EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED
MASTER FACILITIES AGREEMENT
This Master Facilities Agreement ("Agreement") is entered into as of
this 31st day of May, 2000 ("Execution Date") between FIBER TECHNOLOGIES
OPERATING COMPANY, LLC, a Delaware limited liability company, having its
principal place of business at 140 Allens Creek Road, Rochester, New York 14618
("Grantor") and CHOICE ONE COMMUNICATIONS INC., a Delaware corporation, having
its principal place of business at 100 Chestnut Street, Suite 600, Rochester,
New York 14604 ("Grantee") (hereinafter, each, individually, "Party," and,
collectively, the "Parties").
RECITALS
Grantor is in the process of designing, constructing and operating
fiber optic communication networks in metropolitan areas throughout the
Northeast and Mid Atlantic areas of the United States as more particularly
described and depicted in Exhibit "A" attached hereto, as may be amended
pursuant to Sections 2.4 and 15.1 herein, and Grantee desires to be granted an
exclusive, indefeasible right to use ("IRU") fiber optic telecommunication
fibers within Grantor's System, as defined hereinafter, for use by Grantee.
In consideration of the mutual promises set forth below, and for other
good and valuable consideration, the adequacy and receipt of which are hereby
acknowledged, Grantor and Grantee agree as follows:
1. DEFINITIONS.
Unless otherwise defined in this Agreement, the following terms shall
have the following definitions:
1.1 ACTUAL COST. Actual direct costs paid or payable in
accordance with the established accounting procedures
generally used by the Party and which it utilizes in billing
third parties for reimbursable costs, which shall be limited
to the following: (a) internal labor costs, including wages
and salaries, and benefits and overhead (provided that the
cost of such benefits and overhead do not exceed 30% of such
wages and salaries), and (b) other direct costs and
out-of-pocket expenses on a passthrough basis (E.G.,
equipment, supplies, contract services, etc.).
1.2 CABLE. Fiber optic cable with fiber optic filaments
contained in any suitable jacketing or sheath that is the
subject of this Agreement and that is comprised of fiber optic
cable that is already in place, or is yet to be installed, and
to which Grantor will have access by ownership, lease, right
to use, or otherwise, as shown in Exhibit "A" attached hereto.
To the extent more than one Cable is used to construct or
provide the Route(s), the term `Cable' as used herein shall be
deemed to include the plural where appropriate in context.
1.3 CABLE ACCESSORIES. The attachment and suspension hardware,
splice closures and other components necessary either for the
placement of the Cable in the
* Portions of this Agreement have been omitted and filed
separtely with the Commision pursuant to an application for
confidential treatment under Rule 246b-2.
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underground or overhead or for the continuity of the fiber
filaments within the structures.
1.4 CABLE PARAMETERS. The design parameters for the Cable set
forth in Exhibit "B".
1.5 CHOICE ONE MARKETS. The metropolitan areas listed in Exhibit
"G" hereto, which may be amended pursuant to Section 2.4
herein.
1.6 CLAIMS. Any and all liabilities, damages, losses, claims,
demands, judgments, costs, and expenses including, without
limitation, any claim for personal injuries, property damage,
or infringement of patent or trade secret, made by Third
Parties.
1.7 CONTRACTOR. The person or persons selected by Grantor to
build and install new Cable along the Route.
1.8 DEMARCATION POINT. A point on one side of which is
Grantee's responsibility for liabilities, ensuring
connections, and paying for and installing Equipment, termed
Premise Side; the other side of the Demarcation Point shall be
termed Network Side, and which point shall be located in the
cable vault or telephone equipment room, typically located in
the basement, of the serving building, except the Demarcation
Point shall be located in each of the Choice One Regional
Switch Centers, as listed on Exhibit "G" hereto and delineated
on Exhibit "A" hereto.
1.9 EQUIPMENT. The power equipment, electronic and optronic
equipment including, without limitation, repeaters, junctions,
patch panels, alarm monitoring equipment and other equipment
necessary to provide a network of fiber optic transmission
capacity located on the Premise Side of the Demarcation Point.
The word "equipment," when not capitalized, refers to
equipment of any type.
1.10 EVENT OF ABANDONMENT. The act of withdrawing or ceasing
to or use the Cable, Grantee Fibers, Cable Accessories
and/or equipment for a period of one hundred eighty (180)
days or longer with the intent of never again claiming a
right or interest therein.
1.11 EXECUTION DATE. The date upon which this Agreement is fully
executed by all Parties hereto.
1.12 FIBERS. The fiber optic filaments contained in the Cable.
1.13 FIBER MILES. The product arrived at by multiplying Route
Miles by the number of Grantee Fibers in the Route.
1.14 FIBER RING. The Route Segments within a City Route that
when constructed form a closed loop with diverse access
connectivity as set forth on Exhibit "A", as amended from
time-to-time.
1.15 FIBER SPUR. A Route Segment that connects to a Fiber Ring,
directly or indirectly, but does not connect with other
Route Segments to form the ring architecture.
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1.16 GRANTEE FIBERS. The fiber optic filaments (the number of
which are set forth in Sections 2 and 24 herein, and as from
time-to-time agreed to by the parties pursuant to Sections 2
and 24) in the Cable that Grantor has granted an IRU to
Grantee and that Grantee may use for the term of this
Agreement, pursuant to the terms and conditions herein.
1.17 GRANTEE'S SYSTEM. The telecommunications facilities owned or
controlled by Grantee on the Premise Side of the Demarcation
Points including, without limitation, all associated
Equipment.
1.18 GRANTOR FIBERS. All fibers in the Cable which is the subject
of this Agreement, other than Grantee Fibers.
1.19 GRANTOR'S SYSTEM. The fiber optic communications network
to be constructed in metropolitan areas throughout the
Northeast and Mid-Atlantic region of the United States,
including Fiber Rings and Fiber Spurs, as more fully described
and depicted in Exhibit "A" hereto, as amended from time to
time.
1.20 MFN PERIOD. The period between the Execution Date and the
earlier of (i) a "Liquidity Event" or "Public Sale" as those
terms are defined in a certain Amended and Restated Operating
Agreement of Fiber Technologies, LLC, of even date herewith by
and between the Grantee and others unless such Liquidity Event
occurs within three (3) years of the Execution Date of this
Agreement then in that case the date which is three (3) years
following the Execution Date hereof, or (ii) the date which is
five (5) years following the Execution Date of this Agreement.
1.21 NETWORK SIDE. The side of the Demarcation Point on which the
Cable is located prior to termination.
1.22 PREMISE SIDE. The side of the Demarcation Point on which
Grantee's and/or a Third Party's Equipment is located after
the termination of the Cable.
1.23 PROGRAM MANAGERS. Individuals designated by each Party to
coordinate with his or her counterpart the approvals
necessary under the Agreement as defined in Section 22.1.
1.24 PROPRIETARY INFORMATION. Any privileged and non-public
proprietary information, claimed to be secret, and/or
confidential which is marked "Confidential," and which
constitutes the exclusive property, trade secrets, or
confidential information of a Party.
1.25 PRO RATA. As used in this Agreement, pro rata means a share in
the same proportion as Grantee Fibers are to the total number
of Fibers in the Cable installed on the Route.
1.26 ROUTE. The path on which the Cable will be located as shown in
Exhibit "A", as amended from time-to-time, which will identify
the routes along which
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(a) construction will take place on the fiber optic cable
installation or (b) Grantor has access to fiber optic cable
for use by Grantee and Grantor in accordance with this
Agreement. To the extent more than one geographical route is
identified on Exhibit "A" hereto (whether on the Execution
Date or as later added by amendment of this Agreement), the
term `Route' as used herein shall be deemed to include the
plural where appropriate in context. Each separate Route for
each of the individual metropolitan areas described in Exhibit
"A" shall be the "City Route" for that particular metropolitan
area.
1.27 ROUTE MILE. A one (1) mile length of the Cable along the-Route
or Route Segments. Fractional portions of a Route Mile shall
be expressed as a fraction.
1.28 ROUTE SEGMENT. A portion of the Route between any two of the
designated points set forth in Exhibit "A".
1.29 THIRD PARTY. Any party, person or entity that is not a
signatory to this Agreement or an affiliate of a signatory and
any party, person, or entity that is not a successor or
permitted assignee of the signatories hereto.
1.30 USE CHARGE. As defined in Section 15.1 of this Agreement.
1.31 UTILITY AGREEMENTS. Any and all applicable governmental or
non-governmental franchises, leases, licenses, rights of way,
easements, pole attachment agreements, permits, approvals,
orders, consents, contracts, agreements or other rights of any
nature pursuant to which the Grantor has or will obtain any
rights to install, construct, or maintain all or any portion
the Grantor's System.
2. GRANTEE'S ACCEPTANCE OF IRU
2.1 GRANT OF IRU. Subject to the terms and conditions of this
Agreement, Grantor hereby grants to Grantee an exclusive, IRU
to use four (4) Fibers in the Cable in the Fiber Ring or Rings
in thirteen (13) City Routes of the City Routes as set forth
in Exhibit "A", as may be amended pursuant to Section 2.4
herein and as designated by Grantor pursuant to Section 2.3
herein ("Designated City Routes"), and up to four (4) Fibers
in the Cable over Fiber Spurs, as requested by Grantee as
reflected on Exhibit A-1, as may be amended pursuant to
Section 2.4 herein and designated by Grantor in its sole
discretion and within the Designated City Routes. Grantee
agrees to accept said IRU for the Fiber Ring or Rings and the
Fiber Spurs within the Designated City Routes, and the
obligations under this Agreement, including, without
limitation, the payment of the Use Charge set forth
hereinafter, subject to the express terms and conditions of
this Agreement.
2.2 GRANTOR'S CONSTRUCTION OBLIGATIONS. To the extent that Grantor
commences construction of any City Routes, Grantor shall be
required to commit to, and begin, construction of thirteen
(13) Choice One Markets prior to initiating construction of a
City Route in a non-Choice One Market unless consented to by
Grantee.
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2.3 SELECTION OF THIRTEEN (13) MARKETS. Grantor shall have the
absolute right and discretion to determine which City Routes
set forth in Exhibit "A", as may be amended from time to time
pursuant to Section 2.4, it will construct and designate as
being subject to this Agreement up to a maximum of thirteen
(13) City Routes from the Choice One Market listed in Exhibit
"G" (each such designated route hereinafter referred to as a
"Designated City Route"). Unless Grantor has commenced
construction of, and has agreed to a construction schedule
pursuant to Section 4.1, or has provided Grantee with a
written commitment to construct the City Routes in the fast
twelve (12) Choice One markets listed in Exhibit "G", as it
exists an the Execution Date, on or before December 31, 2000,
Grantee shall have the right to give written demand to Grantor
to identify which City Routes in the first twelve (12) Choice
One Markets Grantor will not construct. Grantor shall have
sixty (60) days from receipt of Grantee's written demand to
notify Grantee in writing which City Routes mi the first
twelve (12) Choice One Markets it will not construct and
designate as being subject to this Agreement. Upon such
notification, all such City Routes which Grantor has declined
to construct shall be removed as Choice One Markets and shall
not be or become a Designated City Route, provided that such
election and notification by Grantor shall not affect any of
its obligations under Section 2.2 herein.
2.4 AMENDMENTS TO EXHIBIT A AND ASSOCIATED EXHIBITS. The Parties
agree and acknowledge that on the Execution Date Exhibit "A"
includes City Routes for fifteen (15) of the seventeen (17)
Choice One Markets set forth on Exhibit "G". The Parties
further agree and acknowledge that Grantee will identify in
writing to Grantor three.(3) additional Choice One Markets
within one hundred twenty (120) days of the Execution Date of
this Agreement such that the total number of Choice One
Markets which will be subject to this Agreement will be twenty
(20) and Exhibit "G" shall be amended to include such
additional Choice One Markets. It is the intention of the
Parties that Exhibit "A" will be amended by mutual agreement
of the Parties to include City Routes for all twenty (20) of
the Choice One Markets. Within sixty (60) days of the date
upon which Grantee provides Grantor with all information
reasonably required for the initial design of each City Route
in a Choice One Market not already set forth in Exhibit "A".
Grantor will design such City Route and will provide Grantee
with a written design of said City Route in the form as set
forth in Exhibit "A". The Parties shall diligently, in good
faith, and in an expeditious manner negotiate and agree upon
amendments to Exhibit "A"' to incorporate the City Routes for
the five (5) additional Choice One Markets, and all amendments
to Exhibit A-1, C, D and G which are required as a result of
any such amendment to Exhibit "A".
2.5 CABLE MEASUREMENT. All of the Cable upon the Route Segments
shall be measured on a linear mileage basis, using actual
"field verified" linear mileage measurement.
2.6 LIMITATIONS OF RIGHT. The rights granted to Grantee under this
Agreement shall be limited to include only the right to use
the Grantee Fibers as set forth in
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Section 7.2 herein and such other rights as are specifically
set forth in this Agreement.
2.7 CONNECTION TO GRANTEE FIBER. Grantee's right of use hereunder
shall include a right to connect, at Grantee's expense,
Grantee Fibers to Grantee's System or to the fibers or system
of a Third Party using a Grantee's or Third Party's right of
way at any Demarcation Point. In the event of use of
connections to the Cable installed on the Route from public
and Third Party private property, Grantee shall designate the
location and manner in which such connections will be made at
the Demarcation Point.
3. ENGINEERING AND DESIGN
3.1 The Cable shall be constructed consistent with the
specifications set forth in the Cable Parameters in Exhibit
"B". These Cable Parameters were agreed to by the Parties and
are intended to ensure that the Parties design, engineer,
construct, maintain, and use the Cable consistently with
applicable laws, regulations and in a manner so intended not
to conflict physically or otherwise interfere with joint users
of the Cable, Cable Accessories, or any other property needed
in the installation, construction, maintenance or use of the
Cable.
3.2 Grantee shall design, at Grantee's sole cost and expense, all
Equipment that will be used in connections of Grantee Fibers
to Grantee's System or that will be located on the Premise
Side of the Demarcation Point, including all new access
facilities to its end-users' buildings, which design shall be
compatible with the Cable Parameters and subject to the
approval of Grantor prior to installation by Grantee.
3.3. The Parties may change the Cable Parameters from time to time,
but only by mutual written agreement.
4. INSTALLATION AND CONSTRUCTION
4.1 COMMITMENT AGREED UPON BY GRANTOR TO COMPLETE ROUTE. Grantor
shall perform, or cause to be performed, such work if any, at
its expense, as may be required for placement of the Cable on
or in the Designated City Routes. Grantor shall use all
commercially reasonable efforts to place the Cable along the
Designated City Routes. At the time of strand mapping of the
Designated City Routes, Exhibit "A" and "C" shall be amended
to reflect the-Routes and Route Miles reflected on the strand
map for such Designated City Route. In the event that the
Routes as placed and installed deviates from the Routes set
forth in Exhibit "A" as amended after strand mapping, the
Grantee shall be responsible to pay the applicable Use Charge
based upon the actual Route Miles of the Cable in the
applicable City Route up to a maximum of one hundred fifteen
percent (115%) of the Route Miles for such City Route set
forth in Exhibit "C", as amended after strand mapping. Grantor
shall purchase, or cause to be purchased, the fiber optic
cable, hardware and any other property necessary to constitute
the
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Cable and Cable Accessories. The Parties shall diligently
and in good faith and no later than six (6) months from the
Execution Date of this Agreement, negotiate and agree upon an
initial schedule by which the Grantor shall construct and
install each City Route ("Initial Construction Schedule") as
set forth on Exhibit "A" as existing on the Execution Date
attached to and made a part of this Agreement, including any
form or penalties or discounts applicable to a failure by the
Grantor to meet such completion dates, as generally described
in Exhibit "D" hereto; provided, however, this provision shall
not preclude the Parties from amending the Initial
Construction Schedule for a City Route, if mutually agreed to
by the Parties. Upon agreement by the Parties of the Initial
Construction Schedule for each City Route, the Parties shall
execute an amendment to Exhibit "D" setting forth the
agreement for completion of each City Route. Grantor agrees to
build the Cable to each Choice One Regional Switch Center in
each Designated City Route such that the Regional Switch
Center has diverse access to the applicable City Route, and
that the Choice One Regional Switch Center will form part of
the applicable City Route Fiber Ring.
4.2 ROUTE SPECIFICATIONS. Grantor will provide the fiber optic
cable and all associated Cable Accessories for its placement
on the Route in each Designated City Route to the Demarcation
Points as agreed upon by the Parties pursuant to Section 5
below.
4.3 PUBLIC RIGHTS OF WAY, AGENCY FEES, TAXES. Grantor shall ensure
that all permits or consents required to perform the
installation of the Cable on the Route in each Designated City
Route are acquired, and Grantor shall pay, or cause to have
paid, all fees and taxes required for the purchase and
installation of the Cable.
5. POINT OF DEMARCATION; EXTENSIONS
5.1 MARKING. The specific locations of the Demarcation Point(s),
Premise Side and Network Side for each City Route shall be
determined by mutual agreement between the Grantor and Grantee
during the design, engineering and permitting phases of
construction for such Route(s). Upon agreement of the Parties
of the Demarcation Point(s) for each City Route, the Parties
shall execute an amendment to Exhibit "A" setting forth the
Demarcation-Point(s) for each City Route, at each splice point
where Grantee Fiber connects to the Route.
5.2 GRANTEE RESPONSIBILITY. Grantee shall pay for, install,
construct, maintain, secure rights of way and easements for
and otherwise be responsible for all Equipment on the Premise
Side (including without limitation any costs or liabilities
associated with such Equipment) all at Grantee's sole cost and
expense. Grantee shall ensure that the Equipment on the
Premise Side shall be designed in a manner that is consistent
with the specifications set forth in Exhibit "B" and will not
conflict physically or otherwise or interfere with joint users
of the Cable, Cable Accessories, Structures or any other
property needed in the installation, construction, maintenance
or use of the Cable. With respect to any Equipment on the
Premise Side, Grantee agrees and represents that Grantee or
its end-users shall
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obtain approval from the owners of any property as to any use
thereof by Grantee or its end-users for the physical location
of installation, maintenance and operation of Equipment.
Grantee shall also obtain any government approvals necessary
for the installation, maintenance, and ownership of Equipment
installed and/or used on the Premises Side of the Demarcation
Point, consistent with the terms of Section 8. Grantee
acknowledges and agrees that connectivity into buildings on
the Premise Side is solely Grantee's responsibility and at
Grantee's expense.
5.3 EXTENSIONS.
a. At any time during the term of this Agreement,
Grantee may request Grantor to construct and install,
but Grantor shall not be obligated to construct and
install, extensions to any Designated City Route(s).
Each such request shall contain such information,
including the Routes, location of connection points,
network architecture and Cable Parameters and the
proposed commencement date, as Grantor may reasonably
require to assist it in determining whether it will
construct and install such extension. Upon agreement
between Grantor and Grantee as to the construction,
installation and IRU of any such extensions, and
Grantee's acceptance of the Fibers granted by IRU to
Grantee within said extension, the Parties will
execute a Schedule setting forth the license terms
and shall execute an amendment to Exhibit "A"
describing said extension to the Designated City
Route(s) and any additional Demarcation Points.
b. In the event that the Grantor shall decline to
construct and install any extensions to any
Designated City Route(s) requested, Grantee may
construct or install or cause to be constructed or
installed by a third party contractor approved in
writing by the Grantor, which approval shall not be
unreasonably withheld, such extensions to the
Designated City Route(s), provided that the
specifications, design, construction and installation
of such extensions shall be compatible with, and
shall not cause any negative impact upon or damages
to the Grantor System or any Cable, Cable Accessories
or Grantor Fibers within the Grantor System
determined by Grantor, and shall be approved in
writing by Grantor. The Grantor shall have the sole
right to perform any splicing or connection of the
extensions to the Route, Cable, Fibers and/or-
Grantor System. The Grantee shall pay to Grantor a
fee as agreed to between the Parties prior to the
construction and installation of any extensions for
the splicing or connection work to be performed by
the Grantor, which fee shall not be greater than the
Grantor's Actual Costs.
6. MAINTENANCE AND REPAIR
6.1 GRANTOR'S OBLIGATIONS. Grantor shall have the sole obligation
and right to maintain and repair the Cable and Cable
Accessories, including, without limitation, Grantee Fibers and
Grantor Fibers. Grantor shall maintain and repair,
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or cause to be maintained and repaired, the Cable and Cable
Accessories in a good operating condition and pursuant to the
Cable Parameters, all applicable manufacturer's specification,
industry standards, building, construction and safety codes,
as well as any and all other material, applicable governmental
laws, statutes, rules, regulations, codes and ordinances.
6.2 DAMAGE BY GRANTEE. If all or any part of the Grantee Fiber,
Cable or Cable Accessories require restoration, replacement or
repair as a result of the negligence or willful misconduct of
Grantee, its employees, agents or contractors or caused by
Grantee's System or any of Grantee's Equipment or used in
connection with the Grantee Fibers, such repair, replacement
and/or restoration will be made by Grantor at Grantee's sole
cost and expense in accordance with Grantor's Actual Cost,
plus any applicable taxes.
6.3 INSPECTION. Grantor shall have the right to inspect the
Grantee's System and Grantee's use of the Cable during normal
business hours upon twenty four (24) hours notice to Grantee
or immediately, with notice, in the event of any emergency
situations. The right to inspect shall include the right of
access to any property owned, leased or otherwise controlled
by the Grantee, which access shall be at a time mutually
acceptable to the Parties.
6.4 CHANGES TO CABLE AND CABLE ACCESSORIES. Grantor may make such
changes and alterations to the Cable or Cable Accessories as
Grantor determines are necessary or advisable in its sole
discretion provided that such changes or alterations do not
(1) alter the number of the Grantee Fibers, (2) alter the
location of the Demarcation Points, (3) alter the Cable
Parameters, or (4) impair the use of the Grantee Fibers under
this Agreement.
7. TITLE, USE AND TAXES
7.1 TITLE. Grantor retains all rights, title and interest in the
Cable, Cable Accessories, Fibers and Grantor System subject
only to the grant of use provided to Grantee pursuant to this
Agreement. Neither the grant of use or other provision of the
Grantee Fibers or any other facilities or services by Grantor
to Grantee nor the payment by Grantee of the fees or charges
therefor to Grantor shall constitute, create, or vest any
easement or any other ownership or property rights in the
Grantee Fibers, Cable or, other facilities or property of
Grantor.
7.2 USE BY GRANTEE. Grantee acknowledges and agrees that the
Grantee Fibers are provided for use exclusively by Grantee and
or affiliated entities which control or are controlled by the
Grantee for the provision of services to Grantee's customers.
Grantee will not permit, or provide access to, use of the
Grantee Fibers as "dark fibers" (as such term is commonly
understood in the telecommunications industry) to any third
party whether by sublease, license, sublicense, sale, resale,
or any other form of transfer, disposition or agreement
without the express written consent of Grantor, which consent
may be given or withheld in Grantor's sole discretion.
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7.3 INCOME TAXES. Grantee and Grantor agree that each Party will
be responsible for paying its own existing or future federal,
state and local income, franchise and/or other similar
existing or future taxes imposed on business activities or
entities. Grantor and Grantee agree that Grantor will be
responsible for paying any and all existing or future federal,
state or local income taxes imposed on the receipt of payments
made by Grantee to Grantor under this Agreement.
7.4 SALES TAXES.
a. Grantee and Grantor agree that Grantor will be
responsible for paying any and all existing or future
sales, use, excise or other transfer or transactional
taxes imposed or levied by any federal, state or
local taxing authority on purchases of materials
and/or equipment for use in construction of the
Cable, including any sales, use, excise or similar
taxes imposed on installation charges and freight
charges, or similar charges on intangible property
associated with the construction of the Cable.
Grantee agrees to cooperate in any proper claim of
exemption or exclusion from such taxes which Grantor
may assert for such purchases; such cooperation would
include (though would not be limited to) providing
any required certificates and/or other documentation
of such purchases to which it may be a party. Grantee
agrees to provide Grantor with all documentation of
any such purchases to which it may be a party and
agrees that Grantor has no obligation to reimburse
Grantee for any such taxes without such
documentation.
b. Grantee and Grantor agree that Grantee will be
responsible for paying any and all existing or future
sales, use, excise or other transfer or transactional
taxes imposed or levied by any federal, state or
local taxing authority on the Use Charges and/or
other payments made by Grantee to Grantor for the use
by Grantee of Grantee Fibers.
7.5 LEVY. Grantor agrees that Grantor will properly remit all tax
payments in a timely manner to the applicable taxing
authorities or governmental agencies and will not cause the
Cable to be levied, attached, or otherwise encumbered by any
taxing authority or governmental agency through any failure to
remit such payments, unless Grantor shall contested the
payment of any such taxes.
7.6 REVERSION. Grantee's right to use the Grantee Fibers shall
revert to Grantor upon termination of this Agreement or
termination of any Route Segment with respect to any Grantee
Fibers within that Route Segment.
8. GOVERNMENT APPROVALS, PERMITS, AND CONSENTS
8.1 GRANTEE OBLIGATIONS. Except as provided in Section 8.2,
Grantee at its sole cost and expense, shall obtain and
maintain any and all necessary permits, licenses, easements,
franchises and approvals that may be required by federal,
state or local law, statute, regulation or ordinance as may
now or in the future be applicable to
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its use of the Grantee Fibers under the terms and conditions
of this Agreement. Grantee represents and warrants that it
will use the Grantee Fibers, or cause the Grantee Fibers to be
used, in material compliance with all federal, state and local
applicable government laws, statutes, rules, regulations,
codes and ordinances with respect to or relating to the
Grantor Systems, Cable or Grantee Fibers and in material
compliance with the terms and conditions: of this Agreement.
Grantee may use the Grantee Fibers for any lawful purposes,
subject to the provisions of Section 7.2 herein.
8.2 GRANTOR'S OBLIGATIONS. During the term of this Agreement,
Grantor shall obtain, or cause to be obtained, all approvals,
permits, licenses, easements, franchises, and consents that
may be required from all federal, state, and local authorities
regarding the ownership, installation, maintenance, or
replacement of the Cable upon the Route Segments subject to
such jurisdiction. Grantor represents and warrants that it is
and will continue to be in material compliance with all
applicable government codes, ordinances, laws, rules and
regulations relating to its ownership, control, operation,
and/or maintenance of the Cable.
8.3 This Section 8 shall survive any termination or expiration of
this Agreement.
9. LIENS
9.1 Grantee acknowledges that it has no title to and cannot in any
way encumber the Cable, Cable Accessories, the Structures, or
any other property that is the subject of this Agreement that
is not owned by Grantee (including, without limitation,
rights-of-way and Grantor Fibers), without prior notice to and
consent of Grantor which consent may be granted or withheld in
Grantor's sole discretion.
9.2 If, notwithstanding Section 9.1, any property of Grantor or
its affiliates becomes encumbered by any unauthorized liens,
claims, or other encumbrance as a result of any act or
omission of Grantee, Grantee shall promptly take all
commercially reasonable actions necessary to remove such
encumbrances from Grantor's and its affiliates' property. If
the property of Grantor or its affiliates becomes encumbered
as a result of the acts or omissions of Grantee, Grantor shall
have the right, in addition to all other available legal,
equitable, and administrative rights and remedies, to withhold
any payment due Grantee due under the terms of this Agreement
until such encumbrance is removed; in addition, Grantee shall:
(1) within forty-eight (48) hours post a bond in an amount
equal to the value of the encumbrance; (2) discharge the
encumbrance as soon as possible, but no later than thirty (30)
days; and (3) indemnify and hold harmless Grantor and its
affiliates and their officers, directors, employees, agents,
servants, and assigns from said encumbrance.
9.3 This Section 9 shall survive the termination or expiration of
this Agreement.
<PAGE>
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10. REPRESENTATIONS AND WARRANTIES
10.1 COMMON REPRESENTATIONS. Each of the Parties represents and
warrants that it has full authority to enter into and perform
this Agreement, that this Agreement does not conflict with any
other document or agreement to which it is a party or is
bound, and that this Agreement is fully enforceable in
accordance with its terms.
10.2 REPRESENTATIONS BY GRANTOR. Grantor represents and warrants
that Grantor is a limited liability company duly organized,
validly existing and in good standing under the laws of the
State of Delaware. The execution and delivery of this
Agreement and performance hereunder will not conflict with or
violate or constitute a breach or default under Grantor's
Certificate of Formation and will not violate any law, rule or
regulation applicable to Grantor. Grantor will use
commercially reasonable efforts throughout the term of this
Agreement to obtain and maintain any and all authorizations'
permits, approvals or agreements reasonably necessary to
permit it to perform its obligations under this Agreement.
10.3 REPRESENTATIONS BY GRANTEE. Grantee represents and warrants
that Grantee is a corporation, validly existing and in good
standing under the laws of Delaware and the execution and
delivery of this Agreement and the performance thereunder will
not conflict with or violate or constitute a breach or default
under Grantee's Certificate of Incorporation and will not
violate any law, rule or regulation applicable to Grantee. No
consents need to be obtained from any governmental agency or
regulatory agency to allow Grantee to execute and deliver this
Agreement, other than those contemplated by Section 8. Grantee
will use commercially reasonably efforts throughout the term
of this Agreement to obtain and maintain any and all
authorizations, permits, approvals or agreements reasonably
necessary to permit it to perform its obligations under this
Agreement.
11. DISCLAIMERS
11.1 OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 10.1 AND 10.2 OF
THIS AGREEMENT, GRANTOR MAKES NO WARRANTIES, REPRESENTATIONS,
COVENANTS OR GUARANTEES IN CONNECTION WITH THIS AGREEMENT,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THIS SECTION 11 SHALL SURVIVE ANY
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
11.2 CONDITION OF CABLE. In the event that the Cable, including
Grantee Fibers, does not operate within the Cable Parameters
set forth in Exhibit "B", Grantor will use commercially
reasonable efforts to enable Grantee (in cooperation with
Grantor) to take advantage of any warranties or guarantees
delivered or agreed to by the manufacturer of the installed
Cable or the Contractor, to the extent permitted under any
agreements with such manufacturer and Contractor and to the
extent Grantee's pursuit of warranties or guarantees does not
interfere with Grantor's
<PAGE>
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or its affiliates' pursuit of similar claims against the
manufacturer and/or Contractor, provided that Grantee
indemnifies and holds Grantor harmless from any liabilities,
including claims for damages and costs and attorneys, fees,
resulting from or related to such Grantee efforts. Grantor
makes no representations with respect to the Cable installed
under this Agreement (including, without limitation, any
Grantee Fibers contained in such Cable). Grantor shall not
have any-liability whatsoever for, or in connection with, any
Cable failure (including, without limitation, failure of the
fibers contained in the Cable), unless such Cable failure is
caused by the negligence or willful misconduct of Grantor.
Grantor shall have no responsibility for Grantee's Equipment
or any Equipment on the Premise Side of the Demarcation Point.
11.3 SERVICE INTERRUPTION. In the event of any interruption of use
by Grantee of any portion of the Grantee Fibers which is the
result of a severance of or physical damage to the Grantee
Fibers, and which is not caused by (1) Grantee's willful
misconduct or negligence, or (2) a Force Majeure (as defined
in Section 16), the Grantor's sole obligation shall be to
provide a credit against Grantee's monthly payment of Use
Charges for that month in which the interruption of use
occurred which credit shall be as follows: (1) equal to one
thirtieth (1/30th) of the monthly Use Charge for the City
Route which is interrupted for every four (4) hours of service
interruption up to six (6) consecutive periods, and (2) equal
to 100% of the monthly Use Charge for the City Route for any
interruption over twenty-four (24) consecutive hours. The
remedy provided in this Section shall be Grantee's sole and
exclusive remedy for `outages or interruptions of service. The
foregoing notwithstanding, Grantee shall have no right to any
credit, reimbursement or any other payment to the extent such
service interruption or outage is caused in whole or in part
by any act or omission of Grantee or by Grantee System, or in
the event that the Grantee is in breach of any of the material
provisions of the Agreement at the time of such service
interruption.
12. CASUALTY AND INSURANCE
12.1 If any portion of the Cable is damaged or destroyed by
casualty at any time during the term of this Agreement,
Grantor will perform (or cause to have performed) the repairs
in accordance with Section 6, and except to the extent such
damage warrants termination of this Agreement pursuant to
Section 14.3. Grantee shall not be required to pay any cost of
such repair due to damage or construction of the Cable or
Cable Accessories caused by-casualty.
12.2 Prior to execution of this contract, each of the Parties, at
its own expense, shall provide and maintain in force during
the term of this Agreement insurance in forms acceptable to
the other Party, with the following minimum levels of
coverage:
Commercial general liability
and automobile liability $1,000,000 per person per occurrence
<PAGE>
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Property damage $1,000,000 per occurrence
Umbrella/Excess Coverage $15,000,000
Employer's liability: $500,000 per occurrence,
Workers compensation: statutory limits, in accordance with
the laws of the states wherein
operations under this Master
Facilities Agreement will take
place. Grantee shall be solely
responsible for procuring, and
paying for, insurance coverage for
Grantee Fibers and Grantee Equipment
satisfactory to Grantor. Grantor
shall be solely responsible for
procuring and paying for, insurance
coverage for Grantor Fibers, the
Cable and the Cable Accessories.
Any such policy(ies) shall be procured from a responsible
insurance company with a "Best" rating of A or better,
licensed to write policies in each State in which a City Route
is located evidencing such policy(ies) shall be delivered to
the other Party within 30 days of the Execution Date. Not less
than 30 days prior to the expiration date of such policies,
certificates evidencing the renewal thereof shall be delivered
to the other party. Such policies shall further provide that
not less than 30 days' written notice shall be given to the
other party before such policy(ies) may be canceled,
materially changed or undergo a reduction in Insurance limits
provided thereby. Grantor shall be named as an additional
insured on the Grantee policy. The coverage required herein
shall not be deemed to limit either party's liability under
this Agreement. Upon mutual agreement of the Parties,
increases in the amount of insurance coverage may be required
which will be obtained by each party within 30 days after
request of the other party.
13. BREACH
13.1 DEFINITION. If Grantee or Grantor shall take such action which
is prohibited, in any material respect, by the terms of this
Agreement, or fail to perform (whether any such failure shall
arise as the result of the voluntary or involuntary action or
inaction of such Party), in any material respect, any of its
obligations set forth in this Agreement, including without
limitation any violation of law (which is material and which
adversely affects either Party's obligations under the
Agreement), and such prohibited action of failure to perform
is not excused by any provision of this Agreement and
continues un-remedied for a period of thirty (30) days
following written notice from the non-breaching Party or such
shorter period as may apply under law or no period if such
prohibited action or failure to perform is not susceptible to
cure (the "Cure Period"), then such action or failure shall,
upon and from the expiration of the applicable Cure Period, if
any, constitute a "Breach"; provided, however, if a party has
taken such measures to initiate a cure but such remedy will
take longer than the applicable Cure Period,
<PAGE>
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no breach shall be deemed occurred as long as such Party is
using its best efforts to promptly cure such breach. Such
Breach shall not be deemed to occur where such Breach is
directly or primarily caused by the actions of another Party.
13.2 CONSEQUENCES. In the event of a Breach, the non-breaching
Party may, in its sole discretion, terminate this Agreement in
accordance with Section 14.2 and have no further obligations
or liability hereunder; except only that each Party shall pay
the other Party any amounts due, owing and unpaid by such
Party. The non-breaching Party shall also have the right to
pursue any and all rights it may have against the breaching
Party now or hereafter under the law, subject to the express
limitations contained in this Agreement, including without
limitation, t he right to seek injunctive relief to prevent
the breaching Party from continuing to Breach its obligations
under this Agreement.
13.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR TO THE OTHER PARTY'S END-USERS,
LICENSEES, GRANTEES, OR CUSTOMERS, WHETHER IN CONTRACT, TORT,
OR OTHERWISE, INCLUDING STRICT LIABILITY, FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY LOST BUSINESS
DAMAGES IN THE NATURE OF LOST REVENUES OR PROFITS.
13.4 FAILURE TO ENFORCE. The failure of any party to enforce or
insist upon compliance with any of the terms or conditions of
this Agreement, or to give notice or declare this Agreement or
any authorization granted hereunder, terminated shall not
constitute a general waiver or relinquishment of any term or
condition of this Agreement, but such term or condition shall
be and remain at all times in full force and effect.
14. TERM AND TERMINATION
14.1 PERIOD. The initial term of this Agreement shall be for a
period of twenty (20) years commencing on the Execution Date
("Initial Term"), with an automatic renewal term of ten (10)
years ("Renewal Term"), unless Grantee provides written notice
of no less than one hundred twenty (120) days prior to the
expiration of the Initial Term of its intent not to renew
("Initial Term" and "Renewal Term," collectively, "Term");
provided, however, that the Parties shall mutually agree to a
Use Charge for the Renewal Term at the then fair market rate,
pursuant to the procedures set forth in Exhibit "H" hereto.
Additional renewal terms may be entered into by the mutual
written agreement of Grantor and Grantee.
14.2 EARLY TERMINATION OF AGREEMENT. This Agreement may be
terminated prior to expiration of the Term upon any one of
tile following events:
a. by the non-breaching Party following a breach of this
Agreement by the other Party as set forth in and
subject to Section 13, above;
<PAGE>
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b. by Grantor upon 30 days prior written notice upon an
Event of Abandonment on all Route Segments by
Grantee;
c. by the other Party if a Party (1) consents to the
appointment of, or is taken in possession by, a
receiver, trustee, custodian or liquidator of a
substantial part of its assets, (2) files a
bankruptcy petition in any bankruptcy court
proceeding, (3) answers, consents or seeks relief
under any bankruptcy or similar law or fails to
obtain a dismissal of an involuntary petition within
60 days of filing, (4) admits in writing of its
inability to pay its debts when due, (5) makes a
general assignment for the benefit of creditors, (6)
is the subject of an involuntary proceeding seeking
to adjudicate that Party bankrupt or insolvent, or
(7) seeks reorganization, arrangement, adjustment, or
composition of its or its debt under any law relating
to bankruptcy, insolvency or reorganization or relief
of debtors;
d. by the other Party if a Party fails to pay any
undisputed amounts due when they become due under
this Agreement where such Party is in arrears more
than sixty (60) days past the due date and written
notice of such arrears has been served at least ten
(10) days prior to termination;
e. by the other Party if a Party fails to maintain bonds
and insurance required under Sections 9 and 12 of
this Agreement throughout the term of this Agreement,
and continues un-remedied for a period of thirty (30)
days following written notice from the other Party;
f. by the other Party if a Party attempts to assign its
rights or obligations under this Agreement in
contravention of Section 21; or
g. by the other Party if a Party makes any
representation or warranty in this Agreement, which
is incorrect and has or may have a material and
adverse effect on the other Party (as reasonably
determined by such nonbreaching Party), and such
incorrect representation or warranty shall continue
unremedied for a period of 30 days after written
notice of such incorrect representation or warranty
(except only where this Agreement specifically
provides additional time and/or other options or
remedies for any such failure; or, with respect to an
obligation that is susceptible of cure within a
reasonable time period so long as such Party is using
its best efforts to promptly cure).
14.3 EARLY TERMINATION OF ROUTE SEGMENT(S). A particular Route
Segment or Route Segments may be terminated to the expiration
of the Term of the Agreement upon any one of the following
events:
a. by Grantor, upon thirty (30) days prior written
notice, upon an Event of Abandonment of a Route
Segment(s) by Grantee; or
<PAGE>
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b. by Grantee, if Grantor fails to meet the completion
date of a Route Segment or City Fiber Ring within one
(1) year of the completion date set forth on Exhibit
"D" hereto as amended from time to time; or
c. by the other Party if a Party fails to pay any
undisputed amounts due when they become due for the
Route Segment(s) under this Agreement where such
Party is in arrears more than sixty (60) days past
the due date and written notice of such arrears has
been served at least ten (10) days prior to
termination;
d. or by the other Party if a Party attempts to assign
its rights or obligations for a Route Segment(s) in
contravention of Section 21.1.
14.4 EFFECT OF TERMINATION.
a. Neither Party shall be entitled to, nor shall either
Party be liable for, any refunds of amounts
previously paid to the either Party by reason of
early termination of this Agreement or termination of
a Route Segment when termination is due to a Breach
of this Agreement.
b. A decision to terminate this Agreement under Section
14.2 or to terminate one or more Route Segments under
Section 14.3 shall not preclude the terminating Party
or the other Party from pursuing any other legal,
equitable or administrative rights and remedies;
provided, however, that such rights and remedies
shall at all times be subject to limitations under
Sections 11 and 13.3.
c. Upon termination of this Agreement or particular
Route Segment under this Section 14, the rights of
use to Grantee Fibers within the terminated portion
of the Route Segment shall revert to Grantor.
15. COSTS/FEES
15.1 USE CHARGE. Grantee shall pay to Grantor for the grant of the
IRU relating to Grantee Fibers along each Designated City
Route the use charge as set forth in Exhibit "E" annexed
hereto (the "Use Charge"). In the event that Grantor and
Grantee mutually agree, in their respective sole discretion,
to add new Routes, segments and fibers to this Agreement,
other than pursuant to Section 2 herein, the Exhibits hereto,
including, without limitation, Exhibit "A", may be amended
from time to time to reflect any such new Routes or segments
mutually agreed to by the Parties (pricing with respect to any
such new Routes or segments to be negotiated on a per fiber,
per mile, per month basis), no such amendment shall be
effective unless it is in writing and signed by both Grantee
and Grantor.
15.2 WHEN DUE. Grantee shall pay the Use Charge and any additional
amounts payable to Grantor within thirty (30) days of
invoicing. Invoicing shall begin as follows:
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For each Route Segment within a Designated City Route, which
has connectivity with the Choice One Regional Switch Center,
invoicing of 100% of the Use Charge for the Route Segment
shall begin upon the installation, testing, and acceptance of
Grantee Fibers within such Route Segment pursuant to the
procedures set forth in Exhibit `F" attached hereto
("Acceptance") unless the City Route Fiber Ring in which the
Route Segment is a part is not completed (I.E., providing
diverse access to the Choice One Regional Switch Center)
within four (4) months of the acceptance date of the
applicable Route Segment, at which time, Grantor shall reduce
the Use Charge invoiced pursuant to the following schedule:
a. If the City Route Fiber Ring remains uncompleted
after the end of the four (4) month period and up to
the end of the sixth (6) month after Acceptance,
Grantor shall reduce the invoice amount to 75% of the
Use Charge for the Route Segment(s) during such time
period;
b. If the City Route Fiber Ring remains uncompleted
after the end of the 6th month and up to the end of
the ninth (9th) month after Acceptance, Grantor shall
reduce the invoice amount to 50% of the Use Charge
for the Route Segment(s) during such time period;
c. If the City Route Fiber Ring remains uncompleted
after the end of the ninth (9th) month after
Acceptance, Grantor shall reduce the invoice amount
to 25% of the Use Charge for the Route Segment(s)
during such time period and the invoice amount shall
remain at 25% of the Use Charge for the Route
Segment(s), until the earlier of (i) completion of
the City Route Fiber Ring, or (ii) the Grantee's
termination of the Route Segment(s) as permitted
under Section 14.3 herein.
Upon the completion of the City Route Fiber Ring, the invoice
amount shall be increased to 100% of the Use Charge as of the
last date of Acceptance of the Route Segments comprising the
City Route Fiber Ring.
16. FORCE MAJEURE
16.1 FORCE MAJEURE EVENTS. Neither Grantee nor Grantor shall be
liable for any failure or delay in performing its
obligations-hereunder, or for any loss or damage resulting
therefrom, due to the following Force Majeure Events:
a. fire, flood, strike or other labor difficulty,
natural disasters, acts of God or public enemy,
restraints or hindrance by any governmental or
regulatory authority including, without limitation,
unfavorable actions or failures to act of or by such
authorities (except when the result of noncompliance
with Section 10), war, insurrection, riot, or
b. any other causes beyond the Parties' reasonable
control, or causes beyond the reasonable control of
their suppliers.
<PAGE>
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c. ABATEMENT OF FORCE MAJEURE. To the extent
practicable, both Parties shall be prompt in
restoring normal conditions, establishing new
schedules and resuming operations as soon as the
event causing the failure or delay has ceased.
Grantee shall promptly notify Grantor of any delay
and its effect on the performance by Grantee. Grantor
shall promptly notify Grantee of any delay in
Grantor's performance.
d. SUSPENSION PENDING FORCE MAJEURE. If a Force Majeure
Event should occur, then, the Parties' performance
of-this Agreement shall be suspended for so long as
such Force Majeure Event continues. At the conclusion
of a Ford Majeure Event, the period of time so
suspended shall be added to the dates, schedules and
other performance-related matters under this
Agreement.
17. PROPRIETARY INFORMATION
17.1 OBLIGATION TO MAINTAIN AS CONFIDENTIAL. Each Party
acknowledges that in the course of the performance of this
Agreement it may have access to Proprietary Information of the
other Party. All Propriety Information shall be marked as
"confidential" with an appropriate, legend, marking, stamp or
other obvious written identification prior to disclosure. All
Proprietary Information in tangible form of expression which
has been delivered (or thereafter created by copy or
reproduction pursuant to this Agreement) shall be and remain
the property of the person which is disclosing such
Proprietary Information (the "Disclosing Party"). Anything to
the contrary contained herein notwithstanding, the definition
of Grantor Proprietary Information shall be deemed to include
the Utility Agreements.
17.2 OBLIGATIONS CONCERNING PROPRIETARY INFORMATION
a. GENERAL RESTRICTIONS. Upon receiving Proprietary
Information such Party (the "Receiving Party") shall
keep in strict confidence and not disclose to any
person (with the exception of employees, officers,
directors, representatives, including, but not
limited to, attorneys, accountants, contractors, and
consultants, and affiliates of the Receiving Party,
to the extent each such person or entity has a need
to know in connection herewith) any of the Disclosing
Party's Proprietary Information except as otherwise
provided by the terms and conditions of this
Agreement. The Receiving Party shall not use such
Proprietary Information except for the purposes
identified herein without the prior written approval
of the Disclosing Party. The Receiving Party shall be
solely liable for any breach of this Section 17 to
the extent caused by its or its affiliates'
employees, officers, directors, affiliates, or
representatives.
b. EXCEPTIONS. The Receiving Party shall not be
precluded from, nor liable for, disclosure or use of
any Proprietary Information if.
<PAGE>
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(i) the Proprietary Information is in or enters
the public domain, other than by a Breach of
this Agreement;
(ii) the Proprietary Information is known to the
Receiving party at the time of first
receipt, or thereafter becomes known to the
Receiving Party prior to or subsequent to
such disclosure without similar restrictions
from a source other than the Disclosing
Party, as evidenced by written records;
(iii) the Proprietary Information is developed by
the Receiving Party independently of any
disclosure under this Agreement as evidenced
by written records; or
(iv) the Proprietary Information is disclosed
more than two (2) years after the date of
first receipt of the disclosed Proprietary
Information; or two (2) years after the
Renewal Term whichever occurs later,
(v) disclosure of the Proprietary Information is
compelled by a governmental authority,
including, but not limited to any court or
regulatory body, whether or not a protective
order is sought or granted; provided,
however, the Receiving Party shall notify
the Disclosing Party of such request for
disclosure to permit the Disclosing Party to
take such action to prevent disclosure or
obtain a protective order;
(vi) the Disclosing Party consents to the
disclosure or use of the Proprietary
Information; or
(vii) the Receiving Party has a reasonable belief
that disclosure of the Proprietary
Information is necessary for public safety
reasons and has attempted to provide as much
advance notice of the disclosure as is
practicable.
17.3 DISCLOSURES. The disclosure of Proprietary Information
hereunder shall not be construed as granting any right of
ownership in said Proprietary Information.
17.4 SURVIVAL. This Section 17 shall survive any termination or
expiration of this Agreement in accordance with this Section's
terms.
18. PUBLICITY AND ADVERTISING
18.1 LIMITATIONS. In connection with this Agreement, neither Party
shall publish or use any advertising, sales promotions, or
other publicity materials that use the other Party's (or its
affiliate's) logo, trademarks, or service marks or name
without the prior written approval of the other Party, whose
approval shall not be unreasonably withheld (provided,
however, that withholding of such approval shall not be deemed
unreasonable in the event that a Party's affiliate refuses, in
its
<PAGE>
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sole discretion, to consent to such use of its property or
materials.). Except as provided in Section 18.2 below and
subject to the foregoing sentence, each Party shall have the
right to review and approve, which approval shall not be
unreasonably withheld, any publicity materials, press releases
or other public statements by the other Party in connection
with this Agreement or the transactions contemplated herein.
Unless otherwise agreed, neither Party shall release the
existence of the text of this Agreement or any material
portion thereof, other than in the form modified to remove all
references to the identity of the other Party, to any person
or entity other than the Parties, their legal counsel, their
own and their affiliates' officers, directors, employees, and
consultants, for any purpose other than those specified in
Section 18.2.
18.2 EXCEPTIONS. This Section 18 shall not apply to reasonably
necessary disclosures in or in connection with court or
regulatory filings or proceedings, financial disclosures which
in the good faith judgment of the disclosing Party are
required by law or regulatory authority, or disclosures that
may be reasonably necessary in connection with the performance
of this Agreement or general disclosures of the Rates to
end-users or prospective end-users of Grantee or Grantor.
19. NO JOINT VENTURE
19.1 In all matters pertaining to this Agreement, the relationship
of Grantor and Grantee shall be that of licensor and licensee,
and neither Grantor nor Grantee shall make any representations
or warranties that their relationship is other than that of
licensor' and licensee. This Agreement is not intended to
create nor shall it be construed to create any partnership,
joint venture, employment or agency relationship between
Grantee and Grantor, and no Party shall be liable for the
payment or performance of any debts, obligations, or
liabilities of the other Party, unless expressly assumed in
writing herein or otherwise. Each Party retain full control
over the employment, direction, compensation and discharge of
its employees, and will be solely responsible for all
compensation of such employees, including social security,
withholding and worker's compensation responsibilities.
20. INDEMNIFICATION.
20.1 INDEMNIFICATION BY GRANTOR. Grantor agrees to indemnify,
defend and hold harmless the Grantee, its officers, directors,
managers, employees, agents and contractors from and against
all loss, damage, liability, costs and expenses (including
reasonable attorney's fees and expenses) arising from any
claims, demands, actions, suits, or proceedings related to or
arising out of:
a. the installation, maintenance or operation by Grantor
of Grantor's System or the management of Grantor's
business with regard to Grantor's System, except to
the extent such losses are caused or contributed to
by any act or omission of the Grantee;
<PAGE>
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b. Grantor's failure to perform any term, condition or
obligation under this Agreement;
c. any failure of any representation or warranty made by
Grantor herein to be true in any material respect as
of the date when made;
d. any claim by a customer of Grantor (other than
Grantee, its subsidiaries or affiliates) relating to
Grantor's provision of services, and
e. any claim by a third party resulting from the
negligence or willful misconduct of Grantor.
20.2 INDEMNIFICATION BY GRANTEE. Grantee agrees to, indemnify,
defend and hold harmless the Grantor, its officers, directors,
managers, employees, agents and contractors from and against
all loss, damage, liability, costs and expenses (including
reasonable attorney's fees and expenses) arising from any
claims, demands, actions, suits, or proceedings related to or
arising out of:
a. the installation, maintenance or operation by Grantee
of Grantee's System or the management of Grantee's
business with regard to Grantee's System, except to
the extent such losses are caused or contributed to
by any act or omission of the Grantor;
b. Grantee's failure to perform any term, condition or
obligation under this Agreement;
c. any failure of any representation or warranty made by
Grantee herein to be true in any material respect as
of the date when made;
d. any claim by a customer of Grantee (other than
Grantor, its subsidiaries or affiliates) relating to
Grantee's provision of services, and
e. any claim by a third party resulting from the
negligence or willful misconduct of Grantee.
20.3 INDEMNIFICATION PROCEDURES. Each Party shall give prompt
written notice of any Claim for which indemnification is or
will be sought under this Section 20 and shall cooperate and
assist the other Party in the defense of the Claim. The
applicable Party shall bear the cost of and have the right to
control the defense and shall have the right to select counsel
after consulting with the other Party.
20.4 SURVIVAL. This Section 20 shall survive any termination or
expiration of this Agreement.
21. ASSIGNMENT
21.1 NO ASSIGNMENT. Except as permitted in this Section 21.1 and
Section 21.2 herein, neither Party shall assign, transfer,
delegate or in any other manner dispose of,
<PAGE>
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any of its rights, privileges or obligations under this
Agreement without the other Party's prior written consent,
which consent may not be unreasonably withheld. Any attempt to
make any such assignment, transfer or disposition without such
prior written consent of the other Party shall be null and
void. Notwithstanding the foregoing, either Party may assign
or transfer this Agreement without the other Party's written
consent to entities controlled by, or controlling, or under
the joint control of, the Party; in connection with any
borrowing or any financing activity, provided, however, that
such Party shall use its best efforts to obtain a
non-disturbance or non-defeasance agreement for the benefit of
the other Party from the assignee or transferee in connection
with any borrowing or financing activity of such Party; or
upon the merger, reorganization or sale of all or
substantially all of the assets of the Party or a majority of
the equity of the Party. Upon permitted assignment or
transfer, the assigning or transferring Party will remain
jointly and severally responsible for the performance under
this Agreement, unless released in writing by the other Party.
Any permitted assignee or transferee will expressly assume all
liabilities hereunder prior to the effectiveness of any such
assignment. Any transfer of property of Grantor included in or
subject to this Agreement may be made by Grantor provided the
person acquiring such property takes it subject to this
Agreement. Nothing in this Section 21 shall limit or apply to
Grantor's right to lease, sublease, license, sublicense or
otherwise grant similar rights in the Grantor Fibers to Third
Parties.
21.2 AGREEMENT BINDING; ASSIGNEES. This Agreement shall be binding
upon and inure to the benefit of the Parties and their
respective successors and assigns where permitted by this
Agreement. It shall be a condition of any merger,
reorganization or sale of all or substantially all of the
assets of a Party or a majority of the equity of a Party that
the surviving or purchasing entity assume all liabilities and
obligations of the predecessor or transferring Party under
this Agreement.
22. NOTICES
22.1 PROGRAM MANAGERS. Each Party shall designate a Program
Manager. Whenever either Party is entitled to approve a
matter, the Program Manager for the Party responsible for the
matter shall notify the Program Manager of the other Party of
the nature of such matter. The Program Managers shall discuss
such matter, and each Program Manager is confer on such a
matter on behalf of his/her company. The foregoing
notwithstanding, in no event shall Program Managers be
authorized to amend the provisions of this Agreement.
22.2 FORM AND ADDRESS. All notices, invoices and other
communications from either Party to the other hereunder shall
be in writing and shall be deemed received (i) upon actual
receipt when personally delivered, (ii) upon acknowledgment of
receipt if sent by facsimile, (iii) upon the expiration of the
third business day after being deposited in the United States
mails, postage prepaid, certified or registered mail, or (iv)
upon the expiration of one business day after being deposited
during the regular business hours for next-day delivery and
prepaid for overnight
<PAGE>
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delivery with a national overnight courier company, addressed
to the other Party as follows:
a. As to Grantor: Fiber Technologies Operating Company, LLC
Attn: Chief Operating Officer
140 Allens Creek Road
Rochester, New York 14618
Fax: (716) 442-8845
With a copy to:. Fix, Spindelman, Brovitz, Tark,
Himelein & Sbukoff, P.C.
Attn: Richard S. Brovitz, Esq.
1400 Crossroads Building
2 State Street
Rochester, New York 14614
Fax: (716) 232-4791
Edwards and Angell, LLP
Attn: Richard G. Small, Esq.
2800 Bank Boston Plaza
Providence, RI 02903
Fax: (401) 276-6611
b. As to Grantee: Choice One Communications, Inc.
Attn: VP, Engineering and Network
100 Chestnut Street, Suite 700
Rochester, NY 14604
Fax: (716) 530-2837
With a copy to: Choice One Communications, Inc.
Attn: General Counsel
100 Chestnut Street, Suite 700
Rochester, NY 14604
Fax: (716) 530-2734
Each Party may change its addresses by giving the other Party notice thereof in
conformity with this Section 22. Any payments made under this Agreement, if made
by mail, shall be deemed to have been made on the date of receipt thereof.
22.3 DAMAGE AND OUTAGE NOTIFICATION. In the event that the Cable is
damaged for any reason, the Party discovering such damage
shall notify the other Party of said damage by telephone at:
a. As to Grantor: To be determined.
b. As to Grantee: To be determined.
<PAGE>
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These are 24 hour, 7 day per week emergency notification
numbers. Calls shall be directed to the Supervisor on Duty,
and the caller should be able to provide the following
information:
(i) Name of company making report;
(ii) Location reporting problem;
(iii) Name of contact person reporting problem;
(iv) Telephone number to call back with progress
report;
(v) Description of the problem in as much detail
as possible;
(vi). Time and date the problem occurred or began,
and
(vii) If appropriate, a statement that an
emergency exists and that a problem presents
a threat to the -property of Grantor,
Grantee or a Third Party.
Should the damage result in a outage of service or need for
emergency repair, procedures for notification and escalation
shall be cooperatively prepared by the Parties during the term
of the Agreement.
23. RELOCATION AND CONDEMNATION
23.1 RELOCATION. In the event that Grantor is required by any
governmental or non-governmental Third Party, pursuant to any
Utility Agreement or otherwise, to relocate all or any portion
of the Cable, including the Grantee Fibers, Grantor shall give
Grantee sixty (60) days (or such lesser period of notice as
Grantor may have received from the third party) of any such
relocation. Grantor will relocate the Cable as required and
will use its commercially reasonable efforts to secure an
agreement for reimbursement for the costs of such relocation
from any third party requiring such relocation. In the event
that Grantor is not reimbursed by such third party for the
costs of relocation, Grantee will pay to Grantor its Pro Rata
share of the Actual Costs associated with the relocation of
the Cable.
23.2 CONDEMNATION. In the event that any portion of the Grantee
Fibers, and/or any portion of the Utility Agreements related
to the installation of the Grantee Fibers, become the subject
of a proceeding, which is not dismissed within one hundred
eighty (180) days after the date of commencement of said
proceeding and which could reasonably be expected to result in
a taking by any governmental agency or other party having the
power of eminent domain for public purpose or use, both
Parties shall be entitled, to the extent permitted by law, to
participate in such condemnation proceeding for compensation
by either joint or separate awards for the economic value of
their respective interests in the Grantee Fibers that are
subject to the condemnation proceeding.
<PAGE>
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24. OPTION TO LICENSE ADDITIONAL FIBERS.
24.1 OPTION. Grantee shall have the option to accept an exclusive,
IRU under the terms and conditions of this Agreement for an
additional eight (8) Fibers in each of the Designated City
Routes. This option must be exercised by Grantee giving
written notice thereof to Grantor on or before the one hundred
twentieth (120) day after the date that Grantor has given
Grantee written notice that Grantor has entered into binding
agreements for the lease, license or other grant of use for
sixty percent (60%) of the Fiber Miles in the applicable
Designated City Route. If Grantee fails to exercise said
option within said time limit, said option will immediately
expire and be of no further force and effect.
24.2 USE CHARGE. In the event that Grantee shall duly exercise its
option to obtain an IRU for the use of additional fibers in a
Designated City Route pursuant to this Section, Grantee will
pay Grantor an additional Use Charge for the grant of the IRU
in such Designated City Route as follows:
a. If the option -is exercised during the MFN Period, an
amount which shall be equal to either (1) the Use
Charge charged to any other customer of Grantor which
is (i) not affiliated with Grantee in any way, (ii)
and to whom Grantor has leased or licensed the use of
Fibers within the Designated City Route in which
Grantee has exercised its option, (iii) and which has
leased or licensed from Grantor less than one hundred
twenty five percent (125%) of the total Fiber Miles
that Grantee has licensed from Grantor, and (iv)
which is paying a Use Charge to Grantor on an annual
or more frequent periodic basis, or (2) the Use
Charge charged to Grantee for the Grantee Fibers in
such Designated City Route pursuant to this
Agreement, whichever is less; or
b. If the option is exercised after expiration of the
MFN Period, the Use Charge charged to Grantee for
Grantee Fibers in such Designated City Route after
expiration of the MFN Period as set forth in Exhibit
"E" attached hereto.
25. EXERCISE OF RIGHT
No failure or delay on the part of either Party in exercising any
right, power or privilege hereunder and no course of dealing between
the Parties shall operate as a waiver thereof, unless otherwise
specifically provided in this Agreement, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege.
26. ADDITIONAL ACTIONS AND DOCUMENTS
Each of the Parties hereby agrees to take or cause to be taken such
further actions, to execute, acknowledge, deliver and file or cause to
be executed, acknowledged, delivered and filed, such further documents
and instruments, and to use its best efforts to obtain such consents,
as may be necessary or as may be reasonably requested in order to fully
<PAGE>
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effectuate the purposes, terms and conditions of this Agreement whether
at or after the execution of this Agreement.
27. HEADINGS
The descriptive headings of the several sections and paragraphs of this
Agreement are inserted for convenience only and do not constitute a
part of this Agreement. Such headings shall not in any way define or
affect the meaning, construction or scope of any of the provisions
hereof.
28. INCORPORATION OF EXHIBITS
The Exhibits referenced in and attached to this Agreement shall be
deemed an integral part hereof to the same extent as if written in
whole herein. In the event that any inconsistency exists between the
provisions of this Agreement and any Exhibits attached hereto, the
provisions of this Agreement shall supersede the provisions of any,
such Exhibits.
29. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all such counterparts together shall
constitute but one and the same instrument. This Agreement may also be
executed via counterpart facsimiles upon (a) the telecopy by each Party
of a signed signature page thereof to the other Party, with return
receipt by telecopy requested and received and (b) the Parties'
agreement that they will each concurrently post by overnight courier, a
fully executed original counterpart of the Agreement to the other
Party.
30. APPLICABLE LAW
This Agreement shall be construed under and in accordance with the laws
of the State of New York.
31. PRIOR AGREEMENTS; MODIFICATIONS
This Agreement and the Exhibits hereto constitute the entire agreement
between the Parties with respect to the subject matter hereof, and
supersede all previous understandings, commitments or representations
concerning the subject matter. All Exhibits form part of, and are
integral to, this Agreement, and any reference to this Agreement
includes reference to any and all Exhibits hereto. Each Party
acknowledges that the other Party has not made any representations
other than those that are contained herein. This Agreement may not be
amended or modified in any way, and none of its provisions may be
waived, except by a writing signed by an authorized officer of the
Party against whom the amendment, modification or waiver is sought to
be enforced.
<PAGE>
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32. SEVERABILITY
Nothing contained in this Agreement shall be construed so as to require
the commission of any act contrary to law, and wherever there is any
conflict between any provision of this Agreement and any law, such law
shall prevail; provided, however, that in such event, the provisions of
this Agreement so affected shall be curtailed and limited only to the
extent necessary to permit compliance with the minimum legal
requirement, and no other provisions of this Agreement shall be
affected thereby and all such other provisions shall continue in fall
force and effect.
33. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
Parties hereto, their successors and assigns.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the Execution Date.
FIBER TECHNOLOGIES OPERATING COMPANY, LLC
By: Fiber Technologies, LLC, its sole member
By: /S/ FRANK CHIAINO
--------------------------------
Frank Chiaino, Chief Operating Officer
CHOICE ONE COMMUNICATIONS INC.
By: /S/ STEVE M. DUBNIK
--------------------------------
Steve M. Dubnik
President and CEO
<PAGE>
EXHIBIT "A"
City Routes
[Confidental Treatment sought for this Schedule]
<PAGE>
EXHIBIT "A-1"
Choice One Selected Fiber Rings and Fiber Spurs
[Confidental Treatment sought for this Schedule]
<PAGE>
EXHIBIT B
CABLE PARAMETERS
CONSTRUCTION
Manufacturers: Coming and/or Lucent
Fiber type: Single Mode
Loose Tube
Matched Clad
Buffer. Loose Buffer Tube
Gel Filled and/of Dry Block
PBT Material'
Nominal Diameter 2.8mm
Assembly: #TBD Tubes Cables Around an UPJacketed Central GRP
Strength Element
Binder: Water Swellable Tape, 25% Overlap
Strength Member: Aramid Yarn(all Dielectric)
Jacket: Polyethlene
Nominal Wall: 1.52mm
Nominal Diameter: 12.2mm
Color: Black
Labeling: Fiber Technologies 1-800-497-5578
Cable Fillers: Polyethylene Construction Employed to Produce a Round
Construction
MECHANICAL
Crush Resistance: 2000 N/cm.
Tensile Load: 2700N(600 lbs)
Impact Resistance: 2000 impacts with a 1.6N*m force
Min Bend Radiuis: 15x Cable Diameter Long term, 20x Cable Diameter
Short Term
Operating Temp: -40 degrees Celsius to +70 degrees Celsius
Storage Temp: -50 degrees Celsius to +80 degrees Celsius
OPTICAL
Mode Field Diameter: 9.30 +/- .050 microns @ 1310 nm
Cladding Diameter: 125 +/- 10 microns
<PAGE>
-4-
Coating Diameter: 245 +/- 10 microns
Core Clad Concentricity: </= 0.8 microns
Cladding Non-Circularity: </= 1.0%
Coating-Cladding Concentricity: <12 microns
Glass Type: 8/125 microns
Operating Wavelength: 1310/1550nm
Max Attenuation: 0.45/0.35 dB/km to 0.35/0.25 dB/km
Zero Dispersion Wavelength: >/= 1301.5mn and </= 1321.5n-m
Zero Dispersion Slope: >/= 0.092ps/((nm*nm)*km)
Fiber Polarization Mode Dispersion Coefficient: </= 0.5 psec/sq rt of km
Cable Cutoff Length: </= 1260nm
Point Discontinuity: No point discontinuity greater than 0.10dB at either
1310nm or 1550 nm.
Attenuation at the Water Peak: The attenuation at 1383 +/-3 nm shall not exceed
2.1 dB/km.
Proof Test:- >/= 100kpsi
<PAGE>
EXHIBIT C
ROUTE MILES BY
CITY ROUTES
FOR PURPOSES OF
SECTION 4.1
Route Mileage
[Confidental Treatment sought for this Schedule]
<PAGE>
EXHIBIT "D"
PROPOSED SCHEDULE FOR INSTALLATION
[Confidental Treatment sought for this Schedule]
<PAGE>
EXHIBIT "E"
USE CHARGE
[Confidental Treatment sought for this Schedule]
<PAGE>
EXHIBIT F
TESTING AND ACCEPTANCE PROCEDURES
1.0 SPLICING AND TERMINATIONS
1.01 Fibers shall be spliced with one to one correspondence. All
splicing shall be done in accordance with GRANTOR
specifications, manufacture's recommendations, and each
Agency's standard construction requirements.
1.02 All fibers are to be fusion spliced and organized, placed and
secured in the splice closure-equipment provided by GRANTOR.
1.03 All splicers are responsible for notifying GRANTOR of an out
spec splice. Failure to do so will result in the splicer
having to reenter the enclosure and resplice at splicers own
expense.
1.04 Splicing at Active Locations
1.04.1 If splicing at active locations is required, special
care and precautions are required. Close supervision
and monitoring of this work is necessary and the
provisions of these specs will be adhered to.
1.04.2 GRANTOR will identify all work locations where active
fibers are present and identify which fibers within
the cable are active. Additionally, all work within a
cable containing active fibers will be performed
within a specified maintenance window. GRANTOR will
coordinate the time frames for the maintenance
windows. GRANTOR will work closely with the splicers
to schedule the maintenance windows and notify
splicers of any possible changes in the schedule. A
minimum of two days notice is required to reschedule
maintenance windows.
1.04.3 Additionally, all splicers will be required to have
on hand at time of splicing enough materials to make
temporary and permanent repairs to active fibers
damaged during the course of work.
1.04.4 In the event that active fibers are damaged during
the course of work splicer shall work as directed by
GRANTOR Project Management. Immediately take whatever
steps are necessary to reestablish service on the
active fibers and repair the- damaged fibers. Submit
a written report to the GRANTOR Project Management
detailing the events leading up to the damage, the
corrective actions taken, and what steps will be
implemented by subcontractor to prevent damage during
future work.
2.0 TESTING
2.01 Testers will notify GRANTOR seventy-two (72) working hours
prior to performing any final end to end testing.
<PAGE>
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2.02 After tester has provided end to end connectivity on the
fibers, bi-directional end to end testing done. Continuity
tests will be done to verify that no fibers have been
transposed or crossed in any of the splice points. Loss
measurements will be recorded using a laser source and a power
meter at 1550nm. OTDR traces will be taken at 1550nm and
splice loss measurements will be recorded. Tester will save
each OTDR trace to diskette and provide to GRANTOR for
evaluation. In addition Tester is to provide powermeter test
data to GRANTOR in hard copy.
2.03 It is imperative to verify that all fibers have one to one
continuity on the new cable. This should be done at the fiber
level, not just the pigtail level. For each pigtail, visual
inspection will be used to verify fiber color and buffer
color. Once the fiber color and the buffer color have been
recorded, a laser light source will be attached and a power
meter reading at the far end. Then at the far end, visual
inspection should be used to verify the fiber color and the
buffer tube color of the fiber receiving light. Then power
level readings should be taken in the opposite direction. The
power measurements should be made at 1550nm unless otherwise
specified.
2.04 The test results for the bi-directional testing are as
follows:
2.04.1 The objective for each splice is a loss of .06 dB
absolute or less bi-directionally. If after five(5)
splice attempts, splicer is not able to produce a
loss value of .06 dB or less, splicer will notify the
GRANTOR on site Project Manager and perform an
additional (3) attempts, which will be documented by
the Project Manager. If after the (3) attempts, the
splicer cannot obtain the .06 dB loss value, then the
splice will be marked as Out Of Spec(OOS) and
initialed by GRANTOR on the data sheet.
2.05 GRANTOR approved OTDR test instruments are to possess the
following features:
- Laser Precision/GN Nettest software compatibility
- Minimum dynamic range of 34.0 dB
- Minimum overall range of 120 km
- 1310/1550nm laser source
- 3.5" floppy disk drive for trace recording and
storage
2.06 On the attached data sheets, all cable information must be
filled in by splicer and verified by an GRANTOR
representative. These two forms are to contain the following
information:
2.06.1 The End to End Attenuation Loss Power Meter Test Form
will be used to verify continuity from end to end. In
addition, the power level readings taken with a laser
source and power meter must be recorded for every
fiber on this sheet. In the column marked fiber,
<PAGE>
-10-
the fiber color must be re corded. In the buffer
column, the buffer tube or ribbon color must be
recorded.
2.06.2 The OTDR Splice Loss Test Form is used to record
information about the fiber cable between the two
splice points. One sheet should be used for each pair
of sites. Cable manufacture, cable type, glass type,
cable reel number, number of fibers, and number of
fibers per tube must be recorded for each section of
cable between splice points. The distance from site A
must be recorded for each splice point.
2.06.3 Optical cable "Birth Certificates" are to attached to
the End to End Attenuation Loss Power Meter Test Form
for the corresponding reel.
2.07 OTDR testing is to be conducted using a Laser
Precision/Nettest Software compatible OTDR, suitable for the
optical lengths of these spans.
2.08 OTDR testing to be conducted at 1550nm unless specified.
2.09 All fibers inclusive to any span are to be OTDR tested using
the same range/resolution and pulse width settings to insure
consistency in the test results.
2.10 Use 3:00 minute averaging, a minimum for each-span.
Note - If GRANTOR determines that a 3:00 minute sample period
is too long and the tester can obtain a "good" trace
representation of the fiber being tested then a reduced
sampling period can be applied. If however the tester uses
less than 3:00 minutes, and the results are inadequate, the
span will be OTDR tested again for a longer period at the
tester's expense.
2.11 Traces are to be stored electronically on a 3.5" floppy
diskette storage media and submitted to GRANTOR via Federal
Express Standard Overnight Delivery.
2.12 Trace file format and File labeling will be provided by
GRANTOR prior to any testing.
2.13 Bonding and Grounding
2.13.1 Splicer shall perform bonding and grounding of all
cables. All bonding and grounding shall be performed
in accordance with the splice case manufacture's
Standard Practice and Installation manuals.
2.13.21 All bonds shall be clean and free of debris and
sealed within the splice closure.
2.13.3 Grounding and ground rod placement is to be done as
per design.
2.13.4 Splicer is to be responsible for supplying All
grounding material, i.e. ground rods, ground lugs,
and ground wire.
<PAGE>
-11-
2.14 Fiber Cable Reel Acceptance Testing
2.14.1 Fiber Optic Cable Installer shall be responsible for
on-reel verification prior to placement. Tester may
elect to test each fiber on every reel with an OTDR
in one direction at 1550nm to determine the
continuity of the fiber cable. Tester shall
immediately notify GRANTOR in writing of any damaged
or non-conforming fibers. Installer assumes full
responsibility for the cable three(3) days after
Installer receipt of the cable, unless GRANTOR is
notified in writing of such damage or non-conforming
fibers.
3.0 RESTORATION.
3.01 Upon notification of a Possible damaged fiber, GRANTOR will
dispatch technicians to site to locate damage. This process
shall take no more than Two(2) hours. The technicians shall
quickly assess the information provided by the local contact.
A visual inspection of the fiber to determine to what extent
the fiber may be structurally damaged.
3.02 If no damage is apparent visually, the technician will proceed
to the nearest location that allows him to perform and OTDR
Test. The technician will then calculate where the damaged
fiber is located along the ran and again visually inspect that
length of cable.
3.03. Upon finding the damaged region of cable, the technician will
perform only the temporary restoration necessary to regain use
of the damaged fiber. In no way should the Technician
jeopardize the other undamaged fibers during this restoration.
3.04 All permanent restorations will be made at off peak use time
of the fiber plant with coordination of all companies leasing
fibers in that particular span. GRANTOR Project Management
will supervise all restoration efforts to ensure timeliness
and quality of repair.
4.0 Delivery and Acceptance by Grantee
For each Route Segment, Grantor shall deliver to Grantee
written notice of the delivery of the Grantee Fibers which
include the written test results for each such Route Segment
delivered to confirm that the Route Segment is within the
specifications defined in this Exhibit F. Grantor shall have
forty-five (45) days after notification of delivery to
complete its own testing and confirm the test results provided
by the Grantor ("Acceptance Period"). Unless Grantee sends
written notice of its objection to the test results of the
Grantor within the forty-five (45) day Acceptance Period,
which sets forth the manner in which the Cable has failed to
comply with the standards set forth herein. Grantee shall be
deemed to have accepted the Route Segment and Grantor may
initiate invoicing for the Route Segment from the date notice
was provide of the delivery. If Grantee sends
<PAGE>
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a notice of non-acceptance, Grantor shall take necessary
action to restore or repair the Cable to the required
acceptance standard.
<PAGE>
EXHIBIT G
LIST OF CHOICE ONE REGIONAL SWITCH CENTERS
CONFIDENTIAL AND PROPRIETARY
[Confidental Treatment sought for this Schedule]
<PAGE>
FAIR MARKET RATE APPRAISAL PROCEDURE
[Confidental Treatment sought for this Schedule]
