Exhibit 10.28
MAINTENANCE AND PROVISIONING SERVICES AGREEMENT
This MAINTENANCE AND PROVISIONING SERVICES AGREEMENT (the "Maintenance
Agreement" or "Agreement") is made and entered into as of the 26th day of
June, 1998 (the "Effective Date"), by and between PATHNET, INC. (hereinafter
"Pathnet"), a Delaware corporation, having its principal place of business at
0000 00xx Xxxxxx, XX, Xxxxxxxxxx, X.X., 00000, and TEXACO PIPELINE, INC.
(hereinafter, "Texaco"), a Delaware corporation having a place of business at
0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000 (collectively, the "Parties" and each, a
"Party").
W I T N E S S E T H:
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, Texaco 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
Texaco's microwave telecommunications facilities;
WHEREAS, Pathnet wishes to engage the services of Texaco to provide
preventative and remedial maintenance and provisioning services on the Equipment
and System and to maintain the System at a minimal level of acceptability to
ensure overall effective operations;
WHEREAS, Texaco wishes to perform Maintenance and Circuit Provisioning for
such System for Pathnet;
WHEREAS, Pathnet wishes to perform network management, dispatch and
maintenance support functions for the System;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. DEFINITIONS:
1.1 CERTAIN DEFINITIONS
1.1.1 "AFFILIATE" shall be as defined in the FPM Agreement.
1.1.2 "BUILD-OUT PERIOD" shall be as defined in the FPM Agreement.
1.1.3 "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.
1.1.4 "COMMISSIONING" shall be as defined in the FPM Agreement.
1.1.5 "CRITICAL SERVICE LEVELS" shall mean the service levels and
standards of operations set forth in Schedule B attached hereto and
incorporated herein.
1.1.6 "DISPATCH CHARGE" shall mean the dispatch fee for Circuit
Provisioning paid by Pathnet to Texaco upon successful completion of a
Circuit Provisioning dispatch, as more particularly described in
Schedule C attached hereto and incorporated herein.
1.1.7 "EQUIPMENT" shall mean the equipment described in Schedule D
attached hereto and incorporated herein, as amended from time-to-time.
1.1.8 "FACILITIES" shall be as defined in the FPM Agreement.
1.1.9 "FIELD TECHNICIAN" shall mean Texaco's employees, agents or
subcontractors certified by Pathnet to provide Services pursuant to
the procedures described in Schedule G attached hereto and
incorporated herein, as such standards may be modified from time to
time.
1.1.10 "FORCE MAJEURE" shall mean an event defined in Section 14.3
of this Maintenance Agreement.
1.1.11 "FPM AGREEMENT" shall mean the Agreement to Create and
Manage a High Capacity Telecommunications System by and between
Pathnet and Texaco executed by Texaco on May 21, 1997.
1.1.12 "IXC" shall mean a telephone company that is permitted to
provide long distance telephone service between local access transport
areas.
1.1.13 "LOSSES" shall mean all losses, liabilities, damages and
claims, and all related costs and expenses, including reasonable legal
fees and disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties.
1.1.14 "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 this Maintenance Agreement and its Schedules.
1.1.15 "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.
1.1.16 "MONTHLY SERVICE CHARGES" shall mean the charges to be paid
by Pathnet to Texaco hereunder, including any charges for Preventive
Maintenance,
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Remedial Maintenance and Circuit Provisioning, as more fully described
in Section 5 of this Maintenance Agreement and Schedule C, attached
hereto.
1.1.17 "NETWORK OPERATING CENTER" shall mean the center established
by Pathnet to monitor Texaco's System and other Systems comprising the
Pathnet network.
1.1.18 "NON-TEXACO SITE" shall mean Sites not owned or leased by
Texaco and not located at Texaco's Facilities.
1.1.19 "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).
1.1.20 "PASS-THROUGH EXPENSES" shall mean Texaco's reasonable and
actual out-of-pocket expenses that are required to be reimbursed by
Pathnet hereunder and that are incurred by Texaco for Services
required to operate the System but are not accounted for in the
payments to Texaco pursuant to this Agreement. Pass-Through Expenses
shall not include late fees and interest on payments.
1.1.21 "PATH" shall be as defined in the FPM Agreement.
1.1.22 "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.
1.1.23 "PERSON" shall mean an individual or a corporation,
partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company, or
other entity of any kind or any governmental authority.
1.1.24 "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 attached
hereto and incorporated herein.
1.1.25 "REMEDIAL MAINTENANCE" shall mean the unscheduled, on-call
Maintenance required to correct a situation adversely affecting the
System.
1.1.26 "REMEDIAL MAINTENANCE SITUATION" or "RMS" shall mean a
situation requiring Remedial Maintenance. Remedial Maintenance
Situations are generally divided into Tier One, Tier Two and Tier
Three, based upon the severity and priority of the situation.
1.1.27 "RESPONSE TIME SCHEDULE" shall mean the schedule describing
Remedial Maintenance Response Time attached as Schedule A-2 to
Schedule A and incorporated herein.
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1.1.28 "SEGMENT" shall be as defined in the FPM Agreement.
1.1.29 "SERVICES" shall be as defined in Section 3 of this
Maintenance Agreement and Schedule A attached hereto.
1.1.30 "SITE" shall be as defined in the FPM Agreement.
1.1.31 "STOCKING DEPOT" shall mean an enclosed and reasonably
protected storage facility or mobile vehicle required for housing the
Spare Parts inventory, including the facilities described in Schedule
E-1, attached hereto.
1.1.32 "SYSTEM" shall be as defined in the FPM Agreement.
1.1.33 "TIER ONE RMS" shall include (i) an Outage; (ii) repeated or
continuous performance of the System below Critical Service Levels;
and (iii) a situation that, if not corrected within the Tier One time
frames set forth in the Response Schedule, would likely lead to an
Outage or repeated or continuous performance of the System below
Critical Service Levels.
1.1.34 "TIER TWO RMS" shall include (i) a situation that causes or
could cause transmission traffic to be switched to the protection
radio channel; (ii) a situation that results or could result in a
failure in the protection radio channel that makes it unavailable for
traffic; (iii) isolated or non-continuous performance of the System
below Critical Service Levels; and (iv) a situation that, if not
corrected within the Tier Two time frames set forth in the Response
Time Schedule, would likely lead to an Outage or repeated or
continuous performance of the System below Critical Service Levels.
1.1.35 "TIER THREE RMS" shall include situations that have no
immediate adverse affect on the System, and are not likely to
adversely affect the System within the near future, but should be
corrected as soon as commercially practical.
1.1.36 "TROUBLE TICKET" shall mean a tracking ticket generated by
the Network Operating Center describing a System event that requires
Service, including a Remedial Maintenance Situation. A Trouble Ticket
is deemed "Dispatched" upon delivery to Texaco by e-mail, telecopier,
hand delivery or, if none of the foregoing is feasible, by verbal
communication followed by delivery by one of the foregoing methods.
1.1.37 "WORK ORDER" shall mean an order for Circuit Provisioning
sent by e-mail or by facsimile by Pathnet to Texaco.
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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 not explicitly
defined are defined by the context in which they are used.
2. TERM
2.1 TERM
The term of this Maintenance Agreement shall commence upon Commissioning,
shall continue for one (1) year thereafter (the "Term"), and, subject to
the provisions of Section 7.2 and Article 9 hereof, shall automatically
renew for successive one (1) year Terms, provided that either party may
terminate this Agreement effective upon any anniversary of Commissioning by
delivering written notice to the other at least one hundred twenty (120)
days prior to such anniversary. and shall expire on the first anniversary
of such date (the "Term"). Notwithstanding the foregoing, this Maintenance
Agreement shall automatically terminate upon expiration or termination of
the FPM Agreement. Subject to the terms of Section 3.1.3 below, Texaco's
obligation to provide Services, and Pathnet's obligation to pay Monthly
Service Charges and to provide the services required hereunder shall
commence as to each Segment upon the Commissioning of such Segment. The
Commissioning shall occur as agreed upon by Pathnet and Texaco pursuant to
the acceptance procedures of the FPM Agreement, as set forth in Schedule H,
attached hereto.
3. SERVICES
3.1 PROVISION OF SERVICES
3.1.1 GENERAL. Texaco 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) Preventive Maintenance as described in Schedule A hereto;
(b) Remedial Maintenance as described herein;
(c) Circuit Provisioning as described in Schedule A hereto;
(d) the services, functions and responsibilities performed
during the twelve (12) months preceding the Effective Date, by or
on behalf of Texaco, on those portions of Texaco's existing
microwave network that are or will be included in the
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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 be provided by Pathnet and/or Texaco, as
applicable 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, Texaco shall be
responsible for providing the facilities, personnel and other
resources required to perform the Services.
3.2 TIMING OF SERVICES
3.2.1 PREVENTIVE MAINTENANCE. Texaco shall perform Preventive
Maintenance on the schedule set forth in Schedule A.
3.2.2 REMEDIAL MAINTENANCE. Texaco shall commence Remedial
Maintenance upon Dispatch of a Trouble Ticket (provided that Texaco
shall also perform Remedial Maintenance promptly upon its knowledge of
a Remedial Maintenance Situation), and shall complete such Remedial
Maintenance as promptly as practical, and in any event, within the
time periods set forth in the Response Time Schedule. Texaco shall be
deemed to have successfully completed a task of Remedial Maintenance,
and Pathnet will close any Trouble Ticket, upon Pathnet's receipt of
satisfactory confirmation that Texaco has restored operations to the
System in accordance with all applicable Performance Standards and/or
has corrected the Remedial Maintenance Situation. Attached as Exhibit
A-1 to Schedule A is a list of Texaco's personnel who will be
performing Remedial Maintenance.
3.2.3 CIRCUIT PROVISIONING. Texaco shall commence Circuit
Provisioning as scheduled by a Work Order, and shall complete such
Circuit Provisioning as promptly as practical. Pathnet shall endeavor
to issue Work Orders only between 8:00 a.m. and 5:00 p.m., Monday
through Friday, excluding federal holidays, provided, however, Texaco
acknowledges that, due to the specific requirements of Pathnet's
customers, Work Orders may be issued, and Circuit Provisioning may be
required, at other times.
3.2.4 LIMITATION. Notwithstanding the foregoing, Texaco shall not
be responsible for failure of the System to meet Performance Standards
or Critical Service Levels to the extent due to the inadequacy of the
System design or the fact that such Standards and Levels exceed the
manufacturer's design specifications for the Equipment.
3.3 SERVICES EXCLUSIONS
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3.3.1 TOWERS AND SHELTERS. This Maintenance Agreement does not
specify maintenance obligations for the Facilities themselves,
including any towers, tower lighting, or the satisfaction of any FCC
or FAA tower regulatory requirement or equipment shelter, each of
which Texaco shall maintain or satisfy outside the scope of the
Services as provided in the FPM Agreement.
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 Texaco
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; SPARE PARTS; FACILITIES
4.1 EQUIPMENT
The Equipment on which Texaco shall perform 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 Texaco 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 SPARE PARTS. Pathnet shall provide and Texaco shall store
Spare Parts for the Equipment at Stocking Depots in the type and
quantity as set forth in Schedule E, attached hereto and incorporated
herein, provided that Texaco may supplement the Spare Parts beyond
Texaco's designated allocation of Spare Parts at its sole discretion.
Texaco shall store such Spare Parts at appropriate Stocking Depots to
allow for a response within the time parameters set forth in the
Response Time Schedule and Schedule A. Pathnet, through the Network
Operating Center, and Texaco, shall identify Texaco modules or Spare
Parts necessary to expedite any required repairs. Texaco shall
utilize the modular exchange program that Pathnet has established in
order to maintain an adequate inventory of Spare Parts. Texaco shall
be responsible for notifying Pathnet promptly of any shortages in type
or quantities of Spare Parts required to meet Texaco's obligations
under this Maintenance Agreement. Spare Parts shall be shipped 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 existing Equipment, provided that such replacement
Equipment does not degrade the performance of the Initial System.
Upon reasonable notice to Texaco that any such Equipment requires
replacing, Texaco shall be responsible for providing the labor and
other associated costs of installing any such Equipment, in which
event
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Monthly Services Charges shall, if necessary, be adjusted as set forth
in Section 5.4 of this Maintenance Agreement.
4.3 FACILITIES
Texaco shall be responsible for performing the Services at the Facilities
described in Schedule B to the FPM Agreement, , and such Schedule B 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 B of the FPM Agreement to include any
additional Facilities required for such Capacity Expansion.
5. CHARGES
5.1 GENERAL
All Monthly Services Charges to be paid by Pathnet to Texaco 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
Texaco any amounts for the Services in addition to those payable to Texaco
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 Texaco for Pass-Through Expenses paid by
Texaco.
5.3 TAXES
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 Texaco for the performance of any services requested by
Pathnet and agreed to by Texaco 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
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Promptly after the expiration of each calendar quarter, Texaco 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
Texaco shall perform the Services at a level of accuracy, quality,
completeness, timeliness, responsiveness and efficiency sufficient to
attain the Performance Standards identified in this Maintenance Agreement
and its Schedules and otherwise as consistent with industry standards.
7.2 FAILURE TO PERFORM
7.2.1 Texaco recognizes that its failure to (i) conduct
Preventative Maintenance such that the System, at all times, operates
at or above all Critical Service Levels, (ii) timely respond to a
Remedial Maintenance Situation, or (iii) perform Circuit Provisioning
as scheduled in any Work Order, may have a material adverse impact on
the business and operations of Pathnet. Accordingly, in the event
that Texaco repeatedly fails to timely perform any of the foregoing as
required hereunder 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
Texaco 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 situation affecting the operation of the
System (including, without limitation, a Remedial Maintenance
Situation), Texaco shall (i) investigate and report to Pathnet the
causes of such situation; (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 after consultation with Pathnet 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 degrade the operation of the Initial System below
Critical Service Levels. Upon Pathnet's prior notification, Texaco
shall reasonably cooperate with Pathnet or its designee, including
providing any escorts necessary for Pathnet to supplement the
Services.
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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,
Texaco shall have the right to continue to maintain the Initial System
at Texaco'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 Texaco may review the Critical
Service Levels and the Monthly Service Charges paid to Texaco.
Pathnet and Texaco 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 understand that the Critical Service Levels may be made more
demanding over time provided that Texaco shall not be responsible for
failure of the System to meet Performance Standards or Critical
Service Levels to the extent due to the inadequacy of the System
design or the fact that such Standards and Levels exceed the
manufacturer's design specifications for the Equipment. Pathnet and
Texaco 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. Texaco 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, Texaco 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 Texaco shall complete the information required by the
Trouble Ticket process, recording the date and description of Services
performed, the occurrence of any Remedial Maintenance Situations, and
the appropriate actions taken to restore service.
8.2.2 Pathnet shall have the right to inspect the Facilities,
Equipment and Circuit Provisioning at any time upon reasonable notice
to Texaco and to supplement the Services during Pathnet's inspection,
provided Pathnet complies with any and all
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Texaco safety and security procedures.
8.3 SAVINGS CLAUSE
Notwithstanding anything to the contrary contained herein, neither Party'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 the other; provided, however, that either Party's
non-performance of its obligations under this Agreement shall be excused
if, and to the extent, (i) such Party is unable to perform Services,
despite commercially reasonable efforts to perform, directly as a result of
the other Party's failure to perform its obligations hereunder, and (ii)
the Party unable to perform provides the other Party with reasonable
notice of any such inability .
9. TERMINATION
9.1 TERMINATION FOR CAUSE
9.1.1 In the event that Texaco: (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 Texaco 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 Texaco, 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 Texaco 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 Texaco 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 Texaco to Pathnet of such failure, Texaco
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
Texaco 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 Texaco 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 terminates or elects not to renew this
Maintenance Agreement, or (ii) this Maintenance Agreement expires, Pathnet
shall propose and
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Texaco 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 Texaco's Facilities. Such independent
Maintenance and Circuit Provisioning provider shall provide the services
and assume the obligations of Texaco 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. Texaco will cooperate with
such provider to enable it to perform its duties, providing such Site
access, documentation and information as may be reasonably necessary. Upon
termination for any reason or expiration or non-renewal of this Maintenance
Agreement, Pathnet and its designees 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 Texaco's use are
either Pathnet's property or property of third parties. Texaco shall
respect such proprietary rights and shall not use such Maintenance Aids
except for the purposes for which such Aids are being made available as set
forth in this Agreement and shall not reproduce, print, sublicense,
duplicate, reverse engineer, distribute, disclose, or otherwise make the
Maintenance Aids available to any third party, in whole or in part, in
whatever form.
11.2 Texaco 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, Texaco may make copies
of Maintenance Aids to the extent necessary to enable Texaco to perform the
Services, provided that Texaco uses its best efforts to prevent the
unauthorized disclosure and use of such Maintenance Aids to and by third
Parties.
12. REPRESENTATIONS AND WARRANTIES
12.1 WARRANTIES OF TEXACO
Texaco represents and warrants that:
(a) the Services shall be rendered in accordance with this Agreement
and shall be executed in a workmanlike manner, in accordance with
the practices
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and high professional standards used in well-managed commercial
telecommunications operations performing services similar to the
Services. Texaco represents and warrants that it shall use
adequate numbers of qualified individuals with suitable training,
education, experience, and skill to perform the Services.
(b) it shall perform Maintenance and Circuit Provisioning on the
Equipment so that it operates in accordance with all Critical
Service Levels or manufacturer 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. Texaco 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 PATHNET.
Pathnet represents and warrants that it will perform the services set
forth in Section 3.1 of Schedule A hereto.
12.3 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;
(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; and
(c) no consent, approval, order or authorization of, or registration,
declaration or filing with any private entity or governmental
authority is required for the execution, delivery and performance
of this Agreement, except those that have been obtained and are
in full force and effect.
12.4 INSURANCE
Texaco hereby represents that it is self-insured and does not currently
purchase and maintain liability insurance and property insurance, except
for stop-loss coverage. Texaco warrants and represents that if, during the
Term of this Maintenance Agreement
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and any extension or renewal thereof, Texaco ceases such policy of
self-insurance, Texaco shall thereafter maintain at Texaco's expense all of
the necessary insurance for all Texaco's employees, agents or affiliates
required to perform the Services, including, but not limited to, Worker's
Compensation, disability, and unemployment insurance, and will provide
Pathnet with certification thereof upon request.
12.5 SECURITY AND SAFETY PROCEDURES
In the event Pathnet is required to supplement the Services, Pathnet shall
comply with all Texaco security and safety procedures set forth in Schedule
Q of the FPM Agreement.
12.6 DISCLAIMER
EXCEPT AS PROVIDED IN THIS MAINTENANCE AGREEMENT, THERE ARE 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 TEXACO
Texaco 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 Texaco by Pathnet and due
to the act or omission of Texaco, its officers or employees.
(b) the untruth, inaccuracy or breach of any representation or
warranty of Texaco 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 Texaco, its employees, Subcontractors or agents.
13.2 INDEMNIFICATION BY PATHNET
14
Pathnet agrees to indemnify, defend and hold harmless Texaco 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 Texaco by Pathnet and due
to the act or omission of Pathnet, its officers or employees.
(b) the untruth, inaccuracy or breach of any representation or
warranty of Pathnet set forth in this Agreement.
(c) the liability of Texaco 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 Texaco arising out of any or all obligations to
or contracts between Pathnet and its customers concerning the
purchase of Excess Capacity and due to the act or omission of
Pathnet, its officers or employees.
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 Article 13 above, the liability of
each Party shall be limited as provided in the FPM Agreement.
14.2 INTENTIONALLY OMITTED.
15
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.
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 Texaco and Pathnet
concerning the negotiation, interpretation, performance, breach or
termination of this Agreement (each a "Dispute") shall be subject to
resolution by Schedule L of the FPM Agreement which is hereby incorporated
by reference.
16. MISCELLANEOUS
16.1 NOTICE PROVISION
16
Notice shall be served and deemed received in accordance with the
provisions of Section 5.13 of the FPM Agreement which is hereby
incorporated by reference.
16.2 BINDING NATURE; ENTIRE AGREEMENT
Pathnet and Texaco 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 Texaco 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 Texaco. 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 Texaco 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
17
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 non-compliance 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
Texas, 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 by merger,
acquisition or creation of a Jjoint Vventure 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 Texaco 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 XXX
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
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.
18
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. TEXACO
By: /s/ Xxxx Xxxxxxxxx By: /s/ H.D. Xxxx
------------------------------ ------------------------------
Name: Xxxx Xxxxxxxxx Name: H.D. Xxxx
---------------------------- ----------------------------
Title: Chairman Title: MGR - Telecommunications
--------------------------- ---------------------------
Date: 7/6/98 Date: 6/26/98
---------------------------- ----------------------------
19
SCHEDULE A
MAINTENANCE AND CIRCUIT PROVISIONING SERVICES
1. INTRODUCTION
This Services Schedule describes certain services and functions that Texaco
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 Technician Requirements.
2. PREVENTIVE MAINTENANCE
During the Term of this Maintenance Agreement, Texaco 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.
Texaco 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
Texaco shall perform the following inspections and, in consultation
with Pathnet, perform any and all corrective actions, to the extent
authorized:
2.1.1 MONTHLY INSPECTION.
At least once a month, Texaco 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).
A-1
c. Visually check the antenna canvas (TEGLAR) radomes for
holes, tears and excessive wear. Report any damage to
Pathnet and replace at Pathnet's expense if requested by
Pathnet.
d. Confirm inside building waveguide pressure gauges read
5-8 lbs/in2 per antenna (10 lbs/in2 maximum).
2.1.2 QUARTERLY INSPECTION.
At least once a quarter, Texaco shall perform the following
inspections to supplement the monthly inspection:
a. Visually inspect waveguide grounds at the bend from the
tower and building entry xxxx 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
< .5lb/iN2).
2.1.3 ANNUAL INSPECTION.
At least once every 24 months, Texaco 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.
d. Visually inspect waveguide grounds near antennas.
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2.2 MULTIPLEXER MAINTENANCE
Texaco shall perform the following inspections and after consultation
with Pathnet, perform any and all corrective actions, if authorized:
2.2.1 MONTHLY INSPECTION.
At least once a month, Texaco 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)
2.2.2 ANNUAL INSPECTION.
At least once a year, Texaco 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. 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 set forth in the Preventive
Maintenance Checklist.
2.3 RADIO MAINTENANCE
Texaco shall perform the following inspections and any and all corrective
actions, if required:
2.3.1 MONTHLY INSPECTION.
At least once a month, Texaco 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 on the Preventive Maintenance
Checklist all TX/RX meter readings for TX power,
A-3
AFC correction, RX in level, If level etc. Verify readings
are within manufacturer's tolerances.
2.3.2 QUARTERLY INSPECTION.
At least once each quarter, Texaco 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 frequency
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.
2.3.3 ANNUAL INSPECTION.
At least once a year, Texaco shall perform the following inspections:
a. Measure and record each TX local oscillator frequency.
Measured value should be within +/- .001% of assigned value.
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 as set
forth on Preventive Maintenance Checklist.
3. REMEDIAL MAINTENANCE AND NETWORK OPERATING CENTER
In addition to Preventive Maintenance, Texaco shall perform Remedial
Maintenance as required under this Agreement. Such Remedial Maintenance
shall supplement and be in
A-4
addition to Preventive Maintenance. Remedial Maintenance shall generally
be initiated by Dispatch of a Trouble Ticket by the Network Operating
Center.
3.1 NETWORK OPERATING
3.1.1 NETWORK OPERATING CENTER.
a. Pathnet shall operate a Network Operating 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 or interruption, Pathnet will open a Trouble
Ticket to initiate Remedial Maintenance, dispatch a call for
maintenance in accordance with the dispatch procedures
agreed to be by the Parties and monitor such degradation or
interruption through correction. Pathnet will maintain
monitoring logs of all Trouble Tickets opened, types of
Remedial Maintenance undertaken, technician response times
and other significant information concerning the System and
will issue to Texaco periodic reports describing such
information.
b. Pathnet's Network Operating 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 Operating Center will coordinate and
provide technical support Remedial Maintenance efforts by
Texaco's Field Technicians provided that Texaco has final
responsibility for such Remedial Maintenance. As reasonably
requested by Texaco, Pathnet shall assist Texaco, to the
extent within Pathnet's reasonable control, in restoring
operations including locating Spare Parts or other supplies.
3.1.2 PERFORMANCE DATA.
a. The Network Operating Center 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 and maintained as
follows:
(i) Collect performance data in real time and submit
in 15-minute increments for each sites of data; and
A-5
(ii) Historic performance data will provide a minimum
of sixteen (16) 15-minute and seven (7) 24-hour sets of
data.
c. Through the Network Operating Center, Pathnet shall
establish a network management system (the "Network
Management System"). Such Network Management System shall
collect, monitor and manage:
(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.
3.1.3 ALARM/EVENT LOGGING AND REPORTS.
Pathnet shall promptly forward all alarms, event logs, and related
reports to Texaco upon compilation of such reports by Pathnet as set
forth in the FPM Agreement.
4. CIRCUIT PROVISIONING
During the term of this Maintenance Agreement, Texaco shall perform Circuit
Provisioning in accordance with the procedures set forth below.
4.1 GENERAL
Texaco shall dispatch Field Technicians to perform the following
functions associated with the Circuit Provisioning for both Texaco and
Pathnet.
a. Upon receipt of a Work Order, Texaco shall schedule and
coordinate a Field Technician to perform the work function by the
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
A-6
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 XX-0, XX-0 and OC-3 acceptance tests and
parameters are set forth in Schedule B.
4.2 PROVISIONING AT NON-TEXACO SITES
4.2.1. NON-TEXACO SITES
In the event Pathnet elects to connect the Texaco System through the
addition of spurs and paths to Pathnet's backbone network or to a
customer POP, Pathnet may request that Texaco perform Circuit
Provisioning, as set forth in this Maintenance Agreement, at the
Non-Texaco Site locations and points of interconnections. Within
fifteen (15) days of such proposal, Texaco shall respond regarding its
intent to perform the Circuit Provisioning. Pathnet reserves 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, Texaco may or may not be the sole provider of provisioning
services at any Non-Texaco Site.
4.2.2 PROVISIONING EQUIPMENT
In the event Circuit Provisioning functions to be performed by Texaco
require the use of equipment configurations other than those which
Texaco Field Technicians are familiar, Pathnet shall arrange for
training Texaco's for Field Technicians responsible for each of those
specific sites. Texaco shall be responsible for all tower travel
costs and other out-of-pocket expenses incurred by Texaco in
connection with such training and Pathnet shall pay for any tuition,
materials or other direct costs of training.
4.3 PROVISIONING INTERFACES
Upon Commissioning, both Texaco and Pathnet shall operate the System
using 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. Texaco shall perform the
following interface functions:
4.3.1 MANUAL PROVISIONING INTERFACE
A-7
a. Provide designated access and delivery points to which
Pathnet can distribute work related documents by telecopier or by
e-mail.
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 Texaco 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. Texaco shall be responsible for providing 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 TEXACO CAPACITY EXPANSION
Texaco shall contact Pathnet for the provisioning of any capacity
addition, disconnection or grooming for Texaco's internal network.
The provisioning process will follow the standard work steps outlined
in this Section 4.
4.3.4 NETWORK ELEMENT SOFTWARE CHANGES
Texaco shall not program or reprogram any software changes into any
network element on the system unless such change is coordinated and
directed by the Network Operating Center.
A-8
4.4 CIRCUIT PACK ADMINISTRATION
Pathnet shall be responsible for providing provisioning related
circuit packs to Texaco's designated Storage Depots prior to the
required Field Technician dispatch date for provisioning. Texaco
shall notify Pathnet, either electronically or by facsimile, of
receipt of circuit packs. In the event that circuit packs are not
received on time, Texaco shall notify Pathnet promptly. A decision
will then 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
Texaco 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 the
Network Operating Center.
b. Pathnet shall forward disconnect Work Orders to Texaco
which, except in the case of emergency, will be scheduled
for the next time Texaco is at the subject Site.
c. Texaco 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. Texaco shall perform the following disconnect
functions:
i. The Field Technician will call the Network
Operating 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.
A-9
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 Texaco 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
Texaco and Pathnet shall perform grooming or re-arranging of circuits
within particular systems pursuant to the requirements of this Section
4. 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. Texaco shall coordinate the scheduling of Field
Technicians to support these requirements. Pathnet shall coordinate
the specific scheduling arrangements with Texaco in an effort to
minimize the impact from such schedules.
5. FIELD TECHNICIAN REQUIREMENTS
5.1 CERTIFICATION
Texaco shall ensure that each Texaco Field Technician providing Services
under this Agreement is certified pursuant to the Training Procedures set
forth in Section 2 of Schedule G.
5.2 EQUIPMENT
Texaco shall, at its expense, equip each Field Technician to be dispatched
with the necessary Maintenance Test Equipment as provided in Schedule E-2.
5.3 PERSONNEL
Texaco 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.
5.4 LOCATION
Texaco Field Technicians shall be assigned and located at adequate
distances to meet the requirements for dispatch and restoration set forth
in Schedule A-2.
A-10
5.5 RIGHTS TO OPERATE THE NETWORK
The Parties acknowledge that from time to time, Texaco Field Technicians
may not be available to meet Circuit Provisioning or Maintenance
obligations or service demands. In these instances, Texaco 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
c. Grooming
d. Preventative Maintenance
e. Circuit Disconnects
Pathnet may supplement the replacement employees with qualified Pathnet
employees in the event of a prolonged force unavailability.
X-00
XXXXXXX X-0
TEXACO DISPATCH PROCEDURES
[To be Provided]
1. REMEDIAL MAINTENANCE
2. CIRCUIT PROVISIONING
A-12
SCHEDULE A-2
RESPONSE TIMES
UP TO DS-1 OF CAPACITY AFFECTED MORE THAN DS-1 OF CAPACITY AFFECTED
(MINOR) (MAJOR)
------------------------------- -----------------------------------
TIER ONE RMS On Site within 2 hours of Dispatch On Site within 2 hours of Dispatch of
of Trouble Ticket. Situation corrected Trouble Ticket. Situation corrected within
within 2.5 hours from Dispatch of 2.5 hours from Dispatch of Trouble Ticket.
Trouble Ticket.
TIER TWO RMS BETWEEN Situation corrected before midnight. On Site within 3 hours of Dispatch of
8:00 A.M. AND 5:00 P.M. Trouble Ticket. Situation corrected within
MONDAY THROUGH FRIDAY: 4.5 hours from Dispatch of Trouble Ticket.
TIER TWO RMS BETWEEN Situation corrected by next 10:00 a.m. On Site within 3 hours of Dispatch of
5:00 P.M. TO 8:00 A.M. Trouble Ticket. Situation corrected within
MONDAY THROUGH FRIDAY, 4.5 hours from Dispatch of Trouble Ticket.
OR ON WEEKENDS OR
FEDERAL HOLIDAYS:
TIER THREE RMS: On Site next business day; Situation corrected as promptly as commercially practicable.
Note: The Network Operating Center reserves the right to escalate Tier 2 and
Tier 3 Response Times when necessary to accommodate the requirements
of capacity customers or when, in the reasonable judgment of the
Network Operating Center, a faster response time is necessary.
All response and repair times are measured as mean response and repair
times.
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SCHEDULE B
CRITICAL SERVICE LEVELS
1. INTRODUCTION
1.1 GENERAL
1.1.1 This Schedule B provides the Critical Service Levels to
which Texaco shall maintain the System. These Critical Service Levels
are derived from and are as required by IXCs or other customers for
capacity and may be amended from time to time as such requirements may
change.
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 The System has been designed by Pathnet to meet or exceed
these Critical Service Levels based on the equipment manufacturers
stated specifications and good system design practices. Schedule H
includes verification testing information. The Critical Service
Levels within this document are subject to change as network design
enhancements are implemented and as equipment improvements become
available. In the event these specifications are changed, Pathnet
shall notify Texaco and amend this Schedule B to include revised
Critical Service Levels provided that such change in the Critical
Service Levels shall not materially degrade the performance of the
System.
2. PARAMETER DEFINITIONS
2.1 CERTAIN DEFINITIONS
2.1.1 "AVAILABILITY" shall mean the time in which the circuit is
available and is not experiencing an Outage. Usually this term is
expressed as percent 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 number of bits
received in error over a specified period of time compared to the
total number of bits that could be received on an ideal connection at
the same transmission rate over that same period of time.
B-1
2.1.3 "CIRCUIT ACCEPTANCE LIMIT" ("AL") shall mean the standard at
which a circuit is deemed acceptable for initial service. Upon
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 a DS-1 rate.
2.1.7 "IN-SERVICE" shall mean the period when the System is
operating above Critical Service Levels .
2.1.8 "MAINTENANCE LIMIT" ("ML") shall mean the threshold below
which the performance of the facility and/or circuit is characterized
by degraded performance.
2.1.9 "OUTAGE" shall mean an unscheduled interruption in
telecommunications services on the System, including any ten (10)
consecutive Severely Errored Seconds.
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 10-3 errors per second. 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 l x 10-6 errors per seconds.
3. DS-1 CRITICAL SERVICE LEVELS
3.1 GENERAL
Texaco shall maintain the System to perform at or above the Critical
Service Levels set forth below. The DS-1 interface shall at all times
meet the IXC generic DS-1 requirements that are customary in the
industry as indicated by the publications set forth in the Industry
Standards Compliance List in Section 7 of this Schedule B.
B-2
3.2 DS-1 ELECTRICAL INTERFACE SPECIFICATIONS
Texaco shall perform the services so that the DS-1 signal at the
cross-connect (DSX-1) 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 synchronizations 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 pre-existing equipment remaining at a Site after
Cutover, the power in a band no wider than 3 KHz centered at
772 KHz shall be between 12.4 and 18.0 dBm.
c. In any case, 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
Texaco 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 this Section 3.3. The jitter requirements are
set by industry standards as referenced in the
B-3
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 having 4.0 UI of sinusoidally modulated peak-to-peak
jitter for all frequencies up to 2300 Hz.
B-4
--------------------------------------------------------------------------------
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 10 Hz 8 KHz 40 KHz
-------------- --------- -------------- -------------- -------------- ----------
3.152 5 0.1 10 Hz 1.5 KHz 40 KHz
-------------- --------- -------------- -------------- -------------- ----------
6.312 3 0.1 10 Hz 3 KHz 60 KHz
-------------- --------- -------------- -------------- -------------- ----------
44.736 5 0.1 00 Xx 00 XXx 000 XXx
-------------- --------- -------------- -------------- -------------- ----------
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. Texaco shall perform the Services to meet the Critical
Service Levels defined as Availability of 99.98% per year per
4,000 mile System.
B-5
b. The data set forth below in Tables 1, 2, 3 and 4 is based on
a 24-hour period.
Table 1. XX-0, Xx00 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
------------------------ --------- -------------- ----------------
1501-4000 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
------------------------ --------- -------------- ----------------
1501-4000 15 99.98 6
------------------------ --------- -------------- ----------------
Mileage used is based on actual one-way route mileage.
------------------------------------------------------------------
B-6
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
------------------------ --------- -------------- ----------------
1501-4000 15 99.98 6
------------------------ --------- -------------- ----------------
Mileage used is based on actual one-way route mileage.
------------------------------------------------------------------
4. DS - 3 CRITICAL SERVICE LEVELS
4.1 GENERAL
Texaco shall maintain the System to perform at or above 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 Publications described in the Industry
Standards Compliance List in Section 7 of this Exhibit B.
4.2 DS-3 ELECTRICAL INTERFACE SPECIFICATIONS
Texaco 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 SHAPE: 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-7
4.3 JITTER REQUIREMENTS
Texaco 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. Texaco 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
------------------------ --------- -------------- ----------------
1501-4000 6 99.99 0
------------------------ --------- -------------- ----------------
Mileage used is based on actual one-way route mileage.
0 outage seconds are allowed for test.
------------------------------------------------------------------
B-8
TABLE 6. DS-3 IOC MAINTENANCE LIMITS PERFORMANCE LEVELS
------------------------ --------- -------------- ----------------
Route Mileage ES %EFS SES
------------------------ --------- -------------- ----------------
0-500 20 99.97 2
------------------------ --------- -------------- ----------------
501-1500 30 99.96 4
------------------------ --------- -------------- ----------------
1501-4000 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 System shall operate at 99.98% Availability on an annual basis
for a 4,000 mile systemSystem. The Pathnet Network Operation Center will
advise Texaco if this criteria is not met.
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 Texaco 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.
B-9
6.2 SERVICE LEVELS
Texaco shall perform Circuit Provisioning to the following objectives and
Critical Service Levels:
---- -------------------------------------------- -------------- ---------------
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 each monthly performance
below Critical Service Level, Texaco 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.
2.
B-10
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 any
consideration by and between Pathnet and Texaco provided in the FPM Agreement,
shall fully compensate Texaco for all obligations pursuant to this Maintenance
Service Agreement.
2. CHARGES
2.1 MONTHLY SERVICES CHARGE
Upon Commissioning of each Segment, Pathnet shall pay to Texaco two hundred
dollars ($200.00) per Site per month, payable in equal quarterly
installments, for providing the Services in accordance with this Agreement.
Notwithstanding the foregoing, the Dispatch Charge set forth in Section 2.2
below will be payable for dispatches for Remedial Maintenance resulting
from a failure in any of the Equipment (hereinafter, an Equipment
Dispatch) (excluding failures arising from human error, failure to conduct
preventive maintenance as required hereunder, or failure due to problems in
an environmental control or other Facility-based problem) that exceed the
following limits:
Commissioning to end of first calendar month: unlimited Equipment dispatches
Beginning of second calendar month to
end of fourth calendar month: 19 Equipment Dispatches per month
Beginning of fifth calendar month to
end of seventh calendar month: 14 Equipment Dispatches per month
Beginning of eighth calendar month to
end of twelfth calendar month: 9 Equipment Dispatches per month
2.2 DISPATCH CHARGE
Pathnet shall pay Texaco a maximum on-site time of 2 hours plus travel time
and mileage to and from the installation site _______ per each Circuit
Provisioning dispatch; PROVIDED, HOWEVER, Texaco shall not be compensated
for any second dispatch to a site as required
C-1
by poor Texaco quality or coordination (i.e. if 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.) The hourly rates and mileage costs are set forth in Exhibit
C-1.
2.3 ADJUSTMENTS
2.3.1 COST OF LIVING ADJUSTMENTS.
a. GENERAL. Beginning on the second anniversary of the
Effective Date, and on each subsequent anniversary
thereafter, the Monthly Service Charges will be increased by
an amount equal to the product of (i) the Monthly Service
Charges then in effect; (ii) Actual Inflation (as
hereinafter defined) and (iii) the COLA Percentage (as
hereinafter defined).
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
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 its
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 index to the new base year
by using an appropriate conversion formula.
c. The Actual Inflation and the COLA Percentage are as
follows:
Actual Inflation = Increase in the CPI-U for the prior
twelve (12) month period.
COLA Percentage = seventy-five (75%) percent.
2.4 ADDITIONAL CHARGES
2.4.1 NEW SERVICES.
In the event that Pathnet requests Texaco 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:
C-2
a. To the extent that the Parties agree 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 without further compensation to Texaco.
b. To the extent that such functions require additional
resources or can not reasonably be performed with the
existing allocation of personnel time under this Agreement,
then prior to performing such additional functions, Texaco
shall quote to Pathnet:
(i) a charge for such additional functions that is
reasonable within the industry.
(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
one hundred percent (100%) of the current Monthly
Service Charge for such site.
c. Pathnet, upon receipt of such quote, may but shall have
no obligation to elect to have Texaco perform the additional
functions and if Pathnet elects to use Texaco for such
additional charges, then 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.
d. 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,
Texaco shall reasonably cooperate with those third parties
with respect to the provision of such service.
e. 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.
f. If Pathnet's request for additional functions, pursuant
to this Section 2.4.1, includes a request for Texaco to
C-3
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 Texaco shall quote a price for Replacement Services
pursuant to subsection (b). Notwithstanding the foregoing,
any Replacement Services shall not materially degrade the
System below Critical Service Levels.
2.4.2 PASS-THROUGH EXPENSES.
Pass-Through Expenses in excess of five hundred ($500) dollars may not
be added to the Monthly Services Charge without Pathnet's prior
written or electronically transmitted consent, which Pathnet may
withhold in its sole discretion. Texaco shall promptly provide
Pathnet with the original or a copy of the third-party invoice for
such expenses, together with a statement that Texaco 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.
C-4
EXHIBIT C-1
TEXACO PRESUMPTIVE LABOR RATES
[Texaco to Provide]
The hourly rate for Services is $55/hour for a standard 8:00 AM to 5:00 PM
business day. All other hours worked will be charged at a $75/hour rate.
Vehicle expenses will be charged on a per mile basis on a $.045/mile.
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 Texaco a full set of Spare Parts with quantities
reflective of (i) the number of units in service and (ii) manufacturers'
recommendations adjusted based on Texaco's and Pathnet's actual field
experience. Texaco shall store such Spare Parts at the Stocking Depot at
locations reasonably situated to perform the Services, but each Facility
shall have a full set of Spare Parts stored in a Stocking Depot close
enough to such Facility to enable Texaco to comply with the response and
repair times set forth in Schedule A-2. Texaco shall be responsible for
notifying Pathnet promptly if the Spare Parts inventory falls below the
recommended inventory levels set forth in this Schedule E. Texaco, 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 Texaco to Pathnet or
identified by Texaco as requiring replacement. Pathnet shall not be
responsible for replacing any Spare Part damaged or harmed as a result of
Texaco's negligence.
1.2 SPARE EQUIPMENT INVENTORY
1.2.1 GENERAL.
For each system, Spare Parts shall be provided at a ratio sufficient
to enable Texaco to comply with the response and repair times set
forth in Schedule A-2. Such ratio shall be subject to change based
upon the field experience of Pathnet and Texaco.
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
Texaco 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 Texaco.
E-2
EXHIBIT E-1
SPARE PARTS
Quantity Type
-------- ----
[Pathnet to Provide]
E-3
EXHIBIT E-2
MAINTENANCE AND PROVISIONING TEST EQUIPMENT
---------------------------------------------------------------------------------------------------------------
Test Equipment Test Type Service Quantity
Category
---------------------------------------------------------------------------------------------------------------
Wrist Strap Module Handling 2,3 1 per technician
---------------------------------------------------------------------------------------------------------------
Digital Volt Meter Voltage/Continuity Check 1,2,3 1 per technician
---------------------------------------------------------------------------------------------------------------
Power Meter/Freq Counter RF TX Power/TX Frequency 2,3 1 per system
---------------------------------------------------------------------------------------------------------------
DS-1/DS-3/OC3 BER/SES/ES 2,3 1 per technician
(Note 3)
---------------------------------------------------------------------------------------------------------------
Oscilloscope DADE/Phase Lock 2,3 1 per system
---------------------------------------------------------------------------------------------------------------
NEC 2000S Extension Card TX Test & Alignment 2,3 1 per system
(Note 2)
---------------------------------------------------------------------------------------------------------------
Card Extender Receiver ATCP Card Adjustment 2,3 1 per system
NEC-2000S (Note 2)
---------------------------------------------------------------------------------------------------------------
Digital Radio Test System Spectrum Analyzer; DADE; 2,3 1 per system
Freq Counter; Power Meter;
IF and Multipath
---------------------------------------------------------------------------------------------------------------
Laptop Personal Computer For PM, Remedial M and 1,2,3 1 per technician
(Note 1) Installation
---------------------------------------------------------------------------------------------------------------
NEC| Torque Wrench Transmitter Changeout 2,3 1 per technician
(Note 2)
---------------------------------------------------------------------------------------------------------------
VCO Tuning Wrench
(Note 2) Transmitter Adjustments 2,3 1 per technician
---------------------------------------------------------------------------------------------------------------
Note 1: Software and connector cables associated with Radio and Multiplexer
will be Provided by Pathnet.
Note 2: Equipment to be provided to supplier by Pathnet.
Note 3: TTC310 Test Set is highly recommended .
E-4
SCHEDULE F
INTENTIONALLY OMITTED
PATHNET FACILITIES AND SYSTEM
[Pathnet to Provide]
F-1
SCHEDULE G
CUSTOMER SERVICE AND TRAINING
1. EQUIPMENT REPAIR ASSISTANCE
To assist Texaco in performing the Services, Pathnet shall provide the
following Equipment repair assistance and customer service:
Intentionally Omitted
Intentionally Omitted
1.3 TECHNICAL AND 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 provided by
letter, telephone, e-mail or FAX as appropriate.
1.3.2 After normal working hours, emergency calls will be referred
to the Network Operating Center.
1.4 TROUBLESHOOTING CONSULTATION
Pathnet shall maintain a staff of experienced engineers who shall provide
troubleshooting assistance and coordination and escalation, if required by
telephone.
1.5 WARRANTY AND PRODUCT
Pathnet shall provide warranty and product coordination and support with
the applicable manufacturer.
2. TRAINING AND CERTIFICATION PROCEDURES
Pathnet, after consultation with Texaco. , shall provide and Texaco Field
Technicians shall be required to participate in a training class to train and
Pathnet shall certify Texaco Field Technicians in performing the Services
pursuant to this Agreement. Such training shall be performed at Pathnet's
Washington, D.C. or Texas office or at the office of Pathnet's training vendor
and shall comprise approximately forty (40) hours. Pathnet shall provide all
course training materials to Texaco. Texaco shall pay the out-of-pocket expense
of attending such training classes. Pathnet shall provide materials to support
the training sessions.
G-1
SCHEDULE H
VERIFICATION OF COMMISSIONING
[To be attached from Fixed Point Microwave Services Agreement upon
Commissioning]
H-1
