multiplexer and site circuit termination points designated by
Pathnet; (iii) placement of new circuit termination interfaces
such as cross connect blocks, DSX terminations and any associated
cabling; (iv) labeling of cross connect points with the circuit
identification numbers shown on the work order; (v) verbal
notification of Pathnet from the site to confirm completion of
Circuit Provisioning; and (vi) conduct joint circuit level
acceptance testing with Pathnet and customer contacts. Specific
DS-1, DS-3 and OC-3 acceptance tests and parameters are set forth
in Schedule B.
4.2 Provisioning at Non-Incumbent Sites
4.2.1. Non-Incumbent Sites
In the event Pathnet elects to connect the Incumbent System through
the addition of spurs and paths to Pathnet's backbone network or to a
customer POP, Pathnet shall request that Incumbent perform Circuit
Provisioning, as set forth in this Maintenance Agreement, at the
Non-Incumbent Site locations and points of interconnections listed or
amended to Schedule F. Within fifteen (15) days of such proposal,
Incumbent shall respond regarding its intent to perform the Circuit
Provisioning. Pathnet shall reserve the right to contract with and
direct additional third parties to perform certain provisioning
functions based upon the nature of the interconnection agreements
associated with specific sales. In such case, Incumbent may or may not
be the sole provider of provisioning services at any Non-Incumbent
Site.
4.2.2 Provisioning Equipment
In the event Circuit Provisioning functions to be performed by
Incumbent require the use of equipment configurations other than these
which Incumbent Field Technicians are familiar, Pathnet shall arrange
for training at the Incumbent's expense for Field Technicians
responsible for each of those specific sites.
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4.3 Provisioning interfaces
Upon Commissioning, both Incumbent and Pathnet shall operate the
System wing a manual provisioning interface arrangement. Pathnet shall
develop operations support systems to automate the work order
transmission, work force management and completion reporting in order
to enhance the efficiency of the process. Incumbent shall perform the
following interface functions:
4.3.1 Manual Provisioning Interface
a. Provide manual dial up facsimile points for distribution of
work related documents by Pathnet.
b. Provide for redistribution and coordination of scheduled
site work with Field Technicians.
c. Provide Pathnet with a point of contact for verbal contact
between the Incumbent and Pathnet for the purpose of:
1. Daily pre- and post-Work Order status and verification;
2. Circuit escalations;
3. Service date negotiation for expedited service
requests; and
4. Provisioning coordination (both pre- and post-circuit
turnup including coordination of acceptance testing).
4.3.2 Automated Provisioning Interfaces
a. Specific interface arrangements will be negotiated prior to
system implementation.
b. Incumbent shall be responsible to provide PC access
capabilities to its Field Technician in order to:
1. Identify and retrieve work lists;
2. Retrieve site related work documents; and
3. Report work completion information.
4.3.3 Incumbent Capacity Expansion
A-17
Incumbent shall contact Pathnet for the provisioning of any DS-1 or
DS-3 capacity addition, disconnection or grooming for their internal
network. The provisioning process will follow the standard work steps
outlined in Section 4 of this Agreement.
4.3.4 Network Element Software Changes
Incumbent shall not program or reprogram any software changes into any
network element on the system unless it is coordinated and directed by
the Network Monitoring Center.
4.4 Circuit Pack Administration
Pathnet shall be responsible for providing provisioning related
circuit packs to Incumbent's designated Storage Depots prior to the
required Field Technician dispatch date. Incumbent shall notify
Pathnet, either electronically or by facsimile, of receipt of circuit
packs. In the event that circuit packs are not received on time,
Incumbent shall notify Pathnet to correct the problem. A decision will
be made as to the use of available Spare Parts in which case Pathnet
shall be responsible to immediately replenish the maintenance spare
inventory.
4.5 Circuit Disconnects
Incumbent shall perform the following site work related to circuit
disconnect orders in order to maintain a high quality and cost
effective site environment and network:
a. Pathnet shall perform the physical termination of service
through the remote provisioning capabilities of Network
Monitoring Center.
b. Pathnet shall forward disconnect Work Orders to Incumbent
that provide seven (7) day interval for Incumbent to perform
any required disconnect work functions.
c. Incumbent shall be responsible for the scheduling of a Field
Technician site visit and coordinating the site visit with
other scheduled visits to the site or adjacent sites in
order to minimize duplicative travel time.
d. Incumbent shall perform the following disconnect functions:
A-18
i. The Field Technician will call the Network Monitoring
Center to revalidate the disconnect request prior to
performing any physical removal work.
ii. Removal of all circuit related cross wire.
iii. Removal of all circuit identification markings from
cross connect points.
iv. Removal of circuit packs as designated on the
disconnect work order.
v. Proper handling and shipping of circuit packs using ESD
(Electro Static Discharge) protection.
vi. Packaging and shipping of circuit pack cards to either
the local Incumbent Storage Depot or to Pathnet central
stock location as designated on the Work Order.
vii. Complete proper circuit pack shipping notice.
4.6 Circuit Rearrangements/Grooming
Incumbent and Pathnet shall perform grooming or re-arranging of
circuits within particular systems pursuant to the requirements of
Section 4 of this Agreement. Scheduling of such work shall be as
arranged by Pathnet or its customers and may require such work to be
performed out of normal business hours. Incumbent shall coordinate the
scheduling of Field Technicians to support these requirements. Pathnet
shall coordinate the specific scheduling arrangements with Incumbent
in an effort to minimize the impact from such schedules.
5. DISPATCH RESPONSIBILITY
5.1 Maintenance Dispatch Responsibility.
a. Incumbent shall be responsible for dispatching Incumbent
Field Technicians from the hours of ___ to ___ and days of
the week of ___ to ___.
b. Pathnet shall be responsible for dispatching Incumbent Field
Technicians from the hours of ___ to ___ and
A-19
days of ___ to ___.
c. The procedures for dispatching a Field Technician shall be
as agreed upon by the Parties and set forth in Exhibit A-1
to this Schedule A, provided such procedures shall include
an up-to-date escalation list of personnel (as such
personnel may change over time) responsible for Maintenance
of the System.
5.2 Trouble Tickets.
a. Response times shall be measured from the time that Pathnet
or Incumbent (in the event Incumbent notifies Pathnet of a
trouble ticket event) initiates a tracking ticket ("Trouble
Ticket") and such ticket is electronically or by facsimile
received by Incumbent.
b. Pathnet shall initiate a Trouble Ticket upon knowledge,
(whether received from Pathnet, Incumbent or another third
party) of: (i) an Outage, (ii) System degradation below
Critical Service Levels, or (iii) any other problem that
threatens to adversely impact the System or the integrity of
the System.
c. Incumbent shall be deemed to have successfully restored
operation upon correcting an Outage or when the System
regains Critical Service Levels. Pathnet will close any
Trouble Ticket upon satisfactory confirmation that Incumbent
has restored operations to the System in accordance with all
applicable Performance Standards.
5.3 Circuit provisioning Dispatch Responsibility.
5.3.1 On-Hour Provisioning
Pathnet shall normally schedule circuit provisioning work within
normal business hours of Monday to Friday, 8:00 AM to 5:00 PM. Pathnet
shall provide Incumbent with the Work Order request at least one (1)
day prior to the scheduled work completion date.
5.3.2 Off-Hour Provisioning
In the event Pathnet customer demands, and the need for expedited
service, require less than one (1) day work notification and require
off-hours or weekend Circuit Provisioning, the Parties shall comply
with the following procedures:
a. Pathnet shall verbally notify Incumbent when the customer
request is received to allow for as much scheduling lead
time as possible.
A-20
b. Incumbent shall provide a positive verbal response stating
within one (1) hour time of its ability to meet the Work
Order request.
c. Incumbent shall work with Pathnet to schedule an appropriate
dispatch that will meet the requirements for on time
service.
6. FIELD TECHNICIAN REQUIREMENTS
6.1 Certification
Incumbent shall ensure that each Incumbent Field Technician providing
Services under this Agreement is certified pursuant to the Training
Procedures set forth in Section 2 of Schedule G.
6.2 Equipment
Incumbent shall, at its expense, equip each Field Technician to be
dispatched with the necessary Maintenance Test Equipment. Such equipment
shall include, at a minimum, a laptop personal computer (with internet
access), a digital T-1 or T-3 test set, and proper tools as set forth in
Exhibit E-2 to Schedule E.
6.3 Personnel
Incumbent shall utilize adequate numbers of qualified personnel with
suitable training (as, in part, provided by Pathnet), education,
experience and skill mix to perform the Services.
6.4 Location
Incumbent Field Technicians shall be assigned and located at adequate
distances to meet the requirements for dispatch and restoration set forth
in Section 3.2 of this Schedule A.
6.5 Rights To Operate The Network
The Parties acknowledge that from time to time, Incumbent Field Technicians
may not be available to meet Circuit Provisioning or Maintenance
obligations or service demands. In these instances, Incumbent shall use
reasonable efforts to locate replacement employees to perform critical work
functions. Priority of work functions shall be as follows:
a. Remedial Maintenance
b. Circuit Provisioning
A-21
c. Grooming
d. Preventative Maintenance
e. Circuit Disconnects
Pathnet may supplement the Incumbents replacement employees with qualified
Pathnet employees in the event of a prolonged force unavailability.
A-22
EXHIBIT A-1
INCUMBENT DISPATCH PROCEDURES
[To be Provided]
1. Remedial Maintenance
2. Circuit Provisioning
A-23
SCHEDULE B
CRITICAL SERVICE LEVELS
1. INTRODUCTION
1.1 General
1.1.1 This Schedule B provides the Critical Service Levels to which
Incumbent shall maintain the dedicated DS-1 and DS-3 circuits
in order to provide capacity to IXCs and other customers. These
Critical Service Levels are derived from and as required by
IXCs or other customers for capacity and may be amended from
time to time as such requirements may change pursuant to
Section 2.3.1 of Schedule C.
1.1.2 The Critical Service Levels are defined by the following
parameters: Errored Seconds ("ES"), Severely Errored Seconds
("SES"), and Error Free Seconds ("EFS"). The ES, SES, and the
EFS are the only criteria for determining operations above or
below Critical Service Levels.
1.1.3 All Systems will be designed for optimum performance based on
the equipment manufacturers stated specifications and good
system design practices. The Critical Service Levels within
this document are subject to change as network design
enhancements are implemented and as equipment improvements
become available. These Critical Service Levels are based on
International Telecommunications Union-Telecommunications
("ITU-T") Services Sector and Bellcore technical
specifications. Actual performance data has been analyzed and
statistically compared to ITU-T and Bellcore information to
arrive at these expected objectives. In the event these
specifications are changed, Pathnet shall notify Incumbent and
amend such modified Critical Service Levels to this Schedule B.
Such revised levels shall be deemed to be changed when
Equipment improvements have actually been made at the
Facilities.
2. PARAMETER DEFINITIONS
2.1 Certain Definitions
The following performance definitions are derived from the DS-1 and DS-3
generic requirements as established by the Industry Standards Compliance
list in Section 5:
2.1.1 "Availability" shall mean the time in which the circuit is
available and that it is not experiencing an outage. (Usually
this term is expressed as percent
B-1
availability by taking the ratio of the available time during a
given interval to the total interval and multiplying it by
100.)
2.1.2 "Bit Error Rate" ("BER") shall mean the percentage of received
bits compared to the total number of bits received.
2.1.3 "Circuit Acceptance Limit" ("AL") shall mean the value used to
define the limits at which facilities and/or circuits are
placed in service, initially. Upon the acceptance, the
facilities and/or circuits are transferred to a performance
measuring state to track and insure their continued proper
operation.
2.1.4 "Errored Seconds" ("ES") shall mean any one-second interval
during which one or more bit errors occurs. (For example, at
the DS-1 rate, an ES will contain 1 to 1,544,000 bit errors.)
2.1.5 "Error Free Seconds" ("EFS") shall mean any one-second time
interval which does not contain a measurable bit error. (This
term may be expressed as a percent EFS by taking the ratio of
non-errored to total seconds and multiplying by 100.)
2.1.6 "Failed Seconds" shall mean a one-second interval that has
1,544 bit errors at DS-1 rate.
2.1.7 "In-Service" shall mean the period when IXC service is
operating or is revenue bearing.
2.1.8 "Maintenance Limit" ("ML") shall mean the threshold at which
the performance of the facility and/or circuit is characterized
by degraded performance.
2.1.9 "Outage" shall mean an outage, usually measured in "Outage
Seconds", is declared after the BER in each second is worse
than 10^-3 for a period of 10 consecutive seconds. These 10
seconds are considered to be unavailable. The unavailable time
is counted from when the first of 10 Severely Errored Seconds
(SESs) occurs, and ends when the first of 10 consecutive
non-SESs occurs second in the sequence.
2.10 "Severely Errored Seconds" ("SES") shall mean (i) at the DS-1
rate, any one-second interval during which the BER is greater
than or equal to 1 x 10E^-3. At the DS-1 rate, this equates to
1,544 or more bit errors occurring within one second, and (ii)
at the DS-3 rate, any one-second interval during which the BER
is equal to or worse than 1 x 10E^-6.
B-2
3. DS-1 CRITICAL SERVICE LEVELS
3.1 General
Incumbent shall perform the Services in accordance with the Critical
Service Levels set forth below. The DS-1 interface shall meet the IXC
generic DS-1 requirements that are customary in the industry as set
forth in the Industry Standards Compliance List in Section 5 of this
Schedule B.
3.2 DS-1 Electrical Interface Specifications
Incumbent shall perform the services so that the DS-1 signal at the
cross-connect (DSX1) meets each of the following Critical Service Levels:
3.2.1 Line Rate: 1.544 Mb/s.
3.2.2 Tolerance: Source timing for self-timed DS-1 bit streams shall
not exceed plus or minus 32 ppm with respect to the basic rate.
DS-1 sinks should be capable of accepting a rate deviation of
plus or minus 130 ppm.
3.2.3 Line Code:
a. Bipolar with at least 12.5 percent average ones density
and no more than 15 consecutive zeros.
b. Bipolar with Eight Zero Substitution (B8ZS).
3.2.4 Format: ESF with AT&T 54016 & ANSI T1.403 messages,
concurrently.
3.2.5 Test Load: A pure resistive termination of 100 ohms plus or
minus 5% shall be used for evaluation of pulse shape and
electrical parameters.
3.2.6 Pulse Shape: The pulse amplitude shall be between 2.4V and 3.6V
measured at the center of the pulse, and may be scaled by a
constant factor to fit the template. The source of the above
information is ANSI T1.102.
3.2.7 Power Level:
a. For Equipment added by Pathnet, for an all-ones
transmitted pattern, the power in a band that is no wider
than 3 KHz centered at 772 KHz shall be between 12.6 and
17.9 dBm.
b. For equipment existing at the sites purchased by Incumbent
before the System is modified by Pathnet, the power in a
band no wider than 3 KHz centered at 772 KHz shall be
between 12.4 and 18.0 dBm.
B-3
c. The power in a band no wider than 3 KHz centered at 1544 KHz
shall be at least 29 db below that at 772 KHz.
3.3 Jitter Requirements
Incumbent shall meet each of the Critical Service Levels at the DS-1
interface for Jitter Tolerance, Jitter Transfer, Jitter Generation, and
Jitter Enhancement as set forth in Section 3.3 below. The jitter
requirements are set by industry standards as referenced in the Industry
Standards Compliance List.
3.3.1 Jitter Tolerance.
Jitter Tolerance is the maximum input jitter that any equipment can
tolerate without causing errors. It is specified in terms of the
amount of sinusoidal jitter (peak-to-peak) versus the frequency of
that jitter. IXC generic requirements describe the mask as well as the
lower limit of the jitter tolerance at each standard interface level.
To meet the jitter tolerance specifications, the actual tolerance of
the equipment shall be above the mask and the difference between this
and the lower limit represents the safety margin of the equipment.
3.3.2 Jitter Transfer.
Jitter Transfer is the jitter gain measurement which is the
relationship between the applied input jitter and resulting output
jitter as a function of frequency.
3.3.3 Jitter Generation.
a. Jitter Generation is defined as the process whereby jitter
appears at the output port of an individual unit of digital
equipment in the absence of applied input jitter.
b. When looped back at the high speed rate, the Equipment
shall produce less than 0.3 Unit Interval (UI) of rms
timing jitter and less than 1.0 UI of peak-to-peak timing
jitter at the output of the terminal receiver. The
measurement interval must include all frequencies between
F1 and F4 of the Network Jitter Interface requirements, as
shown in the Table below. This requirement shall apply over
the entire range of permissible input bit-rate offsets.
3.3.4 Jitter Enhancement.
The requirement for jitter enhancement is that a system of up to 250
miles in length shall add less than 1.0 UI of peak-to-peak jitter to a
DS-3 input signal
B-4
having 4.0 UI of sinusoidally modulated peak-to-peak jitter for all
frequencies up to 2300 Hz.
B-5
Maximum Permissible Network Output Jitter at any Hierarchical Interface
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Network Limit Measurement Filter Bandwidth (Hz)
Peak-to-Peak UI Bandpass filter having a low Cut-off
Bit Rate Mb/s (Note 1) Frequency F1 or F3 and Minimum Upper
Cut-off Frequency F4
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B1 B2 F1 F3 F4
(F1-F4) (F3-F4) (Note 2)
- --------------------------------------------------------------------------------
1.544 5 0.1 10Hz 8KHz 40KHz
- --------------------------------------------------------------------------------
3.152 5 0.1 10Hz 1.5KHz 40KHz
- --------------------------------------------------------------------------------
6.312 3 0.1 10Hz 3KHz 60KHz
- --------------------------------------------------------------------------------
44.736 5 0.1 10Hz 30KHz 400KHz
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Notes:
1. UI = Unit Interval
For 1.544 Mb/s:1 UI 648 ns
For 3.152 Mb/s:1 UI 317 ns
For 6.312 Mb/s:1 UI 158 ns
For 44.736 Mb/s:1 UI = 22.35 ns
2. F3: F3, the lower cut-off frequency of one of the bandpass filters,
represents the jitter half-bandwidth of the timing extraction circuits. The
frequency F3 is determined from: F3 = Fo /2Q where F and Q represent the
digital signal rate and the Q-factor of the timing recovery circuit,
respectively.
3.4 DS-1 Access Performance and Availability Objectives
3.4.1 General.
DS-1 performance and availability objectives for IXC digital transport
facilities are based on mileage bands. All performances data (ES, SES,
etc.) is the same throughout the given mileage band. The performance
objective values are based on a 24-hour period with the exception of
Availability, which is an annual objective.
3.4.2 Service Objectives.
a. Incumbent shall perform the Services to meet the Critical
Service Levels defined as Availability of 99.98% per year per
4,000 mile System.
B-6
b. The data set forth below in Tables 1, 2, 3 and 4 is based on a
24-hour period.
Table 1. DS-1, Nx64 kb/s, & Kx56 kb/s IOC Circuit Acceptance Levels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 1 99.998 0
- --------------------------------------------------------------------------------
501-1500 1 99.998 0
- --------------------------------------------------------------------------------
1501-4000 2 99.998 0
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage. 0 outage seconds are
allowed for test
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Table 2. E-1 IOC Circuit Acceptance Levels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 1 99.998 0
- --------------------------------------------------------------------------------
501-1500 1 99.998 0
- --------------------------------------------------------------------------------
1500-4000 2 99.998 0
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage.
0 outage seconds are allowed for test.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Table 3. DS-1, Nx64kb/s, & Nx56 kb/s IOC Maintenance Limit Performance Levels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 5 99.99 2
- --------------------------------------------------------------------------------
501-1500 10 99.98 4
- --------------------------------------------------------------------------------
1500-4000 15 99.98 6
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-7
Table 4. E-1 IOC Maintenance Limit Performance Levels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 5 99.99 2
- --------------------------------------------------------------------------------
501-1500 10 99.98 4
- --------------------------------------------------------------------------------
1500-4000 15 99.98 6
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4. DS-3 CRITICAL SERVICE LEVELS
4.1 General
Incumbent shall perform the Services in accordance with the Critical
Service Levels set forth below. Such Critical Service Levels for DS-3
interface shall meet the generic DS-3 requirements that are customary in
the industry, as set forth in the Industry Standards Compliance List in
Section 6 of this Exhibit B.
4.2 DS-3 Electrical Interface Specifications
Incumbent shall perform the Service so that the DS-3 signal at the
cross-connect shall meet each of the following Critical Service Levels:
4.2.1 Line Rate: 44.736 Mb/s plus or minus 20 ppm.
4.2.2 Line Code: Bipolar with 3 Zero Substitution (B3ZS).
4.2.3 Test Load: A pure resistive termination of 75 ohms plus or
minus 5% shall be used at the interface for evaluation of pulse
shape and electrical parameters.
4.2.4 Pulse Shave: The pulse amplitude shall be between 0.36V and
0.85V peak measured at the center of the pulse, and may be
scaled by a constant factor to fit the template.
4.2.5 Power Level: For an all ones transmitted pattern, the power in
a band no wider than 3 KHz centered at 22.368 MHZ shall be -1.8
to +5.7 Dbm. The power in a band no wider than 3 KHz centered
at 44.736 MHZ shall be at least 20 Db below that at 22.368 MHZ.
B-8
4.3 Jitter Requirements
Incumbent shall perform Service to meet the Jitter requirements set forth
in Section 3.3 of this Schedule B for the following parameters: Jitter
Tolerance, Jitter Transfer, Jitter Connection, and Jitter Enhancement.
4.4 DS-3 Access Performance and Availability Levels
4.4.1 General.
DS-3 performance and availability objectives for IXC digital transport
facilities are based on mileage. All performance data (ES, SES, etc.)
is the same throughout the given mileage band. The performance
objective values are based on a 24-hour period with the exception of
availability, which is an annual objective
4.4.2 Service Objectives.
a. Incumbent shall perform the services to meet the Critical
Service Levels defined as Availability of 99.98% per year
for 4,000 mile system.
b. The data set forth below in Tables 5 and 6 is based on a
24-hour period.
Table 5. DS-3 IOC Circuit Acceptance Levels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 3 99.99 0
- --------------------------------------------------------------------------------
501-1500 4 99.99 0
- --------------------------------------------------------------------------------
1500-4000 6 99.99 0
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage. 0 outage seconds
are allowed for test.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Table 6. DS-3 IOC Maintenance Limits Performance Levels
B-9
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Route Mileage ES % EFS SES
- --------------------------------------------------------------------------------
0-500 20 99.97 2
- --------------------------------------------------------------------------------
501-1500 30 99.96 4
- --------------------------------------------------------------------------------
1500-4000 50 99.94 6
- --------------------------------------------------------------------------------
Mileage used is based on actual one-way route mileage.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
5. SYSTEM AVAILABILITY
At all times, the Services shall be performed in order that the System meets the
following Critical Service Level:
5.1 System Availability
The system shall operate at 99.98% Availability on an annual basis for a
4,000 mile system.
5.2 System Outage
The system shall operate to the level of a one-way System outage of less
than 0.39 seconds/mile/year.
6. CIRCUIT PROVISIONING PERFORMANCE
6.1 Reports
Pathnet shall provide monthly reports to Incumbent to measure:
1. Percentage site Circuit Provisioning performed on time.
2. Percentage end-to-end Circuit Provisioning turn ups performed on
time.
3. Percentage multiple dispatches to perform site specific Circuit
Provisioning.
4. Percentage Circuit Provisioning with reported trouble within
seven (7) days of turnup.
6.2 Service Levels
Incumbent shall perform Circuit Provisioning to the following objectives
and Critical Service Levels:
B-10
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CRITICAL
FUNCTIONALITY OBJECTIVE SERVICE LEVEL
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1 Percentage Site Provisioning on Time 99% 96%
- --------------------------------------------------------------------------------
2 Percentage Circuit Prov. On Time 99% 96%
- --------------------------------------------------------------------------------
3 Percentage Multiple Site Dispatches 5% 7%
- --------------------------------------------------------------------------------
4 Percentage Failed In 7 Days 1% 2%
- --------------------------------------------------------------------------------
5 Percentage Disconnect Work Orders On Time 98% 95%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
6.3 Corrective Action
Both Parties acknowledge that the Critical Service Levels will be used as a
benchmark for minimum acceptable performance. For monthly performance below
Critical Service Level, Incumbent shall provide to Pathnet by the tenth
(10th) day of the subsequent month, a corrective action plan to include
root cause analysis, action steps and time frames.
7. INDUSTRY STANDARDS COMPLIANCE LIST
7.1 General
In general, Incumbent shall perform the services in compliance with
most current version of the following standards as a whole or as
applied to the IXC's:
a. American National Standards Institute T1.503-1996
b. American National Standards Institute T1.403
c. American National Standards Institute T1.404A-1996
d. American National Standards Institute T1.102
e. AT&T Technical Reference, TR-62415, June 1989
f. AT&T Technical Reference, 54016, 17, 19 and 19A
g. Bellcore Technical Reference, TR-TSY-000499
h. Bell Technical Reference, TR-NPL-000335 (or 353)
i. Bell Technical Reference, TA-TSY-000083, 77, 55
and 57
j. FCC Regulations, part 15 & 68
2.
B-11
SCHEDULE C
CHARGES
1. INTRODUCTION
The Monthly Services Charges and Dispatch Charges, as adjusted by the
cost-of-living adjustment ("COLA") set forth in Section 2.2.1, when aggregated
with charges for New Services and Pass-Through Expenses as well as other
consideration by and between Pathnet and Incumbent provided in the FPM
Agreement, shall fully compensate Incumbent for all of the resources used in
providing the Services.
2. CHARGES
2.1 Monthly Services Charge
Upon Commissioning of each Segment, Pathnet shall pay to Incumbent two
hundred fifty hundred dollars ($250) per site per month, payable in equal
quarterly installments for providing the Services in accordance With the
Performance Standards set forth in Schedule B of this Agreement
[LLC consideration to Incumbent for maintenance to be negotiated and
derived from LLC receipt of Revenue under the Contingent Radio Revenue
Agreement. Such consideration to be entered in this form of agreement]
2.2 Dispatch Charge
Pathnet shall pay Incumbent _______ per each Circuit Provisioning dispatch;
provided, however Incumbent shall not be compensated for any second
dispatch to a site as required by poor Incumbent quality or coordination.
(For instance, Field Technician fails to transport required Equipment to
perform Circuit Provisioning or a circuit fails to operate in accordance
with the Specifications as set forth in Schedule B.)
2.3 Adjustments
2.3.1 Cost of Living Adjustments.
a. General. Pathnet agrees to apply a cost of living adjustment
("COLA") to the Monthly Service Charge beginning twenty-four
(24) months after the Effective Date.
b. Index. The Parties agree to use the Historical Consumer
Price Index published as final by the Bureau of Labor
Statistics, U.S. Department of Labor for all urban
C-1
consumers, U.S. City Average, All Items, Annual Average
1982-84 = 100 ("CPI-U") for purposes of calculating actual
inflation. In the event the Bureau of Labor Statistics stops
publishing the CPI-U or substantially changes content and
format, the Parties will substitute another comparable index
published at least annually by a mutually-agreeable source.
If the Bureau of Labor Statistics merely redefines the base
year for the CPI-U from 1982-84 to another year, the Parties
will continue to use the CPI-U, but will convert the
protection index to the new base year by using an
appropriate conversion formula.
c. Calculation of COLA. The COLA will be calculated using the
COLA factor specified below. The COLA is payable on a
prospective basis (i.e., the Monthly Services Charge by
Pathnet for the subsequent renewable contract year will be
surcharged by the factor as determined below, if such factor
is in excess of zero). The COLA factor will be determined as
soon as practicable after the end of each contract year,
starting with the third renewable contract year. The COLA
factor is:
Actual Inflation x COLA Percentage,
where Actual Inflation = CPI-U for the calendar year just
ended. COLA Percentage = seventy-five (75%) percent.
2.4 Additional Charges
2.4.1 New Services.
In the event that Pathnet requests Incumbent to perform functions that
are materially different from and in addition to the Services ("New
Services"), the Parties' obligations with respect to such functions
shall be as follows:
a. To the extent that such functions may be performed with
existing resources and existing allocation of personnel time
under this Maintenance Agreement, the additional functions
shall then be considered "Services" and shall be subject to
the provisions of this Agreement.
b. To the extent that such functions require additional
resources or may not be performed with the existing
allocation of personnel time under this Agreement, then
prior to performing such additional functions. Incumbent
shall quote to Pathnet:
(i) a charge for such additional functions that is
reasonable within the industry.
C-2
(ii) the reasonable number of hours to perform such
additional functions and such additional functions
shall be performed at the rates set forth in Exhibit
C-1 to this Schedule C.
(iii) in the case of Maintenance requested for an
interconnection site, the additional charge shall be
fifty (50%) percent of the current Monthly Service
Charge for such site.
c. Pathnet, upon receipt of such quote, may elect to have Incumbent
perform the additional functions and the charges under this
Agreement shall be adjusted if appropriate to reflect such
functions. If Pathnet so elects, such service shall then be
deemed "Services" and shall be subject to the provision of this
Maintenance Agreement.
a. Pathnet may elect to solicit and receive bids from third parties
to perform such additional functions. If Pathnet elects to
contract for such third-party services, Incumbent shall cooperate
with those third parties with respect to the provision of such
service.
b. The Parties anticipate that the Services will evolve and be
supplemented, modified, enhanced or replaced over time to keep
pace with technological advancements and improvements in the
methods of delivering services, and the Parties acknowledge that
these will not be deemed to result in functions materially
different from and in addition to the Services.
c. If Pathnet's request for additional functions, pursuant to this
Section 3.1.1, includes a request for Incumbent to
correspondingly reduce or eliminate Services it is providing,
then such additional functions will be considered "Replacement
Service". In such event, the Parties shall determine the
resources and expenses required to provide the Replacement
Services, including implementation and ongoing support, and the
reduction in resources and expenses related to the Services being
replaced. The net increase or decrease in resources and expenses
will be the basis on which Incumbent shall quote a price for
Replacement Services pursuant to subsection (b).
2.4.2 Pass-Through Expenses.
Pass-Through Expenses are charges to be paid directly by Pathnet,
unless the Parties mutually agree that particular Pass-Through
Expenses are to be paid by Incumbent, followed by reimbursement from
Pathnet. Pass-Through Expenses in excess of five hundred ($500)
dollars may not be added to the Monthly Services
C-3
Charge without Pathnet's prior written consent, which Pathnet may
withhold in its sole discretion. Pass-Through Expenses shall be
calculated as Incumbent's reasonable out-of-pocket expenses (as
incurred and paid for by Incumbent). Incumbent shall promptly provide
Pathnet with the original third-party invoice for such expenses,
together with a statement that Incumbent has reviewed the invoiced
charges and made a determination of which charges are proper and valid
and shall be paid by Pathnet. Pass-Through Expenses shall continue to
be booked to the Pathnet office. It shall be Incumbent's
responsibility to manage the invoicing of Pass-Through Expenses to
Pathnet such that late charges are not incurred.
C-4
EXHIBIT C-1
INCUMBENT PRESUMPTIVE LABOR RATES
(Incumbent to Provide]
C-5
SCHEDULE D
MAINTAINED EQUIPMENT
[Pathnet to Provide]
D-1
SCHEDULE E
SPARE PARTS AND MAINTENANCE TEST EQUIPMENT
1. SPARES
1.1 General
Pathnet shall provide to Incumbent a full set of Spare Parts with
quantities reflective of (i) the number of units in service and (ii)
manufacturers' recommendations adjusted for actual field experience.
Incumbent shall store such Spare Parts at the Stocking Depot at locations
reasonably situated to perform the Services, but in no case more than two
hundred (200) miles from any Incumbent Facility, within the required time
frames as set forth in Schedule A to this Maintenance Agreement Incumbent
shall be responsible for notifying Pathnet if the Spare Parts inventory
falls below the recommended inventory levels set forth in this Schedule E.
Incumbent, upon replacing a degraded part or module with a Spare Part,
shall send such degraded part or module to Pathnet as soon as possible for
a replacement Spare Part. Pathnet shall be responsible for promptly
providing a replacement for any such Spare Part sent from Incumbent to
Pathnet or identified by Incumbent as requiring replacement. Pathnet shall
not be responsible for replacing any Spare Part damaged or harmed as a
result of Incumbent's negligence.
1.2 Spare Equipment Inventory
1.2.1 General.
For each system, Spare Parts shall be provided at a ratio of about 1 to 40,
or for every quantity of 40 units in service, at least one spare unit.
1.2.2 Inventory.
The Spare Parts provided by Pathnet shall be as set forth in Exhibit
E-1 to this Schedule E.
2. MAINTENANCE TEST EQUIPMENT
2.1 General
Incumbent shall be responsible for providing and maintaining at the
Stocking Depot the Maintenance Test Equipment listed by Pathnet in
Exhibit E-2 to this Schedule E. Pathnet will recommend quantities and
configurations of Maintenance Test Equipment appropriate for field
alignment and maintenance of the proposed digital radios. Pathnet
E-1
has established vendor discounts with Maintenance Test Equipment
manufacturers and shall pass on such discounts to Incumbent.
E-2
EXHIBIT E-1
SPARE PARTS
Ouantity Type
[Pathnet to Provide]
E-3
EXHIBIT E-2
MAINTENANCE AND PROVISIONING TEST equipment
1. Required Equipment
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Test Equipment Test Type Quantity
- --------------------------------------------------------------------------------
Wrist Strap Module Handling
- --------------------------------------------------------------------------------
Digital Volt Meter Voltage/Continuity Check
- --------------------------------------------------------------------------------
Power Meter/Freq Counter RE TX Power/TX Frequency
- --------------------------------------------------------------------------------
Optical Power Meter Optical Continuity
1200-1600 Nm
- --------------------------------------------------------------------------------
Optical Source Optical Continuity
1200-1600 Nm
- --------------------------------------------------------------------------------
DS-1/DS-3 BER/SES/ES
- --------------------------------------------------------------------------------
Oscilloscope DADE/Phase Lock
- --------------------------------------------------------------------------------
NEC 2000S Extension Card TX Test & Alignment
- --------------------------------------------------------------------------------
Card Extender Receiver ATCP Card Adjustment
NEC-2000S
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2. Recommended Equipment
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Test Equipment Test Type Quantity
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Digital Radio Test System Spectrum Analyzer; DADE; Freq
Counter; Power Meter; IF and Multipath
- --------------------------------------------------------------------------------
RE Signal Generator Rcvr RE/AGC; Rcvr IF
- --------------------------------------------------------------------------------
DADE Adjustment Cable DADE Adjustment
- --------------------------------------------------------------------------------
RE Variable Attenuator RX/Squelch
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
E-4
SCHEDULE F
INCUMBENT FACILITIES AND SYSTEM
[Pathnet to Provide]
PATHNET FACILITIES AND SYSTEM
F-1
SCHEDULE G
CUSTOMER SERVICE AND TRAINING
1. EQUIPMENT REPAIR ASSISTANCE
To assist Incumbent in performing the Services, Pathnet shall provide the
following Equipment repair assistance and customer service:
1.1 Manufacturer's Warranties
1.1.1 In those cases where Pathnet's vendors offer warranties and
factory service for certain Equipment included in the System.
Pathnet shall pass the benefit of any and all warranties and
factory services on to Incumbent, to the extent Pathnet is
entitled to such warranties or factory service. In those cases,
where temporary replacement units may be available to Incumbent
while Equipment is being repaired, Pathnet will use reasonable
efforts to facilitate the use of such temporary replacement
units. Incumbent may contact Pathnet's customer service
department for advice on whether field repair, factory repair or
replacement is advisable for a specific unit.
1.1.2 Incumbent shall contact Pathnet and receive prior approval
before sending any Equipment to the manufacturer's factory for
repair, to obtain a return material authorization number.
Equipment under warranty will be repaired at no charge.
1.1.3 The standard repair turnaround time for most equipment is thirty
(30) working days from receipt at the manufacturer's facilities
to shipment back to Incumbent. Emergency repair can be requested
for a two-working day (plus shipping time) turnaround. To ensure
prompt service when returning equipment, Incumbent shall fill
out a repair order form, as provided by the appropriate
manufacturer.
1.2 Module Exchange
1.2.1 B. Module Exchange. Module Exchange Incumbent may also request a
replacement unit from Pathnet in order to remove and replace a
faulty unit in one field visit. Pathnet's Equipment suppliers
maintain a inventory of refurbished modules for this purpose.
Based on availability of such replacement units, Pathnet shall
use reasonable effort to provide Incumbent with a replacement
unit.
1.2.2 Under normal circumstances, the standard exchange turnaround
time is ten (10) working days from Incumbent's request to
shipment.
G-1
1.2.3 A defective unit is expected to be returned to Incumbent within
thirty (30) days. Incumbent shall include any special packing
slip that the manufacturer provides with the replacement unit.
1.3 Technical and Field Service
C. Technical & Field Service. Technical & Field Service
1.3.1 Pathnet shall provide technical information, troubleshooting
assistance, and, in extreme cases, field repair, as determined
by Pathnet in its sole discretion. These services can be
obtained by letter, telephone or FAX as described.
1.3.2 After normal working hours, emergency calls will be referred to
Pathnet's on-duty engineer for troubleshooting and field repair
assistance. Pathnet will maintain a Network Monitoring Center
that will handle any emergency calls any time of day, as set
forth in the FPM Agreement.
1.4 Troubleshooting & Consultation
Pathnet shall maintain a staff of experienced engineers who shall assist
Incumbents in troubleshooting via the telephone at no additional charge to
Incumbent
1.5 Warranty and Product
Pathnet shall provide warranty and product support information to Incumbent
promptly after Pathnet's purchase of equipment with the sales invoice and
other sales documents. Incumbent shall read the warranty information for
the equipment or assembly before contacting Pathnet or the manufacturers
customer service.
2. TRAINING AND CERTIFICATION PROCEDURES
Pathnet shall provide and Incumbent Field Technician shall be required to
participate in a training class to train and certify Incumbent Field Technicians
in performing the Services pursuant to this Agreement. Such training shall be
performed at Pathnet or its vendor's Washington, D.C. or Texas office and shall
comprise approximately forty (40) hours. Pathnet shall provide all course
training materials to Incumbent. Incumbent shall pay the out-of-pocket expense
of attending such training classes. Pathnet shall provide materials to support
the training sessions.
G-2
SCHEDULE H
VERIFICATION OF COMMISSIONING
[To be attached from Fixed Point Microwave Services Agreement upon
Commissioning]
H-1
TABLE OF CONTENTS
PAGE
----
SCHEDULE A.- SERVICES A1
1. INTRODUCTION ...........................................................1
2. PREVENTIVE MAINTENANCE .................................................1
2.1 ANTENNA/WAVEGUIDE MAINTENANCE .......................................1
2.1.1 Monthly Inspection ............................................1
2.1.2 Quarterly Inspection ..........................................2
2.1.3 Annual Inspection .............................................2
2.2 BATTERY MAINTENANCE (VALVE REGULATED BATTERIES) ......................3
2.2.1 Monthly Inspection ............................................3
2.2.2 Quarterly Inspection ..........................................3
2.2.3 Annual Inspection .............................................3
2.3 BUILDING MAINTENANCE .................................................4
2.3.1 Monthly Inspection ............................................4
2.3.2 Quarterly Inspection ..........................................4
2.3.3 Annual Inspection .............................................4
2.4 CHARGER/RECTIFIER (VALVE REGULATED BATTERIES) ........................5
2.4.1 Monthly Inspection ............................................5
2.4.2 Quarterly Inspection ..........................................5
2.4.3 Annual Inspection .............................................6
2.5 GENERATOR MAINTENANCE ................................................6
2.5.1 Monthly Inspection ............................................6
2.5.2 Quarterly Inspection ..........................................7
2.5.3 Annual Inspection .............................................7
2.6 MULTIPLEXER MAINTENANCE ..............................................8
2.6.1 Monthly Inspection ............................................9
2.6.2 Annual Inspection .............................................9
2.7 RADIO MAINTENANCE ....................................................8
2.7.1 Monthly Inspection ............................................9
2.7.2 Quarterly Inspection ..........................................9
2.7.3 Annual Inspection .............................................9
2.8.1 Monthly Inspection ...........................................10
2.8.2 Quarterly Inspection .........................................10
2.9 TOWER MAINTENANCE ...................................................11
2.9.1 Monthly Inspection ...........................................11
2.9.2 Quarterly Inspection .........................................11
2.9.3 Annual Inspection ............................................11
2.9.4 Bi-Annual Inspection .........................................12
2.10 PREVENTIVE MAINTENANCE REFERENCE GUIDE .............................12
2.10.1 Parts.........................................................12
2.10.2 Manuals ......................................................12
2.10.3 Modifications ................................................12
3. REMEDIAL MAINTENANCE ..................................................12
i