Exhibit 10.6
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS ARE DESIGNATED "[* * *]."
THIS AGREEMENT ("Agreement") is made and entered into as of the ____ day of
____________, 1997 by and between PATHNET, INC. (hereinafter "PathNet"), a
Delaware corporation, having its principal place of business at 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx, 00000, and TEXACO PIPELINE INC.
(hereinafter "Texaco"), a Delaware corporation, of 0000 Xxxxxxxx, Xxxxxx,
Xxxxxxxx, 00000.
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, PathNet currently seeks microwave tower locations in Louisiana and
Texas to implement its microwave communications network;
WHEREAS, Texaco owns and operates the Texana Microwave System which is
currently in need of modernization, capacity additions, and upgrading for which
Texaco has committed certain funds;
WHEREAS, Texaco, owner and operator of the existing Texana Microwave
System, desires to engage PathNet for the purpose of designing, installing and
enhancing its microwave communications system;
WHEREAS, if the Texana Microwave System were suitably modernized and
upgraded, it would extend PathNet's Texas - Louisiana microwave communications
network; and
WHEREAS, PathNet desires to lease Texaco's microwave Facilities for the
purpose of installing digital radios and related equipment and exclusively
marketing the long distance telecommunications Excess Capacity created by the
enhanced system it will install and operate;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. RELATIONSHIP, ROLES AND RESPONSIBILITIES
1.1 DEFINITIONS
The attached SCHEDULE A -- GLOSSARY, contains selected definitions of terms
used in this Agreement. These defined terms are capitalized throughout this
Agreement.
1.2 RELATIONSHIP OF THE PARTIES
1.2.1 APPOINTMENT OF PATHNET. Texaco hereby appoints PathNet for the
term of this Agreement, and PathNet hereby agrees to act for Texaco as Texaco's
sole and exclusive representative for the purpose of providing digital 6 GHz
microwave equipment at Texaco's Facilities, further identified on SCHEDULE B --
THE TEXACO SYSTEM, and creating and managing a high-capacity, digital, microwave
communications system. PathNet's radio communications equipment shall operate
on transmit and receive frequencies as set forth in SCHEDULE K -- ANTENNA
SPECIFICATIONS, POSITIONS AND FREQUENCIES, attached hereto, which describes each
path and the frequencies to be used on each path. PathNet shall use such
equipment and market the telecommunications "Excess Capacity" created by such
system at Texaco's Facilities, subject to all of the terms and conditions of
this Agreement. PathNet shall be Texaco's only representative authorized to
create a 6 GHz system on towers or at Facilities identified in Schedule B of
this Agreement.
1.2.2 INDEPENDENT CONTRACTOR/LESSOR/LESSEE. PathNet's relationship to
Texaco is, at various times, that of an independent contractor and lessee. As
an independent contractor, PathNet, among other services, will perform
analytical pre-design and design services and be responsible for the
installation and testing of the replacement microwave radio system, as well as
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any upgrades to that system. In the role of Lessee, PathNet will be leasing the
space at the Facilities from Texaco on which to build and operate a
high-capacity, digital microwave system as set forth in Section 2 of this
Agreement. The relationship of PathNet to Texaco is that of an independent
contractor and lessee, and does not represent a partnership or joint venture
with Texaco or any other relationship. PathNet will have exclusive marketing
rights for any and all capacity created on the proposed microwave system in
excess of the capacity allocated to Texaco under this Agreement.
1.3 PROJECT RESPONSIBILITIES
1.3.1 GOALS AND PROJECT ASPECTS. PathNet shall analyze the existing
Facilities, design and install a replacement digital microwave network which
will enable Texaco to operate its existing analog microwave network until such
time as Texaco transfers its circuits to the digital network. Texaco and
PathNet will develop a detailed cutover plan to be set forth in SCHEDULE F --
PROJECT MANAGEMENT PLAN AND PRELIMINARY SCHEDULES, to this Agreement, attached
hereto, to be approved by PathNet and Texaco. PathNet shall actively create at
Texaco's Facilities a 6 GHz/30 MHz digital microwave telecommunications system.
The system will be configured initially in a 1 x 1 protection format. The
system may be expanded during the term, pursuant to the provisions of
PARAGRAPHS 1.3.7 and 2.1.2 of this Agreement, by adding and/or replacing the
radio components (hereinafter referred to as the "Capacity Expansion").
1.1.2 EXISTING SYSTEM EVALUATION. PathNet will complete a detailed
analysis of the existing analog microwave system operated by Texaco on the
Segment. The analysis shall include:
a. an inventory and survey of Texaco's existing microwave sites and
supporting Facilities;
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b. microwave path studies and reliability analysis to provide performance
data to serve as the engineering basis for the design of a replacement
system;
c. a frequency availability model;
d. a determination of whether structural analysis of towers and loading
factors, for metal towers only, is required;
e. a business case model for the deployment of each high-capacity,
digital system;
f. a design for the new system;
g. a detailed line item budget for the new system;
h. a T-1 plan for channelization; and
i. a preliminary construction management schedule for each replacement
system.
In performing these tasks, PathNet will require the cooperation of Texaco.
PathNet will complete a detailed system evaluation and survey of the existing
analog microwave system operated by Texaco along the Segment attached hereto,
based on information and documents provided by Texaco. The results of this
analysis will be made available to PathNet and Texaco jointly.
1.3.3 SYSTEM DESIGN. PathNet has in conjunction with Texaco specified
a system design that will result in a comprehensive 6 GHz/30 MHz digital system
meeting capacity requirements as well as geographic requirements for points of
transmission on a segment by segment basis. This digital system will have Drop
and Insert capabilities as defined in SCHEDULE D -- T-1 CHANNEL PLAN, and
SCHEDULE G -- MULTIPLEXING CONCEPT, attached hereto. Completion of the system
design shall follow execution of this Agreement. Texaco shall approve all
aspects of system design and such approval(s) shall be reflected in writing.
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1.3.4 SYSTEM INTEGRATION. PathNet will provide for the integration of
the resulting 6 GHz/30 MHz digital telecommunications system into the total
PathNet telecommunications network with prior coordination with Texaco.
1.3.5 CAPACITY. The system to be installed by PathNet shall have the
initial capacity of 6 DS-3 and two DS-1 Wayside Channels, or approximately 4,080
DS-0's, of which 2,040 DS-0's shall be available for service and the remaining
2,040 DS-0's will be utilized for protection. This capacity shall be delivered
in DS-1 increments with appropriate Drop and Insert characteristics as defined
under the T-1 channelization plan which has been prepared as part of PathNet's
initial evaluation of Texaco's system, and is appended hereto as Schedule D.
Texaco has the ability to move, add or change, its capacity as required along
the network provided sufficient circuit Drop and Insert capacity exists at each
Facility. There will be no fee for Texaco's reconfiguration of its network to
meet its changing capacity requirements. The capacity created by PathNet at the
Facilities by the 6 GHz/30 MHz digital microwave system will be relicensed in a
form capable of being marketed under Part 21/101 of the FCC regulations. This
Excess Capacity then will be aggregated into PathNet's network, which is
expected to have enhanced value.
1.3.6 MAINTENANCE FOR SYSTEMS. Texaco shall be responsible for the
maintenance of the 6 GHz/30 MHz system pursuant to the terms of a separate
written agreement to be entered into by the parties. The separate maintenance
agreement shall provide for ongoing maintenance of PathNet's microwave
facilities for a period of up to twenty-five (25) years. Upon execution of the
Maintenance Agreement, Texaco and PathNet will be required to perform routine
site maintenance on the System, in accordance with the list of routine
maintenance items set forth on SCHEDULE T -- ROUTINE SITE MAINTENANCE
REQUIREMENTS, attached hereto, consistent with their
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respective ownership interests, as set forth on Schedule E. Texaco's approval
shall be required in advance of any routine maintenance procedures performed by
PathNet at the Facilities, and shall not be unreasonably withheld.
1.3.7 INCREASES IN CAPACITY. PathNet has the authority to periodically
increase the capacity beyond the Initial System. However, each increase in
capacity must meet the upgrade threshold in PARA 2.1.2. PathNet will fund these
increases, which will occur in OC-3 increments. PathNet will own all licenses
and equipment associated with the increases in capacity. If it is technically
possible to increase the capacity beyond the 1 x 7 system specifications,
PathNet shall have the right to do so, provided the increase in capacity does
not: (1) impair system performance by the reduction in system gain, (2)
increase the utilization of power, (3) increase space requirements, (4) increase
tower loading beyond those specifications which are established in the initial
design, or (5) result in a material reduction in Texaco's system performance.
PathNet agrees to provide Texaco with reasonable notice of its intent to
increase the spectral efficiency at its Facilities. PathNet shall have the
right to install additional microwave dishes or devices on towers, as approved
by Texaco. In the event that additional antennas will exceed tower wind loading
requirements, PathNet shall pay for any tower analysis and strengthening that
might be required before such antennas and/or other devices are installed.
1.3.8 TEXACO'S CAPITAL INVESTMENT. As an inducement to PathNet to
enter into a lease arrangement for space at the Facilities, Texaco agrees to
invest capital necessary to upgrade the Facilities to make them suitable for
the installation of PathNet's leasehold improvements. The Facilities'
upgrades are presently estimated to cost approximately [* * *]. This capital
to be invested by Texaco shall pay for leasehold improvements including
pressurizing equipment, tower strengthening, battery plants, equipment
shelters,
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shelter freight costs and miscellaneous site work to prepare the Facilities
for installation of PathNet's radio equipment. A description of Texaco's
proposed upgrades and an estimate of its costs are set forth in detail on
SCHEDULE C --VALUATION SCHEDULE OF CAPITAL INVESTMENT TO BE MADE BY TEXACO,
attached hereto. Any capital spent by Texaco for Facility improvements shall
be disbursed directly to vendors of Texaco's choice, provided that the
equipment meets the System specifications and design documentation necessary
to prepare the Facilities for PathNet's leasehold improvements, as set forth
on Schedule E, attached hereto. PathNet will provide the system design
documentation to Texaco and/or maintenance contractor at Commissioning. If
additional capital investment is required by Texaco for the above-described
equipment and services because of unforeseen, pre-existing Facility
conditions unknown to PathNet or Texaco, Texaco shall be required to increase
its capital investment to meet the demands of the Facility upgrades and
preparation for the installation of the digital microwave system, but
Texaco's costs for these assets or services to accommodate installation of
the high-capacity digital equipment [* * *], as set forth on Schedule C,
attached hereto. The [* * *] difference between [* * *] and the Texaco
Budgeted Funds shall be known as the "Texaco Contingency Funds."
1.3.9 TEXACO'S PROJECT MANAGEMENT RESPONSIBILITIES. Texaco shall serve
as project manager for the required improved infrastructure associated with the
Initial Build-Out, including installation of battery plants, towers,
pressurizing equipment and other equipment and property which it will provide.
In order to be certain the Facilities will be suitable for PathNet's leasehold
improvements, Texaco shall schedule all work to be performed in connection with
the Initial Build-Out, subject to the written approval of PathNet, which shall
not be unreasonably withheld. All contractors shall be hired by Texaco for the
Initial Build-Out, and all equipment approved for
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purchase by both PathNet and Texaco shall be ordered by Texaco. Copies of all
purchase orders issued by Texaco or PathNet shall be transmitted to PathNet
within five (5) business days of issuance.
1.3.10 PATHNET'S CAPITAL INVESTMENT. PathNet shall commit the capital
required to install its leasehold improvements at the Facilities and to complete
the System in accordance with Texaco's approval of the initial design criteria.
However, PathNet shall not be responsible for capital investments required for
the Facilities' preparation or upgrading, as set forth in Schedule B, attached
hereto, (i.e., the building of roads, modifications of towers or construction of
sheds) unless the costs exceed Texaco's capital investment of [* * *], as set
forth in Schedule C. PathNet shall be responsible for paying for leasehold
Facility improvements along Segment spurs which PathNet wishes to build-out for
its own network purposes and for any such sites which are separately identified
in SCHEDULE S -- NETWORK INTERCONNECTIONS SCHEDULE, attached hereto.
1.3.11 COSTS OF COMPLIANCE WITH LAWS. Any upgrades required to conform
to local building code provisions and any site costs (including fees) incurred
in connection with compliance with regulatory laws, particularly those related
to health and safety, will be borne solely by Texaco. Texaco shall register and
pay F.C.C. registration fees for the Facilities. If a cost differential shall
exist between the site fees Texaco incurs because of PathNet's status as a
common carrier and the site fees Texaco would have incurred as a private
microwave licensee operating its own microwave system along those same paths,
PathNet shall pay such differential. PathNet shall be responsible for payment
of all existing and future regulatory fees, fees for telecom relay services, pay
telephone assessments, access surcharges, universal service changes, and fees
incurred in the event of unusual occurrences and site registration fees.
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1.3.12 ENCUMBERING EQUIPMENT AND REVENUES. PathNet shall have the right
to encumber the equipment acquired to create Capacity Expansion and PathNet's
portion of the revenues to be received pursuant to the terms of this Agreement.
PathNet shall have no right to encumber the equipment for the Initial System.
However, any revenues PathNet may be due from the marketing of channels created
by the 1 x 1 Initial System may be encumbered by PathNet. This Agreement and
the rights contained herein may serve as collateral for vendors or others who
may provide financing for the equipment of services PathNet shall provide during
the System Build-Out Period. In addition, for financing purposes, PathNet may
encumber and use its portion of the revenues that may be due under the terms of
this Agreement to cross-collateralize the financing of other build-outs of
systems that will be linked to PathNet's network. Any encumbrances placed on
equipment are subject to the review and approval by Texaco, and such approval
shall not be unreasonably withheld. However, any security interest given in the
equipment used for creation of the Initial System shall reflect that the
lienholder is prohibited from removing the equipment from, or disabling,
modifying or adjusting the equipment at the Facilities. In addition, all
encumbrances or security agreements shall reflect that, in the event of default
by PathNet, lienholder's only remedy to recover monies is to proceed against
PathNet's portion of revenues which it may receive and to bring in the services
of a third party to manage and administer the marketable Excess Capacity.
PathNet shall include in its financing agreements a provision that would grant
to Texaco a right of first refusal to purchase the equipment in the event of
PathNet's default under such Financing Agreements.
1.3.13 INFORMATION AND SERVICES. To enable PathNet to make the
leasehold improvements at the Facilities, Texaco shall provide to PathNet, in a
timely manner, relevant existing tower drawings and specifications, inventory
lists, and other documents regarding its
9
relevant paths, equipment, and Facility conditions within thirty (30) days of
execution of this Agreement. Texaco will provide to PathNet evidence of
ownership of the affected sites. For those sites which Texaco leases from
others, Texaco will provide PathNet with copies of such leases. Pursuant to the
terms of this Agreement, PathNet shall provide and pay for radio terminals,
space diversity repeaters, network management systems, antennas, replacement
feedhorns, waveguide, muxing from the DS-3 to DS-1 level, installation and
performance testing, path installation, spare radios, training and such
miscellaneous items required in support of providing the above-listed equipment
and services. Texaco (from the Texaco Budgeted Funds and, if necessary, from
the Texaco Contingency Funds) shall provide and pay for shelter pressurizing
equipment, shelters, shelter freight costs, structural tower analyses, tower
strengthening, tower replacement, miscellaneous site work and battery plants,
pursuant to the terms of this Agreement. Costs for the equipment and services
in excess of Texaco's Budgeted and Contingency Funds shall be borne by PathNet.
1.3.14 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS. Texaco
shall provide PathNet with all existing current tower drawings and
specifications, if they are in Texaco's possession, custody or control. These
drawings shall include structural details, civil conditions, foundation
drawings, bonding and grounding plans, inventory of all equipment located on the
tower structure, all cabling and feedline locations and placement of all
auxiliary structures within the Facilities. Texaco agrees to provide any and
all of the following documentary information, if such information exists, and is
required to be completed by statute or, if necessary, for completion of the
project:
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a.reports, surveys, drawings and tests concerning the conditions and
microwave facilities at the Facility, and conformity of the existing system and
Facility conditions with federal, state and local law; and,
b.structural, mechanical, electrical inspections and reports which
have been required by law;
c.such additional documents which may include consultant reports that
contain descriptions of existing equipment and determinations of capabilities,
interference, evaluations of hazardous materials, tower conditions, including
necessary operations for anticipating existing conditions and appropriate
professional recommendations, when such information is reasonably related to the
scope of the Project and is requested by PathNet.
1.3.15 PHYSICAL STRUCTURES. Pursuant to the terms of this Agreement,
Texaco is to provide the appropriate physical structures necessary for PathNet
to deploy a high-capacity, digital microwave network capable of, at minimum,
16,700 DS-0's along the Segment. This infrastructure shall include real estate,
towers, shelters, power systems and miscellaneous items essential to support the
proposed system as further defined in SCHEDULE E -- OWNERSHIP OF RADIOS,
SHELTERS, SYSTEM COMPONENTS AND RELATED EQUIPMENT, attached hereto.
1.3.16 TEXACO'S DESIGNATED REPRESENTATIVE Texaco's Designated
Representative. Texaco shall designate in writing a representative who shall
have express authority to bind Texaco with respect to all matters requiring
Texaco's approval or authorization in connection with this Agreement. This
representative shall have the authority to make decisions on behalf of Texaco
concerning estimates and schedules, engineering capabilities, construction
concerns, and changes in the work, and shall render such decisions promptly and
furnish information expeditiously so as to avoid unreasonable delay in the
services or work of PathNet and/or its subcontractors.
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1.3.17 TEXACO'S RESPONSIBILITIES - FACILITY USE AND CONDITIONS Texaco's
Responsibilities - Facility Use and Conditions. Texaco hereby warrants and
represents to PathNet that the PathNet program goals as further identified
and set forth in PARA 1.2.1 of this Agreement are consistent with Texaco's
use of all owned or leased Facilities. PathNet will be provided access to all
sites set forth on Schedule B. Texaco, in conjunction with PathNet, will
determine which, if any, Facilities require structural analysis for the
placement of new antenna systems. For those structures identified as
requiring such analysis, Texaco, working closely with PathNet, will engage
and pay for a structural engineer licensed in the state in which the affected
tower resides. Texaco shall pay for the structural analysis from the Texaco
Budgeted Funds. The results of these analyses will be made available to
PathNet.
1.3.18 PATHNET'S RESPONSIBILITIES - FACILITY CONDITIONS
PathNet's Responsibilities - Facility Conditions. PathNet will analyze the
data provided by Texaco and construct a preliminary electronic inventory of
the existing Facility conditions at the time of execution of this Agreement.
PathNet will provide the requirements and specifications for the proposed
digital microwave systems site requirements at each Facility. PathNet will
inspect each Facility which does not have sufficient information provided by
Texaco to complete this analysis. PathNet will provide Texaco with detailed
antenna system requirements, which will include appropriate antenna sizes,
site elevations and azimuths. PathNet will additionally provide Texaco with
the vendor data specifying the wind loading and weight requirements for the
proposed antenna systems, as well as any associated feedlines necessary to
support the proposed system.
1.3.19 LEGAL REQUIREMENTS
Legal Requirements. Texaco shall determine and advise PathNet of any
special regulatory or zoning requirements known to it relating specifically
to the Initial System in the locality of the Facilities which differ from
those generally applicable to microwave facilities.
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PathNet shall fulfill such legal requirements, in connection with the services
it is to provide under this Agreement.
1.3.20 MAINTENANCE OF TOWERS AND FACILITIES
Maintenance of Towers and Facilities. Texaco shall be responsible for
providing Facility access towers, tower restoration, equipment access,
electricity, compliance with environmental requirements, painting,
lighting, payment of real estate taxes, compliance with FAA requirements,
maintenance of the Facility's building(s), the power systems and common
elements necessary for the continued operation of the telecommunications
asset throughout the duration of this Agreement. Texaco shall also be
responsible for FCC registration and payment of registration fees related
to the Facilities.
1.3.21 USE OF TEXACO'S TOWERS AND OTHER EQUIPMENT
Use of Texaco's Towers and Other Equipment. Texaco shall permit PathNet
to use its towers, antenna, waveguides and equipment shelters at the Facilities.
In order to expand system capacity, if necessary, PathNet shall have the right,
at its own expense, to make leasehold improvements to Facilities beyond the
Initial System. PathNet's leasehold improvements may be removed at PathNet's
expense and option, providing that no structural damage to Texaco's Facility
will result from such removal. All proposed modifications or additions to
Texaco's towers, waveguides, antennas and equipment shelters set forth on
Schedule E, shall be reviewed and approved or disapproved by Texaco within
thirty (30) business days of its submission to Texaco, and such approval shall
not be unreasonably withheld. In the event Texaco does not grant approval, the
parties shall make commercially reasonable efforts to resolve the situation.
PathNet shall pay for capacity expansion and shall not pay for Facility
improvements, except as provided for in PARA 1.3.10 of this Agreement, or unless
agreed to in writing signed by the parties hereto.
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1.3.22 TOWER APPROVALS AND STRUCTURAL CHANGES. Texaco shall fully
evaluate the tower structures and, if necessary, provide additional
stiffening or strengthening to existing structures. For all towers, Texaco
will obtain all necessary local zoning approvals, FCC approvals, site
licenses and FAA approvals (except FCC licenses provided for in PARA 3.2)
before work related to the project, or any part thereof, is commenced. Any
federal, state or local governmental or regulatory fees associated with
obtaining such tower approvals shall be paid by Texaco. Modifications to
tower structures shall be in full compliance with then current EIA/222F
specifications for loading. All costs associated with tower modifications or
requirements to support the interconnections to PSTN or the other elements of
the PathNet network shall be borne by PathNet. Any costs associated with the
interconnection to other parts of Texaco's network, which are not part of
PathNet's network, shall be paid for by Texaco. Any deficiencies or notices
of violations shall be fully disclosed to PathNet. Any tower or system
modifications that affect the tower lighting or tower alarm monitoring are
subject to the prior written approval of Texaco and shall be paid for by
PathNet.
1.3.23 PARKING AT THE FACILITIES. If required, Texaco will provide
for vehicular parking at each of the affected Facilities at no charge to
PathNet or its agents for use during the term of this Agreement. In the
event affected Facilities are in urban areas where vehicles are parked in
privately operated lots or garages, PathNet shall be responsible for any and all
parking charges it or its agents and employees may incur.
1.1.24 EXITING FACILITIES. Upon leaving Facilities, PathNet, its
employees, agents and contractors shall ensure that the Facility is returned
to a condition which existed immediately prior to their visit with the
exception of any installation, construction, maintenance or other work performed
during such visit.
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1.3.25 SECURITY SEARCHES. Any PathNet employee or agent, if required,
will be subject to a complete security search prior to entering any Texaco
facility where this may be required. PathNet employees or agents will be
allowed to bring necessary testing equipment, photographic equipment and both
video and audio recording equipment to any Facility where general security
requirements permit, subject to the prior written approval of Texaco, which
shall not be unreasonably withheld. PathNet will maintain a diary or log of its
site visits and a copy of such log will be available to Texaco during normal
business hours, provided a minimum of seventy-two (72) hours advance notice is
given to PathNet by Texaco.
1.3.26 USE OF TELECOMMUNICATIONS DEVICES. If necessary, while visiting
the Texaco Facilities, PathNet's employees or agents shall be allowed to
utilize existing telephone lines, or Order Wire to facilitate their
evaluation.
1.3.27 REAL ESTATE AND OTHER PROPERTY TAXES. For all state and local,
real and personal property taxes on equipment installed at Texaco Facilities, as
listed on Schedule E, and real estate supporting the operation of digital
microwave communications system at those sites, each party shall be responsible
for the payment of taxes for property which they separately own, as reflected in
Schedule E, attached hereto.
1.1.28 PATHNET'S OTHER RESPONSIBILITIES. PathNet will design the radio
network to be installed and specify the equipment to be used at the Texaco
Facilities. The design and specifications are subject to the written approval
of Texaco, which shall not be unreasonably withheld. PathNet shall hire any and
all subcontractors for the installation of the radio equipment and shall
coordinate system cutover and testing with Texaco. PathNet shall stage and
schedule delivery of radio, antenna and waveguide equipment and manage the
installation and cutover of the initial 1 x 1 communications system on the
microwave paths comprising the
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Texaco System, as further described in Schedule B, attached hereto. PathNet
shall also be responsible for the marketing and sale of Excess Capacity created
in accordance with the terms of this Agreement.
2. LEASEHOLD INTEREST
2.1 PREMISES; EQUIPMENT; LOCATION
2.1.1 LEASE OF FACILITIES. Texaco hereby agrees to lease to PathNet
space on Texaco's towers and space in Texaco's equipment buildings at each site
for the purpose of housing the equipment for the installation and operation of
the PathNet communications equipment set forth on Schedule E, at the Facilities,
subject to the terms and conditions set forth in this Agreement. From time to
time, Schedule B may be amended to include additional Facilities of Texaco by
the preparation of an "Amended Schedule B" to the Agreement, dated and signed by
both parties, reflecting additional paths and Facilities and specific location
information. The building layout to be used at each leased Facility is to be
set forth in the mutually agreed upon design drawings. Texaco grants PathNet,
unless PathNet defaults hereunder, the non-exclusive peaceful use, enjoyment and
possession of the Facilities during the term, as herein contemplated.
2.1.2 TERM, RENEWAL AND OPTION PERIODS. The term of the business and
leasehold relationship between Texaco and PathNet shall be up to twenty-six (26)
years for the Segment. This Agreement will become effective on the date of its
execution. The Initial Term includes the Buildout Period and extends for Five
(5) years after the Commissioning of the Initial System. The Build-out Period
of up to one year for design and installation shall commence immediately
following execution of this Agreement and shall end upon Commissioning. An
automatic option accrues to PathNet to extend the Initial Term of this agreement
for an additional ten (10) years, if
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PathNet sells at least 10% of the Excess Capacity on the Initial System. A
second automatic option period of ten (10) years accrues with the sale of at
least 20% of the Excess Capacity on the Segment during the first option period.
To exercise either of these options, PathNet must notify Texaco in writing at
least 180 days prior to the end of the preceding term. Upon expiration of the
Initial Term and any optional terms PathNet has exercised, the term of the
Agreement shall continue year to year, cancelable by either party upon ninety
(90) days' written notice to the other party. If either PathNet or Texaco
elects to not extend the Agreement after expiration of the Initial Term, or any
option period, PathNet shall sell the Initial System to Texaco for the total sum
of $1.00 and PathNet shall promptly file whatever forms may be necessary to
facilitate the transfer of the license for the initial 1 x 1 system from PathNet
to Texaco. Upon the expiration of this Agreement, PathNet shall, at Texaco's
request, also remove all of its owned equipment within sixty (60) days from
Texaco's Facilities. Should PathNet fail to perform such requested removal
within a timely manner, Texaco may restore the leased premises to its condition
as of the date the System is commissioned, reasonable wear and tear and damage
from the elements excepted, and PathNet shall promptly pay Texaco all costs
reasonably incurred for such removal.
2.1.3 ANTENNAS. PathNet shall furnish all antennas and antenna
mounting hardware for securing the antennas to the towers. The antennas will be
installed on the towers by PathNet and PathNet has the right to install the
antennas with space diversity. PathNet's antennas are to be mounted at
positions on Texaco-owned towers to be noted in the agreed-upon system design
documents. The antenna positions, loading and frequencies are set forth on
Schedule K.
2.1.4 TRANSMISSION LINES. One (1) transmission line will be connected
to each antenna initially. All line(s) will be anchored firmly to the tower in
accordance with the manufacturer's recommendation and as directed by Texaco. If
the System is expanded beyond the 1 x 1 Initial
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System, PathNet may elect to install a second transmission feed line. PathNet
shall furnish all transmission line(s), connectors and mounting hardware for
securing and grounding to the towers. PathNet, or its contractor, shall install
the transmission line(s) on the tower and route said transmission line(s) to its
equipment rack in Texaco's buildings, connecting both ends of the transmission
line(s). PathNet shall interface the transmission line(s) to its radio
equipment.
2.1.5 EQUIPMENT BUILDINGS. PathNet shall place its equipment inside
the Texaco buildings. Texaco shall allow PathNet access to PathNet's equipment
inside buildings at the Facilities, provided that Texaco shall have the right to
escort PathNet personnel. PathNet shall firmly anchor its equipment racks to
the floor, using a method and location mutually agreed upon by PathNet and
Texaco.
2.2 WARRANTIES REGARDING THE LEASEHOLD INTEREST
2.2.1 TEXACO'S AUTHORITY TO LEASE. Texaco represents and warrants that
it: (i) solely owns (or controls by lease or easement) the Facilities, set
forth in Schedule B, unencumbered by any liens, restrictions, mortgages,
covenants, conditions, easements, agreements, proffers, commitments, agreements
of record, or not of record, which would adversely affect Tenant's use and
enjoyment of the leased premises under this Agreement; (ii) is duly
organized/formed, validly existing and in good standing, and has all rights,
power and authority to make this agreement and bind itself thereto through the
party set forth as signatory as set forth below; (iii) has not dealt with, nor
is any brokerage commission due to any broker in connection with this Agreement;
and, (iv) the Property and its uses and operations, the making of this
Agreement, and Texaco's performance of this Agreement, to the best of Texaco's
knowledge, complies and will comply with all laws and not violate the provision
of any agreement or encumbrance of any
18
kind under which Texaco is a party or is bound or which restricts in any way the
dispositions or use of the Property.
2.2.2 PATHNET'S AUTHORITY TO LEASE.'S AUTHORITY TO LEASE PathNet
represents and warrants that it (i) is authorized to lease the Facilities set
forth in Schedule B, unencumbered by any liens, restrictions, mortgages,
covenants, conditions, easements, agreements, proffers, commitments, agreements
of record, or not of record, which would adversely affect PathNet's use and
enjoyment of the leased premises for the purposes contemplated under this
Agreement; (ii) is duly organized/formed, validly existing and in good standing,
and has all rights, power and authority to make this Agreement and bind itself
thereto through the party set forth as signatory, as set forth below; and,
(iii) has not dealt with, nor is any brokerage commission due to any broker in
connection with this Agreement.
2.3 RENT AND OTHER LEASEHOLD PAYMENT RESPONSIBILITIES
2.3.1 RENT TO TEXACORENT TO TEXACO. PathNet covenants and agrees to
pay to Texaco as rent for the use of the Facilities during each year of the
Initial Term, following the Build-out Period, an allocation of [* * *].
PathNet will provide [* * *] to Texaco with a maximum cross sectional density
of [* * *], with Drop and Insert capability at the DS-1 level, at the
appropriate Facilities, as represented by the agreed upon channel plan set
forth in Schedule D for Texaco's own internal use and/or sale. The
performance of these DS-1's will meet or exceed the standards set forth in
Schedule O. Commencing in the [* * *] after Commissioning, PathNet shall pay
to Texaco, as additional rent, [* * *] of the revenue resulting from the sale
of the Excess Capacity installed at the Facilities, consistent with the
-------------------------
(1) [* * *].
19
provisions and terms of Section 2.3.2 of this Agreement. Texaco shall have
access on interconnections as set forth on Schedule S, attached hereto, with a
maximum cross section density of [* * *] channels.
2.3.2 SALE OF EXCESS CAPACITY. PathNet shall market all Excess
Capacity created. Texaco shall receive additional rent from PathNet based on
PathNet's sales of Excess Capacity according to the following terms:
a. INITIAL SYSTEM. For the four (4) years following
Commissioning of the Initial System, PathNet shall receive and retain all
revenue from the sale of Excess Capacity created by the Initial System for
the purpose of paying for the Initial System equipment and components. After
the [* * *] following Commissioning, PathNet shall begin to receive [* * *]
of the gross revenue and Texaco shall begin to receive, as additional rent,
[* * *] of the gross revenue on the sale of Excess Capacity created from the
Initial System.
b. SYSTEM CAPACITY EXPANSION. For a period of [* * *]
immediately following Commissioning of a Capacity Expansion beyond the
Initial System, the entire revenue stream shall be dedicated to servicing the
incurred debt on the cost of the radio and related equipment associated with
such Capacity Expansion. Each Capacity Expansion shall have its [* * *].
Each Capacity Expansion will be assigned an "Expansion" name (i.e., Expansion
1, Expansion Phase 1...). PathNet will provide Texaco a schedule that will
set forth: (1) the amount of capacity to be included in the expansion; (2)
specific paths to be expanded; (3) the expansion name (including each Path
that is affected); (4) commissioning date; (5) [* * *]; and (6) the date
Texaco will begin to receive additional rent from the gross revenues derived
from the expansion. Increases in capacity will be paid for solely by PathNet
and may come from the additional revenue stream which is generated
20
from the sale of this additional capacity. If payments for radio and related
equipment associated with capacity upgrades or to service debt on such
equipment are needed, PathNet shall advance and make such payments. The
determination to increase telecommunications capacity along any segment of
the digital network will be made solely by PathNet. However, the
precondition to any increase in capacity is that at least [* * *] of the
existing capacity shall have been already sold to PathNet customers for at
least one quarterly period. After the [* * *], PathNet shall receive [* * *]
of the revenues produced by the Capacity Expansion and Texaco shall receive,
as additional rent, [* * *] of such gross revenues. For PathNet's sale of
Excess Capacity, as set forth on SCHEDULE J -- EXCESS TELECOMMUNICATIONS
CAPACITY SOLD AND PAID FOR, attached hereto, which includes facilities
controlled by several participants, the revenue to be received by Texaco will
be based upon the ratio of the number of miles Texaco's network contributes
to the Marketable Route, times the price per circuit mile on the Marketable
Route, [* * *].
2.3.3 OPTION TO PURCHASE ADDITIONAL CAPACITY. Texaco may purchase
additional capacity from PathNet at a 25% discount to the prevailing lowest
rates as sold to IXC's at the time by PathNet. Texaco shall have the right to
purchase up to 20% of the Excess Capacity available at any time. This
specifically includes the option to purchase, as part of this capacity, any
wayside channels resulting from the addition of radios to create Capacity
Expansion. Texaco may only purchase capacity for its own use in connection with
its core business needs and not for purposes of resale.
2.3.4 TEXACO'S LABOR TO PERFORM SERVICES. PathNet agrees to compensate
Texaco for special services provided by Texaco's employees at the hourly rate of
$60.00 for regular working hours on a business day; $80.00 for a non-business
day; and $100.00 for a Texaco holiday. This
21
requirement to use and pay for Texaco's services (at the indicated rates) shall
apply to the removal of PathNet's equipment or antennas, should PathNet fail to
remove them in accordance with the terms of this Agreement, and to any other
special services agreed upon by the parties and confirmed in writing by PathNet
before such costs are incurred. Alternatively, Texaco may elect for PathNet to
engage and pay for the services of an independent, third-party contractor, to be
selected by PathNet and approved by Texaco, to remove such equipment or perform
other special services. PathNet agrees to reimburse Texaco for any
consequential expenditures, for the benefit of PathNet for the services
described above, at Texaco's cost, plus twenty percent (20%) to cover
administrative handling. PathNet may elect for Texaco to engage and pay for the
services of an independent, third-party contractor, to be selected by Texaco and
approved by PathNet, to remove such equipment. In addition, PathNet agrees to
separately compensate Texaco for maintenance services to be provided by Texaco's
employees, pursuant to the terms of a separate maintenance services agreement
that will be executed by the parties.
2.4 INSTALLATION AND OPERATION
2.4.1 INSTALLATION AND LOCATION. PathNet shall install, operate,
repair and remove its radio equipment in accordance with the terms of the
Agreement as defined in Schedule B. PathNet or PathNet's contractor shall
install PathNet's electronic equipment in PathNet's equipment racks at the
Facilities. PathNet shall not at any time change the location of the equipment
racks or of the antennas on Texaco's microwave tower or install additional
equipment without the written permission of Texaco. PathNet shall not make any
changes in the use of its equipment without written permission of Texaco, which
permission shall not be unreasonably withheld. PathNet may make changes which
increase tower loading at its sole cost.
22
2.5 INTERFERENCE
2.5.1 DETERMINATION OF INTERFERENCE. For purposes of this Agreement,
interference will be deemed to exist if there is a measurable material
impairment in the quality of the frequency or signals received and/or
transmitted which results in harmful interference, as defined by the Federal
Communications Commission.
2.5.2 INTERFERENCE ASSUMPTIONS. At all times during the term of this
Agreement and any extension thereof, PathNet and Texaco agree to use equipment
that is FCC type accepted, FCC licensed or approved, installed, operated and
maintained in accordance with FCC and Vendor specifications. Interference
problems due to improper installation, design and/or maintenance shall not be
sufficient cause for termination of this Agreement. PathNet shall provide
assistance to Texaco while trying to isolate and eliminate interference problems
which involve equipment owned and/or operated by a tenant of Texaco. PathNet
agrees to make no changes in or to its equipment or frequency without the prior
approval of Texaco, which approval will not be withheld or delayed, so long as
such changes do not cause interference to a then present Texaco tenant on the
Facilities.
2.5.3 EXISTING TENANT INTERFERENCE COORDINATION. Before entering into
this Agreement, PathNet and Texaco have performed a preliminary frequency
analysis to determine if any obvious harmful interference would result from
Texaco's present tenants and the deployment of the System along the Segment.
Texaco has provided PathNet with an existing frequency inventory for each
Facility. After the Agreement has been approved, a more detailed frequency
analysis will be completed as a part of the formal design process. Design
approval by Texaco and PathNet will imply that the design calculations reveal no
obvious interference between existing tenants and planned Facility
modifications.
23
2.5.4 NEW TENANT INTERFERENCE COORDINATION. During the term of this
Agreement, Texaco shall not license or permit other persons or entities to use
its Facilities if PathNet's then-in-use signal or frequency or physical location
of equipment would cause interference with such new tenant. Texaco and PathNet
agree that PathNet's signal has a paramount priority with respect to any other
communications signals or facilities installed on the leased premises subsequent
to Texaco's cutover. Texaco further agrees that during the term of this
Agreement, it will not license or permit other persons or entities to use its
communications facilities on the Premises if such persons or entities will cause
interference with PathNet's then-in-use frequency or signal, or with equipment
or antennas. Texaco, upon receiving notice from PathNet of such interference,
shall take all steps necessary to correct and eliminate such interference,
including, without limitation, enforcing provisions in any license or other
agreement between Texaco and the persons or entities causing such interference,
pursuant to which Texaco may compel such persons or entities to cease operation,
modify their equipment and/or antennas, or remove their equipment and/or
antennas from any facilities or towers owned by Texaco. If PathNet or Texaco
breach their obligations under this Section 2.5, the party receiving notice of
such breach from the other will take all steps necessary to correct and
eliminate such interference. If such interference cannot be eliminated within a
reasonable length of time, but not to exceed thirty (30) days after notice
thereof, Texaco or PathNet, as the case may be, shall cause the interference to
cease, except for brief tests necessary for the elimination of the interference.
Texaco acknowledges that: (i) PathNet will operate under a federal license,
(ii) continuing interference with PathNet's operation may cause irreparable harm
to PathNet, (iii) the prompt cessation of interference is material to PathNet's
leasehold interest, and (iv) therefore, PathNet shall have, as one of its
rights,
24
the power to enjoin such interference, as reflected in SCHEDULE L-- DISPUTE
RESOLUTION/ARBITRATION PROVISIONS.
2.6 OTHER PROVISIONS
2.6.1 SUBLETTING. PathNet shall not sublet the Premises, in whole or
in part, without the written consent of Texaco. However, PathNet shall have the
right to transfer and assign its rights under this Agreement to a successor or
assign, pursuant to Section 5.1.4 of this Agreement.
2.6.2 SURRENDER. Upon the expiration or termination of the Agreement
or abandonment of the Premises by PathNet, PathNet shall peacefully and quietly
surrender occupation of the Premises to Texaco, or Texaco's successors and
assigns, without Texaco giving any notice to quit or demand for possession.
PathNet's non-use of the Premises, for the purposes described in this Agreement,
continuing for one (1) year shall be sufficient and conclusive evidence of such
abandonment, unless PathNet shall have notified Texaco in writing of its reasons
for such non-use, and shall continue to provide the [* * *] to Texaco.
2.6.3 SITE EXCAVATION. PathNet, its employees, agents and contractors
shall perform no site excavation at the Facilities without the prior written
approval of Texaco. PathNet shall have the right to conduct soil borings upon
notification to and approval by Texaco. All Texaco approvals of site excavation
requests shall not be unreasonably delayed or withheld.
2.6.4 SUBORDINATION. PathNet agrees to subordinate its rights under
this Agreement to all deeds of trust, deeds to secure debts, mortgages and other
security instruments (a "Mortgage") now or hereafter encumbering all or any
portion of the real property described on Schedule B to this Agreement (as such
schedule may be amended by PathNet and Texaco from time to time), and to any
increases, renewals, modifications, consolidations, replacements and extensions
thereof, provided that PathNet has received a commercially reasonable
subordination, non-
25
disturbance and attornment agreement from the party(ies) secured by such
Mortgage(s). Any subordination shall not impair, jeopardize or disturb
PathNet's ability to operate its network or operate as a common carrier at the
Facilities.
2.6.5 HAZARDOUS MATERIALS. The parties agree to follow the Hazardous
Materials policy provisions set forth on SCHEDULE M -- HAZARDOUS MATERIALS
PROVISIONS, attached hereto.
2.6.6 ACCESS TO FACILITIES. Access to the Facilities for
installation, evaluation and testing of the replacement telecommunications
system shall not be unreasonably withheld from PathNet or its agents. Any
employee, agent or contractor of PathNet who is granted access to Texaco
Facilities shall provide proof of insurance to Texaco sufficient to
satisfy its minimum corporate requirements, but not to be less than $5 million
in general liability coverage, as set forth more completely in SCHEDULE N --
INSURANCE, attached hereto. If Texaco requires any security clearances, safety
training or drug testing for any non-Texaco personnel, PathNet will require that
its employees, agents or contractors apply to Texaco for such necessary
clearances, obtain the required safety training and submit to the required drug
testing. If required, Facility visits will be escorted by Texaco. PathNet
shall not be responsible for payment of any costs to Texaco associated with
Facility visits required during the installation, design and cutover period, or
for regularly scheduled visits thereafter. In the event of any special services
or emergency visits when Texaco is required to deploy personnel to a Facility,
Texaco shall invoice PathNet and PathNet shall pay the costs of such services at
the rates set forth in Section 2.3.3 of this Agreement. Texaco shall maintain
access to all Facilities in a reasonable manner in accordance with regulations
in their local jurisdictions.
26
3. DESIGN, INSTALLATION, ACCEPTANCE AND OWNERSHIP
3.1 DESIGN, INSTALLATION AND CUTOVER
3.1.1 PATHNET'S DESIGN OBLIGATIONSPathNet's Design Obligations.
PathNet shall design the high-capacity, 6 GHz/30 MHz system in a manner that
will allow the unimpaired, continuous operation of Texaco's low-capacity, 6
GHz/10 MHz system until cutover of all operational circuits and testing of the
System has occurred. After cutover, the System operation standards shall be
controlled by the Minimum Network Performance Standards as set forth in SCHEDULE
O -- MINIMUM NETWORK PERFORMANCE STANDARDS, attached hereto and made a part of
this Agreement. PathNet shall, in installing the System, utilize towers,
antennas, waveguides, and the system components of the existing system wherever
possible. PathNet shall submit all systems and site designs to Texaco for its
review, analysis and approval, which shall not be unreasonably withheld, and
which approval (or disapproval) shall be rendered within (30) thirty days of
submission. Any design modifications shall be discussed and agreed upon in
writing by both Texaco's and PathNet's engineers.
3.1.2 RADIO SYSTEM. The active radio components of the System will be
digital. The specified System will be approved by Texaco and will be engineered
to availability specifications set forth in Schedule O. The System will comply
with the performance criteria set forth in Schedule O. The typical engineering
availability criteria which will be established for the Initial System and the
Capacity Expansion will be for a digital microwave Segment (defined in Schedule
B) which has less than two (2) minutes per annum of outage time, coupled with a
continuous bit error rate not to exceed 10-13.
27
3.1.3 ANTENNASANTENNAS. In any selected frequency range, PathNet shall
ensure that all newly installed antenna reflectors will conform to Category A
standards as defined by the FCC and the antennas must meet the specifications
issued on any prior coordination notices (PCN).
3.1.4 WAVEGUIDE. Any waveguide specified for transmission line shall
be of a premium grade ensuring minimum transmission loss and Xxxxxx part EWP-63
or equivalent.
3.1.5 D.C. POWER REQUIREMENTS. PathNet shall ensure that the active
radio components: (a) will operate in accordance with the manufacturer
specifications set forth in Schedule D, attached hereto; and (b) will be powered
by an uninterruptable power supply operating at 48 volts DC, with at least eight
hours of back-up capability. Texaco shall also ensure that the equipment
shelters are environmentally controlled to mutually agreed upon standards.
3.1.6 DIAGNOSTIC CIRCUITDIAGNOSTIC CIRCUIT. PathNet shall equip each
Facility with a single telephone line for System diagnostic purposes. PathNet
shall carry this circuit, order wire, or DS-0, as part of the System payload,
and it will be PathNet's responsibility to provide this circuit from the
circuits set aside for PathNet or through the order wire. PathNet shall have
the right to install additional order wires at the Facilities.
3.1.7 GROUNDING AND STANDARDS. Texaco shall be responsible for the
costs of delivering the Facilities in compliance with grounding and bonding
standards. The System and all associated electrical components will be grounded
and bonded to current IEEE standards, and shall be approved in writing by
PathNet, which approvals shall not be unreasonably withheld.
3.1.8 MULTIPLEXING FROM OC-3 TO DS-1 LEVEL. PathNet shall provide, at
its cost, the multiplexing of the OC-3 to the DS-1 level at each affected
Facility using OC-3 multiplexing, according to the design specifications set
forth in Schedules D and G. PathNet shall have the right to use Wayside
Channels that are not set forth in Schedules D and G, attached hereto, that
28
result from Capacity Expansion. PathNet's use of the Wayside Channels that are
part of the Initial System must be coordinated with and approved by Texaco.
3.1.9 MULTIPLEXING FROM DS-1 TO DS-0 LEVEL. The multiplexing of the
DS-1 to the DS-0 level at each affected Facility will be Texaco's sole
responsibility. Texaco and PathNet shall jointly determine how Texaco's needs
will be met, as set forth in Schedules D and G, attached hereto.
3.1.10 AC ELECTRICAL POWER. With Texaco Budgeted Funds, Texaco shall
provide AC electrical power consistent with local requirements and the usage at
each of the affected Facilities. If power currently exists at the Facilities
but is inadequate to handle the Expanded Capacity, the cost of such power
enhancements will be borne by Texaco, which shall make payment to the
appropriate utility companies.
3.1.11 MINIMUM SYSTEM DESIGN REQUIREMENTS. PathNet shall ensure that
the proposed System, upon completion, will meet the then current FCC
requirements of spectrum efficiency outlined in the FCC regulations, 47 C.F.R.
Section 21.122. The System will be comprised of, at a minimum, 3 DS-3
capability and will have a 1 x n protection switch allowing for upward migration
to a minimum of 1 x 7 protection, unless Texaco approves in writing of expansion
to a 1 x 15 protection level, utilizing additional spectrum or the use of
crossband filters.
3.1.12 SONET RADIOSONET RADIO. The digital microwave radios will
operate under a SONET format.
3.1.13 PRIOR COORDINATION NOTICES. PathNet will monitor and protest any
proposed PCN which may affect the System by interference, either real or
potential. PathNet will issue
29
any PCN's required or necessary for the construction of the 1 x 1 Initial System
or the Capacity Expansion.
3.1.14 DESIGN DOCUMENTATION. PathNet will propose specific equipment
for each component of the System at each Facility, as well as for the services
involved in System implementation. This proposal will be fully set forth in
writing prior to the parties' design approval or disapproval. PathNet shall
transmit to Texaco the approval specifications for all proposed equipment and
any related FCC-type compliance certificates or waivers.
3.1.15 COMPLIANCE WITH GOVERNMENT REQUIREMENTS. If FCC requirements
change between the design and final construction of the Initial System at the
Facilities, PathNet will be solely responsible for such costs of compliance.
PathNet will also install the System in full compliance with any state and local
regulations in effect at the time of installation which will affect the given
service areas.
3.1.16 FACTORY ACCEPTANCE TESTING. Equipment shall be assembled in
system configuration for factory acceptance testing. Rack, simulated Path,
Switch Section placement and testing shall be performed to verify that the
equipment exceeds the published manufacturer's specification. PathNet shall
provide the manufacturer's published testing procedures to Texaco at least two
(2) weeks before the scheduled factory acceptance testing is to occur. Texaco
shall have the right to review these testing procedures and request procedural
modifications if the procedures deviate from industry standards. The results of
the factory acceptance tests shall be provided to Texaco.
3.1.17 PRE-COMMISSIONING. PathNet shall install an Initial System in
such a way that it can be operated and tested without interfering with Texaco's
existing system performance. PathNet shall have all equipment in place to allow
for a cutover by Texaco of its existing
30
channels. Texaco and PathNet shall mutually agree upon a pre-commission plan
and approve it in writing. This System is deemed Pre-Commissioned when fully
operational.
3.1.18 FACILITY ACCEPTANCE TESTING. After the equipment is delivered
and installed at the Facilities, retesting of Rack and Path and testing shall be
performed to verify proper operation of the equipment. Texaco and PathNet each
shall have the right to observe all site acceptance tests. The procedures to be
utilized in these tests are to be mutually agreed upon between PathNet and
Texaco. The results of the site acceptance tests shall be provided to PathNet
and Texaco. PathNet shall select the contractor that will perform all site
acceptance testing. All site acceptance tests shall be conducted in compliance
with manufacturers' specifications listed in Schedule O, attached hereto.
3.1.19 CUTOVER. A cutover coordination plan will be developed as part
of the joint design and approval process. At the time of design stage approval,
PathNet shall provide a detailed cutover schedule to Texaco. Testing shall
occur in a manner and on dates acceptable to Texaco. Texaco shall participate
in and manage the cutover process for its allocated channels. PathNet shall
allow Texaco a ninety (90) day cutover period during which both the existing
analog and new digital systems will be fully functional. The channel cutover
period shall end either ninety (90) days after it is commenced or upon written
notice from Texaco, whichever may occur first.
3.1.20 COMMISSIONING, INSTALLATION AND COMPLETION. Following the
channel cutover period, PathNet shall modify the System into its final
operational configuration. The completion of the installation shall be marked
by the satisfactory completion of the necessary performance tests, which shall
be paid for by PathNet. Satisfactory testing and evaluation of the System shall
occur immediately following the completion of cutover. Upon completion of the
performance
31
testing by an independent third-party in accordance with the performance testing
specifications set forth in Schedule O, the installation shall be complete.
After successful completion of these tests, PathNet and Texaco will declare in
writing that the Initial System has been Commissioned. This same process shall
be used for each Capacity Expansion.
3.2 FCC LICENSING FCC LICENSING
3.2.1 COMMON CARRIER LICENSE FILING. PathNet shall be the operator of
all System licenses held in its name. PathNet will be responsible for all
filings with regard to common carrier status both at the federal and local
levels. PathNet shall maintain any and all licenses issued by the FCC in good
standing. The FCC licenses issued in connection with the System shall be issued
in the name of PathNet and the licenses and radio equipment shall be owned and
operated by PathNet. PathNet shall prepare and submit all necessary frequency
coordination, licensing and/or relicensing applications and other related
filings on its behalf, as a Part 21 Common Carrier, seeking that it be able to
sell its telecommunications capacity created from the System to other common
carriers. The System designed and installed by PathNet will meet FCC loading
requirements and have capacity which can be resold to common carriers. Copies
of all filings with the FCC, including PathNet's licensing as a common carrier,
shall be provided to Texaco, and Texaco shall not unreasonably withhold its
signature required for such filings. Texaco shall provide assistance to PathNet
in supplying any and all available documentation, as may be required by
regulating agencies. Any expenses incurred with regard to these filings will be
the sole responsibility of PathNet.
3.2.2 IDENTITY OF LICENSEES. The System will be licensed in the name
of the PathNet, under Parts 21 /101 of the FCC Code. Texaco will remain
licensed for the operation of the existing 6 GHz/10 MHz system under Part 94 of
the FCC Code, until such time as its licenses
32
may be terminated. While the responsibility to complete the licensing forms for
filing with the FCC will be PathNet's, upon request and in a timely manner,
Texaco shall provide to PathNet all information necessary for the completion of
these forms which is not proprietary and is readily available to Texaco.
3.2.3 FORMS AND FEES. Licensing forms completed by PathNet, like all
other licensee applications, will become a matter of public record. Currently,
the proposed frequencies to be utilized for creation of microwave facilities
have initial application fees, and such fees will be borne by PathNet. However,
in the future, the FCC may establish user fees for this spectrum. If common
carrier system user fees exceed those of a comparable private microwave system,
PathNet and Texaco shall be responsible for sharing payment of such additional
fees in the same proportion as the revenue split between PathNet and Texaco.
3.2.4 DEPRECIATION OF EQUIPMENT. Texaco will have the right to fully
depreciate any remaining asset value of the pre-existing equipment as well as
for any equipment which it owns. PathNet shall have the right to depreciate the
equipment it pays for on the appropriate depreciation schedules in proportion to
its respective ownership, as permitted by the United States Internal Revenue
Service.
3.2.5 ACCESS TO LOGS AND REPORTS. Texaco and PathNet shall make
available to each other, to its maintenance vendor(s) and/or to the equipment
manufacturers of the affected component(s), all compiled reports, logs,
registers and diaries prepared during installation, cutover and System operation
related to System operation and performance.
3.2.6 FCC LOADING REQUIREMENTSFCC LOADING REQUIREMENTS. The
configuration of the typical microwave replacement path which PathNet will
integrate into its network will be in the form of a 1 x n protection scheme.
The mandated FCC loading requirement for spectral efficiency and traffic
33
volume will be the responsibility of PathNet. Any waivers or extensions
requested by PathNet of the FCC will be initiated and handled by PathNet or its
agents. PathNet will comply with applicable FCC requirements for spectral
efficiency and channel loading. PathNet reserves the right to modify the System
to a hot standby system ensuring for adequate redundancy while meeting the FCC's
criteria for spectral efficiency, if PathNet is unable to secure sufficient
telecommunications and is also unable to have the FCC grant a waiver or
extension to Texaco. The costs of any such reconfiguration, if necessary, will
be borne solely by PathNet. Such a reconfiguration will cause no interruption
to the telecommunications service.
3.3 RESPONSIBILITIES DURING SYSTEM CREATION AND INSTALLATION
3.3.1 REASONABLE EFFORTS AND TIMINGREASONABLE EFFORTS AND TIMING.
PathNet shall utilize commercially reasonable efforts to ensure that System
creation through final acceptance occurs as expeditiously as possible. It is
PathNet's goal that the construction of the System shall occur within eighteen
(18) months of the time all permits and approvals have been secured.
3.3.2 PROJECT MANAGEMENTPROJECT MANAGEMENT. Project Management shall
be the responsibility of Texaco for physical sites and PathNet for the radio
installation. Each party shall issue preliminary project schedules to frame
construction and start-up expectations in connection with their respective
responsibilities. The details of the preliminary schedules and any preliminary
project management plan will be agreed upon by PathNet and Texaco before
contract signing. A final schedule and project management plan shall be agreed
upon by PathNet and Texaco within forty-five (45) days of execution of this
Agreement, and shall be attached hereto as Schedule F.
3.3.3 INSTALLATION REPORTSINSTALLATION REPORTS. After installation has
begun and through final acceptance, Texaco and PathNet shall provide to each
other a bi-weekly progress report relating to the progress of the construction.
This report will be in writing and delivered to PathNet and Texaco
34
the 1st and 15th day of each month until project completion. Each progress
report shall include a description of the work performed during the immediately
preceding period, and the relationship of the work completed to the entire scope
of work necessary for the implementation of the System. This report shall also
include any deviations from the proposed schedule of work and an analysis of
such deviations with respect to their impact upon the timely deployment of the
System.
3.3.4 COOPERATION DURING INSTALLATION. During installation, Texaco
shall continually post at the Facilities any permits or licenses for building or
tower work related to the construction. Texaco agrees to not impede
construction by denying access to its Facilities or failing to perform other
duties or contract requirements. During the period of construction, it may
become necessary for PathNet or various vendors to store equipment and materials
at the Facilities. Texaco shall assist by storing and staging materials, and it
may not impose any fees related to such storage. PathNet shall provide detailed
ship and delivery schedules at least two (2) weeks prior to receipt of equipment
and materials.
3.3.5 SECURITY. PathNet and Texaco shall be responsible for security
during the construction period. The standards for security shall be those that
Texaco regularly employs at its Facilities.
3.3.6 SITE INSPECTORS AND DELAY. During System installation, PathNet,
its employees, agents and vendors, may perform site inspection services at any
hour on any day, with reasonable assistance to be provided by Texaco to gain
access. If installation becomes disrupted due to labor unrest or strike,
PathNet reserves the right to replace its contractor and employees.
3.3.7 PROOF OF LICENSED CONTRACTORS. During installation, PathNet or
Texaco may require, from time to time, proof of licensing and certification of
insurance and compliance with
35
federal, state or local health and safety requirements for contractors
performing construction related services, as set forth on SCHEDULE N --
INSURANCE, SCHEDULE P -- EQUAL EMPLOYMENT OPPORTUNITY POLICY, SCHEDULE Q --
PATHNET SAFETY MANAGEMENT, and SCHEDULE R -- SUBSTANCE ABUSE POLICY, attached
hereto.
3.3.8 SYSTEM OUTAGES. The parties agree to make their best
efforts to avoid unscheduled outages.
3.4 OWNERSHIP OF REPLACEMENT MICROWAVE FACILITIES
3.4.1 RADIO EQUIPMENT AND OTHER ITEMS. Ownership of radios, shelters,
components and related equipment shall be as in accordance with Schedule E,
which separately lists the microwave assets of Texaco and PathNet. All the
related equipment previously owned and/or paid for by Texaco for use in the
System shall be owned by Texaco. All radio equipment and antennas to be
purchased and installed by PathNet shall initially be owned by PathNet and later
transferred to Texaco, in accordance with the terms of this Agreement. With
respect to the System to be installed, PathNet shall pay for and own all newly
purchased radio equipment and multiplexing equipment to the DS-1 level,
antennas, waveguides and other System components. Once equipment necessary to
create and/or increase the System has been installed, this equipment will be
titled to and owned by PathNet. For maintenance and ownership purposes, a list
of equipment at each Facility in the form set forth in Schedule E, attached
hereto, shall be maintained by PathNet and by Texaco, with one copy maintained
at the Facility. The Schedule shall be counter-signed by both parties to this
Agreement and periodically updated as new equipment is added. PathNet will take
title to all upgraded equipment added to the System. All existing common
equipment shall remain the property of Texaco. All newly installed common
equipment paid for by PathNet, such as waveguides and antennas, initially shall
be owned by
36
PathNet, until such time as the antennas and waveguides are fully depreciated in
accordance with generally accepted principles of accounting. Once installed and
cutover, the Initial System shall be transferred to Texaco at its election,
after a period of five (5) years for a sum not to exceed one dollar.
3.4.2 CAPACITY AGGREGATION. During the construction of PathNet's
network, it will be necessary to aggregate the Excess Capacity of each party
into a network. PathNet shall own all equipment necessary for the aggregation
and/or integration of Texaco's capacity to (a) PathNet's network comprised of
telecommunications Excess Capacity supplied by other participants in the PathNet
program, and (b) to the PSTN.
3.4.3 ADDITIONAL EQUIPMENT INSTALLATION, APPROVAL AND NETWORK LINKING.
Any proposed modification and/or installation of additional telecommunications
equipment not appearing on Schedule E shall be subject to the prior approval of
Texaco, which shall not be unreasonably withheld. The direct and indirect costs
of installing any additional equipment shall be borne solely by PathNet.
PathNet shall retain ownership of the linking facilities.
3.4.4 INTERCONNECTIONS. PathNet may create up to four (4)
interconnections per LATA. Two of such interconnections shall be to other
segments of the PathNet network created from facilities of other parties. The
two additional interconnections shall be to publicly switched telephone networks
(PSTN). At each interconnection Facility, PathNet may place up to two (2)
additional antennas at PathNet's cost, but solely for such interconnection
purposes. Those interconnections may be by microwave or other media. PathNet's
interconnection rights shall not be construed as a grant of rights-of-way to
PathNet along any pipeline and PathNet must obtain its own rights-of-way to
reach any Facility. PathNet has the right to co-locate the equipment necessary
to support such interconnections, pursuant to Schedule E, attached hereto.
37
If spurs are developed by PathNet, the interconnections at such spurs shall be
specified on Schedule S, approved by Texaco, and paid for by PathNet.
Conversely, if spurs are to be developed by Texaco at its own costs for its own
connectivity purposes, interconnections at such spurs shall be specified on
Schedule S, and paid for by Texaco. Coordination with PathNet will be as
specified in Section 1.3.9.
3.4.5 INTERCONNECTION PLACEMENT AND REVENUE. PathNet shall determine
the placement of and install connecting facilities from the System to the
existing PSTN at locations to be determined by PathNet's potential customers.
PathNet will connect the System to existing POP's to be determined by PathNet's
potential carrier customers or by PathNet. PathNet or its customers will be
responsible for the facilities necessary to connect the designated POP's to the
network. The ownership of these other facilities and the revenues they may
generate will be the sole property of PathNet or its customers. PathNet will
provide Texaco up to [* * *] at such Facilities without charge to
Texaco and those channels, which include DS-1 level access, will be allowed to
pass along PathNet's section of the network. PathNet may transfer its authority
to construct additional facilities for links between its system created at the
Facilities and POP's to PathNet's customers. Any fees or charges related to the
interconnection of the PathNet network or capacity created on the System to the
PSTN shall be the sole responsibility of PathNet or its customers. PathNet may
charge its customers fees, tariffs or costs for the connection to the PSTN.
Texaco shall not be responsible for payments of any fees or costs related to the
interconnection to the PSTN.
3.4.6 SELLING PRICES FOR EXCESS CAPACITY. In establishing its selling
price for Excess Capacity, PathNet's goal shall be to maximize revenue on
PathNet's entire network, not to maximize revenue merely on a specific microwave
segment or path. Accordingly, PathNet
38
reserves the exclusive right to sell Excess Capacity at prices it shall
determine appropriate on specific routes for sale to its customers, which prices
may be below or above current competitive market pricing. Selling prices
proposed as part of this aggregation, if required, will be submitted and filed
by PathNet with the appropriate regulatory authority. The price for Excess
Capacity that is charged on Texaco's portion of the sold route will be identical
to that of other participants who are sharing in the proceeds from the
particular sale of a marketable route. Texaco agrees to participate in the path
aggregations for which PathNet has determined, in its sole discretion, the per
circuit mile selling price. PathNet reserves the right to package the Excess
Capacity in sales increments of DS-1's, DS-3's or OC-3's. The price schedule
for various capacities that PathNet will charge its IXC customers from the
Segment will be fully disclosed to Texaco. PathNet will reserve the right to
modify its offerings as far as bandwidth allocation and channelization, if
market conditions indicate that different segmentation will result in higher
aggregate revenues for Excess Capacity on the PathNet network.
3.4.7 SALES TO OTHER TEXACO ENTITIES AND END USERS. Texaco may market
excess digital telecommunications capacity, from its allocated channels on the
Initial System installed by PathNet to other Texaco affiliated companies,
divisions, pipelines and operating units and other oil and gas or energy related
service companies for their own use. Texaco shall not operate parallel
microwave telecommunications facilities to those set forth in Schedule B,
attached hereto, for the purpose of selling digital circuits. PathNet shall
exclusively market all other capacity to entities unaffiliated with Texaco. Any
contact between a prospective PathNet customer and Texaco shall be promptly
referred by Texaco to PathNet's marketing department. If Texaco is successful
in locating such a new customer for PathNet's portion of the Excess Capacity
created at Texaco Facilities, and PathNet concludes a sale to that buyer, Texaco
shall
39
receive [* * *] to be negotiated by PathNet and Texaco, which shall not
exceed [* * *] of the revenue received from the sale of this capacity, in
addition to the other revenues outlined in this Agreement. PathNet or Texaco
may also facilitate the barter of Excess Capacity between parties
participating in the PathNet program. In addition, PathNet may facilitate
the creation of network loops or rings to enhance network reliability.
PathNet will not charge Texaco for providing any such network arrangements.
PathNet will not and cannot require any Participant in its program to enter
into any barter arrangement for its internally allocated telecommunications
capacity. Barter agreements will be entered into only if agreeable to
Texaco. PathNet and/or Texaco shall derive no fee from facilitating such
barter arrangements.
3.4.8 INTEGRITY AND SEGREGATION OF CAPACITY. PathNet shall ensure that
PathNet's and Texaco's telecommunications capacities shall be segregated from
the common carrier traffic that will pass through PathNet's network. PathNet
shall provide security for data or voice transmissions via TDMA standard
multiplexing and shall maintain Stratum One Clocking via signals provided by the
PSTN or shall maintain internal Stratum Three Clocking VIA oscillator standards
provided internally by the System or GPS signal. PathNet, at any time, will
have the right to perform frame slippage studies on its entire microwave network
to ensure data and voice integrity. The data and voice transmissions which
PathNet and Texaco will send through the new microwave facilities shall comply
with all FCC regulations and will not jeopardize the ability to continue to
operate as a Part 21 Common Carrier.
3.4.9 INTERCONNECTION TO NETWORK. PathNet shall provide the
interconnection capacity for the System to various networks no more than
twenty-four (24) months after completion of the installation of the System on
paths that have marketable value. These interconnections shall be
40
owned and funded by PathNet. PathNet will be responsible for all filings,
licenses, fees and taxes related to these interconnections.
3.4.10 RECOMMENDED EQUIPMENT. Subject to consultation with Texaco and
its approval, which shall not be unreasonably withheld, PathNet, at its own
cost, or its agents shall be permitted to modify its equipment from time to time
as new versions may become available from manufacturers or software providers.
4. NETWORK MANAGEMENT AND ADMINISTRATION
4.1 NETWORK MANAGEMENT NETWORK MANAGEMENT
4.1.1 NETWORK MANAGEMENT RESPONSIBILITIES. PathNet shall have the sole
responsibility for performing total network management. PathNet shall provide
at its expense, for Texaco's use, a regional network management system. PathNet
shall maintain a national network management center. Notwithstanding what
network management strategies shall be employed, PathNet shall provide the tools
(i.e., remote units and computers) to enable Texaco to collect data and observe
its operating network. PathNet shall provide the people and procedures to
identify any network or System problems and direct maintenance activities to
promptly correct network or System problems. The minimal level of network
management acceptable to and provided by PathNet and Texaco, in connection with
their respective networks, is set forth on SCHEDULE U -- MINIMAL LEVEL OF
ACCEPTABLE NETWORK MANAGEMENT, attached hereto.
4.1.2 CONTRACTING FOR NETWORK MANAGEMENT. PathNet reserves the right
to out-source or contract its network management duties to an independent
third-party contractor. PathNet reserves the right to allow its customers to
contract independently for network management services over the portions of
PathNet's network which these customers have under contract. Texaco may not
unreasonably withhold the consent for PathNet or its agents to access
41
PathNet's and Texaco's equipment for purposes of operating or maintaining the
PathNet network. Texaco may not charge additional site fees or rentals for any
network monitoring equipment that PathNet deems necessary. The adequacy of the
network management systems shall be measured in relation to the minimum network
performance standards as set forth on Schedule O. PathNet shall ensure that
these systems, at a minimum, comply with the published equipment vendors'
specifications. PathNet's network monitoring capabilities shall provide the
ability for Texaco to: 1) monitor its own portion of the network separately
from the overall PathNet Network, and 2) maintain tower lights, Facility power,
environmental conditions and other network connected devices.
4.1.3 NETWORK MANAGEMENT DEVICES. For the purposes of network
management, PathNet retains the right to add to Texaco's existing facilities,
software or mechanisms that it deems necessary to allow it to perform network
management services. The network management system shall provide for site alarm
monitoring for a maximum number of external inputs and controls, as defined in
Schedule U. These devices will be defined during the design phase and provided
to Texaco in writing. At all times, such devices, with the exception of the
common network interface card, shall remain the exclusive property of PathNet.
4.1.4 COMPLIANCE WITH LAWS. PathNet's network monitoring will comply
with all state, local and federal regulations concerning network security.
4.2 MARKETING
4.2.1 MARKETING RIGHTS AND ASSIGNABLE CONTRACT RESPONSIBILITIES. In
its marketing efforts, PathNet reserves the right to market under its name, or
any other trade name which it owns, except as set forth in Section 4.2.2,
herein. The assignment of its rights of exclusive marketing of excess
long-distance capacity shall be allowed under this Agreement and shall only be
42
prohibited if the transference of these rights violates FCC or other Federal or
state laws and regulations. If PathNet transfers or assigns its right(s) to
sell Excess Capacity, all other terms and conditions stated in this contract
shall remain binding on PathNet, its successors and assigns. In the
establishment of its sales effort, PathNet reserves its rights to market and
advertise its services in any and all media it deems fit. The choice of
publications in which to advertise shall solely be that of PathNet.
4.2.2 MARKETING AND ADVERTISING RESTRICTIONS. PathNet shall not use
any trademark or trade name of Texaco, its parents, affiliates or subsidiaries
for purposes of marketing the Excess Capacity created.
4.2.3 CUSTOMER AGREEMENTS. The terms of the agreements between PathNet
and its various customers shall be disclosed by PathNet to Texaco as they relate
to traffic on the System. The term of these agreements will inevitably vary and
will have no fixed minimum time commitments. If the agreements with PathNet's
customers require modifications to PathNet's network or specific installation
requirements, at PathNet's sole discretion, these costs may be passed on to the
customers and will be made at no cost to Texaco. The reimbursement for these
fixed one-time costs shall be direct, and any revenues, other than compensation
for direct and indirect costs related to these network modifications,
installation requirements or connection fees, shall be the property of PathNet.
All costs involved in marketing bandwidth shall be borne by PathNet.
4.2.4 IXC AND CUSTOMER SALES AGREEMENTS. The sales agreements between
PathNet and its interexchange carrier and other customers will clearly identify
the paths or the segments of the affected participants along which the capacity
being sold travels. If IXC and customer
43
sales agreements and supporting documents require the written approval of Texaco
as a condition of sale, Texaco's approval shall not be unreasonably withheld.
4.2.5 METERING AND LIABILITY TO IXC'SMETERING AND LIABILITY TO IXC'S.
PathNet's long-distance communications sales contracts shall be based on flat
monthly rates and shall not be usage sensitive. Any usage-sensitive agreement
which PathNet enters into shall require the inter-exchange carrier to provide
for the necessary metering and a mechanism to ensure that this metering is both
fair and accurate. Any costs related to the verification of metered readings
will be incurred by PathNet and transferred to the affected inter-exchange
customer. Performance criteria related to network design shall be integrated
into PathNet's marketing efforts and contractual relationships with
inter-exchange customers.
4.2.6 REASONABLE EFFORTS - MARKETING. PathNet will use commercially
reasonable efforts to produce, market and sell any excess long-distance capacity
created under the PathNet program. PathNet shall seek the sale of aggregated
long-distance capacity under the best terms commercially obtainable at the time.
As part of such efforts, but without limitation, PathNet will dedicate its
resources and perform the promotional and marketing tasks necessary to obtain
the best available price at the time for the sale of such long-distance capacity
consistent with the goals of PathNet and Texaco, as set forth in this Agreement.
4.3 REVENUE COLLECTION AND DISBURSEMENT
4.3.1 BOOKS AND RECORDS. PathNet shall maintain and keep detailed and
accurate books and records with regard to sales and revenues and the calculation
thereof. Texaco, or its representatives (who shall be reasonably acceptable to
PathNet), shall be entitled to review and audit such books and records, from
time to time, during normal business hours, upon reasonable notice to PathNet,
and at Texaco's expense, provided that PathNet will bear any such expense if
44
the review or audit reveals an underpayment of more than five percent (5%) for
the applicable period has occurred.
4.3.2 QUARTERLY STATEMENTS OF ACCOUNT. PathNet shall issue quarterly
Statements of Account to Texaco within thirty (30) days of the end of each
calendar quarter. The reports shall set forth the revenues computed pursuant to
SCHEDULE H - PAYMENT SCHEDULE and the method of allocating revenues to Texaco
during that quarter.
4.3.3 STATEMENT OF ACCOUNT. PathNet shall make payments due and
payable thirty (30) days from the date PathNet's Statement of Account is issued
to Texaco. The Quarterly Statement of Account, which shall accompany
disbursements, is an unaudited statement produced by PathNet. It shall reflect
the number of path miles of the System built out by PathNet and the excess
long-distance capacity marketed and sold in the aggregate resale market during
each quarterly period, for which payment has been received by PathNet, as
calculated based upon the number of path miles furnished by Texaco in
relationship to the total PathNet network.
4.3.4 PAYMENTS TO TEXACO. PathNet will invoice each of its IXC
customers prior to the commencement of their lease periods for
telecommunications facilities on the PathNet network. These agreements may
typically be monthly, but under certain conditions, may either be quarterly,
semi-annual, annual, or for multi-year periods. PathNet shall make payment to
Texaco for its portion of revenue actually received from the sale of PathNet's
long-distance capacity along paths that use the System. Payments shall be made
in accordance with the other terms of this Agreement and shall be based upon
rates charged for the path miles of the Segment, divided by the network path
miles assembled by PathNet. PathNet's disbursements to Texaco will be
transmitted electronically or by wire transfer, as to be determined and
specified in writing by Texaco, with all account information necessary to
complete payment, as set forth in SCHEDULE V --
45
TEXACO PAYMENT INSTRUCTIONS, attached hereto, which may, from time to time, be
freely amended by Texaco without the approval of PathNet. Upon receipt of
payment from an inter-exchange carrier, PathNet shall disburse revenues no later
than fifteen (15) days following the close of business of the month in which
these revenues were received. Interest, if earned on collected but
undistributed revenues, will be the property of Texaco, and shall be distributed
to Texaco at the time of the next payment. Distribution of revenues for the
portion of PathNet's network that is owned entirely by PathNet shall occur at
the same time that PathNet distributes revenue to Texaco.
4.3.5 ANNUAL AUDIT. All xxxxxxxx and revenue collections will be
subject to an annual certified audit by an independent, nationally recognized
accounting firm selected by PathNet, admitted to practice in all fifty states.
This audit shall be conducted in accordance with generally accepted auditing
standards. The results of this audit will be made available to Texaco no later
than 30 days from the conclusion of the audit findings. PathNet shall not be
responsible for any material breaches or misrepresentations that may occur
through the negligence of outside auditors. PathNet will make its own records
available at its principal business office for inspection by Texaco, upon
written request, received at least after ten (10) business days before such
planned inspection, provided the inspection of these records does not violate
any agreements of confidentiality between PathNet and other participants.
4.3.6 PATHNET'S CORPORATE STATEMENTS.
PathNet's corporate income statements, balance sheets and other forms of general
corporate reporting shall be the sole property of PathNet and shall not be
subject to examination by Texaco. Texaco shall have the right to examine during
an annual audit all other documents which contain information related to the
revenue due to Texaco under the terms of this Agreement. Any disclosure of
PathNet's revenue
46
collections and its disbursements to Texaco shall be strictly confidential and
subject to the terms of the Non-Disclosure Agreement attached hereto as SCHEDULE
W -- NON-DISCLOSURE AGREEMENT.
4.3.7 TEXACO'S ASSIGNEES OF REVENUES. Texaco will have the right to
designate other entities to receive its disbursements. The disbursements issued
by PathNet shall not relieve Texaco of any tax liability resulting from its
receipt of these revenues.
4.3.8 REVENUE NOT GUARANTEED. PathNet does not guarantee any revenue
disbursements. PathNet does not promise or warrant its ability to sell
telecommunications capacity. In the event a dispute arises between PathNet and
Texaco, any disbursements affected by this dispute will be placed in escrow in a
segregated, interest-bearing bank account to be held by PathNet and Texaco. The
signatures of an authorized representative of Texaco and PathNet shall both be
required for disbursement of the escrow monies until such time as the dispute is
resolved pursuant to the terms of Schedule L of this Agreement. Upon resolution
of dispute, the escrow amounts shall promptly be disbursed.
4.3.9 PATHNET COSTS. Any costs PathNet incurs as a result of this
Agreement shall be the sole responsibility of PathNet. It shall not be implied
that Texaco is responsible for such costs.
5. MISCELLANEOUS PROVISIONS
5.1 GENERAL PROVISIONS
5.1.1 RESOLUTION OF DISPUTES. Any dispute arising under this Agreement
pertaining to revenue collection and/or disbursement, shall be subject to
resolution under Schedule L.
47
5.1.2 NO RIGHT TO TERMINATE. Disputes arising under this article of
the Agreement do not give either party the right to terminate this Agreement.
This Agreement is fully binding upon the parties, their heirs and assigns for
the duration of this Agreement as set forth herein.
5.1.3 RECORDATION. This Agreement may be subject to recordation in any
of the affected localities by either party. The costs, fees or expenses
associated with this recordation shall be the sole expense of the recording
party and recordation does not obligate the other party to this Agreement to pay
a portion of recordation of such expenses.
5.1.4 SUCCESSORS AND ASSIGNSSUCCESSORS AND ASSIGNS. Texaco and PathNet
respectively bind themselves, their partners, successors, assigns and legal
representatives to the other party hereto and to partners, successors, assigns
and legal representatives of such other party in respect to covenants,
agreements and obligations contained in this Agreement and attachments thereto.
Neither party to this Agreement shall assign the Agreement in whole or in part
(except as set forth below) without written consent of the other, which shall
not be unreasonably withheld. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under this Agreement. The rights and
obligations of the parties under this Agreement may not be assigned or
transferred except: (i) the right to payment of money may be assigned, (ii)
PathNet or Texaco may subcontract work, and (iii) this Agreement and the rights
and obligations hereunder may be assigned to an acquirer of all or substantially
all the assets, business or stock of a party. If PathNet sells or assigns the
radio equipment that it has assembled into a network which it owns, the proceeds
from such sale or assignment shall be the sole property of PathNet and Texaco
shall have no claim to a portion of the proceeds. If Texaco sells or in any way
assigns the asset(s) owned by Texaco, the proceeds from such sale or assignment
shall be the sole property of Texaco and PathNet shall have no
48
claim to a portion of such proceeds. If Texaco sells, leases, or assigns the
underlying Texaco asset(s) which support the microwave paths that are a basis of
this Agreement, this Agreement shall survive such transfer or assignment.
5.1.5 FINANCING AGREEMENTS. PathNet shall ensure that the provision
set forth in Section 1.3.12 will be included in the financing agreement and
credit term sheet for the Initial System. Texaco shall have review rights and
receive a copy of each credit term sheet and financing agreement entered into
between PathNet and any other entity as it relates to the financing of the
1 x 1 Initial System, as set forth in Schedule E, attached hereto. A copy of
any vendor credit term sheets shall be submitted to Texaco within sixty (60)
days after execution of this Agreement. A copy of any vendor financing
agreement shall be provided to Texaco within ten (10) days of its execution.
5.2 ASSURANCES OF PATHNET'S PERFORMANCE
5.2.1 ASSURANCES AND ESCROW. Pursuant to the terms of this Agreement,
PathNet, during the Build-Out Period, has responsibility for the payment of
certain equipment and services. Specifically, PathNet shall pay for the
equipment, (OC-3 multiplexing, the digital high-capacity radios, the antennas
and waveguide, ancillary miscellaneous equipment and material), and for the
installation to be performed at the Facilities. To assure performance of
PathNet's payment responsibilities, within sixty (60) days of execution of this
Agreement, PathNet shall provide a combination of vendor credit assurances, an
escrow agreement acceptable to Texaco, to be executed by Texaco and PathNet, and
at PathNet's sole option, a letter of credit. The assurances, escrow agreement,
and/or letter of credit shall establish and confirm that:
a. For radios, multiplexing equipment, antennas, waveguide and
miscellaneous equipment to be provided pursuant to the terms of this Agreement,
this equipment shall be
49
delivered free and clear of liens and encumbrances to the Texaco Facilities and
shall remain free and clear of all liens and encumbrances for the life of this
Agreement. PathNet may secure payment to the manufacturer for the radios from
revenues PathNet may receive pursuant to the terms of this Agreement. This
Agreement itself will become the radio manufacturer's collateral. In the event
any cash deposits are required for equipment to be ordered, PathNet shall either
furnish proof of payment of such deposit or, pursuant to the terms of the escrow
agreement, place in an interest bearing escrow account the amount of any deposit
required by a manufacturer as a precondition to the manufacturer's acceptance of
a purchase order from PathNet. In accordance with the terms of the escrow
agreement and in the absence of default by PathNet of its payment
responsibilities, any interest earned on funds placed in an escrow account shall
be PathNet's property.
b. To assure performance of the installation services to be provided
by PathNet, pursuant to the terms of an escrow agreement to be entered into
between Texaco and PathNet, PathNet shall deposit funds in an interest-bearing
escrow account within sixty (60) days of execution of this Agreement. The
amount deposited shall be equal to the cost of design and installation work, as
estimated by PathNet and agreed to by Texaco.
5.2.2 DEFAULT BY PATHNET. In the event that PathNet defaults on or
fails to timely meet its payment responsibilities in connection with the
equipment or installation of the Initial System within sixty (60) days of such
default event, the assurances, escrow agreement, and/or letter of credit shall
provide that Texaco would be disbursed funds in appropriate amounts, and any
interest earned on such funds.
5.2.3 TERMINATION OF ASSURANCES. The requirement for the assurances,
escrow, and/or letter of credit shall end with the formal commissioning of the
Initial System.
50
5.2.4 INSURANCE. During all phases of the Project, PathNet shall
purchase and maintain adequate insurance against loss or theft during the
installation period and PathNet shall bear the risk of such loss or theft and
such other insurance, as set forth on Schedule N.
5.2.5 INSURANCE REQUIRED OF TEXACO. 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.
5.2.6 PAYMENT SCHEDULE. The payment schedule for all radio and other
equipment to be purchased in connection with the Initial Build-Out or for any
and all Capacity Expansion is set forth on SCHEDULE H -- PAYMENT SCHEDULE,
attached hereto. This schedule includes commercial terms for payment of net
thirty (30) days and interest at 1% per month on outstanding balances. Any
departures from the payment schedule made by either party must be promptly
brought to the attention of the other party.
5.3 JOINT AND MUTUAL CONFIDENTIALITY PROVISION
PathNet and Texaco have entered into a Non-Disclosure Agreement, attached
hereto as Schedule W, which permits for joint and mutual confidentiality, in
connection with the program and project to be undertaken. This Non-Disclosure
Agreement, which shall govern the responsibilities of the parties to each other
in connection with the disclosure of information, is made a part of this
Agreement. Texaco shall be permitted to distribute the results of any
performance tests to other Texaco units. PathNet, in its sole discretion, may
elect to distribute these results to other companies who allow PathNet to use
their microwave infrastructure to create and market Expansion Capacity from
their systems and the System at Texaco's Facilities. The results of any
performance tests may be made available by PathNet to its customers.
51
5.4 REMEDIES FOR BREACH
5.4.1 NOTICE OF BREACH. All events of breach or disputes by either
PathNet or Texaco shall necessitate a written notice of breach to be delivered
by certified mail to the principal office of the other party. Each notice of
breach shall include specific allegations of breach.
5.4.2 CURE OF BREACH BY PATHNET OR TEXACO. The party receiving a
notice of breach shall have thirty (30) days to cure the breach. In the event
the breach is not cured, the dispute resolution procedures of this Agreement may
be invoked.
5.4.3 NO TERMINATION RIGHTS. Neither Texaco nor PathNet unilaterally
has the right to terminate this Agreement or otherwise alter the relationship of
the parties hereto, except as noted in Section 2.1.2. The only remedies
available to a party for breach are those set forth in Schedule L of this
Agreement.
5.4.4 SURVIVAL. All representations, warranties, covenants, conditions
and agreements contained herein which either are expressed as surviving the
expiration or termination of this contract or, by their nature, are to be
performed or observed, in whole or in part, after the termination or expiration
of this contract, including (without limitation) the warranty and indemnity
provisions, shall survive the termination or expiration of this contract. Any
accrued rights to payment and any remedies for breach of this Agreement shall
survive termination.
5.5 USAGE
The usage herein of singular terms shall include the plural and use of the
masculine, feminine or neuter genders shall include all others.
52
5.6 WAIVER
PathNet or Texaco's failure to object to any statement, invoice, billing or
distribution by any party within a period of four (4) years after receipt
thereof shall constitute that party's acquiescence with respect thereto and
shall render such statement, invoice, billing or distribution and deemed
accepted. Any other waivers to any term or condition of this Agreement must be
executed by the parties in writing.
5.7 FORCE MAJEURE EVENT
Neither party hereto shall be responsible for any failure to perform its
obligations (other than an obligation to pay money) under this Agreement if such
failure is caused by acts of God, war, strikes, revolutions, lack or failure of
transportation facilities, laws or governmental regulations or other causes
which are beyond the reasonable control of such party ("Force Majeure Event").
Obligations hereunder, however, shall in no event be excused, but shall be
suspended only until the cessation of any cause of such Force Majeure Event. If
such Force Majeure Event should obstruct performance of this Agreement for more
than six (6) months, the parties hereto shall consult with each other to
determine whether this Agreement should be modified. The party facing a Force
Majeure Event shall use its best endeavors in order to remedy that situation, as
well as to minimize its effects. A party suspending performance due to a Force
Majeure event shall notify the other party in writing within five (5) days after
such suspension commences. If either party hereto shall be delayed or hindered
in, or prevented from the performance of any act required hereunder by Force
Majeure Event, then the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
53
5.8 EXTENT AND MODIFICATION OF AGREEMENT EXTENT AND MODIFICATION OF AGREEMENT
This Agreement, the Schedules A through X and other documents incorporated
herein by reference, represent the entire agreement between Texaco and PathNet
and supersede all prior negotiations, representations or agreements, either
written or oral. This Agreement may be amended only by written instrument
signed by both Texaco and PathNet. Unless otherwise specified, any
inconsistency between the contents of a document incorporated by reference and
made a part of this Agreement and the terms of this Agreement shall be resolved
in favor of the terms of this Agreement.
5.9 INDEPENDENT INVESTIGATION
The parties acknowledge that they have independently investigated the
potential for the success of PathNet's ability to create, aggregate and sell
Excess Capacity and have not relied upon any inducements or representations of
the other party or its agents, other than those contained in this Agreement.
5.10 NO DISCRIMINATION
It is intended that both parties intend to subscribe or offer to all
customers, employees, licensees, and invitees the opportunity to obtain all the
goods, services, accommodations, advantages, facilities and privileges without
discrimination because of race, creed, color, sex, age, national origin or
ancestry, in accordance with the EEO Statement attached hereto as Schedule P,
and all federal, state, and local laws.
5.11 NOTICES
All notices pertaining to disputes arising from this Agreement shall be
directed to a corporate entity or employee designated by the signators as having
full rights and responsibilities to address such issues. Notices under this
Agreement shall be sufficient only if personally
54
delivered by a commercial prepaid delivery or courier service, or mailed by
certified or registered mail, return receipt requested, to a party at its
address set forth in the signature block below, or as amended by notice,
pursuant to this subsection. If not received sooner, notice by mail shall be
deemed received five (5) days after deposit with the courier or in the U.S.
mail. All notices shall be delivered as follows:
If to PathNet:
Xxxxxxx X. Xxxxx, Esquire
Vice President and General Counsel
PathNet, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
If to Texaco:
Mr. H. Xxxx Xxxx
Manager of Telecommunications
Texaco Pipeline Inc.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
5.12 UNENFORCEABILITY
In the event that any provision of this Agreement shall be determined to be
illegal or unenforceable, that provision will be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
5.13 COST AND FEES
In any action or proceeding to enforce rights under this Agreement, the
prevailing party shall be entitled to recover reasonable costs and reasonable
attorney's fees.
55
5.14 HEADINGS
Headings herein are for convenience or reference only and shall in no way
affect interpretation of the Agreement.
5.15 INCIDENTAL AND CONSEQUENTIAL DAMAGES
NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH
RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT.
5.16 WARRANTY AND DISCLAIMER
PathNet warrants: (i) that the work under this Agreement will be performed
in a workmanlike manner, and (ii) that it has and will obtain agreements with
and promptly pay its employees and contractors sufficiently to allow it to
provide Texaco with the services contemplated by this Agreement. OTHERWISE,
EXCEPT AS EXPRESSLY PROVIDED HEREIN, PATHNET AND TEXACO MAKE NO WARRANTY WITH
RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF
THIS AGREEMENT AND HEREBY DISCLAIMS WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY AND ALL OF THE FOREGOING.
5.17 INDEMNITY AND LIMITATIONS OF OBLIGATIONS AND LIABILITY
The parties agree to limit their respective obligations and
liabilities as set forth in SCHEDULE X -- INDEMNITY AND LIMITATIONS OF
OBLIGATIONS AND LIABILITY, which like any other Schedule attached hereto is an
integral part of this Agreement.
56
5.18 AMENDMENT AND WAIVER
Except as otherwise expressly provided herein, any provision of this
Agreement may be waived (either generally or in any particular instance, and
either retroactively or prospectively) only with the written consent of the
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be executed by a duly authorized officer, as of the
date first written above.
WITNESS: PATHNET, INC.
/s/ Xxxxxxx X. Xxxxxx 6/2/97 By: /s/ Xxxx Xxxxxxxxx
----------------------------- -----------------------------
Name: Xxxx Xxxxxxxxx
Title: President
WITNESS: TEXACO PIPELINE INC.
/s/ H D Xxxx 5/21/97 By: X. X. Xxxxxxxxx
------------------------------ -----------------------------
Name:_______________________
Title: President
/s/ H D Xxxx
FORM APPROVED
BLM
--------------
57
SCHEDULE A
GLOSSARY
1 x 1 A microwave radio configuration consisting of a primary
and a standby radio.
6 GHz Licenses: 6 GHz licenses may be obtained either under FCC Part 21
or Part 94 regulations. The 6 GHz license may be
obtained in either 10 MHz spectrum bandwidth or 30 MHz
spectrum band width.
Affiliate: An entity directly or indirectly controlling, controlled
by or under common control with that party; provided
that such entity shall be considered an Affiliate only
for the time during which such control exists.
Agreement: The Agreement to create and manage a high capacity
telecommunications system, to which this Schedule A
is attached.
Arbitration: Arbitration as described in Article 16.
Build-Out Period The period of time during which the System is installed
between final design approval and final testing and
acceptance.
Capacity Expansion The increase in telecommunication channels a System is
able to transmit, receive and transport above those
created by the installation of the Initial System,
achieved by an addition to or change in equipment.
Commissioning/ The date on which the proposed System is fully
Commissioned: operational, has undergone site acceptance testing and
circuits are available for service.
Company: Participants agent, designated by participant. Company
coordinates the activities of the consultants,
contractors, subcontractors, engineers, and all aspects
of the transition management project which is the
subject of this Agreement.
1
Contractor: PathNet, Inc., a Delaware corporation, which is
responsible for the execution of the work described
in this Agreement and contracted by participant.
Disclosing Party: A party hereto that discloses its Proprietary
Information to the other party.
DS-0: A 64-Kilobyte per second channel equivalent to a
single voice or data channel.
DS-1: 24 DS-0's.
DS-3: 672 DS-0's.
Drop and Insert: The characteristic and ability of telephone circuits
to be readily added at intermediate points along a
network.
Engineer: The person, firm, or corporation that may prepare any
and all drawings and specifications.
Excess Capacity: The telecommunications channels that a System is able to
create, transport and receive, less those allocated by
PathNet as a lease payment to Texaco.
ET: Emerging technologies including new uses of spectrum
between 1850 MHz - 2200 MHz.
FAA: Federal Aviation Administration.
Facilities: Texaco's towers, buildings and sites used for the
purpose of operating a microwave communications system
listed on Schedule B to this Agreement.
FCC: Federal Communications Commission.
FCC Auction: The process under which the FCC is going to allocate
broad band PCS licenses in a given market.
FCC Part 94: Private carrier regulations for fixed point-to-point
microwave transmissions. These transmissions may not be
resold on a common carrier basis.
FCC Part 21/101: Common carrier regulations for fixed point-to-point
microwave transmissions allowing for the sale of
capacity to other common carriers or allowing for the
sale of capacity to other common carriers or end users.
2
Frequency Diversity: A method of ensuring continuous transmission services
by using multiple frequencies to protect against any
degradation of signal in a given path.
GPS: Global positioning satellite.
Initial Build-Out The period of time during which the installation of a
1 x 1 or larger System is first installed and put into
operation, before an Expansion of Capacity occurs.
Initial System: A System with a 1 x 1 configuration that is installed
at the Facilities.
Initial Term: The first five (5) years of the relationship of
Texaco and PathNet following commissioning.
Interconnection: The point at which a private network is connected to the
publicly switched telephone network (PSTN). It can
include IXC points of presence (POPs), tandem access
points, the central office, internet service providers
or major industrial customer points of presence.
Interconnection can be microwave or other media.
IXC: An Inter-exchange carrier. An IXC is an FCC licensed
common carrier which purchases telephone capacity and
resells that capacity to an end-user. (AT&T, MCI,
Sprint, LCI and Frontier are examples of leading
IXC's).
LATA: A geographic area defined by the FCC as a Local
Access and Transport Area.
Maintenance: The ongoing repair and prevention of repair of all
equipment necessary for the system to operate including
towers, antenna, radio, waveguides, combiners, and any
other software or hardware necessary for the intended
equipment to operate at its rated performance level.
Marketable Route: The route between two geographic points on a
telecommunications network for which PathNet agrees
to provide capacity to a third party.
3
New Customer: A Customer to whom PathNet has not previously sold
telecommunications capacity who is purchasing or has
agreed to purchase Excess Capacity derived from a
System.
Net Sales: Revenues actually received, obtained, or retained from
the sale of long-distance telecommunications excess
capacity, use or other disposition of such capacity for
participant on a per path mile basis, less sales, use
and excise taxes and reasonable costs incurred in
earning revenues.
Order Wire: A service channel consisting of a 64 kb/sec circuit
between sites.
Participant: A licensee currently operating a 2 GHz and/or 6 GHz,
point-to-point, microwave system with a primary license
from the FCC and authorized to operate in the affected
bands before January 6, 1992. This would include Texaco
Pipeline Inc.
Path: The physical spatial separation between point-to-point
towers, housing and microwave antenna.
PathNet PathNet, Inc.
PCN: Prior Coordination Notice.
POP: Point of presence. A physical location where two
disjoint networks connect.
Pre-Commissioned: The date on which an Initial digital System is fully
operational and awaiting cutover of Texaco's existing
channels.
Protection An engineering plan under which channel capacity is
Configuration: protected either on a fully redundant basis or a 1 by n
protection basis in which frequency diverse licenses
will be used to protect n number of other licenses.
PSTN: Publicly Switched Telephone Network.
Rack: The vertical enclosure placed in equipment shelters
that houses electronic equipment. A rack is
approximately 23 inches in width, seven and a half
feet in length and two feet in depth.
4
Receiving Party: A party hereto that receives Proprietary Information
of the other party.
Segment: The portion of a microwave communications network
existing between two geographic points. For purposes
of this Agreement, Segment I is the portion of
Texaco's microwave communications network between
Houston and New Orleans, set forth in Schedule B of
this Agreement. If additional segments are developed,
they will be sequentially numbered and added as an
amendment to Schedule B.
Site: A physical location on which a tower or other structure
is located which houses both microwave antenna, radios
and combing equipment.
SONET: Synchronous Optical Network
Spatial Diversity: The use of multiple antennas to ensure a continuous
transmission path.
Subcontractor: Without limitation, any firm, corporation, or person
working directly or indirectly for the company that
furnishes or performs a portion of the work, labor or
material, according to the transition plan, drawings
and/or specifications.
Switch Section: A System configuration consisting of two back to back
radio terminals and all intermediate repeater sites.
System: High capacity digital SONET microwave radio equipment (6
Hz/30 MHz antenna, waveguide, components, Facilities and
FCC licenses, installed and assembled capable of
transmitting, receiving and transporting
telecommunications signals over the Segment.
TDMA: Time Division Multiplexed Access. A method of
partitioning digital transmissions into unique time
coded frames.
Technology: Inventions (whether or not patentable), ideas,
processes, formulas and know-how executed or utilized by
Transition Manager and/or participant, used by it as of
the date of this Agreement, or hereafter during such
5
portion of the term of this Agreement as Transition
Manager is required to provide services related to
Technology to participant.
Texaco: Texaco Pipeline Inc.
Texaco Budgeted Funds: Texaco's commitment of its capital equal to $1,076,000
from which Texaco shall pay for site and tower upgrades,
related equipment and services to prepare its sites for
receipt of radio.
Texaco Contingency An additional $234,000 budgeted by Texaco as a cap on
Funds: the costs it shall incur to prepare the sites for the
receipt of the equipment that PathNet shall provide
pursuant to the terms of this Agreement. In the event
that the Texaco Budgeted Funds are insufficient to
prepare the sites for the receipt of the supplied radio
equipment and services for installation of the System,
Texaco shall use the Texaco Contingency Fund of
$234,000, as needed, to meet its obligations under this
Agreement.
Transition Phase: The state of transition management for participant
microwave licensees migrating from 2 GHz to 6 GHz or
alternative media that sequentially follows the
system evaluation in the pretransition state. This
phase includes the negotiations, removal and
replacement of existing equipment, construction and
engineering through cutover at all participant
facilities to that point in time when the new
replacement system is substantially complete and
operational.
Wayside Channel(s) Additional telecommunications capacity beyond the OC-3
allocation and SONET overhead bitstream.
6
SCHEDULE B
THE TEXACO SYSTEM
Texaco Segment I extends from T. Heritage Plaza, Texas, to New Orleans,
Louisiana with Facilities at the locations listed below.
TEXACO SEGMENT I
HOUSTON - NEW ORLEANS
FACILITY NAME LATITUDE LONGITUDE
*T. Heritage Plaza 29 45 30 95 22 14
Humble 30 0 29 95 12 46
Liberty 30 2 38 94 47 37
Sour Lake 30 8 58 94 24 47
Vidor 30 6 4 94 0 15
Xxxxxx 30 8 19 93 38 40
Sulphur Station 30 7 24 93 24 10
Holmwood 30 7 13 93 4 14
Lake Xxxxxx 30 4 18 92 43 39
Xxxxxx 30 2 0 92 20 43
Erath 29 53 52 92 4 21
New Iberia 30 1 19 91 49 17
Julien 29 50 48 91 39 5
Horseshoe Bayou 29 33 33 91 31 30
Xxxxxx City 29 41 19 91 10 22
Thibodaux 29 52 5 90 50 10
Xxxxxxx 29 51 27 90 27 9
Xxxxxx 29 53 44 90 4 49
*New Orleans (Poydras Building) 29 56 53 90 4 5
*The two end point sites, Houston and Poydras may change as existing
leases with options may or may not be consistent with the term of this
Agreement. In the event that the lease on an end point terminates before the
term of this Agreement, the parties would mutually agree upon a new end point
location.
1
SCHEDULE C
VALUATION SCHEDULE OF CAPITAL
INVESTMENTS TO BE MADE BY TEXACO
[***] in the form of Facilities' upgrades, including tower analyses and
strengthening where applicable, also known as Texaco Budgeted Funds. If an
additional capital investment is required to conform to the
EIA/TIA-222-F-1991, Structural Standards for Steel Antenna Towers and Antenna
Supporting Structures, 1996, tower specifications, tower repair and other
unforeseen site upgrade costs for installation of the radio system, Texaco
shall invest up to [***] of additional capital for such purposes, also known
as Texaco Contingency Funds. Texaco's maximum capital expenditures for site
improvements is limited to [***]. Any costs for required site improvements,
that would cause Texaco's site improvement budget to exceed [***], shall be
borne and paid for by PathNet.
1
Texaco Schedule D : DS-1 Channel Plan
[CHART DEPICTING CHANNEL PLAN]
[* * *]
Page 1 of 4
Texaco Schedule D : DS-1 Channel Plan
[CHART DEPICTING CHANNEL PLAN]
[* * *]
Page 2 of 4
Texaco Schedule D : DS-1 Channel Plan
[CHART DEPICTING CHANNEL PLAN]
[* * *]
Page 3 of 4
Texaco Schedule D : DS-1 Channel Plan
[CHART DEPICTING CHANNEL PLAN]
[* * *]
Page 4 of 4
SCHEDULE E
OWNERSHIP OF RADIOS, SHELTERS,
SYSTEM COMPONENTS AND RELATED EQUIPMENT
-----------------------------------------------------------------------------------------------
Owned Maintained Date
Subsystem Vendor P.O. # Project # Description By By Installed
-----------------------------------------------------------------------------------------------
Shelter [***]
-----------------------------------------------------------------------------------------------
Tower [***]
-----------------------------------------------------------------------------------------------
D.C. Power System [***]
-----------------------------------------------------------------------------------------------
Generators [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
M/W Antennas [***]
-----------------------------------------------------------------------------------------------
Waveguide [***]
-----------------------------------------------------------------------------------------------
Radio Equipment [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Mux Bay Misc. [***]
Equipment
-----------------------------------------------------------------------------------------------
0C3 Multiplex [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
1/O DXC Multiplex [***]
-----------------------------------------------------------------------------------------------
D/I Multiplex [***]
-----------------------------------------------------------------------------------------------
Other Multiplex [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Misc. Bay [***]
-----------------------------------------------------------------------------------------------
Misc. Bay [***]
Equipment
-----------------------------------------------------------------------------------------------
1
SCHEDULE F
PROJECT MANAGEMENT PLAN
AND PRELIMINARY SCHEDULES
[Attached]
1
Texaco - SCHEDULE F
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
[XXXXX CHART OF SCHEDULE]
SCHEDULE G
MULTIPLEXING CONCEPTS
Texaco and PathNet shall jointly determine how Texaco's multiplexing needs
will be met, which shall be set forth below.
OC-3 MULTIPLEX EQUIPMENT
Site Name OC-3 Multiplex DS-1's Wired DS-1's Equipped
T. Heritage Plaza IMT-150 Terminal [***]
Humble IMT150 ADM [***]
Liberty
Sour Lake
Vidor IMT150 ADM [***]
Xxxxxx
Sulphur Station
Holmwood IMT150 ADM [***]
Lake Xxxxxx
Xxxxxx
Xxxxx IMT150 ADM [***]
New Iberia IMT150 ADM [***]
Julien
1
OC-3 MULTIPLEX EQUIPMENT (Con'd)
Site Name OC-3 Multiplex DS-1's Wired DS-1's Equipped
Horseshoe Bayou IMT150 ADM [***]
Xxxxxx City IMT150 ADM [***]
Thibodaux IMT150 ADM [***]
Xxxxxxx XXX000 ADM [***]
Xxxxxx IMT150 ADM [***]
New Orleans IMT150 Terminal [***]
2
SCHEDULE H
PAYMENT SCHEDULE
GROSS NUMBER TOTAL DOLLARS PATHNET TEXACO
OF DS-0's RECEIVED REVENUES REVENUES
------------ ------------- -------- --------
1
SCHEDULE I
[PURPOSELY LEFT BLANK]
1
SCHEDULE J
EXCESS TELECOMMUNICATIONS CAPACITY SOLD AND PAID FOR
NUMBER
OF DS-O
PATH START DATE END DATE PRICE UNITS TOTAL
---- ---------- -------- ----- ------- -----
1
SCHEDULE K
ANTENNA SPECIFICATIONS AND FREQUENCIES
Every high performance antenna will be fitted with a radome.
Antenna Type/Size Fa Max Fs Max Mt Max
lb lb lb-ft
PL8(w/Radome) 1736 1068 3714
PL8 (No Radome) 3456 943 3945
UHX8 2537 1257 3615
PL10 (w/Radome) 2712 1669 6883
PL10 (No Radome) 5400 1474 7084
UHX10 3964 1964 6365
PL12(w/Radome) 3905 2403 11581
PL12(No Radome) 7775 2122 11728
UHX12 5708 2827 10423
Loads listed are for 125 mph winds at the most critical angle.
Fa Load parallel to antenna axis
Fs Load perpendicular to antenna axis
Mt Moment about pipe mount
Reference: Page 99 of Xxxxxx Catalog 36
1
TEXACO
ANTENNA SUMMARY
------------------------------------------------------------------------------------------------------------------------------------
Site Name West East Future PN
Spur
------------------------------------------------------------------------------------------------------------------------------------
Qty Model Elev. Az. Frequencies Qty Model Elev. Az. Frequencies Qty Model
------------------------------------------------------------------------------------------------------------------------------------
T. Heritage 2 UHX8-59H 742 742 28.8 6256.54H 1 UHX6-59J
P1aza --------
6315.84H
------------------------------------------------------------------------------------------------------------------------------------
Humb1e 2 UHX8-59H 180 110 208.9 5945.20V 2 UHX10-59J 236 196 84.3 5945.20V 2 UHX8-59H
-------- --------
6004.50V 6004.50V
------------------------------------------------------------------------------------------------------------------------------------
Liberty 2 UHX10-59J 356 316 264.5 6226.89V 2 UHX10-59J 356 316 72.2 6197.24H
-------- --------
6286.19V 6256.54H
------------------------------------------------------------------------------------------------------------------------------------
Sour Lake 2 UHX10-59J 306 266 252.4 5945.20H 2 UHX10-59J 306 266 97.6 5945.20H 2 UHX6-59J
-------- --------
6004.50H 6004.50H
------------------------------------------------------------------------------------------------------------------------------------
Vidor 2 UHX10-59J 236 196 277.8 6197.24H 2 UHX10-59J 237 197 83.1 5974.85V 1 UHX6-59J
-------- --------
6256.54H 6034.15V
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx 2 UHX8-59H 236 196 263.3 6226.89V 2 UHX8-59H 237 197 94.1 6197.24V
-------- --------
6286.19V 6256.54V
------------------------------------------------------------------------------------------------------------------------------------
Sulphur Station 2 UHX8-59H 177 137 274.2 5945.20H 2 UHX8-59H 176 136 90.5 5945.20V
-------- --------
6004.50H 6004.50V
------------------------------------------------------------------------------------------------------------------------------------
Holmwood 2 UHX8-59H 257 217 270.7 6197.24H 2 UHX8-59H 257 217 99.2 6226.89V 1 UHX6-59J
-------- --------
6256.54H 6286.19V
------------------------------------------------------------------------------------------------------------------------------------
Lake Xxxxxx 2 UHX10-59J 186 146 279.3 5974.85H 2 UHX10-59J 186 146 96.5 5974.85V
-------- --------
6034.15H 6034.15V
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx 2 UHX10-59J 286 246 276.7 6226.89H 2 UHX10-59J 287 247 119.6 6197.24V
-------- --------
6286.19H 6256.54V
------------------------------------------------------------------------------------------------------------------------------------
Erath 2 UHX8-59H 207 167 299.8 5945.20V 2 UHX8-59H 207 167 60.3 5974.85V
-------- --------
6004.50V 6034.15V
------------------------------------------------------------------------------------------------------------------------------------
New Iberia 2 UHX8-59H 230 190 240.5 6226.89V 2 UHX8-59H 230 190 139.8 6197.24V 1 UHX6-59J
-------- --------
6286.19V 6256.54V
------------------------------------------------------------------------------------------------------------------------------------
Julien 2 UHX8-59H 167 127 319.9 5945.20V 2 UHX8-59H 167 127 159.0 5974.85H
-------- --------
6004.50V 6034.15H
------------------------------------------------------------------------------------------------------------------------------------
Horseshoe Bayou 2 UHX10-59J 317 277 339.0 6226.89H 2 UHX10-59J 317 277 67.1 6197.24V
-------- --------
6286.19H 6256.54V
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx City 2 UHX10-59J 186 146 247.3 5945.20V 2 UHX10-59J 5974.85V
-------- --------
6004.50V 6034.15V
------------------------------------------------------------------------------------------------------------------------------------
Thibodaux 2 UHX10-59J 6226.89V 2 UHX10-59J 6226.89V 2 UHX10-59J
-------- --------
6286.19V 6286.19V
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx 2 UHX10-59J 5974.85V 2 UHX10-59J 295 255 83.2 5945.20V
-------- --------
6034.15V 6004.50V
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx 2 UHX10-59J 176 136 263.4 6197.24V 1 6' 00 XXx 0 0 00 XXx
-------- (XXX) (TBD)
6256.54V
------------------------------------------------------------------------------------------------------------------------------------
New Orleans 1 6' 11 GHz
(TBD)
------------------------------------------------------------------------------------------------------------------------------------
2
SCHEDULE L
DISPUTE RESOLUTION/ARBITRATION PROVISIONS
I. SCOPE
Any and all disputes and controversies between Texaco and PathNet
concerning the negotiation, interpretation, performance, breach or
termination of this Agreement shall be attempted to be resolved first
through amicable settlement discussions. Each party shall bear its own
costs for settlement discussions. Failing resolution of the dispute or
controversy within thirty (30) days after a letter from a party to this
Agreement requests initiation of settlement discussions, either party may
refer the matter for final resolution by binding arbitration in accordance
with the Center for Public Resources' Rules for Non-Administered
Arbitration of Business Disputes (the "Center") which are hereby adopted
and hereinafter referred to as the "Rules." The arbitration process shall
be binding on the parties and the arbitration is intended to be a final
resolution of the dispute(s) between the parties to the same extent as a
final judgment of a court of competent jurisdiction. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. All parties covenant that they shall not resort to
any court for legal remedies concerning any matter which is subject to
arbitration hereunder, except to enforce a final decision by the
arbitrators or for preliminary, interim or provisional equitable relief.
The arbitration clause is not intended to preclude a party from seeking or
obtaining injunctive relief which would be available in the absence of the
arbitration provision.
II. ARBITRATION PROCESS
A. Notice. If the parties cannot resolve a dispute to their mutual
satisfaction, any party to the dispute may deliver to the other party or
parties to the dispute a written notice in accordance with the Rules;
provided, however, the appointment of arbitrators shall be governed by
Section IIB hereof and it shall not be necessary for a claimant to appoint
an arbitrator in its Notice of Arbitration or for a respondent to name an
arbitrator in its Notice of Defense.
B. Site and Arbitration Tribunal. Absent agreement to the contrary of the
parties, the arbitration will be conducted in Washington, D.C., by a panel
of three (3) arbitrators knowledgeable of microwave relocation and
engineering issues. Within thirty (30) days after the filing of the demand
for arbitration, each party must select one (1) arbitrator and the third
(3rd) arbitrator will be selected by agreement of the two (2) arbitrators
selected by the parties. If either party fails to select an arbitrator or
there is no agreement on the selection of the third arbitrator, the Center
will select the arbitrator(s).
1
C. Transcripts and Evidence. A written transcript of all proceedings and
testimony shall be kept and its costs shall be borne equally by the
parties pending the final award. All documents that a party proposes to
offer in evidence, except for those objected to by an opposing party,
shall be deemed to be self-authenticating.
D. Applicable Law. The arbitrator shall determine the claims of the parties
and render their final award in accordance with the substantive law of the
state of Texas. In the case of particular witnesses not subject to
subpoena at the designated hearing site, hearings may be held at any place
designated by the arbitrators where such witnesses can be compelled to
attend, and, with the consent of all parties, before a single member of
the arbitration tribunal.
E. Sanctions. In addition to any other remedy allowed or specified in or
under the Rules, the failure of a party to comply with any interim,
partial or interlocutory order, after due notice and opportunity to cure
such non-compliance, may be treated by the arbitrators as a default and
all or some of the claims or defenses of the defaulting party may be
stricken and partial or final award entered against such party, or the
arbitrators may impose such lesser sanctions as they deem appropriate.
F. Limitation on Awards. Anything to the contrary notwithstanding,
arbitrators may not award incidental, consequential or punitive damages.
G. Period of Limitations. Should the party claiming a dispute or controversy
not institute binding arbitration within four (4) years after the written
request for settlement discussions to resolve the dispute or controversy,
it shall forever be barred from bringing a claim on the specific subject
matter of the dispute or controversy.
H. Nature of Award. Any arbitration award must be in writing and must contain
findings of fact and conclusions of law upon which the arbitrators relied
in making the decision. The arbitrators shall have the authority to award
only compensatory damages and shall not have authority to award indirect,
consequential, special, exemplary or punitive damages of any nature
whatsoever, the parties hereby waive all rights to and claims for monetary
awards other than compensatory damages. The arbitrators do not have the
authority to order termination of the Agreement. Nothing contained herein
or in the Rules shall be deemed to grant the arbitrators any authority,
power, or right to alter, modify or amend any of the provisions of the
Agreement or this Schedule L.
I. Finality of Award. The award of any arbitration shall be final, conclusive
and binding on the parties. Judgment on an arbitration award may be
entered in a court of competent jurisdiction. The arbitrator shall award
the reasonable cost, including attorneys' fees, to the prevailing party.
III. MISCELLANEOUS PROVISIONS
2
A. Conflict. In the event of a conflict between this Schedule and (1) the
Agreement or (2) the Rules, the terms of the Agreement shall prevail.
B. Survivability. The provisions of this Schedule shall survive the
termination or expiration of the Agreement.
3
SCHEDULE M
HAZARDOUS MATERIALS PROVISION
(1) Hazardous Materials. PathNet shall not bring to Texaco facilities,
without the prior written consent of Texaco, or cause or permit, knowingly, or
unknowingly, any Hazardous Material to be brought or remain upon, kept, used,
discharged, leaked or emitted. "Hazardous Material" shall mean any radioactive
substance, material, matter or waste which is or becomes regulated by any
federal, state or local law, ordinance, order, rule, regulation, code or any
other governmental restriction or requirement, and shall include asbestos,
petroleum products as the terms "Hazardous Substance" and "Hazardous Waste" as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), as amended 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C. Section 6901 et
seq. To obtain Texaco's consent, PathNet shall prepare an "Environmental Audit"
for Texaco review. Such Environment Audit shall list: (1) the name(s) of each
Hazardous Material and a Material Safety Data Sheet ("MSDS") as required by the
Occupational Safety and Health Act ("OSHA"); (2) the volume proposed to be used,
stored and/or treated at the Premises (monthly); (3) the purpose of such
Hazardous Material; (4) the proposed on-premises storage location(s); (5) the
name(s) of the proposed off-premises disposal entity; and (6) an emergency
preparedness plan in the event of a release. Additionally, the Environmental
audit shall include copies of all federal, state, and local permits concerning
or related to the proposed use, storage, or treatment of Hazardous Materials at
the Premise. PathNet shall submit a new Environmental Audit whenever it proposes
to use, store, or treat a new Hazardous Material at the Premises or when the
volume of existing Hazardous Materials to be used, stored or treated at the
Premises expands by ten percent (10%) during any thirty (30) day period. If
Texaco in its reasonable judgment find the Environmental Audit acceptable,
Texaco shall deliver to PathNet Texaco's written consent. Notwithstanding such
consent, Texaco may revoke its consent upon: (1) PathNet's failure to remain in
full compliance with applicable environment permits and/or any other
requirements under any federal, state or local law, ordinance, order, rule,
regulation, code or any other government restriction or requirement
1
(including but not limited to CERCLA, as amended 42 U.S.C. Section 9601 et seq.,
RCRA, as amended, 42 U.S.C. Section 6901 et seq., related to environmental
safety, human health, or employee safety; (2) PathNet's or Texaco's business
operations pose or potentially pose a human health risk to others; or (3)
PathNet expands its use, storage, or treatment of Hazardous Material in a
manner inconsistent with the safe operation of the site. Should Texaco consent
in writing to PathNet bringing, using, storing, or treating any Hazardous
Material in or upon the Premises, PathNet shall strictly obey and adhere to any
and all federal, state or local laws, ordinances, orders, rules, regulations,
codes or any other government restrictions or requirements (including but not
limited to CERCLA, as amended 42 U.S.C. Section 9601 et seq, RCRA, as amended,
42 U.S.C. Section 6901 et seq., which in any way regulates, governs, or impacts
PathNet's possession, use, storage, treatment or disposal of said Hazardous
Material. In addition, PathNet represents and warranties to Texaco that (1)
PathNet shall apply for and remain in compliance with any and all federal,
state, or local permits in regard to Hazardous Materials; (2) PathNet shall
report to applicable governmental authorities any release of reportable
quantities of a hazardous substance(s) as mandated by Section 103(a) of CERCLA;
(3) PathNet, within five (5) days of receipt, shall send to Texaco a copy of any
notice, order, inspection report or other document issued by any government
authorities relevant to PathNet's compliance status with environmental or health
and safety laws; and (4) PathNet shall remove from the Premises all Hazardous
Materials upon termination of this contract.
(2) Disclosure of Environmental Audit. PathNet and Texaco agree to
disclose to each other any documents related to an Environmental Audit or change
order, modification or subsequent study issued in response thereto.
2
SCHEDULE N
INSURANCE
A. PathNet shall maintain at its sole cost, and shall require any contractors
it may engage to maintain at all times while performing its duties or
services under this Agreement, the insurance coverage set forth below with
companies satisfactory to Texaco with full policy limits applying, but not
less than as stated.
1. Workers' Compensation Insurance as required by laws and regulations
applicable to and covering employees of PathNet engaged in the
performance of the services;
2. Employers' Liability Insurance protecting PathNet against common law
liability in the absence of statutory liability, for employee bodily
injury arising out of the master-servant relationship with a limit
of not less than $1,000,000.
3. Commercial General Liability Insurance including products and
completed operations with limits of not less than $1,000,000 per
occurrence and in the aggregate;
4. Automobile Liability Insurance including non-owned and hired vehicle
coverage with limits of liability of not less than $1,000,000; and
5. Excess Liability Insurance over Automobile Liability, Commercial
General Liability, and Employers' Liability coverages afforded by
the primary policies described above with minimum limits of
$4,000,000 in excess of specified limits.
B. In addition to all other risks for which coverage is provided in Sections
A.1-5, supra, and, the Commercial General Liability Insurance and Excess
Liability Insurance in those sections shall cover the contractual
liability assumed under the provisions set forth in this Agreement.
C. Prior to commencement of the services, a certificate evidencing the
required coverages of this Agreement shall be delivered to Texaco, naming
Texaco and APPLICABLE PARENTS, SUBSIDIARIES, AND AFFILIATES, as additional
insureds under the Commercial General Liability and Excess Liability
Insurance Policies. This certificate shall provide that any change
restricting or reducing coverage or the cancellation of any policies under
which certificates are issued shall not be valid as respects Texaco's
interest therein until Company has received thirty (30) days written
notice of such change or cancellation. Further, the certificate shall
state that the insurance is primary coverage and not concurrent or excess
over other valid insurance which may be available to Texaco. Each Workers'
Compensation policy shall be endorsed to provide waiver of subrogation
1
rights in favor of Texaco and ALL APPLICABLE PARENTS, SUBSIDIARIES AND
AFFILIATES.
D. Pathnet agrees to comply with all terms of the insurance contracts
referenced in this Schedule I. Failure of Pathnet to keep the required
insurance policies in full force and effect during the term of this
Agreement and during any extensions shall constitute a breach of this
Agreement. Nothing contained in these provisions relating to coverage and
amounts set out herein shall operate as a limitation of PathNet's
liability in tort or contract under the terms of this Agreement. Should
coverage be provided on a claims-made basis, the policy shall include at
least a two (2) year extended reporting period endorsement, and shall not
contain a "prior acts" exclusion.
E. PathNet retains the right to purchase business interruption insurance for
any outage which may occur on its aggregated telecommunications network.
Business interruption insurance is not required of PathNet by Texaco. The
issuance of an insurance policy is not an indication of PathNet's
responsibilities to Texaco during periods of outage.
F. IT IS THE INTENTION OF THE PARTIES THAT THE INSURANCE COVERAGES PROVIDED
BY PATHNET IN FULFILLMENT OF THESE OBLIGATIONS BE AS BROAD AS POSSIBLE. IN
NO EVENT WILL PATHNET ACCEPT ANY POLICY WHICH PROPOSES TO EXCLUDE COVERAGE
SOLELY BECAUSE (1) A CLAIM IS MADE ALLEGING (A) PERSONAL INJURY, DEATH OR
PROPERTY DAMAGE OF PATHNET OR PATHNET EMPLOYEES, SUBCONTRACTORS OR AGENTS,
(B) PERSONAL INJURY, DEATH OR PROPERTY DAMAGE RESULTING FROM THE
NEGLIGENCE OR GROSS NEGLIGENCE OF COMPANY, (C) PERSONAL INJURY, DEATH OR
PROPERTY DAMAGE RESULTING FROM THE SUDDEN OR ACCIDENTAL RELEASE, DISCHARGE
OR DISPERSAL OR CHEMICALS, LIQUIDS, GASSES, WASTE MATERIALS OR POLLUTANTS,
OR (2) THE INDEMNITY PROVISIONS OF THIS AGREEMENT ARE INAPPLICABLE OR
OTHERWISE UNENFORCEABLE.
G. NOTHING CONTAINED IN THESE PROVISIONS RELATING TO COVERAGE AND AMOUNTS
SHALL OPERATE AS A LIMITATION OF PATHNET'S LIABILITY UNDER THE TERMS OF
THIS AGREEMENT.
H. PATHNET SHALL PROVIDE A COPY OF THIS SECTION OF THE AGREEMENT, SECTION
5.17 INDEMNITY AND SCHEDULE X, ATTACHED HERETO, REFERENCING TO AND
CONTAINING THE INDEMNITY PROVISION, TO ITS CARRIER AND REQUIRE THE CARRIER
TO PROVIDE INSURANCE COVERAGE THAT COMPLIES WITH BOTH SECTIONS.
2
SCHEDULE O
TEXACO MINIMUM NETWORK PERFORMANCE STANDARDS
1. Summary
The purpose of this document is to provide performance specifications for
dedicated DS-1 transmission requirements.
The performance objectives are defined as Errored Seconds (ES), Severely Errored
Seconds (SES), and Error Free Seconds (EFS). Because of the bursty nature of
errors, BER should not be used as a testing criterion. The ES, SES, and the EFS
are the sole criteria for determining system acceptance.
The objectives in this document are not meant as transmission system design
criteria. All systems will be designed for optimum performance based on the
equipment manufacturers stated specifications and good system design practices.
This document is meant as a reference for expected performance and contains
limited testing procedures. These performance objectives are based on CCITT and
Bellcore technical specifications. Actual performance objectives will be
analyzed and statistically compared to CCITT and Bellcore information to verify
expected objectives.
Parameters not mentioned in this document are Frame Loss (OOF), and Sync Loss
event values. The primary rationale is that once they occur, they cause ES/SES
to be recorded. Therefore ES, SES, and LOS are the essential parameters.
Secondly, there are discrepancies between how different devices calculate
certain parameters and what they call them. Since it is possible to have
multiple OOF events in a SES, it becomes difficult to set a value for that
parameter.
2. Availability
The system is designed to meet or exceed the long haul objective of 99.98%
availability on an annual basis for a 4,000 mile system. This results in a one
way system outage of less than 0.39 seconds/mile/year for each and every DS-1.
3. DS-1 Specifications / Performance Measurements
DS-1 Electrical Interface Specifications:
The DS-1 signal at the cross-connect (DSX-1) shall meet the standard DSX-1
cross-connect requirements as specified in section 3.1.
1
3.1 DSX-1 Interconnection Specifications
Line Rate: 1.544 Mb/s
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-l
synch should be capable of accepting a rate deviation of plus
or minus 130 ppm.
Line Code: 1) Bipolar with at least 12.5 percent average ones density and
no more than 15 consecutive zeros.
2) Bipolar with Eight Zero Substitution (B8ZS).
Format: ESF with AT&T 54016 & ANSI T1.403 messages, concurrently.
Test Load: A pure resistive termination of 100 ohms plus or minus 5%
shall be used for evaluation of pulse shape and electrical
parameters.
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. Source of the above information is
ANSI T1.102.
Power Level: For new equipment with an all-ones transmitted pattern, the
power in a band no wider than 3 Khz centered at 772 Khz shall
be between 12.6 and 17.9 dBm.
For older equipment, the power in a band no wider than 3 Khz
centered at 772 Khz may be between 12.4 and 18.0 Dbm.
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.
3.2 Jitter DS-I & DS-3
The jitter requirements which shall be met at the DS-1 & DS-3 interfaces are
jitter tolerance, jitter transfer, jitter generation, and jitter enhancement.
3.2.1 Jitter Tolerance
Jitter Tolerance is the maximum input jitter that 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. PathNet DS-3 Requirements
provides 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 must be above the mask and the difference
between this and the lower limit represents the safety margin of the equipment.
3.2.2 Jitter Transfer
2
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.
3.2.3 Jitter Generation
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.
When looped back at the high speed rate, equipment must 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 Interface Jitter
Requirement shown in section 3.2.4. This requirement shall apply over the entire
range of permissible input bit-rate offsets.
3.2.4 Jitter Enhancement
The requirement for jitter enhancement is that a system of up to 250 miles in
length adds 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.
Maximum Permissible Network Output Jitter at any Hierarchical Interface:
--------------------------------------------------------------------------------
Measurement Filter Bandwidth (Hz)
Network Limit Bandpass filter having a low cut-off
Peak-To-Peak UI frequency F1 or F3 &
Bit Rate Mb/s (Note 1) minimum upper cut-off frequency of F4
-------------------------------------------------------------------------------
B1 B2
(F1-F4) (F3-F4) F1 F3 F4
-------------------------------------------------------------------------------
1.544 5 0.1 10Hz 8Khz 40Khz
-------------------------------------------------------------------------------
3.152 5 0.1 10Hz 1.5Khz 40Khz
-------------------------------------------------------------------------------
6.312 3 0.1 10Hz 3Khz 60Khz
-------------------------------------------------------------------------------
44.736 5 0.1 10Hz 30Khz 400Khz
-------------------------------------------------------------------------------
Notes:
UI = Unit Interval
For 1.544 Mb/s: 1 UI = 648 ns
For 3.152 Mb/s: 1 UI = 317 ns
For 44.736 Mb/s: 1 UI = 22.35 ns
F3; P3, 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
3.3 DS-1 Access Performance and Availability Objectives
DS-1 performance and availability objectives for IXC digital transport
facilities are based on mileage bands. All performance data (ES, SES, EFS, etc.)
are 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. The availability objective is set universally to be 99.99% per
year.
The following data is based on a 24 hour period and measured at DS1:
(ES/86400) x 100 = ES Per Day
Circuit Acceptance Level
================================================================
Route Mileage ES %EFS SES
----------------------------------------------------------------
0-500 1 99.9988 0
----------------------------------------------------------------
501-1500 1 99.9988 0
----------------------------------------------------------------
1501-4000 2 99.9977 0
================================================================
Maintenance Limit
================================================================
Route Mileage ES %EFS SES
----------------------------------------------------------------
0-500 5 99.9942 2
----------------------------------------------------------------
501-1500 10 99.9884 4
----------------------------------------------------------------
1501-4000 15 99.9826 6
================================================================
The DS1 performance objectives are defined by the following parameters:
-> Errored Seconds (ES)
-> Severely Errored Seconds (SES)
4
4. Testing & Commissioning
Recommended Acceptance Tests for the IMT-150 are divided into local (Rack) and
End-To-End tests.
NEC Recommended Acceptance Tests for the IMT-150:
-----------------------------------------------------------------
Test Local Test End-To-End Test
-----------------------------------------------------------------
Output power Voltage X
-----------------------------------------------------------------
Optical Output Level X
-----------------------------------------------------------------
Optical Input Level X
-----------------------------------------------------------------
Optical RX Sensitivity X
-----------------------------------------------------------------
Bit Error Rate X
-----------------------------------------------------------------
Automatic Switching X
-----------------------------------------------------------------
Lockout of Protection X
-----------------------------------------------------------------
Forced Switching X
-----------------------------------------------------------------
Manual Switching X
-----------------------------------------------------------------
Alarm Test X
-----------------------------------------------------------------
Remote Loopback X
-----------------------------------------------------------------
4.1 Factory Acceptance Test -- NEC 2000 Digital Radio Equipment
Factory Acceptance Testing will be performed on the system prior to shipment
from Japan. The following table reflects the tests involved during factory
acceptance testing:
--------------------------------------------------------------------------------
Equipment Test Items Test Equipment
--------------------------------------------------------------------------------
TX Output Power Power Meter; High Power Sensor
--------------------------------------------------------------------------------
TX Output Frequency Frequency Counter
--------------------------------------------------------------------------------
Alarm Reporting Test LCT-2000
--------------------------------------------------------------------------------
Meter Readings Digital Volt Meter
--------------------------------------------------------------------------------
ATPC Function (If Equipped) LCT-2000; RF or IF Attenuator
--------------------------------------------------------------------------------
IF In/Out Level Signal Generator; RF Attenuator; Power
(AGC Dynamic Range) Meter; Power Sensor
--------------------------------------------------------------------------------
IF Frequency Signal Generator; RF Attenuator;
Frequency Counter
--------------------------------------------------------------------------------
Noise Figure Noise Meter; Noise Source
--------------------------------------------------------------------------------
IF Delay Characteristics Microwave Link Analyzer
--------------------------------------------------------------------------------
XPIC Improvement LCT-2000; SONET or SDH Analyzer;
(If Equipped) Noise Adder; RF Attenuator
--------------------------------------------------------------------------------
RX Threshold Level (BER Performance) SONET or SDH Analyzer; Noise Adder
--------------------------------------------------------------------------------
Optical Power Measurement Optical Power Meter; SONET or SDH
Analyzer
--------------------------------------------------------------------------------
RX Local Oscillator Frequency Frequency Counter
--------------------------------------------------------------------------------
Signature Curve SONET or SDH Analyzer; Fading
Simulator; RF Attenuator
--------------------------------------------------------------------------------
IF Amplitude Characteristics Microwave Link Analyzer
--------------------------------------------------------------------------------
Equipment Test Items Test Equipment
--------------------------------------------------------------------------------
5
--------------------------------------------------------------------------------
IM3 4-Tone Signal Generator; Sprectrum
Analyzer
--------------------------------------------------------------------------------
Branching Circuit Loss Network Analyzer
--------------------------------------------------------------------------------
Radio Systems Tests
--------------------------------------------------------------------------------
BER Measurement (24 Hour Test) SONET or SDH Analyzer; RF Attenuator
4.2 Rack Test
A Rack Test will be performed once the radio cabinet has been installed. The
test results will be kept in the site commissioning book for future reference.
Please refer to the NEC 2000 Series Synchronous Digital Microwave Radio Field
Test Procedure for further details.
4.3 Path Test
A Path Test will be performed after each site has been turned up. The test
results will be kept in the site commissioning book for future reference. Please
refer to the NEC 2000 Series Synchronous Digital Microwave Radio Field Test
Procedure for further details.
4.4 End-To-End Test
An end-to-end test will be performed once all sites have been tuned up. The test
results will be kept in the site commissioning book for future reference. .
Please refer to the NEC 2000 Series Synchronous Digital Microwave Radio Field
Test Procedure and Section 3 of this document for further details.
5. Definitions
The referenced documents have been used as the standard for the following
definitions. Any changes to these parameters will be reflected by changes in the
referenced documents.
Bit Error Rate (BER): BER is the number of bit errors divided by the total
number of bits during the observation period.
Error Free Seconds (EFS): An EFS is any one-second interval which does not
contain a bit error. Usually this term is expressed as percent EFS by taking the
ratio of non-errored to total seconds and multiplying by 100.
Errored Seconds: An ES is any one-second interval during which one or more
bit errors occur.
Burst Seconds: A burst second is any errored second containing at least 100
errors.
Severely Errored Seconds: A SES is any one-second interval during which the Bit
Error Rate is greater than or equal to 1x10(to the power of negative 3) at a
DS-1 rate. This definition applies to all causes of degradation affecting the
channel error performance, including (unprotected) equipment failures and other
factors that contribute to poor performance. (Carrier Group Alarms occur after a
2-second loss of synchronization at the DS-1 level. Affected channels then
remain out of service for approximately 10 seconds.)
Outage: An outage, measured in "Outage Seconds", is declared after the BER in
each second is worse than 10(to the power of negative 3) for a period of 10
consecutive seconds. These 10 seconds are considered to be
6
unavailable. The unavailable time starts after the first of 10 Severely Errored
Seconds (SESs) occurs, and ends when the first of 10 consecutive non-SESs
occurs.
Availability: Availability refers to that time which the circuit is available,
that it is not experiencing an outage.
Circuit Acceptance Limit: The AL is a value used to define the limits at which
facilities are initially placed in-service. Upon acceptance, the facilities are
transferred to a performance measuring state.
Maintenance Limit: The ML is the threshold at which the performance of the DS-1
circuits dictates that appropriate action be taken to analyze and repair the
degradation source.
6. Reference
American National Standard, T1 .403
American National Standard, T1 .404
American National Standard, T1 .102
AT&T Technical Xxxxxxxxx, XX 00000, June 1989
AT&T Technical Reference, 54016, 17, 19, & 00X
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx, XX-XXX-000000
Xxxxxxxx Xxxxxxxxx Xxxxxxxxx, XX-XXX-000000
Bellcore Technical Reference, TA-TSY-000083, 77, 55, & 57
FCC Part 15 & 68
7
SCHEDULE P
EQUAL EMPLOYMENT OPPORTUNITY POLICY
P.1 Equal Employment Opportunity
PathNet and Texaco agree to comply with the Equal Employment Opportunity
Clause of 41 CFR 60-1.4(b), which is incorporated into this
Agreement by reference.
P.2 Non-Segregated Facilities
a. PathNet and Texaco certify to each other that neither maintains nor
provides for its employees any segregated facilities at any of their
establishments, and that neither permits its employees to perform
their services at any location so maintained. PathNet and Texaco are
not aware of and understand that any breach of the foregoing is a
violation of the Equal Opportunity Clause of Executive Order 11246.
As used in this certification, the term "segregated facilities"
means any waiting rooms, work areas, rest rooms and washrooms,
restaurants and other eating areas, time clocks, locker rooms and
other storage or dressing areas, parking lots, drinking fountains,
recreation or entertainment areas, transportation and housing
facilities provided for employees which are segregated by explicit
directive or are in fact segregated on the basis of race, creed,
color or national origin because of habit, local custom or
otherwise.
b. Each further agrees that (except where it has obtained identical
certifications from proposed subcontractors for specific time
periods) it will obtain identical certifications from proposed
subcontractors prior to the award of subcontracts exceeding $10,000
which are not exempt from the provisions of the Equal Opportunity
Clause, and that it will retain such certifications in its files;
and that it will forward the following notice to such proposed
subcontractors (except where the proposed subcontractors have
submitted identical certifications for specific time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENTS FOR
CERTIFICATIONS OF NONSEGREGATED FACILITIES. A Certification of
Nonsegregated Facilities as required by the May 9, 1967, Order
on Elimination of Segregated Facilities, by the Secretary of
Labor (32 Fed. Reg. 7439, May 19, 1967), must be submitted
prior to the award of a subcontract exceeding $10,000 which is
not exempt from the provisions of the Equal Opportunity
Clause. The certification may be submitted either for each
subcontract or for all subcontracts during a period i.e.,
quarterly, semi-annually or
1
annually). (Note: The penalty for making false statements in
offers is prescribed in 18 U.S.C. 1001.)
P.3 Affirmative Action
a. Compliance Program
PathNet and Texaco certify to each other that each has developed and
is maintaining a written affirmative action compliance program for
each of its establishments in accordance with regulations of the
Secretary of Labor promulgated under Executive Order 11246, as
amended.
b. Veterans
PathNet and Texaco agree to comply with the affirmative action
clause at 41 CFR 60-250.4 and the regulations of 4l CFR 60-250, all
of which are incorporated into this Agreement by reference.
c. Handicapped Workers
PathNet and Texaco agree to comply with the affirmative action
clause at 41 CFR 60-741.4 and the regulations of 4l CFR 60-741, all
of which are incorporated into this Agreement by reference.
P.4 E.O. 11625 - Minority Business Enterprises
a. It is a policy of the government that minority business enterprises
shall have the maximum practicable opportunity to participate in the
performance of government contracts. Thus, PathNet agrees to use its
best efforts to carry out this policy in the award of its
subcontracts to the fullest extent consistent with the efficient
performance of this Agreement. As used in this Agreement, the term
minority business enterprise" means a business, at least 50 percent
of which is owned by minority group members or, in case of publicly
owned businesses, at least 51 percent of the stock of which is owned
by minority group members. For the purposes of this definition,
minority group members are Black Americans, Hispanic Americans,
Native Americans, Asian Pacific Americans, and Asian Indian
Americans. PathNet may rely on written representations by
subcontractors regarding their status as minority business
enterprises in lieu of an independent investigation.
b. PathNet agrees to establish and conduct a program which will enable
minority business enterprises (as defined in the clause entitled
"Utilization of Minority Business Enterprises") to be considered
fairly as subcontracts and suppliers under this Agreement. In this
connection, PathNet shall:
2
(i) Designate a liaison officer who will administer PathNet's
minority business enterprises program.
(ii) Provide adequate and timely consideration of the
potentialities of known minority business enterprises in all
"make-or-buy" decisions.
(iii) Assure that known minority business enterprises will have an
equitable opportunity to compete for subcontracts,
particularly by arranging solicitations, time for the
preparation of bids, quantities, specifications and delivery
schedules so as to facilitate the participation of minority
business enterprises.
(iv) Maintain records showing (1) procedures which have been
adopted to comply with the policies set forth in this clause,
including the establishment of a source list of minority
business enterprises, (2) awards to minority business
enterprises on the source list and (3) specific efforts to
identify and award contracts to minority business enterprises.
(v) Include the Utilization of Minority Business Enterprises
clause in subcontracts which offer substantial minority
business enterprises subcontracting opportunities.
(vi) Cooperate with the contracting officer in any studies and
surveys of PathNet's minority business enterprises procedures
and practices that the contracting officer may from time to
time conduct.
(vii) Submit periodic reports of subcontracting to known minority
business enterprises with respect to the records referred to
in subsection (iv) above, in such form and manner and at such
time (not more often than quarterly) as the contracting
officer may prescribe.
c. PathNet further agrees to insert, in any subcontract hereunder which
may exceed $500,000, provisions that shall conform substantially to
the language of this clause, and to notify the contracting officer
of the names of such contractors.
P.5 Railroad Revitalization and Regulatory Reform Act of 1976
PathNet and Texaco agree to comply with the requirements of 49 CFR 265
regarding nondiscrimination in Federally Assisted Railroad Programs." 49
CFR 265 is incorporated into this Agreement by reference.
3
P.6 Small Business and Small Socially and Economically Disadvantaged
Businesses
a. PathNet and Texaco agree to each use its best efforts to provide
small business concerns and small business concerns owned and
controlled by socially and economically disadvantaged individuals,
as defined in 45 FR 35809, with the maximum practical opportunity to
participate in the performance of subcontracts in accordance with
the regulations promulgated by the Office of Federal Procurement
Policy (OFPP) 45 FR 35809, May 28, 1980, which are incorporated into
this Agreement by reference.
b. PathNet and Texaco agree to comply with the small business and small
socially and economically disadvantaged business subcontracting plan
as set forth in 00 XX 00000, dated May 28, 1980, which are
incorporated into this Agreement by reference.
P.7 Women's Business Enterprise Program
a. PathNet and Texaco agree to each use its best efforts to provide
women-owned businesses, as defined at 45 FR 35815, with the maximum
practical opportunity to participate in the performance of
subcontracts in accordance with the regulations of the Office of
Federal Procurement Policy (OFPP), 45 FR 35814, May 28, 1980, which
are incorporated into this Agreement by reference.
b. PathNet and Texaco agree to comply with the regulations promulgated
by the Office of Federal Procurement Policy (OFPP), 45 FR 35815, May
28, 1980, which are incorporated into this Agreement by reference.
4
SCHEDULE Q
PATHNET SAFETY MANAGEMENT
Q.1 PathNet acknowledges that it is performing work hereunder solely as an
independent contractor and not as an agent, servant or employee of Texaco.
Subject only to the provisions of this agreement and any facility rules of
conduct applicable to persons on the premises, it is the responsibility of
PathNet to determine the personnel to perform the work hereunder as well
as how and when it should be performed.
Q.2 PathNet shall be responsible for providing its employees with a safe and
healthful workplace and unless otherwise expressly required by law, Texaco
shall not assume responsibility for fulfilling any of PathNet's
obligations to its employees. Without limitation, PathNet shall be
responsible for (1) the safety and health of its employees,
representatives and agents; (2) abatement of conditions or practices which
pose any actual or potential safety or health risk to any of its
employees, representatives or agents; and (3) making decisions concerning
the safety or health of same. Texaco and PathNet agree that PathNet
reserves the right to and will safely discontinue work, at any time,
should it or its employees determine that they are exposed to any safety
or health risk. Such action on the part of PathNet will not constitute a
breach of this agreement.
Q.3 PathNet agrees that it will conduct a survey in order to identify safety
and health hazards, work practices and conditions present at the
location(s) where it intends to perform any services pursuant to this
Agreement. All such surveys will be completed and precautionary steps
taken prior to the commencement of such work.
PathNet certifies that it will communicate these hazards to its employees
and that all employees who may be exposed to these hazards have been
trained to take all necessary measures to assure their safety and health.
PathNet further acknowledges that such hazards could lead to the serious
injury or death of a worker. Because of the nature of these risks, PathNet
agrees that it will use special precautions in limiting or eliminating the
above risks.
PathNet agrees that it may be subject to sanctions imposed by Texaco for
not undertaking all steps necessary to limit or eliminate all risks
occurring during the course and scope of the contracted for work. Such
special sanctions include, but are not limited to, termination of this
Agreement and the reporting of PathNet's practices to its workers'
compensation carrier and to proper legal authorities.
1
Q.4 PathNet shall work under conditions and pursuant to rules that are at
least as protective of their safety and health as those governing Texaco
employees. Prior to commencing the Services, PathNet shall obtain from
Texaco a copy of such rules in effect at the time and place such Services
are to be performed.
Q.5 PathNet shall be responsible for the safety education of its employees.
Training shall comply with all laws and shall be documented. As a minimum,
the following items shall be included in PathNet training when applicable
to performance of the Services:
a. Supervisor safety training to assure that PathNet management
understands that safety is their first responsibility;
b. Orientation for PathNet employees in contractor safety policies,
safety manuals, first aid, CPR, accident reporting procedures,
safety meeting participation, personal protective equipment,
enforcement procedures, and a review of legal requirements for
training;
c. Emergency procedures training as outlined in 29 CFR 1910,120, as
modified, amended or superseded (HAZWOPER). Training by qualified
instructors is required;
d. Safety meetings and accident prevention programs;
e. Hazard communications training in accordance with 29 CFR 1910.1200,
as modified, amended or superseded, for general industry;
f. Permit systems training to include applications to hot work and
confined space;
g. Lockout/tagout training in accordance with 29 CFR 1910.147, as
modified, amended or superseded;
h. Vehicle safety training;
i. Personal protective equipment training;
j. Training for specific hazards of performance of the Services;
k. Bloodborne pathogens training;
l. Lead hazard training; and
m. Permit required confined spaces training.
2
Q.6 PathNet shall be responsible for the routine monitoring of its employees,
agents and subcontractors to ensure safe work practices are being
followed.
Q.7 PathNet shall report to Texaco as follows:
a. PathNet shall provide the Texaco site supervisor with an immediate,
verbal report of any accident, injury or OSHA recordable injury or
illness occurring on Texaco premises;
b. By the end of the next business day following the occurrence,
PathNet shall provide Texaco with a copy of PathNet's Employer's
First Report of Occupational Injury or Illness, or a comparable
state form for the reporting of injuries and illnesses occurring at
the work site;
c. PathNet shall provide a written report of any near misses or
incidents that could have resulted in property damage or serious
injury to persons; and
d. PathNet shall provide a written recommendation when a work practice
is identified that may result in property damage or injury to
persons unless a procedural change is made to correct the work
practice.
Q.8 Prior to commencing any Services, PathNet shall obtain from Texaco a copy
of the emergency response plan appropriate to the area to which PathNet's
employees may be assigned and appropriately reflect such plan in PathNet's
health and safety and work plans.
Q.9 PathNet shall submit to Texaco a quarterly PathNet Incident and Work Hours
Report. PathNet shall maintain a record of new PathNet employees, and
documentation of training, occupational injuries, illnesses, and lost work
days versus hours worked, and the number of safety meetings. conducted,
the percentage of PathNet's employees in attendance at such meetings, OSHA
200 Forms and First Aid log. Further, PathNet shall maintain inspection
and certification records regarding certain equipment and machines such
as, but not limited to, fork lifts, cranes, hoists, welding, cutting
machines and man lifts. These records shall also include a summary of
medical or unexcused absences of more than five days (by employee name,
reason for and length of absence). These documents shall be retained for
at least five (5) years and shall be made available for auditing by Texaco
in accordance with the terms and provisions of this Agreement.
Q.10 PathNet shall provide and inspect all personal protective equipment for
its employees. Where PathNet's employees are performing work similar to
Texaco's employees, PathNet's employees shall wear at least equivalently
protective equipment.
3
SCHEDULE R
SUBSTANCE ABUSE POLICY
R.1 General. PathNet, as a condition of having access to Texaco's premises,
and subject to applicable law, agrees that:
a. PathNet's employees shall be subject to the same rules of employee
conduct relating to substance abuse which are applicable to
employees of Texaco, namely, the following rules which prohibit:
(i) the manufacture, sale, purchase, transfer, use or possession
of illegal drugs, narcotics or other unlawful substances or
materials on Texaco's premises, or while conducting business
for Texaco;
(ii) the manufacture, sale, purchases transfer, use or possession
on Texaco's premises of substances or materials not authorized
by Texaco (such as firearms, weapons, intoxicating beverages,
drug paraphernalia, or medically authorized drugs used
improperly or unsafely); and
(iii) reporting to work or working on Texaco's premises under the
influence of illegal drugs, narcotics, other unlawful
substances, or intoxicating beverages.
b. Any employee of PathNet who has violated any of the rules of
employee conduct in "a." above, shall be removed from Texaco's
premises and shall not be allowed to re-enter such premises without
Texaco's permission.
c. PathNet's employees shall be subject to searches of their persons
and personal effects when entering Texaco's premises, while on
Texaco's premises, and when leaving Texaco's premises. Such searches
shall be conducted by Texaco or by a third party, at Texaco's
direction, without prior announcement and at such times and
locations as Texaco in its sole discretion may determine.
d. Texaco reserves the right to conduct or have conducted unannounced
substance abuse testing of employees of PathNet while they are
performing work on Texaco's premises, to the extent permitted by
applicable law.
e. In addition to any other remedies, Texaco reserves the right to
terminate this Agreement in the event of non-compliance with any of
the provisions as stated in this Exhibit.
1
f. PathNet shall be responsible for including in any subcontract for
work to be performed on Texaco's premises the requirements and
conditions described in this Schedule so that such requirements and
conditions will be binding upon each of PathNet's subcontractors.
g. PathNet shall be responsible for advising and discussing with any
unions representing PathNet's employees the application to such
employees of the conditions described in this Schedule.
R.2 DOT/RSPA. In addition to the terms and conditions of Section R.1, if
PathNet retained by Texaco to perform services that are regulated by the
U. S. Department of Transportation, Research and Special Programs
Administration ("DOT/RSPA"), PathNet agrees to the following terms and
conditions:
a. PathNet will submit to Texaco a copy of its anti-drug program and
its alcohol misuse prevention program. Texaco will review the plans
and advise PathNet as to whether or not the plans are acceptable or
in need of further additions, deletions, revisions or clarifying
language. The review of the plans will be completed utilizing the
criteria established in the DOT/RSPA inspection forms. Addendums
made to PathNet's plan shall be attached to the previously submitted
plans. Upon approval of the addendum, a letter of acceptance will be
sent by Texaco to PathNet.
b. PathNet is required to provide an anti-drug plan and alcohol misuse
prevention program testing statistical information on a quarterly
basis to Texaco.
R.3 DOT/FHA. In addition to the terms and conditions of Section R.1, if
PathNet is retained by Texaco to perform services that are regulated by
the U. S. Department of Transportation, Federal Highway Administration
("DOT/FHA"), PathNet agrees to the following terms and conditions:
a. PathNet has developed and implemented or has contracted with an
organization that has developed and implemented substance abuse
policies and drug testing procedures in compliance with DOT/FHA
regulations as set forth in 49 CFR Part 382 and 49 CFR Part 40.
b. That upon 48 hours notice, PathNet shall deliver to Texaco a copy of
PathNet's anti-drug plan and alcohol misuse prevention plan and
testing statistical information.
R.4 Safety Sensitive. In addition to the terms and conditions of Section R.1,
if PathNet is retained by Texaco to perform safety sensitive duties while
on Texaco premises, PathNet shall have in effect a comprehensive substance
abuse testing program ("Program") for its employees before commencing
work. In essence, a safety sensitive duty is one that is directly related
to the safe operation or security of a facility or piece of equipment and
2
which, if not performed properly, could result in a serious safety risk or
environmental hazard to employees, a facility, or the general public. This
Program shall, as a minimum, conform to the Texaco Substance Abuse Program
or to the U. S. Department of Transportation ("DOT") regulations in Xxxxx
00, XXX Parts 40, 199 and 382. This Program shall be in accordance with
all applicable laws. The Program must include the following:
a. PathNet will test any employee of PathNet, if in the judgment of
PathNet, there is reasonable suspicion that the employee is using
illegal drugs, unauthorized substances or abusing alcohol.
b. PathNet will test any employee of PathNet, if, in the judgment of
PathNet, there is reasonable suspicion that substance or alcohol
abuse may have been a contributing factor to a job-related injury or
accident or an injury or accident on Texaco's premises.
c. PathNet will test, on an unscheduled and unannounced basis,
employees of PathNet for illegal or unauthorized drugs as long as
such employees have access to Texaco's premises. The frequency of
such testing shall occur at a rate no less than the rate at which
Texaco's employees are tested under the Texaco Substance Abuse
Program (i.e., 12% annually for drugs).
d. PathNet shall, in testing its employees under the circumstances
described in a., b. and c., test for the presence of the following
substances and use the following substances and use the following
screening/confirmation levels:
Cocaine 300/150
Opiates 300/300
Phencyclidine 25/25
Marijuana 50/15
Amphetamines 1000/500
Methadone 300/300
Benzodiazepines 300/300
Barbiturates 300/300
Methaqualone 300/300
e. Texaco management may, in its sole discretion, waive the
requirements and conditions in this Section R.4, if the job duration
is no more than thirty (30) days or if the circumstances so require.
However, the conditions in Section R.1. shall apply regardless of
the duration of the job.
f. If PathNet is subject to DOT regulations and has implemented a drug
testing program consistent with the DOT regulations, or is not
subject to the DOT regulations but has adopted and implemented a
drug testing program which is equivalent to or more stringent than
the DOT testing program, then Texaco may,
3
in its sole discretion, waive the requirements of Section R.4,
subject to the agreement that PathNet's employees who are assigned
to work on Texaco's premises shall be subject to PathNet's drug and
alcohol testing program.
g. In the event Texaco maintains a smoke-free workplace and does not
permit smoking or the use of any type of smoking material in any of
its facilities or vehicles, PathNet shall abide by these no smoking
rules. PathNet shall also inform its employees, agents and
contractors of such rules.
4
SCHEDULE S
NETWORK INTERCONNECTIONS SCHEDULE
===================================================
SEGMENT FACILITIES
===================================================
ANT. ANT. ANT.
CODE NAME MODEL HEIGHT AZIM.
---------------------------------------------------
HUMBLE MHP6596 237 196.2
---------------------------------------------------
HUMBLE MHP6596 197 196.2
---------------------------------------------------
VIDOR P8-65C 234 169.8
---------------------------------------------------
VIDOR P8-65C 194 169.8
---------------------------------------------------
HORSESHOE P6F-21C 325 288.3
BAYOU
---------------------------------------------------
THIBODAUX MHP6596 317 152.6
---------------------------------------------------
THIBODAUX MHP6596 277 152.6
---------------------------------------------------
THIBODAUX MHP6596 300 347.6
---------------------------------------------------
THIBODAUX MHP6596 260 347.6
---------------------------------------------------
XXXXXXX GP8F-21A 270 48.9
---------------------------------------------------
XXXXXX P-21A96G 174 177.2
===================================================
===================================================
SPUR FACILITIES
===================================================
CODE NAME LATITUDE LONGITUDE
---------------------------------------------------
X. XXXXXXX 29-47-52 95-16-59
---------------------------------------------------
X. XXXXXXX 29-47-52 95-16-59
---------------------------------------------------
PT. XXXXXX 29-52-46 93-57-30
---------------------------------------------------
PT. XXXXXX 29-52-46 93-57-30
---------------------------------------------------
XXXXXXXXXX 29-40-15 91-54-51
BAY
---------------------------------------------------
HOUMA 29-37-18 90-41-25
---------------------------------------------------
HOUMA 29-37-18 90-41-25
---------------------------------------------------
CONVENT 30-06-21 90-53-47
---------------------------------------------------
CONVENT 30-06-21 90-53-47
---------------------------------------------------
XX. XXXX 00-00-00 00-00-00
---------------------------------------------------
XXXXXXX 29-34-58 90-03-48
===================================================
1
SCHEDULE T
ROUTINE SITE MAINTENANCE REQUIREMENTS
TABLE OF CONTENTS
1. ANTENNA/WAVEGUIDE MAINTENANCE ..........................................3
1. 1.1. Monthly Inspection ................................................3
2. 1.2. Quarterly and Semi-Annual Inspection ..............................3
3. 1.3. Annual Inspection .................................................3
2. BATTERY MAINTENANCE ....................................................4
4. 2.1. Monthly Inspection ................................................4
5. 2.2. Quarterly and Semi-Annual Inspection ..............................4
6. 2.3. Annual Inspection .................................................4
3. BUILDING MAINTENANCE ...................................................5
7. 3.1. Monthly Inspection ................................................5
8. 3.2. Quarterly and Semi-Annual Inspection ..............................5
9. 3.3. Annual Inspection .................................................5
4. CHARGER/RECTIFIER MAINTENANCE ..........................................6
10. 4.1. Monthly Inspection ...............................................6
11. 4.2. Quarterly and Semi-Annual Inspection .............................6
12. 4.3. Annual Inspection ................................................6
5. GENERATOR MAINTENANCE ..................................................7
13. 5.1. Monthly Inspection ...............................................7
14. 5.2. Quarterly and Semi-Annual Inspection .............................7
15. 5.3. Annual Inspection ................................................7
6. MULTIPLEXER MAINTENANCE ................................................8
16. 6.1. Monthly Inspection ...............................................8
17. 6.2. Annual Inspection ................................................8
7. RADIO MAINTENANCE ......................................................9
18. 7.1. Monthly Inspection ...............................................9
1
19. 7.2. Quarterly and Semi-Annual Inspection .............................9
20. 7.3. Annual Inspection ................................................9
8. SITE MAINTENANCE ......................................................10
21. 8.1. Monthly Inspection ..............................................10
22. 8.2. Quarterly and Semi-Annual Inspection ............................10
23. 8.3. Annual Inspection ...............................................10
9. TOWER MAINTENANCE .....................................................11
24. 9.1. Monthly Inspection ..............................................11
25. 9.2. Quarterly and Semi-Annual Inspection ............................11
26. 9.3. Annual Inspection ...............................................11
27. 9.4. Bi-Annual Inspection ............................................11
2
1. ANTENNA/WAVEGUIDE MAINTENANCE
1.1. Monthly Inspection
Once each month, perform the following inspections from the ground:
o Visually check the general appearance of the antenna and waveguide
for ice, wind and bullet hole damage.
o Visually check the waveguide on the tower and waveguide bridge for
loose or broken waveguide hangers (i.e. attach/replace as required).
o Visually check the antenna canvas (TEGLAR) radomes for holes, tears
and excessive wear. Replace if severely torn to preempt feedhorn
damage.
o Check inside building waveguide pressure gages for 5-8 lbs/in
^2 per antenna (10 lbs/in ^2 maximum).
1.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Visually inspect waveguide grounds at the bend from the tower and
building entry xxxx bars. Inspect for excessive corrosion and firm
connectivity.
o Visually inspect the waveguide port seals into the building for
excessive deterioration and insect/bird infestation. Clean, replace
and re-seal if required.
o Check functional operation of the dehydrator excessive run local and
remote alarms.
o Visually check dehydrator air dryer/desiccant for excessive moisture
(i.e. desiccant color change).
1.3. Annual Inspection
At least once a year climb the tower and:
o Physically inspect antenna stiff arms (struts) for indications of
antenna movement, i.e. gouges in metal around lock down bolts.
o Physically inspect antenna feedhorn guy wires (3 ea.) by spring
tension at back of antenna. Broken feedhorn guys will pull out from
back of dish.
o Check for loose, broken or missing W/G hangers. Repair/replace as
required.
o Visually inspect W/G grounds near antennas.
3
2. BATTERY MAINTENANCE
(Valve Regulated Batteries)
2.1. Monthly Inspection
Once each month perform the following inspections:
o Visually check the general appearance and cleanliness of the
batteries, the battery rack and the battery room. Clean and dust as
required.
o Inspect for cracks in the cells or electrolyte leakage. Notify
status center if corrective action is required.
o Inspect the load post plates and inter-cell post connector plates
for corrosion. Clean and apply NO-OX-ID "A" grease as required.
2.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Check and record the voltage of each of the 24 cells.
o Check battery plant float voltage at load plates (-53.52 to -54.48
VDC). Adjust charger float voltage to within range.
o Check pilot cell voltage. Range is 2.23-2.27 VDC. Minimum is 2.20
VDC. Maximum is 2.35 VDC. Pilot cell is lowest per cell voltage of
the 24 cells. If below minimum, equalize batteries for 12-24 hours.
If above 2.27 VDC, decrease charger float voltage.
2.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Ensure load plate post bolts are torqued to 95-100 in lbs.
o Caution: Use only insulated tools.
o Measure and record inter-cell connection resistance.
o Check all alarm points for proper functionality.
4
3. BUILDING MAINTENANCE
3.1. Monthly Inspection
Once each month, perform the following inspections:
o Visually check the general appearance and cleanliness of the
building. Remove trash and sweep/mop floors as required.
o Check the building's exterior walls and roof for damage due to ice
or bullet holes. Repair and seal holes as required.
o Check inside the building for evidence of water leaks or seepage.
Re-seal as required.
o Verify operation of building exterior entry light and any other
perimeter lights. Replace bulbs as required.
o Verify ambient room temperature is > 60 (degrees) F and < 80
(degrees) F. Verify and adjust thermostat high and low settings.
3.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Inspect building ground wires for excessive corrosion and firm
connectivity. Clean and tighten as required.
o Verify operation of each air conditioner unit. Air discharge should
be a minimum of 10 (degrees) cooler than outside building
temperature.
o Clean or change each air conditioner's filter.
3.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Verify functional operation of the building high temperature alarms
both local and remote.
o Inspect the building floor tile for bubbles, cracks and tears.
Repair and replace as required.
o Check all alarm points for proper functionality.
o Ensure all AC connections are tight and at the specified torque.
o Measure and record voltages at the building distribution panel to
verify that the input AC voltages are within specifications.
5
4. CHARGER/RECTIFIER MAINTENANCE
(Valve Regulated Batteries)
4.1. Monthly Inspection
Once each month perform the following inspections:
o Dust or wipe down top of rectifier shelf as required. Remove dust
from rear fan exhaust rings on each rectifier unit.
o Verify DC output amps of each rectifier unit is within 5% of each
other. Adjust load sharing setting on rectifiers to balance output
load.
o Visually inspect DC output cables for significant insulation
indentations and deterioration along cable rack and other metal
surfaces.
4.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Verify float output voltage of each rectifier (at battery plant) is
-53.52 to 54.48 VDC. Adjust each rectifier to within .1 VDC of each
other.
o Verify equalize voltage is -55.2 VDC to -56.4 VDC for each
rectifier. Adjust each rectifier to within .1 VDC of each other.
Verify at battery plant.
o Verify current limit setting and operation of each rectifier.
o Verify operation of forced paralleling. Adjust as required.
o Verify operation and accuracy of DC volts and amps output monitor
meters. Adjust meter monitor calibration as required.
4.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Verify AC and DC local and remote alarms are functional for each
rectifier.
o Verify local and remote high and low DC output alarms are
functional.
o Visually inspect AC and DC power connections for corrosion and firm
connectivity. Clean and tighten as required.
o Use an oscilloscope and check AC ripple/noise on the DC output
terminals. Check charger grounds for spikes over I volt P/P.
o Check all alarm points for proper functionality.
6
5. GENERATOR MAINTENANCE
5.1. Monthly Inspection
Once each month perform the following inspections:
o On indoor units visually check the general appearance and cleanness
of the generator room. Sweep and wipe down as required.
o On outdoor weatherproof housing units verify access panels close
properly and are latched. Clean inside of housing and oil panel
hinges as required.
o Check engine oil and coolant levels. Fill as required.
o Check fuel level. Should not be below 40% of total fuel capacity.
Refill as required.
o Check 12VDC/24VDC starting battery's electrolyte level. Fill with
distilled water as required.
o Check engine drip pan for indications of excessive oil or coolant
leakage.
5.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Visually check fan belts for fraying and cracks. Replace as
required.
o Inspect starting battery terminals for corrosion and firm
connections. Clean and grease battery posts as required.
o Remotely start generator and transfer load. Run site on generator
for minimum of 30 minutes.
o Ensure starting battery charger is operational.
5.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Once a year or every 250 hours of operation change the engine oil,
oil filter, fuel filter and coolant filter (if equipped). Note
changes in site log.
o Inspect engine air filter cleaner. Clean or replace as required.
o If equipped, inspect and clean the generator building intake and
exhaust filters. Replace if required.
o Simulate an AC power failure and load test the site for at least one
(1) hour. Record AC volts, AC amps, frequency, engine RPM, oil
pressure, and coolant temperature. Compare readings with
manufacturer's tolerances.
o Check all alarm points for proper functionality.
7
6. MULTIPLEXER MAINTENANCE
6.1. Monthly Inspection
Once each month perform the following inspections:
o Wipe off or dust top of multiplexer shelves as required.
o 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)
6.2. Annual Inspection
At least once a year the Monthly inspection should be augmented as follows:
o Measure main and standby power supply unit's DC output voltages.
Verify measurements are within manufacturer's tolerances.
o If test points are available measure and record the main and
protection
o Optical TX laser bias current. Verify measurements are within
manufacturer's tolerances.
o Check functional operation of the local and remote major and minor
alarms.
o Check all alarm points for proper functionality.
8
7. RADIO MAINTENANCE
7.1. Monthly Inspection
Each month the following preventative maintenance procedures should be
performed:
o Wipe off or dust the top shelves in the radio equipment racks as
required.
o 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.
o Check and record all TX/RX meter readings for TX power, AFC
correction, RX in level, If level etc. Verify readings are within
manufacturer's tolerances.
7.2. Quarterly and Semi-Annual Inspection
At least once each quarter the monthly procedure should be augmented as follows:
o Measure and record the DC-DC power converter and TX FET power supply
DC output voltages for each TX/RX unit. Verify measured voltages are
within manufacturer's tolerances.
o 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.
o Measure and record the TX RF frequency on each transmitter at the TX
monitor connector. Measured should be within +/- .OO5% of assigned.
o Measure and record the receiver AGC voltage. Correlate AGC voltage
to receive signal level. Verify actual RSL is within 3 dB of
calculated.
7.3. Annual Inspection
At least once a year the semi-annual inspection should be augmented as follows:
o Measure and record each TX local oscillator frequency. Measured
should be within +/- .001% of assigned.
o Measure and record each RX local oscillator frequency. Measured
should be within +/- .001% of assigned.
o Perform "Transmit Fade Margin Test" to verify receiver fade margin
on the path. The measured value should be within +/- 2 dB of
calculated.
o Check all alarm points for proper functionality.
9
8. SITE MAINTENANCE
8.1. Monthly Inspection
Once each month perform the following inspections:
o Visually check the general appearance and cleanliness of the site
area. Remove trash from ground and fence areas and dispose off-site.
o Check gates for sagging and ground clearance. Lubricate gate hinges
as required.
o Check gate and site locks for binding or sticking. Lubricate as
required.
o Ensure perimeter fence is upright (vertical) and unopened.
o Inspect building, tower and guy anchor foundations for excessive
erosion.
8.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Cut excessive grass and weed growth within site perimeter fence.
o If required spread vegetation killer chemicals within 10 feet of
building area.
8.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Cut and remove large tree growth near AC power lines, guy wires and
buildings.
o Road condition, perimeter fence and gate condition and foundation
erosion concerns.
10
9. TOWER MAINTENANCE
9.1. Monthly Inspection
Once each month perform the following inspections:
o Visually check the general appearance of the tower and waveguide
bridge for loose or bent cross braces due to ice or wind.
o If a guyed tower, visually check the guy cables for fraying and
ensure a linear slope (i.e. no sag).
o Cover photocell until tower lights come on. Visually check to ensure
all tower lights are operational. Notify status center of burned out
tower lights.
9.2. Quarterly and Semi-Annual Inspection
At least once a quarter the monthly inspection should be augmented as follows:
o Visually inspect the tower base and guy anchor ground wires for
excessive corrosion and firm connectivity. Clean and tighten as
required.
9.3. Annual Inspection
At least once a year the quarterly inspection should be augmented as follows:
o Visually inspect the tower base and guy anchor foundations for
indications of movement and excessive erosion (i.e. large gaps
between concrete and earth).
o Provide a detailed report on the tower paint condition and any
excessive metal corrosion.
9.4. Bi-Annual Inspection
Every two years the following inspection should be completed.
o Physically climb the tower and check for loose or missing bolts and
bent tower members. Replace all regular incandescent tower light
bulbs.
o If a guyed tower, check tower plumb and guy tension.
11
SCHEDULE U
MINIMAL LEVEL OF ACCEPTABLE NETWORK MANAGEMENT
1. Network Management Operations, Staffing and Dispatch
1.1 PathNet will operate a network monitoring center that will be
staffed 24 hours a day, 7 days a week to handle all problem and
trouble reports and to monitor the system. Both alarm and
performance information shall be monitored and logged. In many
cases, equipment degradation can be detected and corrected before
causing any operational problems for customer circuits. Under most
circumstances, system problems or degradation will be noted and
corrective action started before Texaco or the customer calls with
problems.
1.2 PathNet's network monitoring system will collect performance data
(errored seconds, severely errored seconds, frame loss, failed
seconds, etc.) consistent with the manufacturer's specifications and
issue periodic reports. Corrective action is required any time
system performance degrades to or below maintenance limits described
in Schedule O.
1.3 PathNet's network monitoring personnel will also coordinate
corrective maintenance efforts by PathNet's field personnel. In the
event of a system outage, PathNet shall dispatch personnel as soon
as practical, with the proper tools and spare equipment, to restore
service. PathNet will supply all resources within its control to
support service restoration. The maintenance contractor's field
technicians and supervisors will correct system problems with
PathNet's technical support if required.
1.4 In the event of system jeopardy. PathNet shall dispatch field
personnel as soon as the problem is diagnosed. System jeopardy is
defined as any failure that could result in an Outage of a DS-l.
Examples are any failure in a radio that caused traffic to be
switched to the protection radio channel, any failure in the
protection radio channel that makes it unavailable for traffic,
failure of any 1 x N protected modules in radio or multiplex
equipment.
1.5 For other problems or failures that do not place the system in
jeopardy, PathNet will notify Texaco field personnel as defined in
this schedule.
1
2. Network Management Subsystems
The network management system will have the ability to manage all Network
Elements at the Q3, TL-1 and TBOS levels within the network (21 SMX or
equivalent).
The subsystems requiring network management monitoring and control are:
o Facilities Subsystem
o Radio Subsystem
o OC-3 / DS-1 Multiplex Subsystem
The network management architecture is set forth in Figure 1 of this schedule.
2.1. Facilities and Radio Network Management Subsystem
PathNet will provide a network management system for those Facilities set forth
in Schedules B and S. The master will be located at PathNet Network Management
Control Center and extended by PathNet to Texaco Heritage Plaza. The master will
be accessible to authorized Texaco and PathNet personnel via dial-in remote
access. Inasmuch as the specific network management system has not been defined
at this time, a minimum set of requirements have been set forth. The proposed
system will provide the following minimum digital input and output requirements:
2.1.1. Texaco Facility Alarms and Status
--------------------------------------------------------------------------------
Alarm Type Alarm Points PathNet Action
--------------------------------------------------------------------------------
Commercial Power Fail 1 B
--------------------------------------------------------------------------------
Door Security 1 A
--------------------------------------------------------------------------------
DC Charger Fail 3 D
--------------------------------------------------------------------------------
Waveguide Pressure 6 C
--------------------------------------------------------------------------------
Waveguide Dehydrator
Excessive Run 1 C
--------------------------------------------------------------------------------
Air-conditioner Fail 2 D
--------------------------------------------------------------------------------
High Temperature 1 A
--------------------------------------------------------------------------------
Spare 1
--------------------------------------------------------------------------------
Smoke Detector 1 A
--------------------------------------------------------------------------------
High Water 1 A
--------------------------------------------------------------------------------
Tower Lights 4 C
--------------------------------------------------------------------------------
Auxiliary Generator 4 E
--------------------------------------------------------------------------------
Multiplex: DS1-DSO Major 3 A
--------------------------------------------------------------------------------
Multiplex: DS1-DSO Minor 3 C
--------------------------------------------------------------------------------
Key: A - Provide immediate notification (Page) of Texaco's designated
maintenance technician.
B - Monitor for one (1) hour after receiving alarm. If alarm is not
cleared, provide immediate notification (Page) of Texaco's designated
maintenance technician.
2
C - Provide notification the following day before 9 A.M. to Texaco's
designated maintenance technician.
D - Provide immediate notification, if primary, and if backup is in alarm.
Otherwise provide notification the following day before 9 A.M. to Texaco's
designated maintenance technician.
E - Call-out instructions will be provided by Texaco.
2.1.2. Facility Controls
--------------------------------------------------------------------------------
Control Type Number of Control Points
--------------------------------------------------------------------------------
Auxiliary Generator Start & Stop 2
--------------------------------------------------------------------------------
Commercial Power breaker Reset 2
--------------------------------------------------------------------------------
Spare 1
--------------------------------------------------------------------------------
Manual Commercial / Auxiliary Power Transfer 1
--------------------------------------------------------------------------------
2.1.3. Radio Alarms and Status
The network management system will have the ability to poll and control the NEC
2000. The following tables reflect a minimum level of alarms, status' and
controls:
--------------------------------------------------------------------------------
EVENT DEFINITION
--------------------------------------------------------------------------------
LOS Loss of Signal
--------------------------------------------------------------------------------
LOF Loss of Frame
--------------------------------------------------------------------------------
E BER (RX) BER degraded > preset value (10 to the power of negative 3).
--------------------------------------------------------------------------------
SD (RX) Signal degraded > preset value (BER 10 to the power of negative
5 and 10 to the power of negative 9).
--------------------------------------------------------------------------------
LOP Loss of Pointer
--------------------------------------------------------------------------------
TR DIST Communication loss between TR DIST and OAM&P.
--------------------------------------------------------------------------------
MUX CLK Loss of D/I clock from MUX.
--------------------------------------------------------------------------------
DMR CLK Loss of D/I clock from DMR.
--------------------------------------------------------------------------------
CLK LOSS Output clock loss.
--------------------------------------------------------------------------------
MAINT MAINT SW on the ACL module set to MAINT status.
--------------------------------------------------------------------------------
MOD IF output signal level decrease.
--------------------------------------------------------------------------------
DEM Carrier synchronization lost.
--------------------------------------------------------------------------------
TX PWR TX power below normal.
--------------------------------------------------------------------------------
TX APC TX local oscillator becomes unlocked.
--------------------------------------------------------------------------------
RX IN LEV RX RF input level decrease.
--------------------------------------------------------------------------------
RX APC RX local oscillator becomes unlocked.
--------------------------------------------------------------------------------
MAIN IN LEV Main RX IF level decrease.
--------------------------------------------------------------------------------
SD IN LEV SD RX IF level decrease.
--------------------------------------------------------------------------------
PHASE IF signal between MAIN and SD is out of phase.
--------------------------------------------------------------------------------
3
2.1.4. Radio Controls
--------------------------------------------------------------------------------
Control Definition
--------------------------------------------------------------------------------
ALSC Automatic Laser Shutdown Control
--------------------------------------------------------------------------------
RCCC Reference Clock Changeover Control
--------------------------------------------------------------------------------
RPSC Radio Protection Switchover Control
--------------------------------------------------------------------------------
ATPC Automatic Transmitter Power
--------------------------------------------------------------------------------
2.1.5 Metered Controls
--------------------------------------------------------------------------------
Control Definition
--------------------------------------------------------------------------------
TX PWR Transmitter Output Power
--------------------------------------------------------------------------------
RX IN LEV Receive Signal Level
--------------------------------------------------------------------------------
MAIN IN LEV Receive MAIN Signal Level
--------------------------------------------------------------------------------
SD IN LEV Receive SD Signal Level
--------------------------------------------------------------------------------
TX APC V Transmitter LO OSC Voltage
--------------------------------------------------------------------------------
RX APC V Receive LO OSC Voltage
--------------------------------------------------------------------------------
FET V Output voltage of FET PS.
--------------------------------------------------------------------------------
PS V Output voltage of DC-DC converter.
--------------------------------------------------------------------------------
2.1.6 Performance Data
Performance data provides the ability to access the performance transport
systems and localize any trouble or degradation of service.
Performance data is defined as CURRENT Performance Data and HISTORIC Performance
Data. Current Performance Data provides values for performance data collected
for the current time slice in l5-minute increments. The system will provide a
minimum of sixteen (16) 15-minute and seven (7) 24-hour sets of historical data.
2.2. OC-3 to DS-1 Multiplex Network Management Subsystem
The network management system will have the ability to poll, control and modify
the configuration of the IMT 150.
The IMT-150 has one (1) TBOS port through which alarms and status scan displays
and remote control (Command Displays) are accessed. The following tables refer
to TBOS alarms:
4
2.2.1. Multiplex Alarms and Status (TBOS)
--------------------------------------------------------------------------------
BIT Alarm Type
--------------------------------------------------------------------------------
1 Reserved
--------------------------------------------------------------------------------
2 Alarm Control Unit Fail Alarm
--------------------------------------------------------------------------------
3 Switch Control Unit Fail Alarm
--------------------------------------------------------------------------------
4 Telemetry Unit Fail Alarm
--------------------------------------------------------------------------------
5 Overhead Terminating Unit Fail Alarm
--------------------------------------------------------------------------------
6 Through Unit Fail Alarm
--------------------------------------------------------------------------------
7 Reserved
--------------------------------------------------------------------------------
8 Reserved
--------------------------------------------------------------------------------
9 LS Group1 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
10 LS Group1 Unit Fail SA Alarm
--------------------------------------------------------------------------------
11 LS Group2 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
12 LS Group2 Unit Fail SA Alarm
--------------------------------------------------------------------------------
13 LS Group3 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
14 LS Group3 Unit Fail SA Alarm
--------------------------------------------------------------------------------
15 HS Group1 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
16 HS Group1 Unit Fail SA Alarm
--------------------------------------------------------------------------------
17 MS Group1 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
18 MS Group1 Unit Fail SA Alarm
--------------------------------------------------------------------------------
19 MS Group2 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
20 MS Group2 Unit Fail SA Alarm
--------------------------------------------------------------------------------
21 MS Group3 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
22 MS Group3 Unit Fail SA Alarm
--------------------------------------------------------------------------------
23 HS Group2 Unit Fail NSA Alarm
--------------------------------------------------------------------------------
24 HS Group2 Unit Fail SA Alarm
--------------------------------------------------------------------------------
25 Housekeeping Alarm 0 Activated Alarm
--------------------------------------------------------------------------------
26 Housekeeping Alarm 1 Activated Alarm
--------------------------------------------------------------------------------
27 Housekeeping Alarm 2 Activated Alarm
--------------------------------------------------------------------------------
28 Housekeeping Alarm 3 Activated Alarm
--------------------------------------------------------------------------------
29 Housekeeping Alarm 4 Activated Alarm
--------------------------------------------------------------------------------
30 Housekeeping Alarm 5 Activated Alarm
--------------------------------------------------------------------------------
31 Power Unit1 Fail Alarm
--------------------------------------------------------------------------------
32 Power Unit2 Fail Alarm
--------------------------------------------------------------------------------
33 Clock Unit Fail NSA Alarm
--------------------------------------------------------------------------------
34 Clock Unit Fail SA Alarm
--------------------------------------------------------------------------------
35 Switch Unit X1 Fail Alarm
--------------------------------------------------------------------------------
36 Switch Unit X2 Fail Alarm
--------------------------------------------------------------------------------
37 Switch Unit X3 Fail Alarm
--------------------------------------------------------------------------------
38 Switch Unit R1 Fail Alarm
--------------------------------------------------------------------------------
39 Switch Unit R2 Fail Alarm
--------------------------------------------------------------------------------
5
--------------------------------------------------------------------------------
BIT Alarm Type
--------------------------------------------------------------------------------
40 Switch Unit R3 Fail Alarm
--------------------------------------------------------------------------------
41 Protocol Fail of Section DCC 1 (OC-3) Alarm
--------------------------------------------------------------------------------
42 Protocol Fail of Section DCC 2 (OC-3) Alarm
--------------------------------------------------------------------------------
43 Protocol Fail of Section DCC 3 (OC-1) Alarm
--------------------------------------------------------------------------------
44 Protocol Fail of Section DCC 4 (OC-1) Alarm
--------------------------------------------------------------------------------
45 Protocol Fail of Section DCC 5 (OC-1) Alarm
--------------------------------------------------------------------------------
46 Time Slot Interchange Unit Fail NSA Alarm
--------------------------------------------------------------------------------
47 Time Slot Interchange Unit Fail SA Alarm
--------------------------------------------------------------------------------
48 Built-in Order Wire Fail NSA Alarm
--------------------------------------------------------------------------------
49 OC-3 Signal Fail Alarm
--------------------------------------------------------------------------------
50 OC-1 Signal Fail Alarm
--------------------------------------------------------------------------------
00 XXX-0 Xxxx Signal Fail Alarm
--------------------------------------------------------------------------------
52 DS3 Signal Fail Alarm
--------------------------------------------------------------------------------
53 VT Signal Fail Alarm
--------------------------------------------------------------------------------
54 DS1 Signal Fail Alarm
--------------------------------------------------------------------------------
55 EC-1 Signal Fail Alarm
--------------------------------------------------------------------------------
56 Reserved
--------------------------------------------------------------------------------
57 Housekeeping Control Status 0 Status
--------------------------------------------------------------------------------
58 Housekeeping Control Status 1 Status
--------------------------------------------------------------------------------
59 Line AIS Received Status
--------------------------------------------------------------------------------
60 STS-1 Path AIS Received Status
--------------------------------------------------------------------------------
61 VT1.5 Path AIS Received Status
--------------------------------------------------------------------------------
62 DS3 Line AIS Received Status
--------------------------------------------------------------------------------
63 Abnormal LED Status Status
--------------------------------------------------------------------------------
64 Reserved
--------------------------------------------------------------------------------
NSA: Non Service Affecting
--------------------------------------------------------------------------------
SA: Service Affecting
--------------------------------------------------------------------------------
2.2.2. TL-1 Performance Alarms
TL-1 commands are listed in detail in the NEC IMT-150 Multiplexer Add-Drop
System ADM/TRM/RING, Volume 3, Command List. The following table lists the most
common performance TL-1 alarms at the DS1 level:
--------------------------------------------------------------------------------
Condition Type Description
--------------------------------------------------------------------------------
BPVERR Exceeding of bipolar violation threshold on DS1 channel.
--------------------------------------------------------------------------------
LOS Loss of signal on DS1 channel.
--------------------------------------------------------------------------------
RLBDET Detection of request for remote loopback.
--------------------------------------------------------------------------------
RLBSET Execution of remote loopback by OPR-LPBK-T1.
--------------------------------------------------------------------------------
T-CVL Threshold crossing alert of DS1 line coding violation counts.
--------------------------------------------------------------------------------
T-ESL Threshold crossing alert of DS1 line errored seconds.
--------------------------------------------------------------------------------
T-SESL Threshold crossing alert of DS1 line severely errored seconds.
--------------------------------------------------------------------------------
6
2.2.3. Multiplex Controls (TBOS)
--------------------------------------------------------------------------------
Number Remote Command Remote Control Function
--------------------------------------------------------------------------------
1-7 Unassigned
--------------------------------------------------------------------------------
8 ACO Alarm Cutoff
--------------------------------------------------------------------------------
9-32 Unassigned
--------------------------------------------------------------------------------
33 HKC0 Housekeeping Control 0
--------------------------------------------------------------------------------
34 HKC1 Housekeeping Control 1
--------------------------------------------------------------------------------
35-63 Unassigned
--------------------------------------------------------------------------------
2.2.4. Multiplex Provisioning
The IMT-150 requires both physical and programming provisioning. Traffic
Provisioning tasks are performed via the Ring 1-CID (Intelligent CID). Multiplex
provisioning will be performed via the NEC ICD 300 Provisioning interface.
2.2.5. Alarm / Event Logging and Reports
All alarms and event logging will be passed through to Texaco from PathNet.
2.3 Network Performance Monitoring / Monitor Parameters
Monitoring parameters are based on a 24 hour period and measured at DS1 as
referred to in Schedule O.
2.3.1. Alarm / Event Logging and Reports
All monitored parameters, alarms and event logging will be passed through
to Texaco from PathNet. Monthly, quarterly and annual reports are required
for system availability, system performance and trouble ticket summaries.
2.4. Hardware / Software Configuration
The network management system hardware/software will be provided by
PathNet, with the exception of the Craft Interface PC hardware, and
configured as follows
Master: (Or Equivalent)
o Sun Xxxxx 00 Dual Processor (Or Equivalent)
o 224 MB RAM
o 0 XX Xxxx Xxxxx Space
o 20" SVGA Monitor
o 4mm DAT Drive
o CDROM
o Modem
o NEC ICD-300 Provisioning Software
o Network Management Software as required
7
Workstation:
o CPU
o 128 MB RAM (Minimum)
o 0 XX Xxxx Xxxxx Space
o CDROM
o 20" SVGA Monitor
o 4mm DAT Drive
o Modem
o NEC ICD-300 Provisioning SW
o Network Management SW as required
o All Equipment Craft Interface SW
o Remote Dial-in Software
Remote / Craft Interface PC: (For Each FE)
o Pentium Laptop
o 32 MB RAM (Minimum)
o 0 XX Xxxx Xxxxx Space
o SVGA Capable
o CDROM
o Modem
o Windows `95 Operating System
o NEC ICD-300 Provisioning SW
o Network Management SW as required
o All Equipment Craft Interface SW
o Remote Dial-in SW
2.5 Network Management System Factory Acceptance Test
During the System Factory acceptance Test, the testing will include the network
management system, craft interface and remote dial-in functionality in
accordance with NEC FAT specifications.
2.6 Site Acceptance Test
Please refer to the network management system documentation.
8
Figure 1: Network Management Conceptual Diagram
-------------------------------------
Texaco Microwave System
Network Management Conceptual Diagram
-------------------------------------
[FLOW CHART DEPICTING NETWORK MANAGEMENT SYSTEM]
9
SCHEDULE V
TEXACO PAYMENT INSTRUCTIONS
10
SCHEDULE W
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into effective _______________, 1997,
by and between PathNet, Inc., ("PathNet") with offices located at 0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 and Texaco Pipeline,
Inc. ("Texaco"), located at __________________________________________________.
WHEREAS, PathNet possesses confidential and/or proprietary information
related to its own business plans and goals and Texaco possesses confidential
and/or proprietary information related to its microwave system and its intended
uses for the infrastructure supporting use of such system, collectively referred
to as the "Information"; and
WHEREAS, each such party in possession of Information (the "Disclosing
Party") desires to disclose some of its Information to the other party (the
"Receiving Party") subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the receipt of certain Information and
the mutual promises made herein, the parties agree as follows:
1. Permitted Use. The Receiving Party shall (a) hold all Information
received from the Disclosing Party in confidence, (b) use such Information only
for the purpose of evaluating the possibility of forming a joint business
relationship or other commercial arrangement between the parties concerning such
Information, (c) reproduce such Information only to the extent necessary for
such purpose, (d) restrict disclosure of such Information to its employees,
consultants and contractors with a need to know (and advise) such employees,
consultants, and contractors of the obligation assume herein), and (e) not
disclose such Information to any third party without the prior written approval
of the Disclosing Party.
The restrictions on the Receiving Party's use and disclosure of
Information as set forth above shall not apply to any Information which the
Receiving Party can demonstrate:
i. Is wholly and independently developed by the
Receiving Party without the use of Information of the Disclosing
Party;
ii. Is or has become generally available to the public
without breach of this Agreement by the Receiving Party;
iii. At the time of disclosure to the Receiving Party,
was known to such Receiving Party free of restriction and evidenced
by documentation in the Receiving Party's possession'
1
iv. Is approved for release by written authorization of
the Disclosing Party, but only to the extent and subject to such
conditions as may be imposed in such written authorization; or
v. Is disclosed in response to a valid order of a court
or other governmental body in the United States or any political
subdivision thereof, but only to the extent of and for the purposes
of such order; provided, however, that the Receiving Party shall
first notify the Disclosing Party in writing of the order and permit
the Disclosing Party to seek an appropriate protective order.
2. Designation. Information shall be subject to the restrictions of
paragraph 1 if it is in writing or other tangible form and clearly marked as
proprietary or confidential when disclosed to the Receiving Party or is
summarized in a writing marked to indicate its proprietary or confidential
nature and delivered to the Receiving Party within thirty (30) days of such
disclosure.
3. No License or Representations. No license to a party of any trademark,
patent, copyright or any other intellectual property rights is either granted or
implied by this Agreement or any disclosure hereunder, including, but not
limited to, any license to make, use or sell any product embodying any
Information. No representation, warranty or assurances is made by either party
with respect to the non-infringement of trademarks, patents, copyrights, mask
protection rights or any other intellectual property rights or other rights of
third persons.
4. No Obligation. Neither this Agreement nor the disclosure or receipt of
Information shall be construed as creating any obligation of a party to furnish
information to the other party or to enter into any agreement or relationship
with the other party with respect to mutual business.
5. Return of Information. All Information shall remain the sole property
of the Disclosing party which originally disclosed such Information, and all
materials shall be returned to the Disclosing Party upon written request, upon
termination or expiration of this Agreement, or upon the Receiving Party's
determination that it no longer has a need for such Information. Alternatively,
the Receiving Party at its option may destroy the Information. Upon request of
the Disclosing Party, the Receiving Party shall certify in writing that all
materials containing such Information (including all copies thereof) have been
returned to the Disclosing Party or destroyed.
6. Term and Termination. This Agreement shall become effective on the date
first set forth above and shall continue in effect for a period of 3 years
thereafter. During this three year period, a Receiving Party is bound by the
terms of this Agreement and shall maintain the confidentiality of the
Information received.
2
7. Injunctive Relief. The parties agree that any unauthorized use of any
of the Information in violation of this Agreement disclosed by a Disclosing
Party will cause such Disclosing Party irreparable injury for which it would
have no adequate remedy at law. Accordingly, the Disclosing Party shall be
entitled to immediate injunctive relief prohibiting any violation of this
Agreement, in addition to any other rights and remedies available to such
Disclosing Party.
8. Governing Law. This Agreement shall be governed by the law of the State
of Delaware.
9. Miscellaneous. This Agreement constitutes the entire understanding
between the parties hereto as to the Information and supersedes all prior
discussions between them relating thereto. No amendment or modification of this
Agreement shall be valid or binding on the parties unless made in writing and
signed on behalf of each of the parties by its authorized officer or
representative. Neither party may assign or transfer, in whole or in part, any
of its rights, obligations or duties under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
PATHNET, INC. TEXACO PIPELINE, INC.
By: By: /s/ H.D. Xxxx
------------------------------- ---------------------------------
Name: Name: H.D. Xxxx
----------------------------- ------------------------------
Title: Title: Manager of Telecommunications
--------------------------- ------------------------------
3
SCHEDULE X
INDEMNITY AND LIMITATIONS OF OBLIGATIONS AND LIABILITY
X.1 PATHNET, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL INDEMNIFY AND
HOLD HARMLESS TEXACO, AND DIRECTLY OR INDIRECTLY, ITS PARENT, AFFILIATE AND
SUBSIDIARY COMPANIES, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS
("TEXACO INDEMNIFIED PARTIES"), AGAINST ALL CLAIMS, DEMANDS OR CAUSES OF ACTION,
SUITS, DAMAGES, LIABILITIES, JUDGMENTS, LOSSES AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS' FEES AND COSTS OF ARBITRATION AND LITIGATION, WHETHER
INCURRED FOR A TEXACO INDEMNIFIED PARTY'S PRIMARY DEFENSE OR FOR ENFORCEMENT OF
ITS INDEMNIFICATION RIGHTS) WHICH MAY BE INCURRED BY A TEXACO INDEMNIFIED PARTY
OR ASSERTED BY PATHNET (INCLUDING, WITHOUT LIMITATION, PATHNET'S EMPLOYEES,
CONTRACTORS AND AGENTS) ON ACCOUNT OF:
(I) ANY PERSONAL INJURY, DISEASE OR DEATH OF ANY PERSON(S), DAMAGE, TO OR LOSS
OF ANY PROPERTY, OR MONEY DAMAGES OR SPECIFIC PERFORMANCE OWED TO ANY
THIRD PARTY (BY CONTRACT OR OPERATION OF LAW), AND ANY FINES, PENALTIES,
TAXES, ASSESSMENTS, ENVIRONMENTAL RESPONSE COSTS OR INJUNCTIVE OBLIGATIONS
CAUSED BY, ARISING OUT OF, OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION
WITH, ACTIONS OR OMISSIONS OF PATHNET (INCLUDING,
1
WITHOUT LIMITATION, PATHNET'S EMPLOYEES, CONTRACTORS AND AGENTS)
INCLUDING, WITHOUT LIMITATION,
(1) THE NEGLIGENCE, FAULT OR STRICT LIABILITY OF PATHNET AND
(2) THE CONCURRENT NEGLIGENCE, FAULT OR STRICT LIABILITY OF ANY
COMBINATION OF PATHNET, ITS EMPLOYEES, CONTRACTORS AND AGENTS AND
(II) ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF PATHNET
CONTAINED IN THIS AGREEMENT.
X.2 TEXACO, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL INDEMNIFY AND
HOLD HARMLESS PATHNET, AND DIRECTLY OR INDIRECTLY, ITS PARENT, AFFILIATE AND
SUBSIDIARY COMPANIES, AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS
("PATHNET INDEMNIFIED PARTIES"), AGAINST ALL CLAIMS, DEMANDS OR CAUSES OF
ACTION, SUITS, DAMAGES, LIABILITIES, JUDGMENTS, LOSSES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS OF ARBITRATION AND LITIGATION,
WHETHER INCURRED FOR A PATHNET INDEMNIFIED PARTY'S PRIMARY DEFENSE OR FOR
ENFORCEMENT OF ITS INDEMNIFICATION RIGHTS) WHICH MAY BE INCURRED BY A PATHNET
INDEMNIFIED PARTY OR ASSERTED BY TEXACO (INCLUDING, WITHOUT LIMITATION, ITS
EMPLOYEES, CONTRACTORS [OTHER THAN PATHNET], AND AGENTS) ON ACCOUNT OF:
(I) ANY PERSONAL INJURY, DISEASE OR DEATH OF ANY PERSON(S), DAMAGE TO OR LOSS
OF ANY PROPERTY, OR MONEY DAMAGES OR SPECIFIC PERFORMANCE OWED TO ANY
THIRD-PARTY (BY CONTRACT OR OPERATION OF LAW), AND ANY FINES, PENALTIES,
TAXES, ASSESSMENTS,
2
ENVIRONMENTAL RESPONSE COSTS OR INACTIVE OBLIGATIONS CAUSED BY, ARISING
OUT OF, OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION WITH, ACTIONS OR
OMISSIONS OF TEXACO (INCLUDING, WITHOUT LIMITATION, ITS EMPLOYEES,
CONTRACTORS [OTHER THAN PATHNET], AND AGENTS) INCLUDING, WITHOUT
LIMITATION,
(1) THE NEGLIGENCE, FAULT OR STRICT LIABILITY OF TEXACO, AND
(2) THE CONCURRENT NEGLIGENCE, FAULT OR STRICT LIABILITY OF ANY
COMBINATION OF TEXACO, ITS EMPLOYEES, CONTRACTORS [OTHER THAN
PATHNET], AND AGENTS), AND
(II) ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT OF TEXACO CONTAINED
IN THIS AGREEMENT.
X.3 IF AFTER EITHER TEXACO OR PATHNET HAVE DEFENDED A SUIT AND PAID ANY
RESULTING JUDGMENT OR AWARD AND IT IS DETERMINED BY A FINAL, NONAPPEALABLE
DECISION THAT THE MATTER WAS A RESULT OF THE NEGLIGENCE, FAULT, OR STRICT
LIABILITY OF THE OTHER PARTY, IT IS AGREED THAT THE DEFENDING PARTY SHALL BE
REIMBURSED FOR THE JUDGMENT OR AWARD AGAINST IT AND ITS PORTION OF REASONABLE
ATTORNEY'S FEES, LITIGATION EXPENSES, AND COURT COSTS INCURRED AS A RESULT OF
THE DETERMINED LIABILITY OF THE OTHER PARTY.
X.4 BOTH PATHNET'S AND TEXACO'S OBLIGATIONS UNDER THIS INDEMNITY SECTION
SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
3