SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report May 23, 2000
(Date of earliest event reported) (April 17, 2000)
CTC COMMUNICATIONS GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-27505 04-3469590
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
220 Bear Hill Rd., Waltham, Massachusetts 02451
(Address of principal executive offices) (Zip Code)
(781) 466-8080
(Registrant's telephone number including area code)
(Former name or former address if changed since last report)
<PAGE>
Item 5.
On April 17, 2000, the Registrant issued the following press release:
"CTC Communications Announces Fully Funded $190 Million Fiber Build-Out Plan
Highlights:
- $115 Million Agreement Signed with Williams Communications to Purchase
8,300 Route Miles of Fiber Covering the Eastern Half of the United States
- $75 Million Committed to Purchase Optical Networking Equipment from Cisco
Systems to "Light Up" the Fiber
- Colocation Agreements signed for 40 Williams Communications' Points of
Presence and 116 Bell Atlantic Points of Presence
WALTHAM, Mass-April 17, 2000-- CTC Communications Group Inc. (NASDAQ: CPTL)--
a rapidly expanding provider of state-of-the-art integrated communications
solutions for medium-to-large enterprises--today announced that the Company
has signed agreements totaling more than $190 million to implement its
strategic fiber optic network plan. The fiber rollout, which will be
implemented over the next two years, has been specifically engineered to
broaden the geographic reach of CTC's Cisco based Integrated Communications
Network and substantially boost bandwidth availability for both the Company
and its customers. The Company will use part of the proceeds from its
recently announced $200 million convertible preferred stock offering to fund
its fiber plan.
CTC has agreed to purchase more than 8,300 route miles of dark fiber pursuant
to a 20-year Indefeasible Right of Use (IRU) contract with Williams
Communications (NYSE: WCG). The $115 million contract also includes
colocation at 40 Points of Presence and 160 transmission site locations and
ongoing fiber maintenance services provided by Williams.
CTC further announced that it will install and operate its own optronics at
points along the fiber routes and has selected Cisco Systems Inc., (NASDAQ:
CSCO), the worldwide leader in networking for the Internet, as its optronics
provider. CTC will purchase industry leading, Internet scale, carrier class
optical networking equipment, specifically Cisco's ONS 15454 and ONS 15800.
The Company anticipates spending approximately $75 million for the purchase
of these optronics over the next two years.
In addition, CTC today also announced that the company has signed colocation
agreements with Bell Atlantic to colocate at 116 Bell Atlantic Central
Offices throughout New England and New York State. Colocation applications
with Bell Atlantic for a similar number of Bell Atlantic Central Offices in
the Mid-Atlantic States are in process. The Bell Atlantic colocation
agreements, combined with the Williams contract, provide a total of 316
additional points for customer access to CTC's IP+ATM Integrated
Communications Network (ICN).
The fiber routes that are part of today's announcement comprise all states in
the eastern half of the U.S. - including those from New England to Florida,
west to Texas, north to Illinois and those returning to the East Coast. The
Company anticipates that it will install fiber optic equipment and "light up"
these routes in two phases. Phase I is scheduled to start with the Boston to
Washington DC route - which is anticipated to be operational in the summer of
2000 - and then extend south to Virginia, northwest to Ohio, east through New
York and completed in January 2001 when it "returns" to New England. Phase II
will commence in December of 2000 and extend coverage from Virginia south to
Florida, west to Texas, north to Illinois and then easterly through Indiana
and Tennessee to Georgia. Phase II is expected to be completed by January
2002. (See maps of Phase 1 and 2 fiber deployments on Businesswire.com.)
In making today's landmark announcements, Robert J. Fabbricatore, CTC's
Chairman and CEO stated, "We are extremely pleased to announce Williams
Communications and Cisco Systems as our fiber and optronics suppliers. They
are world-class companies with outstanding products that will perpetuate and
enhance the quality, reliability and flexibility of our ICN network. These
fiber and colocation initiatives are integral to the CTC strategic growth
plan and to enabling the Company's current and future customers to excel in
the rapidly emerging New World of web-based communications and e-commerce.
Clearly, this high-quality fiber build out establishes the future roadmap for
ICN Network and Branch Sales office expansion. It also provides CTC with the
tools to effectively manage network costs while keeping pace with the
escalating demand for bandwidth. Owning and operating the underlying fiber in
our broadband ICN network is a strategic imperative that will enable us to
cost effectively and quickly, meet and exceed, customer needs as tomorrow's
products and applications - which will be even more bandwidth-intensive -
emerge."
Mr. Fabbricatore also noted that the Company is currently exploring the
purchase of dark fiber in major metropolitan markets. "Moving the power of
our broadband ICN network and readily available high level bandwidth
progressively closer and closer to the customer's location will be a
cornerstone to new applications delivery and speed to market. CTC's fiber and
optronics will be integrated directly into the Company's operating support
and management systems. This integration will allow CTC to provide bandwidth
capacity and routing efficiency on a real-time basis with a 'point and click'
procedure. Over time, it is our intent to provide this efficiency and high-
level bandwidth availability to our customers, right at their locations. In
short, successful New World integrated communications providers will bring
the network to the customer rather than the customer to the network."
Today's news from CTC follows several other recent announcements from the
Company, which established the groundwork for these developments. On January
25, 2000, CTC announced that it had secured a $225 million senior secured
facility, underwritten by Toronto-Dominion Bank, to fund its base plan for
expansion of both its branch sales offices and the company's ICN network. In
addition, on March 29, 2000, CTC announced $200 million in equity financing
from Bain Capital Inc., Thomas H. Lee Partners, L.P. and CSFB Private Equity
to fund strategic marketing and technology initiatives - including those
announced today - that form the cornerstones of CTC's accelerated business
plan. Further, on March 22, 2000, CTC announced that recognized industry
veteran and networking expert, Russell Oliver, joined the company as Vice
President of Network Operations, responsible for all fiber transmission,
switching, operations and growth aspects of the ICN network.
CTC will host a conference call on Tuesday April 18, 2000 at 1:00PM ET for
investors and other interested parties to expand on these developments as
well as recently announced March 2000 operating results. The conference call
number is 800-865-4460. The call will be recorded and made available at 877-
375-5694 until the close of business on April 20, 2000.
About CTC Communications
CTC is a rapidly growing, full-service Integrated Communications Provider
(ICP) delivering converged voice, data, Internet and video solutions to
medium and larger business customers in the most robust telecommunications
region in the world--the Washington D.C. to Boston corridor. Recently
designated by Bloomberg Personal Finance Magazine as one of the top "one
hundred fastest growing U.S. technology companies," CTC was serving more than
12,000 customers with 269,000+ access lines as of December 31, 1999. Central
to the Company's performance and future growth is its IP+ATM Integrated
Communications Network (ICN) named IntelliNETSM, which is deployed across 8
contiguous northeast states.
CTC markets its full portfolio of services through its over 400 member sales
and service representatives located in 30 branch offices throughout the New
England States, New York, New Jersey, Pennsylvania and Maryland. The Company,
through its dedicated commitment to exceptional customer service, has
achieved an industry-leading market share in the northeast and an industry-
leading line retention rate in excess of 99 percent. CTC can be found on the
worldwide web at www.ctcnet.com
About Williams Communications Group, Inc. (NYSE:WCG)
Williams Communications, through its subsidiaries, is North America's only
exclusively carrier-focused fiber-optic network and the largest independent
source of end-to-end integrated business communications solutions-data, voice
or video. Based in Tulsa, Okla., Williams Communications had revenues of $2
billion in 1999 and today has 9,000 employees primarily in North America,
with offices in Europe and Asia and investments in South America and
Australia. Approximately 85 percent of WCG stock is held by Williams
(NYSE:WMB) which, in 1985, became the first energy company to harness its
core competency as a builder of networks to enable competition in the
communications industry. Additional information is available at
www.williams.com and www.williamscommunications.com.
The statements in this press release that relate to future plans, events or
performance are forward-looking statements that involve risk and
uncertainties that could cause actual results to differ materially from those
reflected in the forward-looking statements including, fiber implementation
plans, ICN network and branch office expansion, future products, applications
and bandwidth needs and anticipated future agreements for fiber and co-
location space. Readers are, accordingly, cautioned not to place undue
reliance on these forward-looking statements, which speak only as to the date
hereof. Additional information about these risks and uncertainties is set
forth in the Company's most recent report on Form 10-Q. CTC undertakes no
obligation to release publicly the results of any revisions to these forward-
looking statements that may be made to reflect results, events or
circumstances after the date hereof.
Note: A Photo is available at URL: http://www.businesswire.com/cgi-
bin/photo.cgi?pw.041700/bb1
Contact:
John Dinsmore
Feldman Communications Inc.
410-571-8900
[email protected]
http://www.FeldmanCommunications.com
Alan Russell
CTC Communications
781-522-8731
[email protected]
http://www.ctcnet.com
Amy Latham
Williams Communications
918-573-8920
[email protected]
http://www.williams.com
Mary Thurber
Cisco Systems, Inc.
(408) 526-8893
[email protected]
http://www.cisco.com
or
Adrienne Low
Cisco Systems, Inc.
(408) 527-2082 (t)
[email protected] (e)
http://www.cisco.com"
* * *
The summary information contained herein is qualified in its entirety by
reference to the texts of the relevant documents attached as exhibits hereto.
Item 7c. Exhibits.
Exhibit 10.1* Dark Fiber IRU Agreement between Williams
Communications, Inc. and CTC Communications Corp.
dated as of March 31, 2000.
Exhibit 10.2* Carrier Services Agreement between Williams
Communications, Inc. and CTC Communications Corp.
dated as of March 31, 2000.
* PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CTC COMMUNICATIONS GROUP, INC.
By: /s/ John D. Pittenger
John D. Pittenger,
Executive Vice President, Finance and Administration
Dated: May 23, 2000
EXHIBIT INDEX
Exhibit 10.1* Dark Fiber IRU Agreement between Williams
Communications, Inc. and CTC Communications Corp.
dated as of March 31, 2000.
Exhibit 10.2* Carrier Services Agreement between Williams
Communications, Inc. and CTC Communications Corp.
dated as of March 31, 2000.
* PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
Exhibit 10.1
NOTE: PORTIONS OF THIS EXHIBIT (MARKED WITH AN ASKERISK) HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
DARK FIBER IRU AGREEMENT
Between
WILLIAMS COMMUNICATIONS, INC. ("Williams")
and
CTC COMMUNICATIONS CORP. ("CTC")
Dated as of: March 31, 2000
TABLE OF CONTENTS
ARTICLE Page
ARTICLE I DEFINITIONS 1
ARTICLE II GRANT OF IRU 5
ARTICLE III CONSIDERATION 5
ARTICLE IV CONSTRUCTION 8
ARTICLE V CONNECTION AND ACCESS TO THE SYSTEM 11
ARTICLE VI ACCEPTANCE AND TESTING OF CTC FIBERS 11
ARTICLE VII COLLOCATION 13
ARTICLE VIII TERM 13
ARTICLE IX MAINTENANCE AND RELOCATION 14
ARTICLE X USE OF THE SYSTEM 15
ARTICLE XI AUDIT RIGHTS 16
ARTICLE XII WARRANTIES 17
ARTICLE XIII DEFAULT 17
ARTICLE XIV INDEMNIFICATION 19
ARTICLE XV LIMITATION OF LIABILITY 20
ARTICLE XVI INSURANCE 21
ARTICLE XVII TAXES AND GOVERNMENTAL FEES 22
ARTICLE XVIII NOTICE 23
ARTICLE XIX CONFIDENTIALITY 24
ARTICLE XX PROHIBITION ON IMPROPER PAYMENTS 25
ARTICLE XXI FORCE MAJEURE; EMINENT DOMAIN 25
ARTICLE XXII ARBITRATION AND DISPUTE RESOLUTION 26
ARTICLE XXIII RULES OF CONSTRUCTION 27
ARTICLE XXIV ASSIGNMENT 29
ARTICLE XXV ENTIRE AGREEMENT; AMENDMENT; EXECUTION 31
EXHIBITS
Exhibit A Route Map
Exhibit B Major Segments
Exhibit B-1 Deferred Major Segments
Exhibit C Fiber Specifications
Exhibit D Cable Installation Specifications
Exhibit E Operations Specifications, Maintenance
Exhibit F As-Built Drawing Specifications
Exhibit G Fiber Splicing, Testing and Acceptance Standards
Exhibit H Transmission Site Specifications
Exhibit I Collocation Provisions (Transmission Sites)
Exhibit J Williams POP Collocation Sites and Transmission Sites
Exhibit K Collocation Provisions (POP Collocation Sites)
Exhibit L Interconnections
<PAGE> PAGE 1
DARK FIBER IRU AGREEMENT
THIS DARK FIBER IRU AGREEMENT (this "Agreement") is made as of this
31st day of March, 2000 (the "Effective Date"), by and between WILLIAMS
COMMUNICATIONS, INC., a Delaware corporation ("Williams"), and CTC
COMMUNICATIONS CORP., a Delaware corporation ("CTC").
W I T N E S S E T H:
WHEREAS, Williams has constructed or acquired, or will construct or
acquire, a fiber optic communication system along the route segments
described and/or depicted in Exhibits A, B and B-1 attached hereto and
incorporated herein by reference; and
WHEREAS, pursuant to that certain Telecommunications Facilities and
Services Agreement entered into between the parties of even date herewith
(the "Master Agreement"), CTC has agreed to acquire from Williams, and
Williams has agreed to provide to CTC, an exclusive, indefeasible right of
use in certain optical dark fibers in such fiber optic communications
system as hereafter described for the consideration and upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I tc "ARTICLE I"
DEFINITIONS
In addition to other terms defined elsewhere in this Agreement, where
capitalized, the following words and phrases shall be defined as follows:
"Acceptance" shall have the definition set forth in Section 6.4.
"Acceptance Date" shall have the definition set forth in Section 6.4.
"Affiliate" means, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity,
whether directly or indirectly through one or more intermediaries.
"Control" and its derivatives mean legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent (50%) of the
outstanding voting capital stock (or other ownership interest, if not a
corporation) of an entity, or management or operational control over such
entity.
"As-builts" shall have the definition set forth in Section 4.5.
"Basic HVAC" shall have the definition set forth in Subsection 1.3.8
of Attachment I to Exhibit K of this Agreement.
"Cable" means the fiber optic cable and fibers contained therein,
including the CTC Fibers, and associated splicing connections, splice boxes
and vaults, and conduit.
<PAGE> PAGE 2
"Claim" means any claim, action, dispute, or proceeding of any kind
between CTC (or any of its Affiliates, successors or assigns) and Williams
(or any of its Affiliates, successors, or assigns) and any other claim,
transaction, occurrence, loss, liability, expense or other matter arising
out of, in connection with, or in any way related to, the CTC IRU, the
Cable, the System, this Agreement or any other instrument, arrangement or
understanding related to the CTC IRU.
"Collocation Provisions" means the collocation provisions for
Transmission Sites or POP Collocation Sites as set forth in Exhibits I and
K, as applicable.
"Connecting Point" means a point where the network or facilities of
CTC will connect to the System (subject to the provisions of Section 5.1)
as more particularly defined in Exhibit L.
"Costs" means costs actually and reasonably incurred, and computed in
accordance with the established accounting procedures used by Williams to
bill third parties for reimbursable projects and generally accepted
accounting principles, consistently applied. Such costs include the
following:
(a) direct labor costs, including wages, salaries, and
benefits plus overhead allocable to such labor costs (the
overhead allocation shall not exceed thirty percent (30%) of
the labor costs computed without such overhead); and
(b) other direct costs and out-of-pocket expenses on a pass-through
basis (such as equipment, materials, supplies, contract
services, costs of capital, Required Rights, sales, use or
similar taxes, etc.) plus ten percent (10%) of such expenses.
"CTC Equipment" shall mean optronics, electronics, optical or
electrical equipment, or materials, facilities, or other equipment utilized
by CTC in connection with its use of the CTC Fibers.
"CTC Fibers" means those certain strands of optical Dark Fibers of
the type specified in Exhibit B and meeting the specifications in Exhibit C
within the Cable installed or to be installed in the Major Segments of the
System as identified by Williams prior to commencement of Fiber Testing
under Article VI.
"CTC IRU" shall have the definition set forth in Article II.
"Dark Fibers" means optical fiber provided without electronics or
optronics, and which is not "lit" or activated.
"Deferred Major Segments" shall mean those particular Major Segments
listed on Exhibit B-1.
<PAGE> PAGE 3
"Facility Owners/Lenders" means any entity (other than Williams):
(a) owning any portion of the System or any property or security interest
therein, (b) leasing to Williams, or providing an IRU to Williams in, any
portion of the System, or (c) that is a Lender with respect to Williams and
has a security interest in the System or any part thereof.
"Fiber Testing" shall have the definition set forth in Section 6.1.
"Fiber Miles" means the number of Route Miles in a Major Segment
multiplied by the relevant number of CTC Fibers in such Major Segment. For
example, if there are four CTC Fibers in a Major Segment with 100 Route
Miles, there would be 400 Fibers Miles of CTC Fibers in such Major Segment.
"Fibers" means any optical fibers contained in the System including
the CTC Fibers, the fibers of Williams and the fibers of any third party in
the System excluding, however, any fibers granted to (whether through
ownership, IRU, lease or otherwise) governmental entities in exchange for
allowing use of streets, rights-of-way or other property under the
jurisdiction of such entity.
"Fiber Specifications" shall have the definition set forth in Section
6.1.
"Force Majeure Event" shall have the definition set forth in Section
21.1.
"Indefeasible Right of Use" or "IRU" means an exclusive, indefeasible
right of use in the optical fibers or other specified property; provided
that the granting of the same does not convey legal title to such fibers or
other property.
"Indemnified Parties" shall have the definition set forth in Section
14.1.
"Indemnitor" shall have the definition set forth in Section 14.1.
"Initial Term" shall have the definition set forth in Section 8.1.
"Interim Agreement" means that certain Interim Carrier Services and
Provisioning Agreement previously entered into by the parties on January
20, 2000.
"Interim Capacity Services" means transport capacity services ordered
by CTC pursuant to the Interim Agreement or that certain Carrier Services
Agreement entered under the terms of the Master Agreement, which services
are intended to provide CTC with capacity on a temporary basis between
endpoints of a Major Segment until such time as the CTC Dark Fibers in such
Major Segment are operational.
"IRU Payment" shall have the definition set forth in Section 3.1.
"Major Segments" means the individual identified portions of the
Route between each of the city pairs listed on Exhibit B which include the
Deferred Major Segments
<PAGE> PAGE 4
"Non-Routine Maintenance" shall have the definition set forth in the
Section 9.1 below.
"Per Mile Rate" shall have the definition set forth in Section 3.1.
"POPs" shall mean Williams' designated points of presence at the
locations along the Route listed in Exhibit B.
"POP Collocation Sites" shall mean those specific Williams' POPs in
which Rack Space is being provided by Williams to CTC hereunder as listed
in Exhibit J.
"Pro Rata Share" means a proportion equal to a fraction, the
numerator of which is the number of CTC Fibers and the denominator of which
is all Fibers in the affected portion of the System. If this fraction
varies over a particular Segment, then the Pro Rata Share shall be equal to
the weighted average (weighted by length as set forth in Williams' As-Built
Drawings) of the relevant portions. For example, if the fraction for 100
feet of the affected Segment is 0.1 and the fraction for the remaining 50
feet of the affected Segment is 0.07, the weighted average for the entire
Segment would be 0.09.
"Rack Space" means space for a standard non-enclosed equipment rack
with outside dimensions measuring twenty-six inches (26") in width, twenty-
four inches (24") in depth and either seventy-eight inches (78") or eighty-
four inches (84") in height, in Transmission Sites and POP Collocation
Sites which are of type, size and quality standard in the
telecommunications industry.
"Released Party" means each of the following:
(a) any Affiliates or Lenders of the other party and any
Facility Owners/Lenders;
(b) any employee, officer, director, stockholder, partner, member,
or trustee of the other party or of its Affiliates, Lenders, or
Facility Owners/Lenders; or
(c) assignees of the entities included in the above subparagraphs
(a) or (b) and any employee, officer, director, stockholder, partner,
member, or trustee of such assignees.
"Representatives" shall have the definition set forth in Section 19.1
below.
"Renewal Terms" shall have the definition set forth in Section 8.2
below.
"Required Rights" shall have the definition set forth in Section 4.1
below.
"Right-of-way Agreements" means agreements with right of way owners,
property owners, utilities, railroads, government entities or other parties
that Williams has entered into, or will enter into, to obtain some or all
of the Required Rights.
"Route" shall mean the route, including spurs, upon which the System
will be constructed and installed consisting of the Major Segments.
<PAGE> PAGE 5
"Route Miles" means the actual miles traversed by the Cable along the
Route based on the As-builts.
"Routine Maintenance" shall have the definition set forth in Section
9.1.
"Scheduled Delivery Date" means the date defined in Section 4.3
below.
"Segment" means a discrete portion of the System and may refer to a
Span, a portion between two POPs or a POP and a System end point, or a
portion of the System affected by a relocation or other circumstance.
"Span" means a portion of the System between (a) a Transmission Site,
a Williams-designated POP, or a System end point and (b) the first
Transmission Site, Williams-designated POP, or a System end point along the
Route from such site.
"System" means Williams' fiber optic communications system
constructed or to be constructed along the Route which will contain the CTC
Fibers including, but not limited to, the Cable, fibers, conduits,
handholes, manholes and all other appurtenances and components of said
communications system.
"Taking" shall have the definition set forth in Section 21.2.
"Term" means the Initial Term and any Renewal Term(s) of this
Agreement as defined in Sections 8.1 and 8.2.
"Transmission Sites" shall mean Williams' designated optical
amplifier, regenerator or junction sites along the Route.
ARTICLE II tc "ARTICLE II"
GRANT OF IRU
Effective with respect to each Major Segment hereunder as of CTC's
Acceptance of each such Major Segment and upon CTC's payment of the IRU
Payment for such Major Segment, Williams hereby grants to CTC an exclusive
IRU in and to the CTC Fibers, for the purposes described herein (the "CTC
IRU"). Such IRU shall be subject to the terms and conditions set forth
herein. Such IRU grant does not convey any legal title to any real or
personal property, including, without limitation, Fibers, Cable or the
System. The CTC IRU does not include any equipment used to transmit
capacity over or "light" the CTC Fibers.
ARTICLE III tc "ARTICLE III"
CONSIDERATION
3.1 *
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
<PAGE> PAGE 6
3.2 *
3.3 *
3.4 *
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
<PAGE> PAGE 7
3.5 Charges for Collocation. The charges for collocation services
provided to CTC in Transmission Sites and POP Collocation Sites hereunder
shall be as set forth in the Collocation Provisions.
3.6 Method of Payment. Except for monthly collocation and Routine
Maintenance charges, all payments to Williams set forth in this Article III
shall be made by wire transfer of immediately available funds to the
account or accounts designated by Williams. In addition to any other
remedies set forth in this Agreement, all late payments shall bear interest
accruing from the date due until paid at a rate equal to the prime rate
plus three percentage points. For purposes of the preceding sentence,
"prime rate" shall mean the rate published in the Money Rates Section of
The Wall Street Journal as the prime rate on corporate loans at large
United States money center commercial banks. No payment shall be deemed
delinquent nor subject to any interest due to any incomplete or incorrect
wiring instructions from Williams or any failure of Williams' bank to
collect and apply such payment to the designated account in a timely
manner. All payments required hereunder shall be made in United States
Dollars.
3.7 True-Up of IRU Payment. In the event the actual Route Miles
for any Major Segment, as shown by the As-builts, differ from the estimated
Route Miles set forth on Exhibit B, the IRU Payment for such Major Segment
shall be recomputed using the actual Fiber Miles based upon the Per Mile
Rate. Any excess of such recomputed IRU Payment for such Major Segment
over the portion of the IRU Payment allocable to such Major Segment
previously paid by CTC shall by paid by CTC to Williams within thirty (30)
days after receipt of the As-builts from Williams. Likewise, any excess of
the portion of the IRU Payment allocable to such Major Segment previously
paid by CTC over such recomputed IRU Payment for such Major Segment shall
be refunded by
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION
<PAGE> PAGE 8
Williams to CTC within thirty (30) days after delivery of the As-builts to
CTC. Neither Williams nor CTC shall be liable for interest on such
difference prior to the end of such thirty-day period.
3.8 True-Up of Maintenance Charges. Within thirty (30) days after
Williams provides the As-builts pursuant to Section 4.5, Williams shall
provide CTC with a statement of the actual Route Miles of the Major Segment
and any amount to be paid by Williams to CTC or by CTC to Williams to
reflect any difference between (a) the cumulative Routine Maintenance
charges (as computed in both cases based on actual Fiber Miles for such
Major Segment) and (b) the cumulative Routine Maintenance charges
previously paid by CTC for such Major Segment. The appropriate party shall
pay the other party such amount within thirty (30) days of the date
Williams delivers the statement. Neither Williams nor CTC shall be liable
for interest on such difference prior to the end of such thirty-day period.
Beginning with the next monthly payment of the Routine Maintenance charge
due hereunder, CTC shall pay the adjusted amount for such Major Segment for
the remainder of the Term subject to subsequent increases under the terms
of Section 3.3.
ARTICLE IV tc "ARTICLE IV"
CONSTRUCTION
4.1 Acceptance Date Obligations. As of the Acceptance Date of any
Major Segment:
(a) Williams or the underlying facility owner shall have obtained
all rights, licenses, authorizations, easements, leases, fee
interests, or agreements that provide for the occupancy by the
Major Segment of real property or fixtures (such as conduit,
bridges, river crossings, or transmission towers);
(b) Williams shall have obtained by IRU agreement, lease, or
otherwise the right to use Segments it does not own; and
(c) the Major Segment shall be designed, engineered, installed, and
constructed in accordance with sound industry construction
practices and shall meet the specifications set forth in
Exhibits E and G (the specifications set forth in Exhibits C
and D shall apply to System components that Williams
constructed or supervised and, if met, shall constitute
compliance with this obligation).
The rights Williams is required to obtain pursuant to Subsections (a) and
(b) above are referred to as "Required Rights". Williams hereby represents
that as of the Acceptance Date with respect to each Major Segment, the
Required Rights shall allow for CTC's use of the CTC Fibers under the terms
and conditions of this Agreement. In addition, Williams represents that it
has the right to grant the CTC IRU to CTC under the terms and conditions of
this Agreement and that such grant of the CTC IRU shall not violate the
terms of any of the Required Rights. Williams shall renew or replace
existing Required Rights through at least the Initial Term subject to CTC's
obligations specified below in this paragraph and except as provided in and
subject to the provisions of Section 9.2 (Relocation Procedures) and
Section 21.1 (Excused Performance). In the event title to the System or
Required Rights is contested, or if any third party or government authority
contests the property rights or the rights of the parties to use the System
for any reason, Williams shall proceed to take all
<PAGE> PAGE 9
necessary steps to perfect title including, but not limited to, contesting
the claims of any such third party or government authority; provided that
if Williams' initially acquired the Required Rights in accordance with all
terms of this Agreement and industry practice and such contest does not
result from the negligent acts or breach of this Agreement by Williams, CTC
shall reimburse Williams for its Pro Rata Share of all Costs incurred by
Williams in perfecting title as described above.
Notwithstanding any other provision herein to the contrary, CTC
shall be solely responsible for obtaining, at its sole cost and expense,
any and all necessary franchises, authorizations or permits specifically
required in addition to the Required Rights as a result of CTC's, as
opposed to Williams', use, operation, access or connection of or with the
CTC Fibers and its operation, maintenance, repair, and replacement of all
CTC Equipment associated therewith. Williams will reasonably cooperate and
shall not interfere with CTC's efforts to obtain necessary franchises,
authorizations or permits; provided that, unless otherwise agreed by
Williams, such cooperation shall not require the expenditure of money by
Williams which is not reimbursed by CTC and shall not require acts to be
taken by Williams which would reasonably be expected to subject Williams to
liability in connection with such franchises, authorizations or permits.
Notwithstanding any provision in this Agreement to the contrary, CTC shall
be entitled to seek immediate injunctive relief to prevent or abate
Williams' interference with CTC's efforts described in the preceding
sentence or to compel Williams' cooperation in accordance with the terms
thereof.
4.2 Prior Construction. CTC acknowledges that some or all of said
design, engineering, installation, construction, splicing and testing
described above has previously been completed.
4.3 Scheduled Delivery Dates.
(a) Subject to extension for delays described in Section 21.1 and
to extension or delay as otherwise permitted or provided in this Agreement,
the "Scheduled Delivery Dates" for completion of all construction,
installation, Williams' Fiber Testing and hand-over of Williams' test
results and the CTC Fibers to CTC for all Major Segments other than the
Deferred Major Segments are the estimated completion dates set forth in
Exhibit B and for the Deferred Major Segments are the anticipated delivery
dates set forth in Exhibit B-1. Williams shall use commercially reasonable
efforts to meet the applicable Scheduled Delivery Date for each Major
Segment. Williams shall give notice to CTC as early as reasonably possible
of any known delays in completion of any Major Segment hereunder which will
or have occurred. Within ten (10) days after CTC's receipt of such notice,
a designated senior representative with decision-making authority of each
party shall meet to discuss the status of construction, the reason(s) for
the failure to meet the Scheduled Delivery Date, and possible mutual
efforts that could be undertaken in order to complete the construction of
the relevant Major Segment in the most expeditious manner feasible under
the circumstances. Williams will use commercially reasonable efforts to
minimize the delay and to assist CTC in obtaining interim cover services.
(b) If for any reason (except for a Force Majeure Event) Williams
fails to complete any Major Segment within one hundred twenty (120)
calendar days after the Scheduled Delivery Date (the "Grace Period") for
such Major Segment, then: (i) with respect to any Major Segments for
<PAGE> PAGE 10
which CTC has obtained and Williams has placed into service Interim
Capacity Services, Williams shall provide such Interim Capacity Services
to CTC free of charge for up to six (6) months until such Major Segment is
completed and Accepted or until CTC terminates this Agreement with respect
to such Major Segment under Section 4.3(c) below, whichever is earlier; and
(ii) with respect to any Major Segments for which CTC has not previously
obtained such Interim Capacity Services, Williams shall pay CTC monthly
payments equal to one percent (1%) of the IRU Payment allocable to such
Major Segment as liquidated damages for up to six (6) months until such
Major Segment(s) are completed and Accepted or until CTC terminates this
Agreement with respect to such Major Segment under Section 4.3(c) below,
whichever is earlier. In no event shall Williams be obligated to provide
Interim Capacity Services free of charge or pay the payments described in
clause (i) or (ii), as applicable, beyond the date which is six (6) months
after expiration of the Grace Period. The provision of services and
payment of the sum set forth in the preceding sentence are agreed upon as
liquidated damages and not as a penalty. The parties hereto have computed,
estimated and agreed upon the sum as an attempt to make a reasonable
forecast of probable actual loss because of the difficulty of estimating
the damages which will result.
(c) If Williams has not completed any Major Segment(s) on or before
the date which is six (6) months after expiration of the Grace Period or
such earlier date mutually agreed upon by the parties, CTC will have the
right to terminate this Agreement with respect to the affected Major
Segment(s) only. In the event of such termination by CTC, Williams shall
refund to CTC the portion of the IRU Payment made as described in Section
3.2(a) previously paid by CTC allocable to such Major Segment(s) based on
the number of Fiber Miles contained therein. In addition, Williams shall
pay CTC interest on such refund at the rate specified in Section 3.6
accruing from the date payment is made by CTC under Section 3.2(a) through
the date the refund is made. The remedies described in this Section 4.3
shall be CTC's sole and exclusive remedies for Williams' failure to deliver
any Major Segment(s) prior to expiration of the Grace Period.
4.4 Alteration of Construction Specifications. Notwithstanding any
other provision of this Agreement, Williams may, in its sole discretion,
alter the construction specifications as construction progresses to
facilitate actual construction needs. Any such alteration shall be
consistent with standard telecommunications practices, shall not alter the
location of the endpoints of or intermediate POPs within any Major Segment
and shall not result in a decrease in quality of the System or its
performance or in a substantial modification of CTC's rights under this
Agreement.
4.5 Provision of As-Built Drawings. As soon as available, but in
no event later than one hundred eighty (180) days after CTC's Acceptance of
each Major Segment, Williams shall provide CTC with as-built drawings for
the portion of the System in such Major Segment complying with the
specifications for as-built drawings set forth in Exhibit F (the "As-
builts"). If there is a material change in the As-builts as a result of
maintenance or relocation, Williams shall deliver updated As-builts to CTC
with respect to the relevant Segment as soon as available, but in no event
later than one-hundred eighty (180) calendar days following the completion
of such change. Notwithstanding the foregoing, Williams shall provide CTC
with floor plans for the Transmission Sites and POP Collocation Sites as
soon as available. In addition to the As-builts, Williams shall provide to
CTC, upon CTC's request, access to field construction drawings and other
route documentation as early as reasonably possible following completion of
each Major Segment.
<PAGE> PAGE 11
ARTICLE V tc "ARTICLE V"
CONNECTION AND ACCESS TO THE SYSTEM
5.1 Connections. Subject to the provisions herein, CTC shall pay
for and arrange all connections of its facilities with the CTC Fibers which
connections shall be made by Williams in accordance with the terms and
procedures set forth in Exhibit L. CTC shall reimburse Williams for any
Costs incurred as a result of making such connections, including the Costs
of obtaining any rights to access, install, or maintain such connections or
the spur connecting to the System.
5.2 No Unauthorized Access to System. CTC shall not physically
access any part of the System (other than pursuant to the terms of this
Agreement) without the prior written consent of Williams, and then only
upon the terms and conditions specified by Williams.
ARTICLE VI tc "ARTICLE VI"
ACCEPTANCE AND TESTING OF CTC FIBERS
6.1 Testing. Williams shall test the CTC Fibers in accordance with
the procedures specified in Exhibit G ("Fiber Testing") to verify that
they are operating in accordance with the specifications set forth in
Exhibit C (the "Fiber Specifications"). Within thirty (30) days after the
conclusion of any Fiber Testing of the CTC Fibers conducted by Williams in
any given Major Segment of the System and completion of all Transmission
Sites and POP Collocation Sites connected to such Major Segment so that
such sites are ready for CTC's use and occupancy hereunder, Williams shall
provide CTC with a copy of the test results and detailed information
showing the location of Transmission Sites along such Major Segment. CTC
acknowledges that Fiber Testing may have been previously completed by
Williams for some of the Major Segments. With respect to such previously
tested Major Segments, Williams shall provide CTC with a copy of the test
results within thirty (30) days after the Effective Date. Williams shall
also provide test results within thirty (30) days after completion of any
repair of damage to the CTC Fibers involving signal discontinuity or other
non-conformance with the Fiber Specifications which test results shall be
subject to Sections 6.2 and 6.3 below.
6.2 Review of Test Results. If, within fifteen (15) days after
receipt by CTC from Williams of the test results referred to above or of
the results of re-testing as set forth below, CTC reasonably determines
that such test results show that the CTC Fibers in a Major Segment or any
portion thereof do not meet the Fiber Specifications, CTC shall, within
such fifteen (15) day period, notify Williams of such determination.
Regardless of the content of Williams' test results, CTC shall have the
right, but not the obligation, at its sole expense, to conduct its own
Fiber Testing of the CTC Fibers to verify that they are operating in
accordance with the Fiber Specifications subject to the terms, conditions
and requirements of the Right-of-Way Agreements. In the event CTC elects
to conduct its own Fiber Testing of the CTC Fibers, it shall notify
Williams of its intent to do so within the above fifteen (15) day review
period specifying the dates, times and locations at which such testing will
be performed which date shall be no later than fourteen (14) days after
such notice to Williams. Any such testing by CTC shall be done in
accordance with industry standards and shall be subject to the reasonable
control and supervision of Williams as necessary or advisable to protect
the System and to prevent interference with Williams' construction
activities. Williams shall
<PAGE> PAGE 12
cooperate with CTC in all reasonable respects to facilitate CTC's Fiber
Testing. Williams shall have the right to have a person or persons present
to observe CTC's Fiber Testing. Within ten (10) days after the conclusion
of CTC's Fiber Testing of the CTC Fibers, CTC shall provide Williams with a
copy of the test results and either accept such results or object to them
as showing the CTC Fibers not to be operating within the parameters of the
Fiber Specifications.
6.3 Objections to Test Results. In the event CTC notifies
Williams within the time periods set forth in Section 6.2 that the CTC
Fibers in a Major Segment, or portion thereof, are not operating within the
parameters of the Fiber Specifications, Williams shall expeditiously take
such action as shall be reasonably necessary with respect to such portion
of the CTC Fibers that do not operate within the parameters of the Fiber
Specifications to bring the operating standards of such portion of the CTC
Fibers within such parameters after which the CTC Fibers shall be re-tested
in accordance with the provisions of this Article. After taking such
actions and re-testing of the CTC Fibers, Williams shall provide CTC with a
copy of the new test results and CTC shall again have all rights provided
in this Article VI with respect to such new test results. The cycle
described above of testing, taking corrective action and re-testing shall
take place as many times as necessary to ensure that the CTC Fibers operate
within the parameters of the Fiber Specifications.
6.4 Acceptance. In the event CTC does not object to the results
of any of Williams' Fiber Testing or its own Fiber Testing within the time
periods specified in Section 6.2, CTC shall be deemed to have accepted the
CTC Fibers in the affected Major Segment. With respect to the initial
testing of each Major Segment, CTC's notice accepting the CTC Fibers, or
its deemed acceptance under this Section 6.4, for the last portion of such
Major Segment shall constitute CTC's "Acceptance" of the CTC Fibers in such
Major Segment (which definition shall include derivations of the word as
used herein). The date of CTC's notice Accepting the Major Segment of the
CTC Fibers or the date of deemed Acceptance under this Section 6.4 shall be
the "Acceptance Date" of the CTC Fibers for such Major Segment.
Notwithstanding the foregoing, CTC's Acceptance and the Acceptance Date of
the Deferred Major Segments listed in Section B-1 (the "Deferred Major
Segments") may be deferred by CTC until June 30, 2001. CTC's rights under
this Article VI to object to Williams' test results and to object to its
own test results for any of the Deferred Major Segments shall not be
extended or deferred but rather must be exercised within the time periods
set forth above upon delivery of the initial test results by Williams. CTC
shall have the right to conduct its own Fiber Testing of the CTC Fibers
within the Deferred Major Segments at any time prior to Acceptance, which
testing shall be in accordance with the provisions of Section 6.2 except
for the first and last sentences thereof and excluding the references to
time periods. In the event any Fiber Testing conducted by CTC after the
period for objection under Section 6.2 has expired show the CTC Fibers not
to be operating within the parameters of the Fiber Specifications, CTC
shall notify Williams of such fact and any required corrective action will
be considered Non-Routine Maintenance subject to all applicable provisions
of this Agreement. Acceptance of the Deferred Major Segments shall be
deemed to have occurred with respect to each such Deferred Major Segment
upon the earlier of (i) CTC's notice to Williams Accepting the same, which,
at the option of CTC, may be given at any time between receipt of Williams'
initial test results for any Deferred Major Segment and June 30, 2001, or
(ii) June 30, 2001.
<PAGE> PAGE 13
ARTICLE VII tc "ARTICLE VII"
COLLOCATION tc " " \l 2
7.1 Transmission Sites. Williams agrees to provide to CTC and CTC
agrees to accept and utilize collocation space in each of Williams'
Transmission Sites listed in Exhibit J along the Route at the rates and in
accordance with the terms and conditions set forth in Exhibit I.
Transmissions Sites have been or shall be constructed by Williams at
approximately forty (40) mile intervals along the Route except where
geographic or other factors require or allow different spacing in
accordance with generally accepted practices in the telecommunications
industry. All such Transmission Sites and space therein provided to CTC
hereunder shall meet the specifications set forth in Exhibit H.
7.2 POP Collocation Sites. Williams agrees to provide and CTC
agrees to accept and utilize collocation space in each of the POP
Collocation Sites as described in Exhibit J at the rates and in accordance
with the terms and conditions set forth in Exhibit K. If, during the Term
of this Agreement, CTC requires additional Rack Space in POPs in which
Williams has determined no additional space is available, Williams agrees
to make reasonable efforts to assist CTC, where possible and at CTC's sole
cost, in locating alternative collocation facilities suitable for its
operations. The parties acknowledge that, in addition to the Rack Spaces
Williams agrees to provide to CTC hereunder, CTC desires to obtain two (2)
Rack Spaces in each of Williams' POPs in Baton Rouge, Louisiana;
Springfield, Illinois; and Peoria, Illinois, and that availability of such
additional Rack Spaces is not known at the time of execution of this
Agreement. Williams agrees that it shall make commercially reasonable
efforts to determine such availability within thirty (30) days after the
Effective Date and, if it determines that such Rack Spaces are available
(which determination shall be made in Williams sole discretion), it shall
provide such Rack Spaces to CTC subject to and in accordance with the terms
and conditions of Exhibit K.
ARTICLE VIII tc "ARTICLE VIII"
TERM
8.1 Initial Term. This Agreement shall be in force and effect on
and after the Effective Date. The initial term of this Agreement and the
CTC IRU shall commence (a) with respect to all Major Segments other than
the Deferred Major Segments upon CTC's Acceptance of the last such Major
Segment completed and delivered hereunder and shall continue for a period
of twenty (20) years thereafter unless earlier terminated pursuant to the
terms of this Agreement, and (b) with respect to the Deferred Major
Segments upon CTC's Acceptance of the last such Deferred Major Segment
completed and delivered hereunder and shall continue for a period of twenty
(20) years thereafter unless earlier terminated pursuant to the terms of
this Agreement (the two different terms described in (a) and (b),
collectively, the "Initial Term").
8.2 Renewal Terms. This Agreement and the CTC IRU may be renewed
by CTC for two (2) additional terms of five (5) years each (the "Renewal
Term(s)") (the Initial Term and Renewal Term(s) collectively, the "Term");
provided, however, that such rights to renew shall be subject to Section
8.3 below and to the right of Williams to require CTC to pay its Pro Rata
Share of Williams' Costs of extending or replacing Required Rights for such
Renewal Term as a condition
<PAGE> PAGE 14
to CTC's rights to renew. If CTC elects to renew the CTC IRU
pursuant to this Section 8.2, such payments shall be payable by CTC both
before and during the Renewal Term(s) as Williams incurs such Costs and
within thirty (30) days after receipt of Williams' invoice therefor.
Except as provided in the preceding sentences and maintenance and
collocation charges payable during the Renewal Term, CTC shall not be
charged additional consideration for the renewal of this Agreement under
this Section 8.2. CTC may renew this Agreement by giving written notice to
Williams at least one (1) year prior to the expiration of the Initial Term
or then effective Renewal Term. All terms and conditions of this Agreement
shall be applicable to any Renewal Terms.
8.3 Conditions on Renewal. CTC may not exercise its right to
renew the Agreement with respect to any Major Segment if, at least nine (9)
months prior to expiration of the Initial Term or then current Renewal
Term, Williams, based on its sole discretion, notifies CTC that Williams
has determined that continued operation of the Major Segment or Williams'
continued performance under this Agreement during such Renewal Term is no
longer commercially practicable or necessary.
8.4 Effect of Termination. No termination of this Agreement shall
affect the rights or obligations of any party hereto:
(a) with respect to any payment hereunder for services rendered
prior to the date of termination;
(b) pursuant to Articles XI (Audit Rights), XIV (Indemnification),
XV (Limitation of Liability), XVI (Insurance), XVII (Taxes and
Governmental Fees), XIX (Confidentiality), XX (Prohibition on
Improper Payments), XXII (Arbitration and Dispute Resolution),
or XXIII (Rules of Construction) or Sections 12.2 (Exclusion of
Warranties) or 12.3 (No Third-Party Warranties); or
(c) pursuant to other provisions of this Agreement that, by their
sense and context, are intended to survive termination of this
Agreement.
The provisions of this Agreement referred to in Sections 8.4(b) and (c)
shall survive only with respect to matters pertaining to this Agreement and
to events occurring prior to expiration or termination hereof and shall
survive for the shorter of the period specified in each such provision
referred to, if any, or for the limitations period under applicable law.
ARTICLE IX tc "ARTICLE IX"
MAINTENANCE AND RELOCATION
9.1 Maintenance. During the Term, Williams shall perform all
required Routine Maintenance and Non-Routine Maintenance. "Non-Routine
Maintenance" means maintenance and repair work that Williams is obligated
to provide under this Agreement and described in Exhibit E other than:
(A) the work specifically identified as Routine Maintenance
in Exhibit E;
<PAGE> PAGE 15
(B) work in which the aggregate amount of Costs incurred as a
result of any single event or multiple, closely related
events is less than or equal to Ten Thousand and No/100
Dollars ($10,000.00); or
(C) work for which CTC is obligated to reimburse Williams for
all or a portion of the Costs incurred pursuant to other
Articles of this Agreement.
"Routine Maintenance" means maintenance and repair work that is described
in Subsections 9.1(A) or 9.1(B).
9.2 Relocation Procedures. Williams may relocate all or any
portion of the System or any of the facilities used or required in
providing CTC with the CTC IRU: (i) if a third party with legal authority
to do so orders or threatens to order such relocation (e.g., through filing
or threatening to file a condemnation suit), (ii) in order to comply with
applicable laws, (iii) for bona fide operational reasons with respect to
the System, (iv) to reduce governmental fees or taxes assessed against it
or CTC as mutually agreed to between the parties, or (v) if it determines
to do so in its reasonable business judgment. A relocation made solely
pursuant to Clause (v) shall be considered a "Voluntary Relocation" for
purposes of Sections 3.4 and 3.8 and Williams shall be solely responsible
for the costs thereof. Williams shall provide CTC sixty (60) calendar
days' prior notice of any such relocation, if reasonably feasible.
Williams shall have the right to direct such relocation, including the
right to determine the extent of, the timing of, and methods to be used for
such relocation, provided that any such relocation:
(a) shall be constructed and tested in accordance with the
specifications and requirements set forth in this Agreement and
applicable Exhibits;
(b) shall not result in a materially adverse change to the
operations, performance, Connecting Points with the network of
CTC, or end points of the Major Segment; and
(c) shall not unreasonably interrupt service on the System.
9.3 Maintenance of CTC Equipment Excluded. Williams shall have
no obligation under this Agreement to maintain, repair, or replace CTC
Equipment.
tc ""
ARTICLE X tc "ARTICLE X"
USE OF THE SYSTEM
10.1 Compliance with Law. Each party warrants that its use of its
respective Fibers and the System shall comply in all material respects with
applicable government codes, ordinances, laws, rules, regulations and
restrictions and shall not have an adverse effect on the System or its use
by the other party or third parties.
<PAGE> PAGE 16
10.2 CTC's Rights Exclusive. CTC may use the CTC Fibers for any
lawful purpose. Williams shall have no right to use the CTC Fibers during
the Term of any Major Segment except in the event of a CTC default beyond
any applicable cure period.
10.3 Notice of Damage. CTC shall promptly notify Williams of any
matters pertaining to any damage or impending damage to or loss of the use
of the System that are known to it and that could reasonably be expected to
adversely affect the System. Williams shall promptly notify CTC of any
matters pertaining to any damage or impending damage to or loss of the CTC
Fibers that are known to it and that could reasonably be expected to
adversely affect the CTC Fibers.
10.4 Preventing Interference with Other Fibers. Neither CTC nor
Williams shall use equipment, technologies, or methods of operation that
interfere in any material way with or adversely affect the System or the
use of the System by the other party or third parties or their respective
Fibers, equipment, or facilities associated therewith. Each party shall
take all reasonable precautions to prevent damage to the System or to
fibers used or owned by the other party or third parties. Notwithstanding
the above, the provisions of this Section shall not prevent a party from
using commercially reasonable equipment, technologies, or methods of
operation if the interference or adverse effect on the other party or a
third party results primarily from such other party or third party's use of
equipment, technologies, or methods of operation that are not commercially
reasonable or that are not standard in the telecommunications industry.
10.5 Liens. CTC shall not cause or permit any part of the System
to become subject to any mechanic's, materialmen's, or vendor's lien, or
any similar lien. Williams shall not cause or permit any of CTC's rights
under this Agreement to become subject to any mechanic's, materialmen's, or
vendor's lien, or any similar lien. If a party breaches its obligations
under this Section, it shall immediately notify the other party in writing,
shall promptly cause such lien to be discharged and released of record
without cost to the other party, and shall indemnify the other party
against all reasonable costs and expenses (including reasonable attorneys'
fees and court costs at trial and on appeal) incurred in discharging and
releasing such lien.
ARTICLE XI tc "ARTICLE XI"
AUDIT RIGHTS tc "AUDIT RIGHTS"
11.1 Right to Audit. Each party shall keep such books and records
(which shall be maintained on a consistent basis and substantially in
accordance with generally accepted accounting principles) as shall readily
disclose the basis for any charges (except charges fixed in advance by this
Agreement or by separate agreement of the parties) or credits, ordinary or
extraordinary, billed or due to the other party under this Agreement and,
upon reasonable notice and at the office where such books and records are
generally kept, shall make them available for examination, audit, and
reproduction by the other party and its agents for a period of one (1) year
after such charge or credit is billed or due.
<PAGE> PAGE 17
ARTICLE XII tc "ARTICLE XII"
WARRANTIES tc "WARRANTIES"
12.1 Warranties Relating to Agreement Validity. In addition to any
other representations and warranties contained in this Agreement, each
party hereto represents and warrants to the other that:
(a) it has the full right and authority to enter into, execute,
deliver, and perform its obligations under this Agreement;
(b) it has taken all requisite corporate action to approve the
execution, delivery, and performance of this Agreement;
(c) this Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with
its terms; and
(d) its execution of and performance under this Agreement shall not
violate any applicable existing regulations, rules, statutes,
or court orders of any local, state, or federal government
agency, court, or body.
12.2 EXCLUSION OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS AGREEMENT, WILLIAMS MAKES NO WARRANTY TO CTC OR ANY OTHER ENTITY,
WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE INSTALLATION, DESCRIPTION,
QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC
VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY FIBERS, THE SYSTEM,
OR ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER
MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
12.3 NO THIRD-PARTY WARRANTIES. NO FACILITY OWNERS/LENDERS HAVE
MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO CTC
CONCERNING WILLIAMS, THE CTC FIBERS, THE CABLE, OR THE SYSTEM OR AS TO ANY
OF THE MATTERS SET FORTH IN SECTIONS 12.1 OR 12.2. NO CTC LENDERS HAVE
MADE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO
WILLIAMS CONCERNING CTC, THE CTC FIBERS, THE CABLE, OR THE SYSTEM OR AS TO
ANY OF THE MATTERS SET FORTH IN SECTIONS 12.1 OR 12.2 OR AS TO ANY OTHER
MATTER.
ARTICLE XIII tc "ARTICLE XIII"
DEFAULT tc "DEFAULT"
13.1 Default and Cure. CTC's sole remedies for any failure of
Williams to complete all Major Segments by the applicable Scheduled
Delivery Dates shall be as specified in Section 4.3 above. Otherwise,
except as set forth in Section 13.2, a party shall not be in default under
this Agreement unless and until the other party provides it written notice
of such default and the first
<PAGE> PAGE 18
party shall have failed to cure the same within thirty (30) calendar
days after receipt of such notice; provided, however, that where such
default cannot reasonably be cured within such thirty (30) day period, if
the first party shall proceed promptly to cure the same and prosecute such
curing with due diligence, the time for curing such default shall be
extended for up to ninety (90) days as may be necessary to complete such
curing. Any event of default may be waived at the non-defaulting party's
option. Upon the failure of a party to timely cure any such default after
notice thereof from the other party and expiration of the above cure
periods or upon a default under the terms of the Master Agreement, which
shall be considered a default under this Agreement, then the non-defaulting
party may, subject to the terms of Articles XV (Limitation of Liability)
and XXII (Arbitration), pursue any legal remedies it may have under
applicable law or principles of equity relating to such breach.
13.2 Failure to Pay IRU Payment. If CTC fails to fully pay any
portion of the IRU Payment by the due date or fails to pay any other
amount(s) totaling more than one hundred thousand dollars ($100,000) more
than fifteen (15) days beyond the due date(s) (excluding any amount
disputed in good faith by CTC within the above time periods under the terms
of Section 22.4 below), Williams may, in addition to any other remedies
that it may have under this Agreement or by law, in its sole discretion,
take the following actions ten (10) calendar days' after CTC's receipt of
notice from Williams if such payment (together with applicable interest) is
not made within such 10-day period:
(a ) disconnect the CTC Fibers from any POP, CTC Equipment, or
Connecting Point;
(b) require CTC to remove any CTC Equipment from Williams' premises
upon commercially reasonable notice; and
(c) terminate CTC's IRU with respect to the CTC Fibers, if CTC
fails to pay all amounts in arrears, together with applicable
interest, within thirty (30) days of receipt of further notice
from Williams.
The $100,000 amount specified above in this Section 13.2 may be adjusted
from time to time by mutual agreement of the parties.
13.3 Escalation of Default Situations. Notwithstanding the
foregoing provisions of this Section, neither party shall exercise any of
the remedies described in Sections 13.1 or 13.2 until after it has notified
the other party of its intent to do so and invited discussions between Vice
Presidents of each party to discuss such other party's default(s). Such
Vice Presidents shall meet within thirty (30) days after the defaulting
party's receipt of the non-defaulting party's notice to discuss the status
of the default(s), the reason(s) for the default(s), and possible efforts
that could be undertaken to resolve the problems in a manner agreeable to
the non-defaulting party. If such Vice Presidents cannot agree upon a
mutually agreeable plan to address the default(s), or if the defaulting
party does not respond to the non-defaulting party's invitation to meet or
fails to meet with the non-defaulting party within the above 30-day period,
then the non-defaulting party may exercise the remedies set forth in
Sections 13.1 and/or 13.2, as applicable, without further notice to the
defaulting party. Nothing in this paragraph shall obligate the non-
defaulting party to waive any default of the other
<PAGE> PAGE 19
party hereunder or any rights or remedies it may have under this Agreement.
The non-defaulting party shall have no obligation under this Section 13.3
if, after any meeting described hereunder, the default continues and the
defaulting party fails to take the action agreed upon at the meeting, or
upon the subsequent default by the defaulting party related to the initial
default(s) for which the meeting was held (which is not cured within any
applicable cure period) within the twelve (12) month period following any
meeting described in this paragraph. All negotiations conducted pursuant
to this Section shall be confidential. Notwithstanding the foregoing, this
paragraph shall not prevent a party from immediately seeking injunctive
relief to prevent perceived irreparable harm and shall not apply to any
such action.
13.4 Interest. If either Williams or CTC fails to make any payment
under this Agreement when due, such amounts shall accrue interest, from the
date such payment is due until paid, including accrued interest, at the
rate specified in Section 3.6 or, if lower, the highest percentage allowed
by law.
13.5 Deposit Nonrefundable. The portion of the IRU Payment to be
paid pursuant to Subsection 3.2(a) shall be nonrefundable except as
otherwise provided in this Agreement unless a court or arbitrator orders
rescission of this Agreement due to Williams' material breach of its
obligations under this Agreement.
ARTICLE XIV tc "ARTICLE XIV"
INDEMNIFICATION tc "INDEMNIFICATION"
14.1 Indemnification. Each party ("Indemnitor") hereby releases and
shall indemnify, defend, protect, and hold harmless the other party, its
employees, members, managers, directors, officers, agents, contractors,
Facility Owners/Lenders, and Affiliates and their employees, members,
managers, directors, officers, agents and contractors (collectively and
individually, "Indemnified Parties"), from and against, and assumes
liability for:
(a) any injury, death, loss, or damage to any person, tangible
property, or facilities of any entity (including reasonable
attorneys' fees and costs at trial and appeal), to the extent
arising out of or resulting from the acts or omissions,
negligent or otherwise, of Indemnitor, its officers, employees,
servants, Affiliates, agents, contractors, or underlying
facility owners or from any entity for whom it is in law
responsible, or otherwise resulting from, arising in connection
with or relating to its performance (including breach or
failure thereto) under this Agreement;
(b) any claims, liabilities or damages arising out of any violation
by Indemnitor of regulations, rules, statutes, or court orders
of any local, state, or federal governmental agency, court, or
body in connection with its performance under this Agreement or
otherwise; or
(c) any liability to a third party arising directly or through one
or more intermediate parties, from an action or claim brought
by the Indemnitor, to the extent such third party has a right
of indemnification, impleader, cross-claim, contribution, or
other
<PAGE> PAGE 20
right of recovery against any Indemnified Party for any
indirect, special, or consequential damages of the Indemnitor.
14.2 Claims of Customers. In addition to the foregoing
indemnities, with respect to third parties that use services provided over
the CTC Fibers, CTC shall defend, indemnify and hold harmless Williams and
its Indemnified Parties against any claims by such third parties for
damages arising or resulting from any defect in or failure of the CTC
Fibers or the System unless such defect or failure was caused or
contributed by the intentional misconduct of Williams. With respect to
third parties that use services provided over Fibers in the System owned
and operated by Williams, Williams shall defend, indemnify and hold
harmless CTC and its Indemnified Parties against any claims by such third
parties for damages arising or resulting from any defect in or failure of
such Fibers or the System unless such defect or failure was caused or
contributed by the intentional misconduct of CTC.
14.3 Material and Continuing Obligation. Each party's obligation to
indemnify, defend, protect, and save the Indemnified Parties harmless is a
material obligation to the continuing performance of the other party's
obligations hereunder.
ARTICLE XV tc "ARTICLE XV"
LIMITATION OF LIABILITY tc "LIMITATION OF LIABILITY"
15.1 EXCLUSION OF INDIRECT DAMAGES. UNLESS CAUSED OR CONTRIBUTED TO
BY A PARTY'S INTENTIONAL MISCONDUCT, NEITHER PARTY NOR ANY INDEMNIFIED
PARTIES (AS DEFINED ABOVE) AFFILIATED WITH OR IN A CONTRACTUAL RELATIONSHIP
WITH A PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, PUNITIVE,
EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSSES OR DAMAGES AS A
RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS
AGREEMENT, OR ITS ACTS OR OMISSIONS RELATED TO THIS AGREEMENT OR ITS USE OF
THE SYSTEM, WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT
NEGLIGENCE, STRICT LIABILITY, OR VIOLATION OF LAW.
15.2 Indemnity Provisos. Notwithstanding the provisions of Section
15.1 or any other provision of this Agreement, the limitations on liability
set forth in Section 15.1 shall apply to claims of a party or third party
arising from any defect, error, interruption, delay, or attenuation of any
telecommunications service, capacity, data, or transmission.
15.3 No Recourse Against Released Parties. Neither party shall have
any recourse of any kind against any Released Party or any assets of a
Released Party in respect of any Claim, it being expressly agreed and
understood that no liability whatsoever shall attach to or be incurred by
any Released Party in respect of any Claim under or by reason of this
Agreement or any other instrument, arrangement or understanding related to
the CTC IRU. Each party waives all such recourse to the extent set forth
in this Section on behalf of its successors, assigns, and any entity
claiming by, through, or under such party.
<PAGE> PAGE 21
15.4 Pursuit of Actions Against Third Parties. Except as provided
in Subsection 14.1(c) and Section 15.3, nothing contained in this Agreement
shall operate as a limitation on the right of either Williams or CTC to
bring an action or claim for damages against any third party (other than a
Indemnified Parties affiliated with or in a contractual relationship with
the other party). Each of Williams and CTC shall assign such rights of
claims, execute such documents, and do whatever else may be reasonably
necessary to enable the other (at such other party's sole expense) to
pursue any such action or claim against such third party.
ARTICLE XVI tc "ARTICLE XVI"
INSURANCE tc "INSURANCE"
16.1 Obligation to Obtain. During the Term, the parties shall each
obtain and maintain not less than the following insurance:
(a) Commercial General Liability Insurance, including coverage for
sudden and accidental pollution legal liability, with a
combined single limit of $2,000,000 for bodily injury and
property damage per occurrence and in the aggregate.
(b) Worker's Compensation Insurance in amounts required by
applicable law and Employers Liability Insurance with limits
not less than $500,000 each accident. If work is to be
performed in Nevada, North Dakota, Ohio, Washington, Wyoming or
West Virginia, the party shall participate in the appropriate
state fund(s) to cover all eligible employees and provide a
stop gap endorsement.
(c) Automobile Liability Insurance with a combined single limit of
$1,000,000 for bodily injury and property damage per
occurrence, to include coverage for all owned, non-owned, and
hired vehicles.
The limits set forth above are minimum limits and shall not be construed to
limit the liability of either party.
16.2 Policy Requirements. Each party shall obtain and maintain the
insurance policies required above with companies rated A- or better by
Best's Key Rating Guide or with a similar rating by another generally
recognized rating agency. The other party, its Affiliates, officers,
directors, and employees, and any other party entitled to indemnification
hereunder shall be named as additional insureds, as their interests may
appear, to the extent of such indemnification. Each party shall provide
the other party with an insurance certificate confirming compliance with
the insurance requirements of this Article. The insurance certificate
shall indicate that the other party shall be notified not less than thirty
(30) calendar days prior to any cancellation or material change in
coverage. If either party provides any of the foregoing coverages through
a claims-made policy basis, that party shall cause such policy or policies
to be maintained for at least three (3) years beyond the expiration of this
Agreement.
16.3 Waiver of Subrogation. The parties shall each obtain from the
insurance companies providing the coverages required by this Agreement a
waiver of all rights of subrogation or recovery
<PAGE> PAGE 22
in favor of the other party and, as applicable, its members,
managers, shareholders, Affiliates, assignees, officers, directors, and
employees or any other party entitled to indemnity under this Agreement to
the extent of such indemnity.
16.4 Blanket Policies. Nothing in this Agreement shall be construed
to prevent either party from satisfying its insurance obligations pursuant
to this Agreement under a blanket policy or policies of insurance that meet
or exceed the requirements of this Article. Subject to the approval of the
other party, which approval shall not be unreasonably withheld or delayed,
CTC and Williams each retain the right to self-insure the above
requirements. Upon the request of a party, the other party shall provide
information reasonably requested regarding its self-insurance program to
the other party.
ARTICLE XVII tc "ARTICLE XVII"
TAXES AND GOVERNMENTAL FEES tc "TAXES AND GOVERNMENTAL FEES"
17.1 CTC Obligations. After the Acceptance Date of each Major
Segment, CTC shall timely report, make filings for, and pay any and all
sales, use, income, gross receipts, excise, transfer, ad valorem, or other
taxes assessed against it by any governmental authority, and any and all
franchise fees or similar fees assessed against it by any governmental
authority due to its ownership of the CTC IRU, its use of the CTC Fibers,
including the provision of services over the CTC Fibers, its use of any
other part of the System, or its ownership or use of facilities connected
to the CTC Fibers. The above obligation applies to sales and excise taxes
applicable to the grant of the CTC IRU or to charges for maintenance,
collocation, or other Williams services provided pursuant to this
Agreement.
17.2 Williams Obligations. Subject to Section 17.1 above, Williams
shall timely report and pay any and all sales, use, income, gross receipts,
excise, transfer, ad valorem or other taxes assessed against it by any
governmental authority, and any and all franchise fees or similar fees
assessed against it by any governmental authority due to its construction,
ownership or use of the System, provided that after the Acceptance Date of
each Major Segment, CTC shall reimburse Williams for its Pro Rata Share of
property taxes (including ad valorem, use, property, or similar taxes,
franchise fees, or assessments that are based on the value of property or
of a property right) attributable to the System, including taxes based on
the value, operation, or existence of the System but excluding any taxes on
Williams' income from its use and operation of the System.
17.3 Reimbursement of Taxes Paid on CTC's Behalf. If Williams is
assessed for any taxes or fees related to CTC's ownership of the CTC IRU or
CTC's use of the CTC Fibers or that CTC is obligated to pay pursuant to
Sections 17.1 or 17.2, CTC shall reimburse Williams for any payment of such
taxes or fees.
17.4 Cooperation. The parties shall cooperate in any contest of any
taxes or fees and in making tax-related reports and filings, so as to
avoid, to the extent reasonably possible, prejudicing the interests of the
other party.
<PAGE> PAGE 23
17.5 Unexpected Fee Increases. If the charges for Required Rights
payable to governmental or quasi-governmental agencies or for use of
governmental or quasi-governmental rights of way during a calendar year for
any Major Segment exceed twice the amount payable during the first full
calendar year after the Acceptance Date, then CTC shall pay its Pro Rata
Share of such excess.
17.6 Reseller Certificate. Within ninety (90) days of the Acceptance
Date for any Major Segment, CTC shall provide Williams a reseller
certificate for any United States jurisdiction where the CTC Fibers on the
Major Segment are located. CTC shall, upon Williams' reasonable written
request no more than twice in any one (1) year period, provide Williams
additional reseller certificates or similar documentation for any U.S.
jurisdiction to assist Williams in avoiding charging CTC sales, use,
excise, or other taxes on any CTC Fibers or any other product or service
Williams provides under this Agreement.
ARTICLE XVIII tc "ARTICLE XVIII"
NOTICE tc "NOTICE"
18.1 Notice Addresses. Unless otherwise provided in this Agreement,
all notices and communications concerning this Agreement shall be in
writing and addressed to the other party as follows:
If to CTC: CTC Communications Corp.
Attn: Chief Technology Officer
220 Bear Hill Road
Waltham, Massachusetts 02451
Facsimile: (781) 890-1613
If to Williams: Williams Communications, Inc.
Attn: Contract Administration
One Williams Center, Suite 26-5
Tulsa, Oklahoma 74172
Facsimile No.: (918) 573-6578
with a copy to: Williams Communications, Inc.
Attn: General Counsel
One Williams Center, Suite 4100
Tulsa, Oklahoma 74172
Facsimile No.: (918) 573-3005
or at such other address as may be designated in writing to the other
party.
18.2 Notice and Invoice Delivery. Unless otherwise provided herein,
notices and invoices shall be hand delivered, sent by registered or
certified U.S. Mail, postage prepaid, or by commercial overnight delivery
service, or transmitted by facsimile, and shall be deemed served or
delivered to the addressee or its office when received at the address for
notice specified above when
<PAGE> PAGE 24
hand delivered, upon confirmation of sending when sent by facsimile,
on the next business day after being sent when sent by overnight delivery
service, or three (3) United States Postal Service business days after
deposit in the mail when sent by U.S. mail.
ARTICLE XIX tc "ARTICLE XIX"
CONFIDENTIALITY tc "CONFIDENTIALITY"
19.1 Confidentiality Obligation. If either party provides
confidential information to the other or, if in the course of performing
under this Agreement or negotiating this Agreement a party learns
confidential information regarding the facilities or plans of the other,
the receiving party shall (a) protect the confidential information from
disclosure to third parties with the same degree of care accorded its own
confidential and proprietary information, but in any case with at least
reasonable care and (b) refrain from using such confidential information
except in negotiating or performing under this Agreement. Notwithstanding
the above, a party may provide such confidential information to its
directors, officers, members, managers, employees, agents, contractors and
consultants ("Representatives"), Affiliates, financial institutions,
underlying facility owners, potential assignees of this Agreement (which
potential assignees are bound under a separate agreement with the
disclosing party restricting the use of confidential information), and
Representatives of Affiliates, in each case whose access is reasonably
necessary. Each such recipient of confidential information shall be
informed by the party disclosing confidential information of its
confidential nature, and shall be directed to treat such information
confidentially and shall agree to abide by these provisions. In any event,
each party shall be liable (with respect to the other party) for any breach
of this provision by any entity to whom that party discloses confidential
information. The terms of this Agreement (but not its execution or
existence) shall be considered confidential information for purposes of
this Article, except as set forth in Section 19.3. The obligations set
forth in this Section shall survive expiration or termination of this
Agreement for a period of two (2) years, except that, with respect to any
confidential information designated by the disclosing party as a trade
secret, and entitled to protection as such, the obligations set forth in
this Section shall survive such expiration or termination indefinitely.
19.2 Permitted Disclosures. Notwithstanding any other provision
herein, neither Williams nor CTC shall be required to hold confidential any
information that:
(a) becomes publicly available other than through the recipient;
(b) is required to be disclosed by a governmental, regulatory
authority, or judicial order, rule, or regulation or
proceedings with respect to this Agreement or a party's
obligations as a publicly held company, provided that a party
subject to such requirement shall promptly notify the other
party of such requirement;
(c) is independently developed by the receiving party;
(d) becomes available to the receiving party without restriction
from a third party;
(e) is required by its lender and is given to such lender on a
confidential basis; or
<PAGE> PAGE 25
(f) to the extent disclosure by the receiving party as required by
applicable law or regulation.
19.3 Goodwill and Publicity. Neither party shall use the name,
trade name, service mark, or trademark of the other in any promotional or
advertising material without the prior written consent of the other. The
parties shall coordinate and cooperate with each other when making public
announcements related to the terms of this Agreement and each party shall
have the right to promptly review, comment upon, and approve any publicity
materials, press releases, or other public statements by the other party
that refer to, or that describe any aspect of, this Agreement.
Notwithstanding the above, either party may, without the other party's
approval but after allowing the other party a reasonable opportunity to
comment on a proposed press release, issue a press release announcing
execution of this Agreement. Such release may disclose the route of the
CTC Fibers, the estimated revenues/payments under this Agreement, and the
identity of the other party as long as such release does not disclose any
per-Fiber Mile or other per-unit price under this Agreement.
19.4 Enforcement of Confidentiality Obligation. Each party agrees
that the disclosing party would be irreparably injured by a breach of this
Article XIX by the receiving party or its Representatives or other parties
to whom the receiving party discloses confidential information of the
disclosing party and that the disclosing party may be entitled to equitable
relief, including injunctive relief and specific performance, in the event
of any breach of the provisions of this Article XIX. Such remedies shall
not be deemed to be the exclusive remedies for a breach of this Article
XIX, but shall be in addition to all other remedies available at law or in
equity.
ARTICLE XX tc "ARTICLE XX"
PROHIBITION ON IMPROPER PAYMENTS tc "PROHIBITION ON IMPROPER PAYMENTS"
Neither party shall use any funds received under this Agreement
for illegal or otherwise "improper" purposes. Neither party shall pay any
commission, fees or rebates to any employee of the other party. If either
party has reasonable cause to believe that one of the provisions in this
Article has been violated, it, or its representative, may audit the books
and records of the other party pursuant to the procedures set forth in
Article XI above for the sole purpose of establishing compliance with such
provisions.
ARTICLE XXI tc "ARTICLE XXI"
FORCE MAJEURE; EMINENT DOMAIN tc "FORCE MAJEURE; EMINENT DOMAIN"
21.1 Excused Performance. Neither Williams nor CTC shall be in
default under this Agreement with respect to any delay in its performance
(other than a failure to make payments when due) caused by any of the
following conditions (each a "Force Majeure Event"): (a) act of God; (b)
fire; (c) flood; (d) material shortage or unavailability not resulting from
the responsible party's failure to timely place orders or take other
necessary actions therefor; (e) government codes, ordinances, laws, rules,
regulations, or restrictions; (f) war or civil disorder; or (g) any other
cause beyond the reasonable control of such party. The party claiming
relief under this Article shall
<PAGE> PAGE 26
promptly notify the other in writing of the existence of the Force
Majeure Event relied on and the termination of the Force Majeure Event.
The party claiming relief under this Article shall exercise commercially
reasonable efforts to minimize the time for any such delay.
21.2 Eminent Domain. Should any portion of the System or any other
interest belonging to Williams be acquired by eminent domain,
nationalization, or expropriation (each of which, a "Taking") by any
authority or entity possessing such power, then each party shall be excused
from performance of its obligations with respect to such portion of the
System. The proceeding for any such Taking or an involuntary
discontinuance of the use of a portion of the System in anticipation of a
Taking, the interests of CTC and Williams in the affected portion shall be
severed. Any awards resulting from the proceeding or otherwise provided
shall be allocated between CTC and Williams in accordance with such
interests. In addition, CTC and Williams shall each be entitled to claim
and receive the portion of the total award attributable to its interest in
the System and may claim damages payable on account of relocation or
re-routing expenses relating to the System. Except to the extent set forth
in this Section, the provisions of Sections 3.4 and 9.2 shall apply to any
relocation resulting from a Taking.
ARTICLE XXII tc "ARTICLE XXII"
ARBITRATION AND DISPUTE RESOLUTION tc "ARBITRATION AND DISPUTE RESOLUTION"
22.1 Binding Arbitration. Any dispute arising between Williams and
CTC in connection with this Agreement that is not settled to their mutual
satisfaction within the applicable notice or cure periods provided in this
Agreement, shall be settled by arbitration in New York, New York in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association in effect on the date that a party gives notice of
its demand for arbitration under this Article. If the parties cannot agree
on a single arbitrator within fifteen (15) calendar days after the
applicable notice or cure period has expired, Williams and CTC shall each
select an arbitrator within such fifteen (15) day period and the two (2)
arbitrators shall select a third arbitrator within ten (10) calendar days.
If the parties fail to appoint arbitrators or the arbitrators cannot agree
on a third arbitrator, then either party may request that the American
Arbitration Association select and appoint a neutral arbitrator who shall
act as the sole arbitrator. In any such arbitration proceeding, the
parties may take discovery pursuant to applicable laws or rules. The
parties shall be entitled to submit expert testimony and/or written
documentation in such arbitration proceeding. The decision of the
arbitrator or arbitrators shall be final and binding upon Williams and CTC
and shall include written findings of law and fact, and judgment may be
obtained thereon by either Williams or CTC in a court of competent
jurisdiction. Williams and CTC shall each bear the cost of preparing and
presenting its own case. The cost of the arbitration, including the fees
and expenses of the arbitrator or arbitrators, shall be shared equally by
Williams and CTC unless the award otherwise provides. The arbitrator or
arbitrators shall be instructed to establish procedures such that a
decision can be rendered within sixty (60) calendar days of the appointment
of the arbitrator or arbitrators. In no event shall the arbitrator or
arbitrators have the power to award any damages described in and limited by
Article XV (Limitation of Liability) which Article shall be binding on the
arbitrator(s).
22.2 Exceptions to Arbitration Obligation. The obligation to
arbitrate shall not be binding upon any party with respect to (a) requests
for preliminary injunctions, temporary restraining
<PAGE> PAGE 27
orders, specific performance, or other procedures in a court of
competent jurisdiction to obtain interim relief when deemed necessary by
such court to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute or (b) actions to collect
payments not subject to a bona fide dispute.
22.3 Arbitrator Confidentiality Obligation. Any arbitrator
appointed to act under this Article must agree to be bound to the
provisions of Article XIX (Confidentiality) with respect to the terms of
this Agreement and any information obtained during the course of the
arbitration proceedings.
22.4 Payment Disputes. In the event CTC in good faith disputes
any payment due under the terms of this Agreement, it shall promptly notify
Williams of such dispute. Upon receipt of any such notice from CTC, CTC
and Williams shall attempt in good faith to resolve any bona fide dispute
arising out of or relating to any monetary obligation under this Agreement
as expeditiously as possible by negotiations between a Vice President of
CTC or his or her designated representative with sufficient authority to
negotiate a resolution of the dispute and an executive of Williams with
similar authority. Either CTC or Williams may give the other party written
notice of any such payment dispute which notice shall include documentation
substantiating the dispute. In the event the amount in dispute is in
excess of $25,000.00 and is not resolved on or before its actual due date
hereunder and has not been previously paid by CTC to Williams, then the
amount in dispute shall be deposited with an escrow agent mutually
acceptable to the parties who shall hold said sum along with all interest
earned thereon, in escrow, pending resolution of the dispute hereunder and
shall distribute said sums in accordance with the resolution of the parties
under this Section or the decision of the arbitrator under Section 22.1.
All other payments shall be paid in accordance with the due date set forth
herein regardless of any dispute hereunder. Within twenty (20) days after
delivery of notice of a payment dispute as described above, the designated
executives shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary to exchange
information and to attempt to resolve the dispute. If the matter has not
been resolved within thirty (30) days after the first meeting, either CTC
or Williams may demand arbitration in accordance with the provisions of
Section 22.1. To the extent any payment dispute described hereunder is
resolved in favor of a party, whether pursuant to the provisions of this
Section or pursuant to arbitration, the escrow agent shall pay all amounts
previously placed in escrow under this Section to the prevailing party with
the other party paying interest at the rate set forth in Section 3.6 on
such amount less, however, any interest earned (net of any account charges)
thereon while in escrow and distributed to the prevailing party. All
negotiations conducted pursuant to this Section shall be confidential.
ARTICLE XXIII tc "ARTICLE XXIII"
RULES OF CONSTRUCTION tc "RULES OF CONSTRUCTION"
23.1 Interpretation. The captions or headings in this Agreement are
strictly for convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words in this
Agreement that import the singular connotation shall be interpreted as
plural, and words that import the plural connotation shall be interpreted
as singular, as the identity of the parties or objects referred to may
require. References to "person" or "entity" each include natural persons
and legal entities, including corporations, limited liability companies,
partnerships,
<PAGE> PAGE 28
sole proprietorships, business divisions, unincorporated
associations, governmental entities, and any entities entitled to bring an
action in, or that are subject to suit in an action before, any state or
federal court of the United States. The word "including" means "including,
but not limited to". "Days" refers to calendar days, except that
references to "banking days" exclude Saturdays, Sundays and holidays during
which nationally chartered banks in New York, New York are authorized or
required to close. Unless expressly defined herein, words having
well-known technical or trade meanings shall be so construed.
23.2 Cumulative Remedies; Insurance. Except as set forth to the
contrary herein, any right or remedy of Williams or CTC shall be cumulative
and without prejudice to any other right or remedy, whether contained
herein or not. The provisions of Article XVI (Insurance) shall not be
construed as limiting the Indemnitor's obligations pursuant to Article XIV
(Indemnification) or other provisions of this Agreement.
23.3 No Third-Party Rights. Nothing in this Agreement is intended
to provide any legal rights to anyone not an executing party of this
Agreement except under the indemnification and insurance provisions and
except that (a) the Released Parties shall have the benefit of Sections
15.3, 24.1, and 25.2 and (b) the Facility Owners/Lenders shall be entitled
to rely on and have the benefit of Sections 12.2 and 25.2.
23.4 Agreement Fully Negotiated. This Agreement has been fully
negotiated between and jointly drafted by Williams and CTC.
23.5 Document Precedence. In the event of a conflict between the
provisions of this Agreement and those of any Exhibit, the provisions of
this Agreement shall prevail and such Exhibits shall be corrected
accordingly.
23.6 Industry Standards. Except as otherwise set forth herein, for
the purpose of this Agreement the normal standards of performance within
the telecommunications industry in the relevant market shall be the measure
of whether a party's performance is reasonable and timely.
23.7 Cross References. Except as the context otherwise indicates,
all references to Exhibits, Articles, Sections, Subsections, Clauses, and
Paragraphs refer to provisions of this Agreement.
23.8 Limited Effect of Waiver. The failure of either Williams or
CTC to enforce any of the provisions of this Agreement, or the waiver
thereof in any instance, shall not be construed as a general waiver or
relinquishment on its part of any such provision, but the same shall
nevertheless be and remain in full force and effect.
23.9 Applicable Law. This Agreement shall be governed by and
construed in accordance with the domestic law of the State of New York
without reference to its choice of law principles. The laws of such state
shall govern all disputes referred to arbitration and the statute of
limitations and the remedies for any wrongs that may be found.
<PAGE> PAGE 29
23.10 Severability. If any term, covenant or condition in this
Agreement shall, to any extent, be invalid or unenforceable in any respect
under the laws governing this Agreement, the remainder of this Agreement
shall not be affected thereby, and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law and, if appropriate, such invalid or unenforceable provision shall be
modified or replaced to give effect to the underlying intent of the parties
hereto and to the intended economic benefits of the parties.
23.11 Executory Agreement. The parties acknowledge that both
Williams and CTC shall have material nonmonetary obligations under this
Agreement throughout its Term and that this Agreement, therefore,
constitutes an executory contract for purposes of applicable bankruptcy and
insolvency laws.
23.12 No Partnership Created. The relationship between Williams and
CTC shall not be that of partners, agents, or joint venturers for one
another, and nothing contained in this Agreement shall be deemed to
constitute a partnership or agency agreement between them for any purposes,
including federal income tax purposes. Williams and CTC, in performing any
of their obligations hereunder, shall be independent contractors or
independent parties and shall discharge their contractual obligations at
their own risk.
ARTICLE XXIV tc "ARTICLE XXIV"
ASSIGNMENT tc "ASSIGNMENT"
24.1 Conditions to Effective Assignment. An assignment (or other
transfer) of this Agreement or a party's rights or obligations hereunder to
any other party shall not be effective without (a) either the prior written
consent of the non-assigning party, or, if such consent is not required
pursuant to specific terms of this Article XXIV, written notice to the non-
assigning party, (b) the written agreement of the assignee to be bound by
all terms and conditions of this Agreement including, without limitation,
the indemnification provisions and limitations on liability and recourse
set forth in this Agreement (including those benefiting the Released
Parties), and (c) such assignee's agreement to cure all prior defaults of
the assigning party under this Agreement.
24.2 Impermissible Assignments. Except as set forth in Section
24.4, the non-assigning party may withhold consent to an assignment in its
sole discretion, if the assignment:
(a) is made by CTC within one (1) year of the Effective Date, other
than as part of a sale of substantially all of CTC's assets; or
(b) is an assignment of less than all of a party's rights or
obligations hereunder.
24.3 Consent not to be Unreasonably Withheld. Except to the extent
Section 24.2 provides the non-assigning party the right to withhold its
consent in its sole discretion and except as set forth in Section 24.5, the
non-assigning party shall not unreasonably withhold or delay its consent to
an assignment if neither the assigning party nor the proposed assignee is
in material default under this Agreement or any other agreement with the
non-assigning party. For purposes of this Section, a party's consent to a
requested assignment or transfer shall not be considered
<PAGE> PAGE 30
unreasonably withheld if such requested assignment or transfer is to
a party which does not have the technical ability or financial capability
to perform the assigning party's obligations under this Agreement.
24.4 Assignments to Particular Classes of Entities. The provisions
of Section 24.2 notwithstanding:
(a) Williams may assign some or all of its rights and obligations
hereunder to State Street Bank and Trust Company of
Connecticut, National Association, in connection with a
financing by Williams of construction of its fiber optic
network; in addition, State Street Bank and Trust Company of
Connecticut, National Association, may further assign this
Agreement as collateral for such financing. If Williams makes
an assignment pursuant to this Subsection 24.4(a), Williams (or
its assignee pursuant to an assignment made under the other
provisions of this Article) shall guarantee performance of the
assignee's obligations.
(b) Neither the provisions of this Article nor any other provisions
of this Agreement shall limit the ability of any Facility
Owners/Lenders or of any Released Parties to assign their
rights under this Agreement and such Facility Owners/Lenders
and Released Parties may assign their rights hereunder at any
time and from time to time without the consent of, notice to,
or any other action by any other entity. The provisions of
this Agreement benefiting the Facility Owners/Lenders and
Released Parties shall inure to the benefit of such entities
and their respective Affiliates, successors, and assigns.
(c) Williams may assign all of its rights and obligations to the
underlying facilities owner or operator with respect to
portion(s) of the System with the prior written consent of CTC,
which consent shall not be unreasonably withheld if neither
Williams nor the proposed assignee is in material default under
this Agreement or any other agreement with CTC. For purposes
of this Subsection (c), CTC's consent to a requested assignment
shall not be considered unreasonably withheld if such requested
assignment is to a party which does not have the technical
ability or financial capability to perform Williams'
obligations under this Agreement.
(d) Either party may assign its interest in this Agreement without
the prior consent of the other party (i) to any corporation or
other entity which is a successor to such party either by
merger or consolidation, or (ii) to a purchaser of all or
substantially all of such party's assets, or (iii) to a
corporation or other entity which is an Affiliate of such
party; provided that in the event of an assignment under clause
(iii), the assigning party shall remain fully liable, jointly
and severally with any assignee(s), for all obligations under
this Agreement.
24.5 Restriction on Transfer of Dark Fiber Rights. For a period of
five (5) years from and after the Acceptance Date of the CTC Fibers, CTC
shall not convey any interest in the rights granted herein with respect to
any CTC Fibers except by means of the provision of capacity or a
<PAGE> PAGE 31
permitted assignment of this Agreement. Without limiting the
generality of the foregoing, CTC is expressly prohibited during the
aforementioned 5-year term from providing IRU grants, sales, leases,
assignments, or other grants of rights in the form of "dark" or "dim"
fiber. Notwithstanding, anything to the contrary contained herein, nothing
in this Agreement shall be construed to prohibit or restrict CTC's ability
to provide capacity services to its Customers including, without
limitation, selling optical waves or "lambdas".
24.6 Agreement Binds Successors. This Agreement and the rights and
obligations under this Agreement (including the limitations on liability
and recourse set forth in this Agreement benefiting the other party and the
Released Parties) shall be binding upon and shall inure to the benefit of
Williams and CTC and their respective permitted successors and assigns.
24.7 Change in Control Not an Assignment. Notwithstanding any
presumptions under applicable state law that a change in control of a party
constitutes an assignment of an agreement, a change in control of a party,
not made for purposes of circumventing restrictions on assignment or of
depriving the other party of rights under this Agreement, shall not be
deemed an assignment for purposes of this Agreement.
24.8 Right to Subcontract. Williams may subcontract for testing,
maintenance, repair, restoration, relocation, or other operational and
technical services it is obligated to provide hereunder or may have the
underlying facility owner or its contractor perform such obligations;
provided that Williams shall remain primarily liable for the performance of
such obligations.
24.9 Financing Arrangements. Either party shall have the right,
directly or through an Affiliate, to enter into financing arrangements
(including secured loans, leases, sales with lease-back, or leases with
lease-back arrangements, purchase-money or vendor financing, conditional
sales transactions, or other arrangements) with one or more financial
institutions, vendors, suppliers or other financing sources (individually
and collectively, "Lenders"), that, with respect to Williams, relate to the
System (subject to the CTC IRU but not the CTC Fibers) and, with respect to
CTC, relate to the CTC IRU (and not to any property right in the System).
The CTC IRU shall be subordinate to the security interests or mortgages of
Williams' Lenders in the System or parts thereof provided that no such
Lender shall disturb or interfere with CTC's rights under this Agreement at
any time so long as CTC is not in default under the terms hereof beyond any
applicable cure period.
ARTICLE XXV tc "ARTICLE XXV"
ENTIRE AGREEMENT; AMENDMENT; EXECUTION tc "ENTIRE AGREEMENT; AMENDMENT;
EXECUTION"
25.1 Integration; Exhibits. This Agreement constitutes the entire
and final agreement and understanding between Williams and CTC with respect
to the subject matter hereof and supersedes all prior agreements relating
to the subject matter hereof, which are of no further force or effect. The
Exhibits referred to herein are integral parts hereof and are made a part
of this Agreement by reference.
25.2 No Parole Amendment. This Agreement may only be amended,
modified, or supplemented by an instrument in writing executed by duly
authorized representatives of Williams
<PAGE> PAGE 32
and CTC. No such amendment, modification, or supplement shall result
in any modification that results in a diminution of (a) any indemnity
benefitting any Facility Owners/Lenders or their respective Affiliates or
(b) any limitation of liability or recourse benefiting any Released
Parties.
25.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
25.4 Facsimile Delivery. This Agreement may be duly executed and
delivered by a party by execution and facsimile delivery of the signature
page of a counterpart to the other party, provided that, if delivery is
made by facsimile, the executing party shall promptly deliver, via
overnight delivery, a complete original counterpart that it has executed to
the other party.
IN WITNESS WHEREOF and in confirmation of their consent to the
terms and conditions contained herein and intending to be legally bound
hereby, Williams and CTC have executed this Dark Fiber IRU Agreement as of
the Effective Date.
"Williams":
WILLIAMS COMMUNICATIONS, INC.
Date: March 31, 2000 By:
/S/_________________________________
Print Name:
_____________________________
Title:
_________________________________
"CTC":
CTC COMMUNICATIONS CORP.
Date: March 31, 2000 By:
/S/_________________________________
Print Name:
_____________________________
Title:
__________________________________
EXHIBIT A
ROUTE MAP
[PICTORIAL MAP DEPICTING DARK FIBER NETWORK]
EXHIBIT B
MAJOR SEGMENTS*
(All Major Segments With Deferred Major Segments Highlighted)
*THIS EXHIBIT B HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
EXHIBIT B-1
DEFERRED MAJOR SEGMENTS*
*THIS EXHIBIT B-1 HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
EXHIBIT C
FIBER SPECIFICATIONS
[ENGINEER SPECIFICATIONS INCLUDING DESCRIPTION, OPTICAL SPECIFICATIONS,
ENVIRONMENTAL SPECIFICATIONS, DIMENSIONAL SPECIFICATIONS, MECHANICAL
SPECIFICATIONS, AND PERFORMANCE CHARACTERIZATIONS FOR CORNING(R) LEAF(TM)
CPC6 SINGLE-MODE NON-ZERO DISPERSION-SHIFTED OPTICAL FIBER, CORNING(R) SMF-
28(TM) CPC6 SINGLE-MODE OPTICAL FIBER, AND , CORNING(R) SMF-LS(TM) CPC6
SINGLE-MODE NON-ZERO DISPERSION-SHIFTED OPTICAL FIBER]
EXHIBIT D
CABLE INSTALLATION SPECIFICATIONS
1. Material
? Steel or PVC conduit shall be minimum schedule 40 wall thickness.
? Any exposed steel conduit, brackets or hardware (e.g., bridge
attachments) shall be hot-dipped galvanized after fabrication.
? All split steel shall be flanged.
? Handholes shall have a minimum H-15 loading rating.
? Manholes shall have a minimum H-20 loading rating.
? Warning signs shall display universal do not dig symbol, "Warning-
Buried Fiber-Optic Cable," company name and logo, local and emergency
One Call toll-free numbers.
2. Minimum Depths
Minimum cover required in the placement of the conduit/cable shall be
forty-two inches (42"), except in the following instances:
? The minimum cover in ditches adjacent to roads, highways, railroads and
interstates is forty-eight inches (48") below the clean out line or
existing grade, whichever is greater.
? The minimum cover across streams, river washes, and other waterways
shall be sixty inches (60") below the clean out line or existing grade,
whichever is greater.
? At locations where the cable crosses other subsurface utilities or
other structures, the cable/conduit shall be installed to provide a
minimum of twelve inches (12") of vertical clearance from the
utility/obstacle. The cable/conduit can be placed above the
utility/obstacle, provided the minimum clearance and applicable minimum
depth can be maintained; otherwise the cable/conduit shall be installed
under the existing utility or other structure.
? In rock, the cable/conduit shall be placed to provide a minimum of
eighteen inches (18") below the surface of the solid rock, or provide a
minimum of forty-two inches (42") of total cover, whichever requires
the least rock excavation.
? Where existing pipe is used, current depth is sufficient.
3. Buried Cable Warning Tape
All cable/conduit shall be installed with buried cable warning tape. The
warning tape shall be:
? laid a minimum of twelve inches (12") above the cable/conduit
? generally placed at a depth of twenty-four inches (24") below grade and
directly above the cable/conduit
? a minimum of three inches (3") wide and display "Warning-Buried Fiber-
Optic Cable," a company name, logo and emergency one-call toll-free
number repeated every twenty-four inches (24").
4. Conduit Construction
? Conduits may be placed by means of trenching, plowing, jack and bore,
multi-directional bore or directional bore.
? Conduits shall generally be placed on a level grade parallel to the
surface, with only gradual changes in grade elevation.
? Steel conduit shall be joined with threaded collars, Zap-Lok or
welding. (Welding is the preferred method.)
? All crossings of paved city, county, state, federal, and interstate
highways, or railroad crossings shall be encased in conduit.
? All crossings of major streams, rivers, bays and navigable waterways
shall be placed in HDPE, PVC or steel conduit, or shall use specially
armored submarine cable.
? At all foreign utility/underground obstacle crossings, conduit shall be
placed and shall extend at least five feet (5') beyond the outer limits
of the obstacle in both directions.
? All jack and bores shall use HDPE or steel conduit.
? All directional or mini-directional bores shall use HDPE or steel
conduit.
? Any cable placed in swamp or wetland areas shall be placed in HDPE,
PVC, or steel conduit.
5. Innerduct Installation
? No cable shall be placed directly in any split/solid steel conduit
without innerduct.
? Innerduct(s) shall extend beyond the end of all conduits a minimum of
eighteen inches (18").
6. Cable Installation in Conduit
? The cable shall be installed using either a sealed pneumatic cable
blowing system or a powered pulling winch and hydraulic powered assist
pulling wheels.
? The maximum pulling force to be applied to the cable shall be six
hundred pounds (600 lbs.).
? Sufficient pulling assists shall be available and used to insure the
maximum pulling force is not exceeded at any point along the pull.
? The cable shall be lubricated at the reel and all pulling assist
locations.
? A pulling swivel breakaway rated at six hundred pounds (600 lbs.) shall
be used at all times.
? Splices shall be allowed only at planned junctions and reel ends.
? All splices shall be contained in a handhole or manhole.
? A minimum of twenty meters (20m) of slack cable shall be left in all
intermediate handholes and manholes.
? A minimum of thirty meters (30m) of slack cable shall be left in all
splice locations.
? A minimum of fifty meters (50m) of slack cable shall be left in
Transmission Sites and points of presence.
? PVC conduit/innerduct may be split, with the cable installed inside the
split duct and plowed in.
7. Manholes and Handholes
? Manholes shall be placed in traveled surface streets and shall have
locking lids.
? Handholes shall be placed in all other areas, and be installed with a
minimum of eighteen inches (18") of soil covering lid.
8. EMS Markers
EMS Markers shall be placed directly above the lid of all buried
handholes or shall be fabricated into the lids of the handholes.
9. Cable Markers (Warning Signs)
? Cable markers shall be installed at all changes in cable running line
direction, splices, pull boxes, assist-pulling locations, and at both
sides of street, highway or railroad crossings.
? Markers shall be spaced at intervals of no more than five hundred feet
(500') apart in metropolitan areas (areas where there is either
extensive development and improvement or rapid growth (new building
construction)) and within line of sight (not to exceed one thousand
feet (1,000')) in non-metropolitan areas.
? Markers shall be positioned so that they can be seen from the location
of the cable and generally set facing perpendicular to the cable
running line.
? Splices and pull boxes shall be marked on the cable marker post.
10. Fiber Optic Groundwire
The Williams Communications, Inc. (Vyvx) Optical Groundwire
Specifications (Issue 1; October 15, 1996) shall apply to optical groundwire
(aerial fibers installed within power transmission groundwire cable).
Sections 2 through 9 of this Exhibit shall be inapplicable to optical
groundwire. Upon written request, Williams shall promptly provide a copy of
its Optical Groundwire Specifications.
11. Updating of Specifications
Williams may revise these Cable Installation Specifications to
include new procedures, materials, or processes so long as the changes
achieve the objectives of the specifications set forth above and are in
accordance with, or superior to, then-current telecommunications industry
standards. A copy of any such revised specifications shall be provided to
CTC in a reasonably prompt manner.
EXHIBIT E
OPERATIONS SPECIFICATIONS, MAINTENANCE
THIS EXHIBIT E is attached to and made a part of that certain Dark
Fiber IRU Agreement dated as of March 31, 2000, by and between Williams
and CTC ("Agreement"). Capitalized terms used and not defined herein
shall have the meanings set forth for such terms in the Agreement.
1. Routine Maintenance
Williams shall perform the work and provide the services set forth
in the following paragraphs A through E as Routine Maintenance:
A. NCC Functions. Williams shall operate a manned Network
Control Center ("NCC") twenty-four (24) hours a day, seven (7) days a week
that monitors the System by means of remote surveillance equipment and
dispatches maintenance and repair personnel to handle and repair problems
detected by the NCC or reported by CTC or other parties. CTC shall report
problems it has actual knowledge of to the NCC by calling the NCC at (800)
582-9069.
B. Cable Maintenance. Williams shall perform appropriate routine
maintenance on the Cable in accordance with Williams' then-current
preventative maintenance procedures as specified in Williams' Operations
Manual (the "Operations Manual"), a copy of which shall be provided to CTC
in accordance with the terms of Section 4.E of this Exhibit. Williams may
revise the Operations Manual to include new procedures, materials, or
processes so long as the changes achieve the objectives of the
specifications set forth herein and are in accordance with, or superior
to, then-current telecommunications industry standards. A copy of any
such revised Operations Manual shall be provided to CTC in a reasonably
prompt manner. Williams' preventative maintenance procedures shall not
substantially deviate from industry practice.
C. Transmission Site Maintenance. Williams shall perform
appropriate routine maintenance on regenerator, optical amplifier, and
junction buildings, including the DC power plant, HVAC equipment, and
basic building safety equipment including alarms and emergency generators
in accordance with Williams' then current preventative maintenance
procedures. Williams' preventative maintenance procedures shall not
substantially deviate from industry practice.
D. Route Patrol. Williams shall patrol the System route on a
reasonable, routine basis and shall perform all required Cable locates.
Williams shall belong to a state or regional one-call (call-before you
dig) center when available.
E. Spare Cable. Williams shall maintain an inventory of spare
cable at strategic locations to facilitate timely restoration.
2. Planned Network Maintenance Activity
A. Timing. Williams shall avoid performing maintenance between
0600-2200 local Tulsa time, Monday through Friday, inclusive, that will
have a disruptive impact on the continuity or performance level of the CTC
Fibers. However, the preceding sentence does not apply to restoration of
continuity to a severed or partially severed fiber optic cable,
restoration of dysfunctional power and ancillary support equipment, or
correction of any potential jeopardy conditions.
B. Notice. Williams shall provide CTC with telephone, facsimile,
or written notice of all non-emergency planned network maintenance (a) no
later than three (3) banking days prior to performing maintenance that, in
its reasonable opinion, has a substantial likelihood of affecting CTC's
traffic for up to 50 milliseconds, and (b) no later than ten (10) banking
days prior to performing maintenance that, in its reasonable opinion, has
a substantial likelihood of affecting CTC's traffic for more than 50
milliseconds. If Williams' planned activity is canceled or delayed,
Williams shall promptly notify CTC and shall comply with the provisions of
the previous sentence to reschedule any delayed activity.
3. Fiber and Cable
A. Emergency Repair. Williams shall correct or repair Cable
discontinuity or damage in accordance with the procedures set forth in the
Operations Manual. Williams shall use commercially reasonable efforts to
repair Cable traffic discontinuity within the following times:
? Dispatch of personnel to problem area - immediately upon learning of
discontinuity
? Arrival of first maintenance employee on site - within four (4)
hours of learning of discontinuity
? Restoration of Cable continuity - continuity of at least one fiber
shall be established within six (6) hours of learning of
discontinuity; restoration shall continue until all in-service
fibers are restored in accordance with the alternating fiber
restoral procedure described in the Operations Manual.
B. Permanent Repair. Within twenty-four (24) hours after
completion of an emergency repair, Williams shall commence its planning
for permanent repair, shall notify CTC of such plans, and shall implement
such permanent repair within a reasonable time thereafter.
C. Splicing Specifications. Williams shall comply with the Cable
splicing specifications as provided in Exhibit G. Williams shall provide
to CTC any modifications to these specifications for CTC's approval, which
shall not be unreasonably withheld or delayed, so long as the
modifications do not substantially deviate from industry standards.
4. Miscellaneous
A. Full-Time Dispatch Capability. Williams' maintenance
employees shall be available for dispatch twenty-four (24) hours a day,
seven (7) days a week. Williams shall use commercially reasonable efforts
to have its first maintenance employee at the site requiring an emergency
maintenance activity within four (4) hours from the time of alarm
identification by Williams' NCC or notification by CTC, whichever occurs
first. Emergency maintenance is defined as any service-affecting
situations requiring an immediate response.
B. Standard of Care; Cooperation. In performing its services
hereunder, Williams shall take workmanlike care to prevent impairment to
the signal continuity and performance of the System. In addition,
Williams shall reasonably cooperate with CTC in sharing information and
analyzing the disturbances regarding the cable and/or fiber facilities.
C. CTC Equipment. Nothing contained herein shall make Williams
responsible for CTC Equipment unless and to the extent such CTC Equipment
is damaged by the gross negligence or willful misconduct of Williams, its
affiliates, contractors or agents. The parties may subsequently agree
that Williams will maintain CTC Equipment upon mutually agreeable prices,
terms and conditions.
D. Escalation List. Williams' current operations escalation list
for use in reporting and seeking redress of exceptions noted in Williams'
performance of Routine Maintenance and Non-Routine Maintenance is set
forth in the Operations Manual. In the event such list is changed after
the Effective Date, Williams shall provide CTC a copy of the changed list
in a reasonably prompt manner.
E. Operations Manual. The parties acknowledge that Williams has
not provided CTC with a copy of the Operations Manual which is currently
being developed by Williams. Williams shall provide the same as soon as
available and agrees that the no provision in the Operations Manual shall
be materially inconsistent with the terms of this Exhibit or the Agreement
except with respect to provisions adopted or amended after the date hereof
to address bona fide operational or safety issues relating to the
operation, maintenance or repair of the System or Williams' associated
facilities.
EXHIBIT F
AS-BUILT DRAWING SPECIFICATIONS
1. Alignment Sheets
A. As-Built Alignment Sheets shall include:
? survey information (either from existing data or new information)
? cable and conduit information
? splice locations
? assist point locations with permanent structures
? survey stations
? Transmission Site locations
? optical distances to the nearest Transmission Sites from each
splice location.
B. As-Built Alignment Sheets shall be updated with actual
construction field data.
C. The scale of As-Built Alignment Sheets shall not exceed 1" =
200' in metropolitan areas (areas where there is either extensive
development and improvement or rapid growth (new building construction))
or 1" = 500' in non-metropolitan areas.
2. Format
Drawings shall be "blue lines", as such term is understood in the
industry or in CAD format revision 13 or a later revision. Williams may,
after the Acceptance Date, adopt any replacement method of creating or
providing drawings that is generally accepted in the industry and that
provides equivalent information.
3. Transmission Site Floor Plans
Floor plans for Transmission Sites and POPs shall show rack
placement and assignment for CTC's floor space, and CTC demarcation
points.
EXHIBIT G
FIBER SPLICING, TESTING, AND ACCEPTANCE STANDARDS
1. Initial Construction Testing
A. During initial construction, Williams shall use an optical time
domain reflectometer ("OTDR") to test splices and an OTDR and a 1-km launch
reel to test pigtail connectors. Such initial construction tests shall be
uni-directional and performed at 1550 nm.
B. If the loss value of two connectors and the associated pigtail
splice to outside plant cable exceeds 0.8 dB, Williams shall break the splice
and re-splice until the loss value is 1.0 dB or less. If Williams is unable
to achieve a loss value of 0.8 dB or less after five total splicing attempts,
the splice shall be marked as Out-of-Spec (OOS).
C. If the loss value for a splice, when measured in one direction
with an OTDR, exceeds 0.15 dB, Williams shall break the splice and re-splice
until the loss value is 0.15 dB or less, provided that, if Williams is not
able to achieve a loss value of 0.15 dB after three total splicing attempts,
then the average maximum loss value, when measured bi-directionally, shall be
0.3 dB. If, after two additional resplicing attempts, Williams is not able
to achieve a loss value of 0.3 dB or less, then Williams shall mark the
splice as Out-of-Spec (OOS).
2. End-to-End Testing
A. After Williams has established end-to-end connectivity on the
fibers during initial construction, it shall:
? perform bi-directional end-to-end tests,
? test continuity to confirm that no fibers have been "frogged" or
crossed at any splice points,
? record loss measurements using a light source and a power meter, and
? take OTDR traces and record splice loss measurements.
B. Williams shall perform the bi-directional end-to-end tests and
OTDR traces at both 1310 nm and 1550 nm, provided that 1310nm OTDR tests are
not required for spans longer than 64 kilometers. Williams shall measure and
verify losses for each splice point in both directions and average the loss
values. Williams shall mark any splice points as Out-of-Spec (OOS) that have
an average loss value, based on bi-directional OTDR testing, in excess of 0.3
dB.
3. Post-Construction Testing
After performing permanent resplicing (in conjunction with repair of a
cable cut, replacement of a segment of cable, or other work after initial
installation and splicing of the cable), the test procedures set forth in
Section 2 (End-to-End Testing) of this Exhibit, shall apply to the relevant
fibers and cable segments. The provisions in Sections 5 (OTDR Equipment and
Settings) and 6 (Acceptance Test Deliverables) of this Exhibit, that are
relevant to such testing shall also apply. Williams may, after the
Acceptance Date, adopt any alternative methods of testing that are generally
accepted in the industry and that provide sufficient data to fulfill the
objectives of the tests set forth in this exhibit so long as Williams
provides a copy of such alternative testing methods of testing to CTC.
4. Out-of-Spec Splices
Notwithstanding anything contained herein to the contrary, CTC shall
not be required to accept any fiber that, when tested, has a loss value, when
measured bi-directionally, of greater than 0.39 dB. Out-of-Spec splices
shall be noted and made known to CTC, but shall not preclude Acceptance of
any portion of the CTC Fibers so long as the Out-of-Spec condition does not
affect transmission capability (based on use of then-prevailing
telecommunications industry standards applicable to equipment generally used
with the relevant type of fiber) or create a significant possibility of an
outage. If the splice(s) marked Out-of-Spec are not service affecting as
described above, CTC must accept the affected fibers. In the event that CTC
is later able to reasonably establish (e.g., due to equipment upgrades, etc.)
that the Out-of-Spec splice is service affecting, Williams will take action
in a reasonably prompt manner to bring the splice into compliance with the
applicable specifications under Section 1 of this Exhibit G.
5. OTDR Equipment and Settings
Williams shall use OTDR equipment and settings that are, in its
reasonable opinion, suitable for performing accurate measurements of the
fiber installed. Such equipment and settings shall include, without
limitation, the Laser Precision TD3000 and CMA4000 models and compatible
models for OTDR testing, and the following settings:
A. Index of refraction settings:
1310 nm 1550 nm
Lucent Truwave 1.4738 1.4732
Corning SMF-28 1.4675 1.4681
Corning SMF-LS 1.471 1.470
Corning LEAF 1.470 1.469
Sumitomo fiber 1.467 1.467
B. Tests of a pigtail connector and its associated splice:
TD3000 CMA4000
4 km Range 4 km Range
10ns Pulse 10ns Pulse
0.25 m Resolution 0.25 m Resolution
Medium Averaging Medium Averaging
C. End-to-End Segment OTDR Testing:
TD3000 CMA4000
64 km Range 64 km Range
500 ns Pulse 1001 ns Pulse
4 m Resolution 4 m Resolution
Medium Averaging Medium Averaging
Note: If the end points are more than 64 kilometers apart, Williams currently
performs bi-directional testing only at 1550 nm and power through testing at
1550 nm.
6. Acceptance Test Deliverables
Williams shall provide data sheets or computer media containing the
following information for the relevant fibers and cable segments:
A. Verification of end-to-end fiber continuity with power level
readings for each fiber taken with a light source and power meter. Williams
will provide the make and model of the testing equipment and the date of test
completion.
B. Verification that the loss at each splice point is either (i)
below 0.3 dB or (ii) in accordance with the requirements of Section 4 or 5 of
this Exhibit.
C. Williams will provide GNNet Test/LP format supplied on CD-ROM
which will include the final bi-directional OTDR test data at 1310 and 1550
(where applicable), pigtail test including insertion loss, adjacent splice
and reflectance value of end face of connector. Williams will also supply
spreadsheet format OTDR including distance A to B / B to A, average distance
in kilometers, average distance in miles, span loss from A to B / B to A and
optical return loss from A to B / B to A. Optical return loss will be
performed with a one (1) kilometer launch reel to obtain insertion loss of
the connector, loss of adjacent splice and reflection value on the face of
the connector. Williams will provide verification that the total connector
has less than or equal to 0.8 db loss and reflectance of -50 db or better.
Williams will not test Polarization Mode Dispersion (PMD). The manufacturer
of the fiber optic strands guarantees the PMD via the fiber specifications
listed in Exhibit C. Williams will consider performing PMD tests for CTC at
mutually agreeable terms and conditions and CTC shall have the right to
perform PMD tests in connection with any Fiber Testing conducted by it under
the terms of Article VI of the Agreement.
D. Cable manufacturer, cable type (buffer/ribbon), fiber type, cable
reel number, number of fibers, number of fibers per tube, and distance of
each section of cable between splice points.
EXHIBIT H
TRANSMISSION SITE SPECIFICATIONS
THIS EXHIBIT H is attached to and made a part of that certain Dark
Fiber IRU Agreement dated as of March 31, 2000, by and between Williams and
CTC ("Agreement"). Capitalized terms used and not defined herein shall have
the meanings set forth for such terms in the Agreement.
1. Redundant HVAC
All Transmission Sites shall have redundant HVAC (heating, ventilation,
and air conditioning) units each capable of handling the site's full HVAC
load.
2. Backup Power
? All Transmission Sites are unattended and shall have a minimum of eight
(8) hours' battery reserve.
? All Transmission Sites shall have an on-site generator.
? All on-site generators shall be capable of powering the total site for
a minimum of twenty-four (24) hours.
3. Spacing
Williams shall use approximately forty-mile spacing between
Transmission Sites (or between a Transmission Site and a point of presence or
System end point), except where geographic or technological factors dictate
different spacing.
EXHIBIT I
COLLOCATION PROVISIONS
(Transmission Sites)
THIS EXHIBIT I is attached to and made a part of that certain Dark
Fiber IRU Agreement dated as of March 31, 2000, by and between Williams
and CTC ("Agreement"). Capitalized terms used and not defined herein
shall have the meaning set forth for such terms in the Agreement.
1. Collocation Rights.
a. Collocation. Subject to the terms and conditions set forth
below and in the Agreement, CTC shall have the license to occupy and right
to locate, install, maintain and operate CTC Equipment in joint use
collocation area ("JUCA") space within the Transmission Sites described
below during the Term of the Agreement. No use of Transmission Sites
required or permitted under these Collocation Provisions shall create or
vest in CTC any easements or other ownership or property rights of any
nature in Williams' real or personal property beyond the license granted
hereunder. Williams shall construct and operate such space, and CTC shall
cause the CTC Equipment to be installed and operated, substantially in
accordance with telecommunications industry standards for similar
collocation arrangements.
b. Basic Collocation Services. CTC agrees that upon Acceptance
of each Major Segment, it shall accept and utilize collocation services
hereunder for the Term of the Agreement consisting of the Rack Space and
power described in this Subsection in all Transmission Sites along the
Route as described in Exhibit J at the monthly rate specified below (the
"Basic Collocation Services"). Williams shall designate each Transmission
Site as either an optical amplifier site, a regenerator site, or a
junction. At each such Transmission Site, Williams shall provide Basic
Collocation Services consisting of JUCA space, HVAC, DC power for the CTC
Equipment, commercial AC power, heat and door alarms and generator or
battery backup, and CTC shall accept and utilize the same, as follows:
Sites # of Rack Spaces* "Basic Power" per Rack Space
Optical Amplifier 2 15 amps of redundant feed -48v DC
Regenerator 2 20 amps of redundant feed -48v DC
Junctions 2 30 amps of redundant feed -48v DC
* A Rack Space shall be adequate to contain a standard telecommunications
collocation rack (outside dimensions measuring 26 inches (width) x 24
inches (depth) x 78 or 84 inches (height)). CTC shall supply its own
racks which shall be wholly contained within each Rack Space; provided,
however, if CTC desires to install cabinets which cause its racks to
exceed the above-described outside dimensions of the Rack Spaces in a
particular POP, it may request a waiver of such requirement from Williams
in a written notice setting forth a detailed description of the cabinets
to be used and the exact amount of encroachment into areas outside of the
Rack Spaces caused by the use of such cabinets. Williams will consider
such requests on a case-by-case basis and, provided that the spacing
dimensions in the POP are such that CTC's cabinet encroachments for the
particular Rack Space(s) do not in any way materially interfere with, or
create a material risk of damage or interference with, the operations,
access, equipment or facilities of Williams or third parties within the
POP, as determined by Williams in its sole and reasonable discretion,
Williams will grant such waiver with respect to some or all of the Rack
Spaces identified in CTC's written notice.
The total linear inches for CTC Rack Space within each Transmission Site
shall not exceed the sum of the number of Rack Spaces for the specified
Transmission Site multiplied by 26 inches.
Notwithstanding the above provisions of this Subsection1(b), with respect
to Transmission Sites for which no address or location description is
specified in Exhibit J, CTC shall have the right to cancel Basic
Collocation Services for any such Transmission Site if the location
thereof is not compatible with CTC's network plan by giving written notice
to Williams within the fifteen (15) day period after receipt of Williams'
test results as described in the first sentence of Section 6.2 of the
Agreement. In the event such notice is given by CTC, CTC shall have no
right to collocate in any such Transmission Site or to access the same for
any reason. If CTC does not give such notice within such 15-day period,
then such cancellation right shall expire with respect to the Transmission
Sites along the applicable Major Segment.
c. Charges for Basic Collocation Services*
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
<PAGE>
d. Additional Services. CTC may request in writing installation
services, AC power or additional DC power, additional back-up power,
technical assistance, additional space or racks, separately caged and
accessed non-JUCA space, assistance in establishing an Interconnect
Facility (as defined in Exhibit L), or additional HVAC (i.e., HVAC
requirements in excess of Basic HVAC as defined in Subsection 1.3.8 of
Attachment I to Exhibit K of the Agreement) (collectively referred to as
the "Additional Services") at any Transmission Site. Within fifteen (15)
banking days after receiving such written request, Williams shall notify
CTC whether the Additional Services are available, as determined in
Williams' sole discretion, and, if they are, Williams' standard rates for
the Additional Services and/or Williams' estimate of any upgrade or
expansion costs. CTC shall provide written notice to Williams confirming
its request for such Additional Services at the quoted rates (and
estimates, if applicable) prior to Williams providing such Additional
Services. If upgrades or expansions to Transmission Sites or its
facilities are necessary to accommodate CTC's request, Williams may
include the applicable Costs of such upgrades or expansions, or
appropriate portion thereof if used by others, in the charges imposed upon
CTC.
e. Charges for Additional Services. If CTC chooses to receive
the Additional Services, CTC shall pay any and all charges (initial and
continuing) for the same within thirty (30) days after receipt of an
invoice therefor from Williams or in advance of the first day of each
calendar month during the Term, as applicable. Upon at least thirty (30)
days' notice to CTC, Williams may adjust recurring charges for the
Additional Services once each calendar year to equal its then-current
standard charges. Recurring charges for Additional Services shall apply
during the periods such Additional Services are available as mutually
agreed upon by the parties.
f. Interface. Interface points for the CTC Fibers shall be at
fiber patch panels or digital cross-connect (DSX-N) panels located in the
Transmission Sites. Such panels shall be the demarcation to establish
each party's operational and maintenance responsibilities as further
described in Exhibit L. All cables placed to interface such panels shall
conform to all applicable Williams standards.
g. Alarms. Williams shall continuously monitor Transmission Site
security, environmental, and power alarms at one or more manned monitoring
centers. At CTC's request, Williams shall establish procedures to allow
CTC, at CTC's expense, to share or (at Williams' option) receive
indirectly security and environmental alarm information.
h. Compliance with Agreement. Each party shall comply with the
provisions of the Agreement relating to Transmission Sites, including,
without limitation, Williams' obligations to provide as-built drawings of
Transmission Sites showing CTC rack placement and assignment and to comply
with the specifications set forth in Exhibit H thereto.
2. Interconnections. Exhibit L governs interconnections at
Transmission Sites with facilities outside or extending outside such
sites.
3. Establishing Collocations.
a. Physical Access to Transmission Sites. Williams shall make
commercially reasonable efforts to provide CTC with at least sixty (60)
days notice prior to the date it estimates each Transmission Site will be
ready for installation of the CTC Equipment. Williams shall allow CTC
reasonable access to each Transmission Site for purposes of installing CTC
Equipment beginning on or before sixty (60) days prior to the Scheduled
Delivery Date of the Major Segment to which such Transmission Site
relates, provided that, if a Transmission Site is not ready for
installation of equipment other than security, alarm, HVAC, power, back-up
power or other common systems on such date, Williams shall allow such
access within five (5) days of the first date such Transmission Site is
ready for such installation. The date on which CTC is granted access to
install CTC Equipment in a Transmission Site and on which power is
available at such Transmission Site for CTC's use shall be the "Access
Date" for such Transmission Site.
b. Notice to Collocate. No later than sixty (60) days prior to
CTC's planned installation of its CTC Equipment at any Transmission Site,
CTC shall provide to Williams the "Collocation Notice." The Collocation
Notice shall include notice of CTC's desire to collocate in a particular
Transmission Site, a copy of CTC's construction design drawings and
installation schedule. The Collocation Notice shall also include: (i)
CTC's requested installation date(s); (ii) any excess cable storage
requirements; (iii) identification of all CTC Equipment to be installed;
(iv) a diagram of the desired location of the CTC Equipment and power
feeds; (v) the space, power, environmental and other requirements for the
CTC Equipment; and (vi) all other information reasonably required by
Williams. As early as reasonably possibly but no later than fifteen (15)
days after receiving the Collocation Notice, Williams shall respond to
CTC's Collocation Notice with its acceptance or objections to CTC's
proposal in the Collocation Notice. In the event Williams fails to
respond within said 15-day period, it shall be deemed to have approved of
CTC's Collocation Notice.
c. Delivery and Installation. CTC shall, at its expense, cause
the CTC Equipment to be delivered, installed, and maintained in a safe
condition and meeting or exceeding the standards set forth in the
Subsection entitled Standards.
d. Transmission Site Ready Date. The "Transmission Site Ready
Date" shall be the Acceptance Date for the CTC Fibers connected to such
Transmission Site provided that the Transmission Site Ready Date shall be
deferred beyond the Acceptance Date as set forth below:
(i) if Williams fails to provide physical access to the
Transmission Site pursuant to Subsection entitled Physical
Access to Transmission Sites at least thirty (30) days prior
to the Acceptance Date for the CTC Fibers connected to the
Transmission Site, and if such failure delays installation of
CTC's Equipment at such Transmission Site, the Transmission
Site Ready Date shall be delayed until the earlier of thirty
days after Williams provides such physical access or the date
the CTC Equipment is installed;
(ii) if Williams fails to provide power as required for the Basic
Collocation Services or Additional Collocation Services, the
Transmission Site Ready Date shall be delayed until it
provides such power; and
(iii) CTC may elect by written notice to delay the Transmission Site
Ready Date for any Transmission Site until the Transmission
Site Ready Date has occurred for all Transmission Sites on a
Major Segment.
4. Use of CTC Equipment.
a. Power Use. The maximum DC power provided to the customer shall
be rated for a single feed. CTC shall not be allowed to install any
electrical or other equipment in excess of the single feed rating.
Breaker tolerance is + / - 10% (i.e. 30 Amps 27 available). Upon becoming
aware of an inadvertant violation of this provision, shall promptly remove
such equipment or purchase Additional Services from Williams under the
terms of this Exhibit.
b. Standards. CTC shall ensure that the CTC Equipment and any
Interconnect Facilities are installed, operated, and maintained to meet or
exceed any reasonable requirements of Williams, any requirements of
Williams' building management or insurance underwriters of which CTC has
been made aware by Williams, and any applicable local, state and federal
codes and public health and safety laws and regulations (including fire
regulations and the National Electric Code).
c. Intervention. If any part of CTC's fiber, Interconnect
Facilities or CTC Equipment is not placed and maintained substantially in
accordance with the terms and conditions of these Collocation Provisions
and CTC fails to correct the violation within thirty (30) days from
receipt of written notice thereof from Williams, then Williams may, at its
option, without further notice to CTC, correct the deficiency at CTC's
expense without liability (except for recovery for Williams' gross
negligence or intentional misconduct) for damages to the fiber,
Interconnect Facilities or CTC Equipment or for any interruption of CTC's
services. As soon as practicable thereafter, Williams shall advise CTC in
writing of the work performed or the action taken. CTC shall reimburse
Williams for all expenses reasonably incurred by Williams associated with
any work or action performed by Williams pursuant hereto. CTC shall remit
payment to Williams within thirty (30) days from its receipt of Williams'
invoice therefor.
d. Threat to Persons or Property. If Williams, in its reasonable
discretion, determines that CTC's actions or failure to fulfill an
obligation of these Collocation Provisions, or its Interconnect Facilities
or CTC Equipment poses an immediate threat to the safety of Williams'
employees or the public, interferes with the performance of Williams'
service obligations, or poses an immediate threat to the physical
integrity of Williams' facilities, Williams may perform such work and/or
take such action that it deems necessary without notice to CTC and without
subjecting itself to any liability (except for recovery for Williams'
gross negligence or intentional misconduct) for damage to the fiber,
Interconnect Facilities or the CTC Equipment or for any interruption of
CTC's services. As soon as practicable thereafter, Williams shall advise
CTC in writing of the work performed or the action taken. CTC shall
reimburse Williams for all expenses reasonably incurred by Williams
associated with any work or action performed by Williams pursuant hereto.
CTC shall remit payment to Williams within thirty (30) days from its
receipt of Williams' invoice therefor.
e. Use by CTC's Customers. Subject to the terms of Section 24.5
of the Agreement, CTC may permit its customers holding IRU interests in
the CTC Fibers to use the collocation rights granted by these Collocation
Provisions, but only as specifically set forth herein. Such customers
shall act as CTC's subcontractors to the extent they or their
representatives are present at or on space adjoining the Transmission
Sites. CTC shall be liable for the acts or omissions of such customers to
the same extent as for its own employees or representatives and shall
either cause such customers, their employees and representatives to be
covered by CTC's insurance coverages as required by the Agreement or shall
cause such customers to independently obtain such insurance. CTC shall
act as the single point of contact with respect to such customers and
Williams. CTC must provide all power, space, and additional service to
these IRU customers out of CTC's own allocation of Basic Services and
Additional Services as provided in these Collocation Provisions.
5. Access to Transmission Site.
a. Common and JUCA Space. If CTC requires access to Williams'
common space or JUCA space, Williams shall make commercially reasonable
efforts provide escorted access within 72 hours of CTC's request (or at
its option shall waive the escort requirement on a case-by-case basis).
CTC shall pay Williams' reasonable charges for such access, which may
include minimum call-out times, and night, weekend, and holiday
differentials or multipliers. In no case shall CTC enter Williams' common
space or JUCA space without a Williams escort, except that a CTC employee
or CTC contractor certified by Williams pursuant to Subsection 5(b) may
enter JUCA space unescorted.
b. Certification of CTC Employees and Contractors. Only CTC
employees and CTC contractors certified by Williams shall enter JUCA space
unescorted. Williams shall grant certification to a CTC employee or
contractor if CTC demonstrates that such employee or contractor has
sufficient knowledge and experience in the installation and maintenance of
telecommunications equipment. Each certified employee or contractor shall
abide by Williams' Maintenance and Safety Manual, as updated from time-to-
time to the extent CTC has been made aware of such updates. Williams shall
provide CTC with a copy of its POP Maintenance and Safety Manual and any
updates thereto. The parties acknowledge that as of the Effective Date,
CTC has not been provided with a copy of such manual which is currently
being developed by Williams. The manual shall contain Williams' access
policy, safety, engineering, and equipment installation standards which
Williams agrees shall not be materially inconsistent with the terms of
this Exhibit or the Agreement except with respect to provisions adopted or
amended after the date hereof to address bona fide operational or safety
issues relating to the operation, maintenance, repair of the System or
Williams' associated facilities. CTC, in turn, shall supply each employee
or contractor that seeks certification with a copy of the manual provided
by Williams and, subsequent to certification, with any updates thereto
which have been provided to CTC by Williams. Until such time as Williams
provides the manual to CTC, certified CTC employees and CTC contractors
shall conduct activities in JUCA space in accordance with
telecommunications industry practices. The procedures for certification
are as follows:
(i) CTC's single point of contact, discussed below in Subsection
c, shall be Williams' Network Control Center at (800) 348-6925
(alternate number (800) 582-9069) to seek certification for a
CTC employee. Employee applicants shall be deemed certified
72 hours after Williams receives all requested qualification
information, unless Williams notifies CTC's single point of
contact that more information is reasonably required or that
the applicant is denied certification in Williams' reasonable
discretion.
(ii) For each CTC contractor that seeks certification, CTC shall
provide Williams' Network Control Center with a letter of
authorization signed by CTC and the contractor. At a minimum,
the letter of authorization shall state that the contractor is
an agent of CTC for the purpose of installing, maintaining or
repairing CTC Equipment or for other purposes specified by CTC
in the letter, set forth the names of contractor's employees
for which CTC seeks certification, and contain a statement
that the contractor has received a copy of Williams'
Maintenance and Safety Manual and the contractor agrees to
abide by the reasonable policies contained therein and to
those contained in any updated manuals provided to CTC by
Williams. If CTC has not received a copy of Williams'
Maintenance and Safety Manual by the time it submits a letter
of authorization, the contractor shall state in the letter
that it will abide by the policies and rules contained in the
manual when it is provided. CTC contractors shall be deemed
certified 72 hours after the latter of Williams' receipt of
the letter of authorization or Williams' receipt of all
additional requested qualification information, unless
Williams notifies the applicant that more information is
reasonably required or that the applicant is denied
certification in Williams reasonable discretion.
Once certified, CTC's employees or contractors must call Williams'
Network Control Center at (800)348-6925 (alternate number (800) 582-9069)
prior to entering or exiting the space. CTC shall provide Williams'
Network Control Center with a list of "certified" employees or contractors
that have passed Williams' certification process. It shall be CTC's duty
to notify Williams of any changes in CTC's list of certified employees and
contractors or if a certified CTC employee or contractor leaves CTC's or
the contractor's employ. CTC shall not be charged for Williams' review
and certification of CTC employees and contractors as described in this
Subsection 5(b).
c. Single Point of Contact. CTC's single point of contact for
all future communications regarding common and JUCA space shall be its
Network Control Center at (800) 883-6900 which shall be available twenty-
four (24) hours a day, seven (7) days a week. CTC's Network Control
Center shall be responsible for distributing information to CTC's
certified employees and contractors. Williams shall have no obligation to
provide information regarding JUCA space to any technician other than the
aforementioned single point of contact.
d. Security. CTC shall abide by Williams' reasonable security
requirements to the extent CTC has been made aware of the same. When
Williams' reasonable security requirements have been met, CTC employees,
customers, contractors, or representatives shall be issued passes or
visitor identification cards which must be presented upon request before
entry to Transmission Sites. Such passes or other identification shall be
issued only to persons meeting any reasonable security criteria applicable
at the relevant Transmission Site for such purpose. Williams shall provide
CTC's single point of contact, discussed in Subsection 5(c), with the
access devices (e.g., access codes, card keys, keys, visitor
identification cards) necessary for CTC's certified employees and
contractors to gain access to CTC Equipment in JUCA space. CTC's single
point of contact shall be responsible for distributing access devices to
CTC's employees and contractors certified pursuant to Subsection 5(b) and
shall distribute access devices only to such persons. Access devices will
be provided by Williams to CTC with Williams' reasonable, actual costs
thereof to be reimbursed by CTC within thirty (30) days after receipt of
an invoice therefor. CTC's certified employees and contractors shall not
disseminate access codes or devices to any other person. Subject to
Section 15.1 of the Agreement, CTC shall be liable for any losses caused
by use or misuse of such access devices and shall surrender access devices
upon demand for cause or upon termination of the Agreement. Nothing in
this Subsection shall be construed as preventing CTC from having twenty-
four hour, seven days per week unescorted access to any of its Non-JUCA
space. CTC acknowledges that third parties will have access to the JUCA
or common space in which CTC's Rack Spaces are located and agrees that
Williams shall in no event be liable for the acts or omissions of such
third parties so long as Williams follows its standard security and
certification procedures.
e. Right to Terminate Individual's Access. Notwithstanding any
other provision of these Collocation Provisions, Williams shall, without
threat of liability, have the right to immediately terminate the right of
access of any CTC personnel or representative should it determine in its
sole and reasonable discretion for any lawful reason that termination of
such access poses a threat to the System, Transmission Sites or facilities
or equipment therein. Williams shall promptly notify CTC of any such
termination, and CTC shall have a reasonable opportunity to demonstrate
that the terminated rights of access should be reinstated. Any
termination of a specific individual's access shall remain in effect
pending Williams' final determination as to the advisability of such
reinstatement.
f. Subcontractors. For purposes of Section 5 of this Exhibit,
the word "contractor" shall also include subcontractors of CTC.
g. Removal of CTC Equipment. Within sixty (60) days after the end
of the Term (or other termination of the CTC IRU in the CTC Fibers) or
CTC's abandonment of any collocation arrangement at a Transmission Site,
CTC shall remove all CTC Equipment from the System or any other Williams
facilities at CTC's sole cost under Williams' supervision. CTC shall
provide Williams with at least thirty (30) days notice prior to such
removal. If CTC fails to remove the same within said sixty-day period,
Williams shall either:
(a) remove CTC's Equipment and issue an invoice to CTC for the
Costs of removal and storage, which CTC shall pay within
thirty (30) days of receipt of such invoice; or
(b) notify CTC that Williams elects to take ownership of such
abandoned CTC Equipment, in which case CTC shall execute a
bill of sale or other document reasonably satisfactory to CTC
in form and substance evidencing Williams' title to such CTC
Equipment.
6. Relocation. CTC shall, at Williams' expense, relocate its
fiber, Interconnect Facilities and CTC Equipment within Transmission Site
upon Williams' written request and in the reasonable (under the
circumstances) time frame required by Williams. If the entire
Transmission Site is relocated, Article IX (Maintenance and Relocation)
and other applicable provisions of the Agreement shall govern such
relocation.
7. No Restrictions. So long as Williams' service requirements do
not unreasonably interfere with these Collocation Provisions or the
Agreement, Williams' right to maintain and operate its facilities in such
a manner as will best enable it to fulfill its own service requirements is
in no manner limited by these Collocation Provisions, except as
specifically set forth in these Collocation Provisions or the Agreement.
8. Inspections. Williams reserves the right to make periodic
inspections of any part of the Fiber, Interconnect Facilities, or CTC
Equipment located within or physically attached to the Transmission Sites;
provided that CTC shall have the right to have one or more of its
employees or representatives present during the time of any such
inspection. Williams shall give CTC reasonable advance notice of such
inspections, except in those instances where Williams determines that
safety considerations justify the need for such an inspection without the
delay of providing notice. The making of periodic inspections or the
failure to do so shall not operate to impose upon Williams any liability
of any kind whatsoever (except for damage caused by its gross negligence
or willful misconduct) nor relieve CTC of any responsibility, obligation,
or liability allocated to it in these Collocation Provisions.
9. Liens and Encumbrances. CTC shall not have the power,
authority or right to create and shall not permit any lien or encumbrance,
including, without limitation, tax liens, mechanics' liens, or other liens
or encumbrances against any Transmission Site with respect to work
performed, in connection with the installation, repair, maintenance or
operation of its CTC Equipment, Interconnect Facilities or other property
installed within the Transmission Site.
10. Subordination. CTC's rights under these Collocation
Provisions shall be totally subordinate to any bona fide mortgages, loans,
deeds of trust, or any other borrowing upon the real or personal property
which may be incurred by Williams; provided that no such lender or other
secured party shall disturb or interfere with CTC's rights under this
Exhibit or the Agreement at any time so long as CTC is not in default
under the terms hereof beyond any applicable cure period. CTC shall sign
any such reasonable documents as are necessary to satisfy any lender,
private or institutional, to reflect said subordination so long as such
documents contain non-disturbance provisions consistent with the terms of
this Section.
11. Independent Parties. The presence of a Williams or CTC
employee or representative (as an inspector or otherwise) while an
employee or representative of the other party is at the Transmission Site
or performing work pursuant to these Collocation Provisions shall not make
either party liable for the actions of the other party and shall not be
deemed to waive the responsibility of either party to perform its
obligations in a safe and workmanlike manner.
EXHIBIT J
WILLIAMS POP COLLOCATION SITES*
*THIS EXHIBIT J HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
EXHIBIT K
Collocation Provisions (POP Collocation Sites)
THIS EXHIBIT K is attached to and made a part of that certain Dark
Fiber IRU Agreement (the "Agreement") and is also referred to in and made a
part of that certain Carrier Services Agreement (the "Carrier Services
Agreement") both such agreements dated as of March 31, 2000, by and between
Williams and CTC. Capitalized terms used and not defined herein shall have
the meanings set forth for such terms in the Agreement or the Carrier
Services Agreement, as applicable.
1. POP Collocation Services:
1.1 POP Collocation Services Description.
"POP Collocation Services" are defined as the granting by
Williams, subject to the terms and conditions below, of a license
to CTC to occupy, access and locate, maintain and operate certain
CTC Equipment for the purpose of interconnecting the same with
the CTC Fibers or with Williams' telecommunications transmission
network in Rack Spaces (hereafter defined) within Williams POPs
which are located in premises ("Premises") currently owned or
leased by Williams.
1.2 Basic POP Collocation Services.
Williams agrees to provide and CTC agrees to accept and utilize
for the applicable Collocation Service Term (as defined in
Section 3 of this Exhibit), at the rates set forth below, POP
Collocation Services as described in this Subsection 1.2
consisting of the number of Rack Spaces in each of the POP
Collocation Sites as listed and described in Exhibits J of the
Agreement (the "Basic POP Collocation Services"). Williams
shall use commercially reasonable efforts to make Basic POP
Collocation Service available no later than the dates set forth
in the applicable Collocation Service Order.
The Basic POP Collocation Services shall be provided in secure
shelters and shall include up to 60 amps of redundant-feed -48v
DC power, Basic HVAC (as defined in Section 1.3.8 of Attachment
I to this Exhibit), commercial AC power, heat and door alarms,
as well as generator and battery backup.
A "Rack Space" consists of floor space within the Premises
adequate in size to contain a standard telecommunications
collocation rack (outside dimensions measuring 26 inches
(width) x 24 inches (depth) x 78 or 84 inches (height)). CTC
shall supply its own racks which shall be wholly contained
within each Rack Space; provided, however, if CTC desires to
install cabinets which cause its racks to exceed the above-
described outside dimensions of the CTC Rack Spaces in a
particular POP, it may request a waiver of such requirement
from Williams in a written notice setting forth a detailed
description of the cabinets to be used and the exact amount of
encroachment into areas outside of the Rack Spaces caused by
the use of such cabinets. Williams will consider such requests
on a case-by-case basis and, provided that the spacing
dimensions in the POP are such that CTC's cabinet encroachments
for the particular Rack Space(s) do not in any way materially
interfere with, or create a material risk of damage or
interference with, the operations, access, equipment or
facilities of Williams or third parties within the POP, as
determined by Williams in its sole and reasonable discretion,
Williams will grant such waiver with respect to some or all of
the Rack Spaces identified in CTC's written notice.
The total linear inches for CTC Rack Space within each POP
Collocation Site shall not exceed the sum of the number of Rack
Spaces for the specified POP Collocation Site multiplied by 26
inches. Williams agrees to use commercially reasonable efforts
to make all Rack Spaces provided to CTC within the same POP
hereunder to be contiguous; provided, that Williams shall not
be liable to CTC if, despite making such commercially
reasonable efforts, it is unable to so provide.
Notwithstanding the foregoing, in the event any of the Rack
Spaces to be provided by CTC are not contiguous, CTC shall have
the option to cancel the Basic POP Collocation Services with
respect to any such non-contiguous Rack Spaces by giving
written notice to Williams within sixty (60) days after receipt
of the initial Collocation Service Orders from Williams under
the next paragraph without any further liability to Williams
with respect to the canceled Rack Spaces.
As a condition to Williams' obligation to provide the Basic POP
Collocation Services described above, CTC agrees to submit a
letter to Williams requesting reservation of the Rack Spaces
described in Exhibit "J" within ten (10) days after the
Effective Date of the Agreement. Within thirty (30) days after
its receipt of such letter, Williams shall prepare and deliver
Collocation Service Orders to CTC thereby confirming
reservation of all Rack Spaces for CTC. In each Collocation
Service Order so provided, Williams shall identify any Rack
Spaces which are not contiguous. Within sixty (60) days after
receipt of such Collocation Service Orders, CTC shall sign and
return the same to Williams and/or give notice of any
objections thereto or of any exercise of its right to cancel
non-contiguous Rack Spaces under the preceding paragraph. On
or before the date which is sixty (60) days prior to the
Collocation Effective Date specified in each such Collocation
Service Order, CTC shall give notice to Williams confirming
such order and making any changes thereto. CTC shall have the
right to request changes to any such Collocation Service Orders
for no charge up to sixty (60) days prior to the Collocation
Effective Date. Thereafter, change requests will be subject to
Section 8 of this Exhibit. In addition, Williams agrees to
fully cooperate with CTC in complying with the terms of this
Section. The parties acknowledge that CTC has previously
submitted Collocation Service Requests for some or all of the
POP Collocation Sites pursuant to the Interim Agreement.
Williams and CTC hereby agree that from and after the Effective
Date of the Agreement, all Collocation Service Requests and/or
Collocation Service Orders submitted and/or issued under the
Interim Agreement, as well as the Basic POP Collocation
Services ordered thereunder, shall be governed by the terms of
this Exhibit and the Agreement, and the Interim Agreement shall
be of no further force or effect with respect thereto.
Notwithstanding any other provision herein to the contrary, CTC
shall not be granted access to any POP Collocation Site
hereunder unless and until a Collocation Service request has
been submitted to Williams and a Collocation Service Order has
been executed by both parties as described above for such POP
Collocation Site. The parties acknowledge that the location
and number of Rack Spaces to be provided to CTC hereunder may
be modified by written agreement of the parties after the
Effective Date upon mutually agreeable terms and conditions.
1.3 Additional POP Collocation Services.
CTC may request POP Collocation Services in addition to the Basic
POP Collocation Services in any Williams' POP ("Additional POP
Collocation Service") pursuant to the Carrier Services Agreement
by completion of the form included as Attachment II to this
Exhibit. All Additional POP Collocation Services shall be
provided pursuant to and subject to the terms of the Carrier
Services Agreement which incorporates this Exhibit by reference.
As used herein, "POP Collocation Services" and "Additional POP
Collocation Services" shall refer to and be included in the term
"Collocation Services" as used in the Carrier Services Agreement.
CTC's right to obtain Additional POP Collocation Service shall be
subject to availability, as determined in Williams' sole and
reasonable discretion, and shall be provided at Williams'
standard rates in effect at the time CTC request such additional
space. Such POP Collocation Services shall be granted only by
mutual execution of a Collocation Service Order(s), an example of
which is attached to this Exhibit as Attachment III.
1.4 Condition of Rack Space.
All Rack Space provided hereunder including, without limitation,
the Rack Space provided as part of the Basic POP Collocation
Services, shall be accepted by CTC "as-is" and, except for the
specifications set forth in this Exhibit or in the Agreement,
Williams makes no representation as to the fitness of the space
for CTC's intended purpose. CTC shall abide by the standard
specifications as set forth in the Technical Specifications
attached hereto. No work related to any POP Collocation Service
shall commence until the Agreement, the Collocation Service
Request, and the relevant Collocation Service Order(s) are
mutually executed.
1.5 Interconnection; Cross-connects.
With respect to Additional POP Collocation Services ordered in
connection with capacity services obtained from Williams under
the Carrier Services Agreement, CTC may interconnect the CTC
Equipment with transmission service provided to CTC by third
parties subject to and in accordance with all terms and
conditions of the Carrier Services Agreement. If CTC should
interconnect the CTC Equipment with equipment or services of any
entity other than Williams without obtaining the written consent
of Williams as required under the preceding sentence, CTC shall
be in default of the Carrier Services Agreement, which default
shall be subject to default provisions thereof. All cross-
connections relevant to interconnecting the CTC Equipment with
Williams or any other party for which Williams gives explicit
written permission under this paragraph shall be established
under the control and direction of Williams and subject to all
terms and conditions of the Carrier Services Agreement.
With respect to Basic POP Collocation Services or Additional POP
Collocation Services ordered in connection with the CTC Dark
Fibers, CTC's rights to interconnect or cross-connect shall be as
specified in Exhibit L of the Agreement.
2. Collocation Effective Date:
The "Collocation Effective Date" for Basic POP Collocation Services
and Additional POP Collocation Services is defined as the date
identified on the relevant Collocation Service Order as the date of
POP Collocation Service delivery or, if later, the date upon which
Williams delivers POP Collocation Service.
3. Collocation Service Term:
The "Collocation Service Term" shall commence upon the Collocation
Effective Date with respect to each POP and shall continue thereafter
as follows: (i) with respect to Basic POP Collocation Services other
than for the Short-Term Rack Spaces, for the Term of the Agreement
unless earlier terminated pursuant to the terms set forth herein;
(ii) with respect to those certain Rack Spaces specifically
identified in Exhibit J as short-term rack spaces ("Short-Term Rack
Spaces"), for a maximum period of one (1) year after the Collocation
Effective Date or until earlier terminated pursuant to the terms
hereof; or (iii) with respect to any Additional POP Collocation
Services, for the duration specified in the relevant Collocation
Service Order. Once the Collocation Effective Date has passed, CTC
must pay for the applicable POP Collocation Services through the end
of the Collocation Service Term for the affected services, regardless
of whether CTC is actually using such services. Any Short-Term Rack
Spaces shall be specifically identified on the applicable Collocation
Service Order.
Notwithstanding the foregoing, CTC shall have the right to terminate
Basic POP Collocation Services without penalty within any POP
Collocation Site at any time after the date which is one (1) year
after the Collocation Effective Date with respect to the relevant POP
Collocation Site upon sixty (60) days prior written notice to
Williams. In addition, CTC shall have the right to terminate Basic
POP Collocation Services for Short-Term Rack Spaces without penalty
at any time after the applicable Collocation Effective Date upon
sixty (60) days prior written notice to Williams
4. Rates & Charges:
CTC shall pay Williams for POP Collocation Services rendered pursuant
to this Exhibit charges consisting of the following:
4.1 Service Fees.*
4.2 Installation Fee.
The installation fee is an amount to be invoiced CTC as a one-
time fee for Collocation Service installation consisting of
charges associated with the initial installation of the POP
Collocation Service. Installation Fees shall be identified on
the relevant Collocation Service Order.
4.3 Build-Out Fees.
Build-out fees are those one-time charges applicable to
Collocation Services rendered that are outside the standard
collocation offering. Build-out fees are individually quoted
based on Collocation Service Order. Build-out fees are payable
in full to Williams upon execution of a Collocation Service Order
and no work will be performed by Williams or CTC to build-out
space prior to Williams' receipt of said payment.
4.4 Ancillary Charges.*
4.5 Dispatch Labor Charges.*
THIS PORTION HAS BEEN OMITTED ANF FILED SEPARATELY WITH THE COMMISSION
<PAGE>
5. POP Collocation Service Delivery: Upon mutual acceptance of a
Collocation Service Order, Williams shall confirm Collocation
Effective Date, or inform CTC of the estimated date for the delivery
of such POP Collocation Service. Williams shall use reasonable
efforts to deliver POP Collocation Service on or before the
Collocation Effective Date specified in the Collocation Service Order,
but the inability of Williams to deliver POP Collocation Services by
such date shall not be a default under this Exhibit.
In the event Williams fails to tender possession of the Rack Space to
CTC by the Collocation Effective Date, then, in addition to the other
remedies described below, CTC shall not be obligated to pay the
applicable service fees or installation fee until such time as
Williams tenders possession of the Rack Space to CTC.
With respect to Additional POP Collocation Services provided pursuant
to the Carrier Services Agreement, if Williams fails to make the same
available within forty-five (45) days after the Collocation Effective
Date set forth in the Collocation Service Order (due to any reason
other than the acts or omissions of CTC), CTC's sole remedies with
respect to Additional POP Collocations Services shall be to cancel the
Collocation Service Order which pertains to such Additional POP
Collocation Services by written notice to Williams. Except for the
abatement of service and installation fees described above, Williams
shall not be liable to CTC in any way as a result of such delay or
failure to deliver any Additional POP Collocation Services hereunder.
The terms of Section 6.1 of the Agreement require completion of the
POP Collocation Sites connected to a Major Segment before submission
of Williams' test results to CTC which initiates the Acceptance
procedures for such Major Segment. Section 4.3 of the Agreement
specifies CTC's rights and remedies in the event Acceptance of a Major
Segment does not occur by the Scheduled Delivery Date. Except for
abatement of service and installation fees as described above and
except as provided in Section 4.3 of the Agreement, Williams shall not
be liable to CTC in any way as a result of such delay or failure to
deliver the Basic POP Collocation Services.
6. Contract Expiration of Additional POP Collocation Services: Following
the expiration of the Collocation Service Term with respect to
Additional POP Collocation Services and the failure of the parties to
enter into any renewal periods, CTC's license to occupy the space
shall continue in effect on a month-to month basis upon the same terms
and conditions specified within this Exhibit and relevant Collocation
Service Order, unless terminated by either CTC or Williams upon thirty
(30) days' prior written notice.
CTC's option to renew its license for Additional POP Collocation
Services shall be contingent on the election by Williams to continue
to own or lease the Premises in which the Rack Space is located for
the duration of the renewal period(s), such election to be exercised
at the sole discretion of Williams.
7. Insurance: With respect to Additional POP Collocation Services ordered
under the Carrier Services Agreement, Article XVI of the Agreement
shall apply to such Additional POP Collocation Services and is hereby
incorporated into this Exhibit for such purpose
8. Change of POP Collocation Services:
8.1 Change of Collocation Effective Date (pre-install). CTC will be
assessed a change of Collocation Effective Date charge in the
amount set forth in Section 4.4 of this Exhibit by Williams for
any changes of Collocation Effective Date requested within thirty
(30) days prior to original Collocation Effective Date. CTC will
also be charged for any charges actually incurred by Williams
from third party providers solely as a result of a request by CTC
for a Change of Collocation Effective Date, regardless of date of
CTC notification. CTC shall have no right to change the
Collocation Effective Date for any Basic POP Collocation Services
beyond the Acceptance Date of any Major Segment connecting to the
applicable POP Collocation Site.
8.2 Change of Collocation Service Order (pre-Collocation Effective
Date). All modifications to the information contained in an
executed Collocation Service Order will be reviewed on an
individual case basis in a reasonably timely manner and the
Collocation Service Order shall be amended accordingly upon
Williams' acceptance of the Collocation Service modifications.
Any modifications will permit Williams to likewise amend
applicable rates, charges and Collocation Effective Dates from
the original Collocation Service Order, which shall be reasonable
and in proportion to the requested changes. CTC will be assessed
a one time fee for changes to a Collocation Service Order as set
forth in Section 4.4 of this Exhibit. CTC will also be charged
for any charges actually incurred by Williams from third party
providers solely as a result of a request by CTC for a Change of
Collocation Service Order, regardless of date of CTC
notification.
8.3 Change of Collocation Service (post-Collocation Effective Date).
If CTC requests a change to POP Collocation Services after such
POP Collocation Services have been installed, the request will be
reviewed by Williams on an individual case basis in a reasonably
timely manner with no guarantees granted by Williams as to the
ability to provide such changed POP Collocation Service. All
change of POP Collocation Service requests shall be authorized by
Williams via a change Collocation Service Order. Williams may
impose additional service and/or installation fee(s) for the
changed POP Collocation Service, which shall be reasonable and in
proportion to the requested changes. CTC will be assessed a one
time fee for POP Collocation Service changes for each such change
in the amount set forth in Section 4.4 of this Exhibit. CTC will
also be charged for any charges actually incurred by Williams
from third party providers solely as a result of a request by CTC
for a change of Collocation Service, regardless of date of CTC
notification.
8.4 Order Cancellation. CTC may cancel a Collocation Service Order
for Additional POP Collocation Services by written notice to
Williams. CTC will incur a one time cancellation fee for
Additional POP Collocation Services canceled in the amount
specified in Section 4.4 of this Exhibit.
9. Improvements to Rack Space: In the event CTC desires to make
improvements to the Rack Space which improvements are deemed material
and substantial as reasonably determined by Williams ("Material
Improvements"), CTC shall submit all plans and specifications for such
work to be performed in the Rack Space to Williams for Williams' prior
written approval, which approval shall not be unreasonably withheld or
delayed. No construction may commence until Williams has given its
written approval. CTC agrees that its use or construction of the Rack
Space shall not interfere in any material respect with Williams' use
of its Premises or other tenants' use of their premises in the
building in which the Premises are located.
CTC shall not employ any contractor to perform Material Improvements
unless previously approved in writing by Williams which approval shall
not be unreasonably withheld or delayed (and approved in writing by
the Landlord if required by the lease). CTC and each contractor and
subcontractor participating in performing Material Improvements shall
warrant that such work shall be free from all mechanic's and/or
materialman's liens and free from any and all defects in workmanship
and materials for the period of time which customarily applies in good
contracting practice, but in no event for less than one (1) year after
the acceptance of the work by CTC and Williams. The aforesaid
warranties of each such contractor and subcontractor and CTC shall
include the obligation to repair or replace in a thoroughly first-
class and workmanlike manner all defects in workmanship and materials
without any additional charge. All the Material Improvements shall be
contained in the contracts and subcontracts for performance of CTC's
work and shall be written so that they shall inure to the benefit of
Williams and CTC as their respective interests may appear. Such
warranties shall be so written that they can be directly enforced by
either CTC or Williams, and CTC shall give to Williams any assignment
or other assurance to effectuate the same.
It shall be CTC's responsibility to cause each of CTC's contractors
and subcontractors to maintain continuous protection of the premises
adjacent to the Rack Space in such manner as to reasonably prevent any
damage to such adjacent property by reason of the performance of CTC's
work.
All of CTC's work, to the extent possible without unreasonable delay,
shall be coordinated with all work being performed or to be performed
by Williams and other tenants of the building in which the Premises
are located. The contractor or subcontractor shall not at any time
damage, injure, interfere with or delay the completion of any other
construction within the building; and they and each of them shall
comply with all procedures and regulations prescribed by Williams and
the Landlord of the Premises, to the extent they are made aware of the
same by Williams or Landlord, for integration of CTC's work with the
work to be performed in connection with the construction of the
building, and all other construction within the building which
comprises or contains the Premises.
All fixtures, alterations, additions, repairs, improvements and/or
appurtenances attached to or built into, on or about the Rack Space
prior to or during the applicable Collocation Service Term, whether by
Williams at its expense or at the expense of CTC, or by CTC at its
expense or by previous occupants of the Rack Space, shall be and
remain part of the Rack Space and shall not be removed by CTC at the
end of the Collocation Service Term. Upon termination or expiration
of the Collocation Service Term, Williams shall allow CTC thirty (30)
days from the date of such termination or expiration, at CTC's sole
cost and expense, to remove all trade fixtures (including, but not
limited to, rectifiers/chargers, batteries, AC power conditioning
equipment, telecommunication switching equipment, channel banks, etc.)
installed by CTC provided that the Rack Space is restored by CTC to
its condition before the installation of such items and that all such
work (including restoration) is performed in accordance with the other
provisions of this Exhibit. If CTC shall fail to complete such
removal and restoration within the aforesaid thirty (30) day time
period, all such trade fixtures remaining within the Rack Space or at
the Premises may, at Williams' option, become the sole property of
Williams, and Williams may dispose of such trade fixtures as it deems
appropriate. CTC shall continue to pay the service fees specified
herein or in the relevant Collocation Service Order, as applicable,
until the earliest of: (i) CTC's removal of such trade fixtures and
completion of such restoral, (ii) Williams' taking possession of such
trade fixtures as set forth above, or (iii) the thirtieth (30th) day
from the date of termination or expiration.
All work affecting the Rack Space shall be in compliance with all
applicable laws, ordinances, rules, regulations, orders and directives
of governmental and quasi-governmental bodies and authorities having
jurisdiction over the Premises and the Rack Space from time to time
and CTC shall obtain and keep in effect all licenses, permits and
other authorizations required with respect to the business conducted
by CTC within the Rack Space.
10. Sole Use of Rack Space by CTC: CTC acknowledges that it has been
granted only a license to occupy the Rack Space and that it has not
been granted any real property interests in the Rack Space. CTC
further agrees that neither this Exhibit nor any interest created
herein shall be assigned, mortgaged, subleased, encumbered or
otherwise transferred, and that neither the Rack Space nor any part
thereof shall be encumbered in any manner by reason of any act or
omission on the part of CTC. CTC further agrees that the Rack Space
or any part thereof shall not be used or occupied, nor permitted to be
used or occupied, by anyone other than CTC. Any attempt to allow the
use or occupation of the Rack Space by anyone other than CTC, or to
assign, mortgage, sublease or encumber any rights under this Exhibit
by CTC shall, unless otherwise agreed to in writing by Williams, be
void. In such event and in addition to any other remedies set forth
in the Agreement or the Carrier Services Agreement, subject to
applicable cure periods set forth therein, Williams shall have the
right to terminate this Exhibit as to any or all the affected Rack
Space occupied by CTC. Williams' agreement to any of these
arrangements shall be in the sole discretion of Williams. CTC's right
to access the POPs in which POP Collocation Services are provided
shall be subject to Williams' standard rules and regulations, as now
or hereafter adopted or amended, applicable to Williams' collocation
customers in such POPs copies of which have been provided to CTC. Upon
any revision to such standard rules and regulations, Williams shall
provide a new copy to CTC in a reasonably prompt manner.
11. Eminent Domain: In the event of a taking by eminent domain (or
a conveyance by any Landlord of all or any portion of the
Premises to an entity having the power of eminent domain after
receipt of actual notice of the threat of such taking) of all or
any portion of the Premises so as to prevent or impair, in
Williams' reasonable discretion, the utilization by CTC of the
Rack Space in the Premises, the POP Collocation Services and
license granted hereunder or the relevant Collocation Service
Order(s) shall terminate as of the date of such taking or
conveyance with respect to the Rack Space which is affected by
such taking or conveyance and the service fees paid or to be paid
by CTC shall be reduced accordingly. Except as set forth below,
CTC shall have no claim against Williams for the value of the
unexpired Collocation Service Term of the Rack Space affected
thereby (or any portion thereof) or any claim or right to any
portion of the amount that might be awarded to the Landlord of
the Premises or Williams as a result of any such payment for
condemnation or damages except with respect to moving expenses
awarded to Williams where CTC is prohibited from seeking its own
award or the parties agree that Williams shall seek such award on
behalf of itself and CTC in which cases a portion of any award
for moving expenses shall be allocated to CTC based on a fair and
equitable basis agreed to by the parties. Nothing contained in
this Exhibit shall prohibit CTC from seeking any relief or remedy
against the condemning authority in the event of an eminent
domain proceeding or condemnation which affects the Rack Space.
12. Damage to Premises: If the building in which the Premises are
located is damaged by fire or other casualty, Williams shall give
notice to CTC of such damage as quickly as practicable under the
circumstances. If a Landlord or Williams exercises an option to
terminate a particular Lease due to damage or destruction of the
Premises subject to such Lease, or if Williams decides not to
rebuild such building or portion thereof in which the Rack Space
is located, the POP Collocation Service and license granted
hereunder or under the relevant Collocation Service Order(s)
shall terminate as of the date of such exercise or decision as to
the affected Rack Space and the service fees paid by CTC shall be
modified accordingly. If neither the Landlord of the affected
Premises nor Williams exercises the right to terminate, Williams
shall repair the particular Rack Space to substantially the same
condition it was in prior to the damage, completing the same with
reasonable speed. In the event that Williams shall fail to
complete the repair within a reasonable time period, CTC shall
thereupon have the option to terminate relevant POP Collocation
Services with respect to the affected Rack Space, which option
shall be the sole remedy available to CTC against Williams under
this Exhibit relating to such failure. If the Rack Space or any
portion thereof shall be rendered unusable by reason of such
damage, the service fees for such Rack Space shall
proportionately abate, based on the amount of square footage
which is rendered unusable, for the period from the date of such
damage to the date when such damage shall have been repaired for
the portion of the Rack Space rendered unusable.
13. Conduct in Rack Space & Premises: CTC shall abide by Williams'
and applicable Landlord's rules with regard to conduct in the
Premises of which it has been made aware by either Landlord or
Williams. Such rules include, but are not limited to, a
prohibition against smoking in the Rack Space or the Premises by
CTC's employees, agents, representatives, contractors,
subcontractors, invitees or licensees. Further, CTC shall
maintain the Rack Space in a safe condition, including but not
limited to the preclusion of storing combustible materials in the
Rack Space.
Expiration of Collocation Service Term for Short-Term Rack Spaces.*
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
<PAGE> ATTACHMENT I TO EXHIBIT K
TECHNICAL SPECIFICATION FOR POP COLLOCATION SERVICE
1. Williams Network Standards, Descriptions & Tasks
1.1 DC Power
1.1.1 Backup electrical power, including batteries and shared use of
an emergency generator to the extent such generator exists and
is maintained to support the Premises.
1.1.2 DC power adequate for CTC's consumption equated to power
specified in applicable Collocation Service Order. A low-
voltage and high-voltage battery alarm will be monitored by
Williams.
1.1.3 Nominal 50 +/- 6V DC battery and charger supply with a minimum
four (4) hour reserve will be provided by Williams.
1.1.4 Redundant chargers of adequate size will be provided by
Williams, so that in the event of a charger failure the full
load will be supplied to CTC's equipment. A charger failure
alarm will be monitored by Williams.
1.2 AC Power
1.2.1 A 20-amp four-plex AC receptacle will be available within reach
of CTC's Equipment. AC power and outlets for use with test
equipment only and is not provided to operate the Equipment.
This AC power is not provided over an Uninterruptable Power
Source (UPS).
1.2.2 AC power supply to CTC equipment is backed by generator where
available, but is not UPS. This excludes utility outlets
described in the immediately preceding subsection 1.2.1.
1.3 Environmentals
1.3.1 Pre-reaction sprinkler protection, where available. Smoke and
fire alarms monitored by Williams.
1.3.2 Lighting.
1.3.3 Ground Bus and cable interconnect.
1.3.4 Grounding conductor will be supplied by Williams between the
bus bar and CTC's Equipment.
1.3.5 Overhead cable ladder
1.3.6 Interconnect signal and power cabling between Williams and CTC.
1.3.7 Concrete floors will be covered with vinyl tile.
1.3.8 Ambient temperature will be maintained by Williams between 60-
90?F with an objective of 20-65% humidity (Heating, Ventilation
and Air Conditioning equipment capable of maintaining the
foregoing is referred to in this Exhibit as "Basic HVAC").
1.3.9 General and administrative services directly relating to the
provision of the above listed Collocation Services.
2. CTC Standards, Descriptions & Tasks
2.1 Equipment Specifications
2.1.1 The Equipment should be designed to operate satisfactorily
between 60-90?F with 20-65% (non-condensing) humidity. Low 60?
and high 90? temperature alarms will be monitored by Williams.
2.1.2 CTC will ensure that the Equipment and surrounding area do not
pose safety hazards to personnel. This includes exposed AC
electrical hazards, trip and slip hazards, hazardous material
storage deficiencies, improperly secured or overloaded
equipment racks or ladders, inadequate ingress and egress
space. OSHA and local codes will apply.
2.1.3 CTC will notify Williams of any significant Equipment additions
or deletions (i.e. shelf or rack). Installation and removals
will be coordinated with local Williams' management who shall
reasonably cooperate with CTC.
2.2 Rack Space Specifications
2.2.1 CTC will not jeopardize Collocation Service or damage property
of other collocated customers, Williams, or Landlord in any
manner.
2.2.2 CTC will take reasonable precautions to protect Williams' and
Landlord's common facility and nearby equipment belonging to
other customers. This includes floor, wall, and
telecommunication equipment protection while moving Equipment
and notifying Williams of any major rearrangements of
Equipment, drilling, power work, and similar potentially
disruptive work.
2.2.3 CTC will follow good cleanliness practices. All trash must be
disposed of daily at CTC's expense. Any trash or empty boxes
not disposed of by CTC is subject to removal by Williams with
any associated charges borne by CTC.
2.2.4 Nothing may be stored outside of the assigned rack space. A
minimum of 2.5' of aisle space must be maintained at front and
rear of Equipment.
2.2.5 No metal ladders, stools, or chairs may be used.
2.2.6 Combustible or hazardous material may not be stored in the
area.
2.2.7 All Equipment must be installed within the assigned rack
footprint (i.e. UPS units, spare equipment).
2.2.8 All cabling will be terminated on DSX panels in the Williams
common area. Fiber will be terminated on an appropriate Fiber
Distribution Panel ("FDP"). Any panels for CTC end will be
supplied at CTC's Cost.
2.2.9 CTC is responsible for the termination of the A & B DC power
and signal cabling in its Equipment.
2.2.10 Maximum DC power provided to CTC as A & B power shall be rated
for the rating of a single feed. CTC is liable for an outage
caused primarily by the DC power exceeding the single feed
rating. CTC will be responsible for payment of consumed power
exceeding the single feed rating specified in the Collocation
Service Order.
2.2.11 CTC will follow normal telecommunications industry standards
with regards to equipment installation and removal in a central
office environment. Williams standards are to be followed for
connection of cables that interface with Williams to the extent
CTC is made aware of such standards. All installations are
subject to approval by Williams.
2.2.12 Permanent use of extension cords is not allowed.
2.2.13 All applicable local, state, and federal laws will be obeyed.
Local requirements for union labor, especially for AC
electrical work, will be observed to the extent applicable.
Building management guidelines will be followed to the extent
CTC is made aware of the same by Williams or the Landlord.
2.2.14 If Williams notifies CTC in writing of a violation of the above
rules, or any other unsafe or unacceptable situation or
practice, CTC must correct the problem or provide a written
plan for correction to Williams' reasonable satisfaction and
proposed completion date within seven (7) banking days. In the
event the problem does not pose a material threat of adverse
consequences to the operations of Williams or third parties
within the POP, as determined in Williams reasonable
discretion, then Williams shall agree to allow completion of
the correction within thirty (30) days after receiving CTC's
written plan. Otherwise, corrections must be completed within
seven (7) banking days after receipt of the plan. If the
problem is not resolved within the applicable time period, then
Williams will have the option of either (i) correcting the
problem at CTC's expense, or (ii) terminating the applicable
Collocation Service Order and disconnecting power and signal
connections from CTC's Equipment.
Extreme safety violations are subject to immediate correction
by Williams without prior notice to CTC. Corrections made by
Williams shall be at CTC's sole Cost. Williams shall invoice
CTC for such Costs which invoice shall be paid by CTC within
thirty (30) days after receipt.
2.3 Access to POPs.
2.3.1 Twenty-Four Hour Access. Subject to the requirements of this
Exhibit B-2, CTC shall have access to its POP Equipment 24
hours a day, 7 days per week.
2.3.2 Compliance with Sign-In Procedures. CTC shall follow
Williams' sign-in procedures at all times to the extent it has
been made aware of such procedures. CTC must coordinate its
first visit to a particular Williams site with Williams'
Network Control Center at (800) 582-9069 giving at least five
(5) business days notice of such visit. For all subsequent
entries, CTC shall follow the procedure set forth in this
Section 2.3 of this Exhibit.
2.3.3 Certification of CTC Employees and Contractors. Only CTC
employees and CTC contractors certified by Williams shall
enter POP Collocation Sites unescorted. Williams shall grant
certification to a CTC employee or contractor if CTC
demonstrates that such employee or contractor has sufficient
knowledge and experience in the installation and maintenance
of telecommunications equipment. In addition to the
provisions of Section 2.3.5, each certified employee or
contractor shall abide by Williams' POP Maintenance and Safety
Manual, as updated from time-to-time to the extent it has been
made aware of such updates. Williams shall provide CTC with a
copy of its POP Maintenance and Safety Manual and any updates
thereto. The parties acknowledge that as of the Effective
Date, CTC has not been provided with a copy of such manual
which is currently being developed by Williams. The manual
shall contain Williams' access policy, safety, engineering,
and equipment installation standards which Williams agrees
shall not be materially inconsistent with the terms of this
Exhibit or the Agreement except with respect to provisions
adopted or amended after the date hereof to address bona fide
operational or safety issues relating to the operation,
maintenance, repair of the System or Williams' associated
facilities. CTC, in turn, shall supply each employee or
contractor that seeks certification with a copy of the manual
provided by Williams and, subsequent to certification, with
any updates thereto which have been provided to CTC by
Williams. Until such time as Williams provides the manual to
CTC, certified CTC employees and CTC contractors shall conduct
activities on Premises in accordance with telecommunications
industry practices. The procedures for certification are as
follows:
(i) CTC's single point of contact, discussed below in
Section 2.3.4, shall contact Williams' Network Control
Center at (800) 348-6925 (alternate number (800) 582-
9069) to seek certification for a CTC employee.
Employee applicants shall be deemed certified 72 hours
after Williams receives all requested qualification
information, unless Williams notifies CTC's single point
of contact that more information is reasonably required
or that the applicant is denied certification in
Williams' reasonable discretion.
(ii) For each CTC contractor that seeks certification, CTC
shall provide Williams' Network Control Center with a
letter of authorization signed by CTC and the
contractor. At a minimum, the letter of authorization
shall state that the contractor is an agent of CTC for
the purpose of installing, maintaining or repairing CTC
Equipment or for other purposes specified by CTC in the
letter, set forth the names of contractor's employees
for which CTC seeks certification, and contain a
statement that the contractor has received a copy of
Williams' POP Maintenance and Safety Manual and the
contractor agrees to abide by the reasonable policies
contained therein and to those contained in any updated
manuals provided to CTC by Williams. If CTC has not
received a copy of Williams' POP Maintenance and Safety
Manual by the time it submits a letter of authorization,
the contractor shall state in the letter that it will
abide by the policies and rules contained in the manual
when it is provided. CTC contractors shall be deemed
certified 72 hours after the latter of Williams' receipt
of the letter of authorization or Williams' receipt of
all additional requested qualification information,
unless Williams notifies the applicant that more
information is reasonably required or that the applicant
is denied certification in Williams reasonable
discretion.
Once certified, CTC's employees or contractors must call
Williams' Network Control Center at (800) 348-6925 (alternate
number (800) 582-9069) prior to entering or exiting the Space.
CTC shall provide Williams' Network Control Center with a list
of "certified" employees or contractors that have passed
Williams' certification process. It shall be CTC's duty to
notify Williams of any changes in CTC's list of certified
employees and contractors or if a certified CTC employee or
contractor leaves CTC's or the contractor's employ. CTC shall
not be charged for Williams' review and certification of CTC
employees and contractors as described in this Subsection
2.3.3.
2.3.4 Single Point of Contact. CTC's single point of contact for
all future communications regarding common and JUCA space
shall be its Network Control Center at (800) 883-6900 which
shall be available twenty-four (24) hours a day, seven (7)
days a week. CTC's Network Control Center shall be
responsible for distributing information to CTC's certified
employees and contractors. Williams shall have no obligation
to provide information regarding JUCA space to any technician
other than the aforementioned single point of contact.
2.3.5 Security. CTC shall abide by Williams' reasonable security
requirements to the extent CTC has been made aware of the
same. When Williams' reasonable security requirements have
been met, CTC employees, customers, contractors, or
representatives shall be issued passes or visitor
identification cards which must be presented upon request
before entry to any Williams' POP. Such passes or other
identification shall be issued only to persons meeting any
reasonable security criteria applicable at the relevant POP
for such purpose. Williams shall provide CTC's single point of
contact, discussed in Section 2.3.4, with the access devices
(e.g., access codes, card keys, keys, visitor identification
cards) necessary for CTC's certified employees and contractors
to gain access to CTC Equipment in JUCA space within each POP.
CTC's single point of contact shall be responsible for
distributing access devices to CTC's employees and contractors
certified pursuant to Section 2.3.3 and shall distribute
access devices only to such persons. Access devices will be
provided by Williams to CTC with Williams' reasonable, actual
costs thereof to be reimbursed by CTC within thirty (30) days
after receipt of an invoice therefor. CTC's certified
employees and contractors shall not disseminate access codes
or devices to any other person. Subject to Section 15.1 of
the Agreement, CTC shall be liable for any losses caused by
use or misuse of such access devices and shall surrender
access devices upon demand for cause or upon termination of
the Agreement. CTC acknowledges that third parties will have
access to the JUCA or common space in which CTC's Rack Spaces
are located and agrees that Williams shall in no event be
liable for the acts or omissions of such third parties so long
as Williams follows its standard security and certification
procedures.
2.3.6 Right to Terminate Individual's Access. Notwithstanding any
other provision of these Collocation Provisions, Williams
shall, without threat of liability, have the right to
immediately terminate the right of access of any CTC personnel
or representative should it determine in its sole and
reasonable discretion for any lawful reason that termination
of such access poses a threat to the System, POP or facilities
or equipment therein. Williams shall promptly notify CTC of
any such termination, and CTC shall have a reasonable
opportunity to demonstrate that the terminated rights of
access should be reinstated. Any termination of a specific
individual's access shall remain in effect pending Williams'
final determination as to the advisability of such
reinstatement.
2.3.7 Escort Requirement. CTC shall not enter any part of the
Premises, other than JUCA Space pursuant to Section 2.3.3,
without a Williams' escort. CTC shall request and pay for
such escort pursuant to Williams' procedures. Williams shall
use commercially reasonable efforts to provide such escort
within 72 hours of CTC's request (or at its option shall waive
the escort requirement on a case-by-case basis). Williams
acknowledges its obligations to respond to emergency
maintenance situations affecting the CTC Fibers within the
time periods set forth in Section 3.A. of Exhibit E. In
addition, Williams agrees that it shall make commercially
reasonable efforts to provide CTC access to such areas as soon
as reasonably possible where expedited access is reasonably
necessary to prevent or address service affecting situations
not covered by Williams' performance of maintenance under
Exhibit E.
2.3.8 Emergency Situations. Williams may temporarily prohibit or
restrict CTC's access to its JUCA Space in the event of a bona
fide emergency situation. After the emergency situation has
passed, Williams will again allow CTC access to its JUCA Space
pursuant to the terms and conditions herein.
2.3.9 Subcontractors. For purposes of this Section 2.3 of this
Exhibit, the word "contractor" shall also include
subcontractors of CTC.
ATTACHMENT II TO EXHIBIT K
Reference Number _____________________________________
new _
disc _
sup _ cancel
_
change?
WILLIAMS COLLOCATION SERVICE REQUEST
Customer Information
Customer Name
Customer Address street
city state zip
Customer Technical Contact
Phone:
Premises Information
Premises requested
Requested Collocation Effective Date
Term _ 1 Yr _ 3 Yr _ 5 Yr
Floor Space Requirements
Cabinets or Racks Quantity Rack Size Wx
Dx H
Williams provided Racks _ Y _ N
Special Rack Spacing (std at 5")
Caged Space _ Y _ N
Power Requirements
DC Amp Total (per Rack _ Y _ N) AC Amp Total
(per Rack _ Y _ N)
# feeds (A&B=1)
Equipment Listing
Circuit Requirements
Type of Connection: ABAM/ Coax/ Fiber Quantity
Future Quantity
Coax qty pr. (# DS3 connects from collocate into network)
ABAM/Coax/Fiber Termination Location(s) (DSX or similar port assignments)
Williams Network Revenue $ Term
(Commitment per Month)
Preferred Local Access Vendor Bandwidth
Comments
Sales Authorizing Signature Customer Authorizing
Signature
By: By:
Print Name: ________________________________
Print Name: __________________________________
Title Title
Company Company
Date Date
Network Services comments
ATTACHMENT III TO EXHIBIT K
WILLIAMS COLLOCATION SERVICE ORDER
order number
new _ add _
change_ cancel _
Customer
Collocation
Premises
Collocation Effective Date
Term _ 1Yr _ 3Yr _ 5 Yr
# Racks Rack Size W x D x H
Williams provided Racks Y _ N _
DC Amp Total (per Rack Y__ N__) AC Amp Total
(per Rack Y__ N__)
# feeds (A&B=1)
Coax qty pr. (# DS3 connects from collocate into network)
Coax/Fiber Termination Location(s) (DSX or similar port
assignments)
Preferred Local Access Vendor Bandwidth
Comments
Sales Representative
24 Hour Technical Assistance 1-800-582-9069
POP Technician (name)
POP Technician (phone)
Customer Contact (name)
Customer Contact (phone)
Pricing
Service Fee (MRC) $
Installation (NRC) $
Build Out (NRC) $
Ancillary $
TERMS AND CONDITIONS OF THIS ORDER
Pricing is valid for 30 days from issue date.
This order will not be fully executed until the customer's credit has been
approved.
All service is provided in accordance with Customer' Carrier Services
Agreement, or if no agreement exists
between Williams and Customer, then Williams' standard terms and
conditions, and any applicable Williams tariff.
Services provided contingent upon network minimums stated in Customer'
Carrier Services Agreement.
By: By: By:
Engineering Authorizing Signature Marketing Authorizing
Signature Customer Authorizing Signature
Print Name Print Name Print Name
Title Title Title
Date Date Date
EXHIBIT L
INTERCONNECTIONS
1. Interconnection Points
A. Permitted Connecting Points. CTC may request that Williams
establish Connecting Points with other telecommunications facilities
("Interconnect Facilities") at Williams' standard rates, at (i) fiber
distribution panels at the Cable end points (See Attachments 2, 5, 6 and 7),
(ii) fiber distribution panels at Transmission Sites (See Attachment 3), or
(iii) at particular agreed to splice points in meet me vaults subject to the
terms and conditions of Attachment 1 to this Exhibit L ((i), (ii) and (iii)
collectively, "Connecting Points"). CTC shall have no right to establish any
connection to the System other than at such locations. Any splice described
in clause (iii) above established hereunder shall be referred to herein as a
"CTC Splice".
B. No CTC Access to Cable. CTC shall have no right to access any
Fibers within the Cable or to enter any splice or Williams vault.
2. Requests for Interconnections
A. Connection Requests. CTC shall provide Williams at least thirty
(30) days' notice (the "Interconnect Notice") of the date it requests that a
connection be completed or sixty (60) days' notice if the connection requires
installation of CTC Equipment at a Transmission Site or POP. The Interconnect
Notice shall set forth a description of the work required to be performed
including:
(i) the connection location (which shall be at a permitted Connecting
Point as set forth in Subsection 1.A of this Exhibit);
(ii) a copy of CTC's construction design drawings including a diagram
of the desired location of the Interconnect Facilities and CTC
Equipment;
(iii) identification of all Interconnect Facilities and CTC Equipment
to be installed;
(iv) CTC's requested installation schedule;
(v) any excess cable storage requirements;
(vi) the space, power, environmental and other requirements for the
Interconnect Facilities and CTC Equipment;
(vii) the estimated in-service and termination dates for the
interconnection; and
(vii) all other information reasonably required by Williams.
B. Response to Requests. Within twenty-one (21) days of receiving
the Interconnect Notice, Williams shall respond with its acceptance or
objections to the proposed interconnection. Williams shall use commercially
reasonable efforts to accommodate the request, but may restrict such work to
the planned system work periods set forth in Exhibit G. Williams may decline
to make a requested connection if Williams determines, in its reasonable
discretion, that there is a significant likelihood that (i) CTC's use of a
proposed connection would cause a material and adverse effect on the System
or the use thereof; (ii) use of a particular location will cause a
significant technical impediment; or (iii) the making or existence of the
connection presents an unreasonable risk of creating an interruption of
transmission.
3. Demarcation and Ownership
A. Demarcation Points. Williams shall designate an installation
demarcation point and a maintenance demarcation point (which may be a
different point) for each interconnection in order to safeguard and maintain
sole control over the System. Installation demarcation points may differ
from maintenance demarcation points due to Williams' agreement to install a
portion of CTC's interconnection facilities in areas where CTC is responsible
for maintenance thereof under the terms of the Agreement and/or this Exhibit
(e.g. off of Williams' right-of-way or other property or inside of the
Williams' facility between the FDP and the CTC Equipment) as mutually agreed
upon by the parties. Williams shall perform all installation work on
facilities on its side of the installation demarcation point and shall
perform all post-installation work on facilities on its side of the
maintenance demarcation point. CTC shall pay the Costs of such installation
and post-installation work as set forth in this Exhibit. Installation by
Williams of the Interconnect Facility shall extend no further than the
boundary of Williams' right-of-way or other property as illustrated on
Attachment 8 to this Exhibit unless otherwise mutually agreed to by the
parties.
B. Ownership. CTC shall retain ownership of Interconnect Facilities
during the Term. At the end of the Term, title to any portion of an
Interconnect Facility located on Transmission Sites or other Williams
premises or right-of-way shall pass to Williams unless otherwise mutually
agreed by the parties.
4. Installation of Interconnect Facilities
A. Spur Cable. CTC shall, prior to the requested connection date,
provide a spur cable adequate to reach the Connecting Point with an
additional length (minimum 25 meters) sufficient for Williams to perform
splicing.
B. Rights of Way and Equipment. CTC shall provide, at its sole cost
and expense, any and all necessary rights of way, permits, access rights, and
any required consents or authorizations, and Williams-approved materials and
equipment which shall be similar to Williams equipment currently in place
(including cables and conduit) necessary for the construction, use,
operation, maintenance and repair of each Interconnect Facility. If
necessary, and where applicable, Williams shall assist CTC, at CTC's expense,
in obtaining from any third-party building owner or Williams' lessor access
to existing building entrance facilities, if available, to access and exit
Transmission Sites. Otherwise, CTC shall be solely responsible for obtaining
all necessary rights for the Interconnect Facility, as described in the first
sentence of this Subsection and Williams does not make and hereby disclaims
any warranties or representations that such rights are available at any
particular location or regarding the cost or attainability of such rights.
5. Maintenance of Interconnect Facilities
A. Maintenance and Changes. CTC shall provide all maintenance and
repair of the Interconnect Facility on CTC's side of the maintenance
demarcation point. Any improvement, modification, addition to, relocation,
or removal of, the Interconnect Facility by CTC at Transmission Sites or
other Williams premises shall be subject to Williams' prior review and
written approval, which shall not be unreasonably withheld or delayed, and
shall be performed by Williams to the extent required work is on Williams'
side of the applicable demarcation point. CTC shall pay the Cost of such
improvement, modification, addition to, relocation, or removal of, the
Interconnect Facility and of the Cost of repairing any damage directly due to
CTC's actions. Williams' maintenance responsibility shall be limited to the
Interconnect Facilities on its side of the maintenance demarcation point and
the associated cross connect or other connection at that point.
B. Unusual Costs. Williams may require CTC to pay additional Costs
incurred in maintaining any connection that presents unusual problems of
access for Williams. In the event such problems are present, Williams shall
notify CTC and the parties shall make commercially reasonable efforts to work
together to minimize the access problems and the Costs to be charged to CTC
hereunder.
C. Standards. CTC shall (except to the extent Williams has
installation or maintenance responsibility) ensure that any Interconnect
Facilities are installed, operated, and maintained to meet or exceed any
reasonable requirements of Williams of which CTC is made aware, any
requirements of Williams' building management or insurance underwriters of
which CTC is made aware, and any applicable local, state and federal codes
and public health and safety laws and regulations (including fire regulations
and the National Electric Code).
6. Additional Provisions Applicable to Transmission Sites and POPs*
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
Attachment 1 to Exhibit L
Requirements Applicable to CTC Splices (As Defined in Section 1(A)(iii) of
Exhibit L)
A. At any time there is cable activity (including without limitation, initial
installation of the CTC Splice, repair of cable cuts or other cable
damage, and relocation of cable) on the span (the "Spliced Span") where
the CTC Splice is located, CTC shall (a) provide Williams access to CTC's
fiber distribution panels ("FDPs") to conduct bi-directional testing of
the Spliced Span and (b) upon reasonable prior notice from Williams
(written, oral, or electronic) promptly provide a trained and qualified
technician with an optical time-domain reflectometer (OTDR) at its FDP to
aid in the cable activity. If CTC cannot provide the technician and OTDR
then CTC shall provide Williams access to CTC's FDP for the duration of
the cable activity.
B. Williams shall perform all splicing activity at the CTC Splice point.
C. Williams' Network Control Center (NCC) shall remain the central point of
contact, and shall control all cable activity.
D. Williams shall be relieved from any obligations in the Agreement or
otherwise to restore or maintain the CTC Fibers to the extent the
existence of the CTC Splice interferes with or increases the time for
performing such obligations.
E. During a cable emergency situation in which Williams requires access to
CTC's FDP or other facilities because of the CTC Splice, Williams shall
make reasonable efforts to coordinate with CTC's technician. If CTC's
technician is not on site and available to work with the Williams
technicians, then Williams shall proceed with "blind" fiber splicing of
the CTC's Fibers (i.e., splicing without the ability to test the Spliced
Span). Williams may defer blind splicing until all other fibers in the
damaged cable are spliced.
F. The Agreement does not provide for fiber rolls to dark fiber to restore
CTC's service. However, if Williams does elect to provide fiber rolls, it
may elect not to allow fiber rolls on the Spliced Span.
G. If CTC reports a damaged fiber on the Spliced Span and Williams is not
aware of any continuity problems on its System, CTC shall have the burden
of demonstrating that the problem is a result of damage to a CTC Fiber.
CTC must use an OTDR to demonstrate that the problem is not a result of
conditions off the System and beyond the CTC Splice point.
H. The provisions of Paragraphs D, F, and G and the provisions of Paragraph E
relating to blind splices shall apply (i) only to the CTC Fibers having a
mid-span interconnection CTC Splice and (ii) only to the extent such CTC
fibers are on a Spliced Span.
I. CTC may only have Williams perform a mid-span interconnection CTC Splice
at existing Williams splice points and then only with Williams' prior
written consent.
J. Williams is not obligated to perform any maintenance, repair, or
restoration on the CTC interconnection beyond the CTC Splice.
Attachment 2 to Exhibit L
Williams POP Site Collocation Logical Wiring Diagram*
Attachment 3 to Exhibit L
Williams Transmission Site Collocation Logical Wiring Diagram*
Attachment 4 to Exhibit L
Williams POP Site Collocation with Metro Ring Logical Wiring Diagram*
Attachment 5 to Exhibit L
Williams POP Site Collocation with expansion in the same building Logical
Wiring Diagram*
Attachment 6 to Exhibit L
Alternate Vendor Collation in same building Logical Wiring Diagram*
Attachment 7 to Exhibit L
Interconnection without Collocation at POP site Logical Wiring Diagram*
Attachment 8 to Exhibit L
Interconnection without Collocation at Transmission site Logical Wiring
Diagram.*
*THESE ATTACHMENTS 2 THROUGH 8 HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
COMMISSION.
EXHIBIT 10.2
NOTE: PORTIONS OF THIS EXHIBIT (MARKED WITH AN ASKERISK) HAVE BEEN OMITTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT)
Agreement No. _________
CARRIER SERVICES AGREEMENT
THIS CARRIER SERVICES AGREEMENT (this "Agreement") is made as of
this 31st day of March, 2000 the ("Effective Date"), by and between
WILLIAMS COMMUNICATIONS, INC., a Delaware corporation ("Williams"), and
CTC COMMUNICATIONS CORP., a Delaware corporation ("CTC").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Telecommunications Facilities and
Services Agreement entered into between the parties on even date herewith
(the "Master Agreement"), CTC and Williams have agreed to enter into this
Agreement under which CTC may order and purchase from Williams, and
Williams shall sell to CTC, telecommunications services over Williams'
network as hereafter described for the consideration and upon the terms
and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual promises set forth
below, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I tc "ARTICLE I " \l 5
EXHIBITS tc "EXHIBITS " \l 5
The following are attached hereto as Exhibits to this Agreement:
Exhibit A - Williams Network Pricing Schedule
Exhibit B - Williams Network Technical Specifications
Exhibit C - Williams' Current On-Net POPs
ARTICLE II tc "ARTICLE II " \l 5
DEFINITIONS tc "DEFINITIONS " \l 5
Where capitalized, the following words and phrases in this Agreement
shall be defined as follows:
"Actual Start Date" shall have the definition set forth in Section
5.5.
"Additional Charges" shall have the definition set forth in Section
8.1.
"Affiliate" means, with respect to any entity, any other entity
controlling, controlled by or under common control with such entity,
whether directly or indirectly through one or more intermediaries.
"Control" and its derivatives mean legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty percent (50%) of the
outstanding voting capital stock (or other ownership interest, if not a
corporation) of an entity, or management or operational control over such
entity.
"Ancillary Services" shall have the definition set forth in Section
7.1.
"Balance" shall have the definition set forth in Section 8.1.
"Circuit" means a communications path with a specified bandwidth.
"Collocation Service" shall have the definition set forth in Section
3.3(b).
"CTC Equipment Inventory" shall have the definition set forth in
Section 12.1.
"CTC Facilities" shall have the definition set forth in Section
9.11.
"Due Date" shall have the definition set forth in Section 8.1.
"FCC" means the United States Federal Communications Commission and
any successor federal agency having jurisdiction over the provision of
telecommunications services.
"Initial Term" shall have the definition set forth in Article IV.
"Interim Agreement" means that certain Interim Carrier Services and
Provisioning Agreement previously entered into between the parties hereto
as of January 20, 2000.
"IRU Agreement" means that certain Dark Fiber IRU Agreement entered
into by and between the parties on even date herewith pursuant to the
Master Agreement.
"Local Access Services" shall have the definition set forth in
Section 6.1.
"Network Segment" means a portion of the Williams Network between
two (2) Williams POPs over which On-Net telecommunications services are
available and/or provided.
"On-Net" means a Circuit traversing the Williams Network between two
(2) Williams POPs.
"Outage" shall have the definition set forth in Section
9.1(a).
"Outage Credit" shall have the definition set forth in
Section 9.1(a).
"POPs" shall mean Williams' current designated On-Net
points of presence on the Williams Network as listed on
Exhibit C, as may be hereafter updated or changed from time to
time.
"Private Line Service" shall have the definition set forth in
Section 3.3(a).
"Proceedings" shall have the definition set forth in Section 12.9.
"Providers" shall have the definition set forth in Section 9.4.
"Renewal Term(s)" shall have the definition set forth in
Article IV.
"Representative(s)" shall have the definition set forth in Section
10.1.
"Requested Start Date" shall have the definition set forth in
Section 5.2.
"Restricted Fibers" shall have the definition set forth in Section
9.8.
"Service Order(s)" shall have the definition set forth in Section
5.1.
"Services" means the Private Line Services, Collocation Services,
Local Access Services and/or Ancillary Services, collectively.
"Start of Service Notice or "SOSN" shall have the definition set
forth in Section 5.5.
"Term" means the Initial Term and any Renewal Term(s) of this
Agreement as defined in Article IV.
"Transmission Sites" shall mean Williams' optical amplifier and
regenerator stations, or junctions, along the Route.
"Williams Network" means the telecommunications facilities owned
and/or operated by Williams which will be used to provide On-Net
Telecommunications Services to CTC hereunder.
ARTICLE III tc "ARTICLE III " \l 5
DESCRIPTION OF SERVICES AND PRICING tc "DESCRIPTION OF SERVICES AND
PRICING " \l 5
3.1 Interim Agreement. The parties acknowledge the Interim
Agreement and hereby agree that any Service Orders placed by CTC and
accepted by Williams under the terms thereof shall continue for the term
specified in such Service Orders and shall be subject to all terms and
conditions of this Agreement effective retroactively to the date such
Service Orders were accepted by Williams under the Interim Agreement. Any
Service Orders submitted by CTC under the Interim Agreement but not
accepted by Williams as of the Effective Date of this Agreement shall be
deemed submitted under the terms of this Agreement and subject to all
terms and conditions hereof. Notwithstanding the foregoing, the parties
acknowledge and agree that Collocation Service Orders submitted under the
Interim Agreement shall not be subject to this Agreement but rather shall
be governed by the terms of the IRU Agreement as specified in Exhibit K
thereof.
3.2 Additional Services. In addition to Interim Services, CTC
may order additional Services from Williams over any Network Segment of
the Williams Network on the terms and conditions set forth in this
Agreement and at Williams' rates agreed upon in the applicable Service
Order. The current Williams Network Pricing Schedule, which may be
changed from time to time during the Term of this Agreement, is attached
to this Agreement and incorporated herein by reference. All Services
ordered by CTC are subject to availability at the time of such order as
determined in Williams sole discretion. Williams shall use commercially
reasonable efforts to provide Services ordered by CTC upon mutually
agreeable terms and conditions. All Services described hereunder refer
only to On-Net Services unless otherwise specifically noted herein.
Availability of any off-net service requested by CTC shall be determined
on a case by case basis and the pricing, terms and conditions governing
the arrangement of such off-net services shall be those of the third party
provider of such services, which terms and conditions must be acceptable
to CTC and Williams. The general provisions of this Agreement, including
limitation of liability and indemnity, are applicable to Williams'
arrangement of any such off-net, third party provided services. The
"Monthly Recurring Charges" for any Services provided to CTC hereunder as
set forth and described in Exhibit A shall be payable within thirty (30)
days after receipt of Williams' invoice therefor. After the Actual Start
Date for any Services provided hereunder, Williams shall send an invoice
to CTC for the month in which the Actual Start Date occurs, as prorated
for the days remaining in such month after the Actual Start Date, and for
the calendar month following the month in which the Actual Start Date
occurs. Thereafter, Williams shall send monthly invoices for the above
charges in advance of each calendar month during the term of the
applicable Service Order. All "Non-Recurring Charges" described in
Exhibit A or otherwise under this Agreement applicable to said Services
shall be payable by CTC in accordance with the terms of Article VIII
below.
3.3 Description of Services. In addition to Local Access Services
and Ancillary Services, Services offered or to be offered under this
Agreement by Williams to CTC over the Williams Network include the
following:
(a) Private Line Service: Williams Network Private Line Service
(the "Private Line Service") provides domestic DS-1, DS-3 and
optical SONET (OC-N) Circuits which are specifically dedicated
to CTC's use between two (2) points specified by the parties
in a Service Order and meeting the technical requirements as
defined in the "Williams Network Technical Specifications for
Private Line Service" attached hereto as Exhibit B.
(b) Collocation Service: The parties acknowledge that pursuant to
the IRU Agreement, Williams has granted CTC collocation rights
in certain of Williams' POPs and Transmission Sites which IRU
Agreement shall control CTC's collocation of the covered
facilities. In the event CTC should desire to place CTC owned
(or leased) equipment in any other facility owned (or leased)
and operated by Williams for the purpose of interconnecting
CTC owned (or leased) equipment with the Williams Network
("Collocation Service"), CTC shall complete and execute a
collocate request using the form included in Exhibit K of the
IRU Agreement. Upon agreement between CTC and Williams of the
Collocation Services to be provided, the parties shall
complete a Collocation Service Order pursuant to said Exhibit
K. The terms and conditions relating to Collocation Service
and the forms required from CTC shall be as set forth in
Exhibit K of the IRU Agreement, which Exhibit is hereby
incorporated herein by reference.
Other On-Net telecommunications services also provided over
the Williams Network include, without limitation, asynchronous
transfer mode service, frame relay services and optical wave
services. In the event that CTC desires to order any such
services from Williams after the date of this Agreement, the
parties shall enter into a separate agreement or addendum to
this Agreement under which such services may be ordered by CTC
upon mutually agreeable terms and conditions.
ARTICLE IV tc "ARTICLE IV " \l 5
EFFECTIVE DATE AND TERM tc "EFFECTIVE DATE AND TERM " \l 5
This Agreement shall be effective on the Effective Date and shall
continue for an initial term of five (5) years (the "Initial Term").
Thereafter, this Agreement shall automatically renew for successive one-year
periods (the "Renewal Term(s)") (the Initial Term and Renewal Term(s)
collectively referred to herein as the "Term") unless canceled by either
party by giving written notice of such cancellation not less than sixty (60)
days before the end of the Initial Term or then current Renewal Term.
Notwithstanding the foregoing, the term applicable to specific Services
ordered by CTC hereunder shall be specified in each Service Order. Unless
CTC is in default beyond any applicable cure period, any Services being
provided at the time of termination of this Agreement shall continue until
expiration of the term specified in the applicable Service Order upon the
terms and conditions of this Agreement; provided, however, that CTC may not
order any new Services until CTC and Williams have entered into a new
agreement or mutually agreed in writing to extend this Agreement. The
charges for any Services during any such extension shall be as agreed in the
applicable Service Orders.
ARTICLE V tc "ARTICLE V " \l 5
SERVICE ORDERS AND PROVISIONING OF CIRCUITS tc "SERVICE ORDERS AND
PROVISIONING OF CIRCUITS " \l 5
5.1 Services shall be requested by CTC on Williams' service order
forms in effect from time to time or on CTC's forms if approved in advance
by Williams, which approval shall not be unreasonably withheld or delayed
("Service Order(s)"). Each Service Order shall reference this Agreement
and the Agreement number set forth at the top of page 1. Williams'
acceptance of a submitted Service Order shall be indicated by either the
signature of an authorized representative of Williams' Customer Care
Department or by CTC's receipt of Williams' standard "Order Confirmation
Document" via Internet electronic mail. Williams reserves the right not
to accept a Service Order under this Agreement at any time, but agrees
that it will make commercially reasonable efforts to expedite the
processing of Service Orders submitted by CTC. Unless otherwise provided
herein or in the IRU Agreement, in the event Williams has not accepted or
rejected a Service Order submitted by CTC hereunder within fifteen (15)
days after its receipt thereof from CTC, Williams shall be deemed to have
rejected the Service Order.
5.2 When CTC submits a Service Order, CTC will indicate a
requested start date for the Services being ordered, the desired term of
such Services, the type of Services requested, the Network Segments over
which such Services are requested, the applicable bandwidth and any other
information necessary for Williams to provide the Service. The requested
start date specified in any Service Order accepted by Williams is referred
to herein as the "Requested Start Date". Williams will make reasonable
efforts to meet CTC's Requested Start Date. In the event that a Requested
Start Date is altered, CTC's Requested Start Date will be changed to
reflect the number of days of delay or advance, as appropriate.
5.3 This Agreement shall apply to all Services provided by
Williams to CTC during the Term hereof and during the term of any Service
Order previously submitted under the Interim Agreement, whether submitted
and/or accepted pursuant to the Interim Agreement, Service Orders
hereunder or otherwise. All Service Orders accepted by Williams under the
Interim Agreement shall continue hereunder for the term specified in such
Service Orders.
5.4 Williams' standard service implementation interval for
Services provided on the Williams Network after acceptance of a Service
Order by Williams' Customer Care Department is thirty (30) days for POP to
POP DS-1 and DS-3 services, forty-five (45) days for DS-1 and DS-3
services which are ordered in connection with Local Access Services,
forty-five (45) days for POP to POP OC-3 and OC-12 services and ninety
(90) days for POP to POP OC-3 and OC-12 services which are ordered in
connection with Local Access Services, with all other Services determined
on a case-by-case basis. The above-described standard intervals refer
only to services provided by Williams and not to any Local Access Services
ordered in connection therewith. The standard service implementation
interval for Services provided by a third party (e.g. Local Access
Services) and either partially or wholly off of the Williams Network shall
be determined on an individual case basis and approved by CTC. Williams
shall make reasonable efforts to provide the Services within its standard
service implementation interval or on CTC's Requested Start Date. Failure
of Williams to deliver by such dates shall not constitute a default under
this Agreement and Williams shall not be liable to pay to CTC any
penalties or damages for such failure; provided that CTC shall have the
right to terminate the applicable Service Order during the period of any
such delay.
5.5 Services shall begin on the date Williams issues notice that
Services previously ordered under a Service Order are available (the
"Start of Service Notice" or "SOSN"), indicating that the Service has been
tested by Williams in accordance with the procedures set forth in Exhibit
B attached hereto and that the Service meets or exceeds the applicable
technical specifications set forth in Exhibit B (the "Actual Start Date").
If CTC fails to give written notice that the Service is in material non-
compliance with the applicable technical specifications within ten (10)
calendar days after Williams issues the SOSN, CTC shall be deemed to have
accepted such Service and Williams shall begin billing for the Service as
of the Actual Start Date. In the event CTC notifies Williams within the
above 10-calendar day period that a particular Service does not comply
with the applicable technical specifications, Williams shall expeditiously
take such action reasonably necessary to correct such non-compliance.
5.6 The parties may mutually agree to change the Requested Start
Date of a Service Order. In addition, CTC may request a delay in the
Actual Start Date of a Service Order provided that (i) it provides
Williams a written delay request no later than five (5) business days
prior to the Requested Start Date or the delayed Requested Start Date, as
the case may be, and (ii) the aggregate number of the days requested by
such delay request or requests do not exceed thirty (30) calendar days
from the Service Order's original Requested Start Date or mutually agreed
upon changed Requested Start Date.
5.7 Unless acknowledged by Williams as described in the following
sentence, any conflicting, different or additional terms and conditions
contained in CTC's acknowledgment of a Service Order or elsewhere are
objected to by Williams and shall not constitute part of this Agreement.
Unless contained in an amended Service Order signed by an authorized
representative of Williams or in a Williams "Order Confirmation Document"
sent to CTC via Internet electronic mail, no action by Williams
(including, without limitation, provision of Services pursuant to such
Service Order) shall be construed as binding or estopping Williams with
respect to such term or condition.
5.8 Once the Actual Start Date for any ordered Services has passed
and CTC has accepted such Services, so long as such Services are actually
available for use by CTC, CTC must pay for the Services as indicated on
the Service Order through the term indicated on such Service Order and in
accordance with all applicable provisions of this Agreement, regardless of
whether CTC is actually using such Services.
ARTICLE VI tc "ARTICLE VI " \l 5
LOCAL ACCESS SERVICES tc "LOCAL ACCESS SERVICES " \l 5
6.1 Unless the parties otherwise agree pursuant to Section 6.3
below, upon the written request of CTC, Williams shall obtain "Local
Access Services" for CTC, which are defined as the telecommunications
facilities connecting a CTC-designated termination point to a Williams
POP. CTC shall execute a Letter of Agency, on such form as provided by
Williams in form and substance reasonably acceptable to CTC, authorizing
Williams to interact directly with the local access provider(s) to obtain
the Local Access Services. CTC shall have the right to review and approve
the agreement(s) entered into with such provider(s). CTC shall be
responsible for all CTC-approved charges, including without limitation,
monthly charges, usage charges, installation charges, non-recurring
charges, or applicable termination/cancellation liabilities, of the Local
Access provider(s).
6.2 In obtaining Local Access Services, Williams shall be
responsible for provisioning and the initial testing of an interconnection
between the interexchange Service set forth in a Service Order and the
Local Access Services. Williams will coordinate the installation of the
Local Access Services with the interexchange Service being provided by
Williams. Charges to CTC for Local Access Service administered by
Williams on behalf of CTC shall be billed to CTC at the tariff rate of the
Local Access Service provider. If the tariff rate for Local Access
Services is changed by the Local Access Service provider, such rate
changes will be passed through to CTC. CTC may request termination of any
particular Local Access Service in which case CTC shall be solely
responsible for any termination or other fees or charges associated with
such termination.
6.3 CTC may order any Local Access Services directly from
providers which are then currently certified by Williams with respect to
the affected Williams' POP upon obtaining Williams' prior approval, which
approval shall not be unreasonably withheld or delayed and shall be
evidenced by Williams' issuance of an LOA/CFA to CTC. CTC may not order
Local Access Services from any provider which is not certified for the
affected Williams' POP without the prior written consent of Williams,
which consent may be withheld in Williams' sole and absolute discretion.
In such event, CTC shall be the customer of record and shall be billed
directly by the provider of such services and Williams shall not be
responsible for billing any such charges. If CTC orders its own Local
Access Services, CTC shall be responsible for ensuring that such services
are turned up at the same time as the Services being provided by Williams.
In the event the CTC-ordered Local Access Services are not ready at such
time as the Services being provided by Williams, Williams shall
nevertheless have the right to begin billing for such Services as of the
Actual Start Date and CTC shall be liable for payment for such Services as
of such date.
ARTICLE VII tc "ARTICLE VII " \l 5
ANCILLARY SERVICES AND CHARGES tc "ANCILLARY SERVICES AND CHARGES " \l 5
7.1 Williams may provide extraordinary service to CTC for reasons
including but not limited to: (a) CTC's request to expedite Service
availability to a date earlier than Williams' published installation
interval or a previously accepted Requested Start Date; (b) Service
redesign or other activity occasioned by receipt of inaccurate information
from CTC; (c) reinstallation charges following any suspension of the
Service for cause by Williams; (d) CTC's request for use of routes or
facilities other than those selected by Williams for provision of the
Service; and (e) other circumstances in which extraordinary costs and
expenses are generated by CTC and reasonably incurred by Williams
(services under this subsection are collectively referred to herein as
"Ancillary Services"). CTC shall be liable for all charges for any
Ancillary Services provided by Williams, which charges shall be specified
on the applicable Service Order.
7.2 Subject to Section 5.6, if CTC desires to change the Requested
Start Date of a Service Order, other than a request to expedite Services
as set forth above, CTC may be charged a change of service date charge.
Such charge will not apply to CTC's first change request, as long as such
request is made more than fifteen (15) business days prior to the original
Requested Start Date or is a mutually agreed upon changed Requested Start
Date. If CTC requests a second change, or such change is requested less
than fifteen (15) days prior to the original Requested Start Date or
mutually agreed upon changed Requested Start Date, as applicable, CTC will
be charged Williams' then applicable change of service date charge. CTC
will also be charged for any costs actually incurred by Williams from
third party providers solely as a result of CTC's request for a change of
service date.
7.3 If CTC requests a modification to the information contained in
a Service Order (other than a change of service date) prior to completion
of installation of the Service, Williams may impose and CTC shall pay a
reasonable change of Service Order charge. No charge will be imposed if
the change is administrative in nature (i.e., billing address, contact
information, etc.) unless the administrative change relates to Local
Access Services for which Williams is acting as agent and Williams
actually incurs charges from the Local Access Services Provider that are
solely a result of such change.
7.4 If CTC requests a change to Services after such Services have
been installed, Williams may impose and CTC shall pay a reasonable change
of service charge. If such change of Service is administrative in nature
(i.e., billing address, contact information, etc.), a change of service
charge will not be imposed unless such administrative change applies to
Local Access Services which have been ordered by Williams as agent for CTC
and Williams actually incurs charges from the Local Access Services
provider that are solely a result of such change. In addition to the
change of Service charge, CTC will be responsible for any reasonable
charges due to re-engineering which is required solely as a result of
CTC's request for a change of Service.
7.5 If CTC desires to cancel a Service Order prior to installation
and acceptance of the Service, Williams may impose and CTC will pay a
reasonable cancellation charge. In addition to such cancellation charge,
CTC will be required to reimburse Williams for any reasonable cancellation
charges relating to Local Access Services or off-net service for which
Williams is acting as agent and Williams actually incurs charges from the
Local Access Services Provider that are solely a result of such change.
7.6 All charges referred to in this Article VII shall be
established as of Williams' acceptance of the Service Order to which they
apply and shall be specified in the Service Order.
ARTICLE VIII tc "ARTICLE VIII " \l 5
PAYMENT TERMS tc "PAYMENT TERMS " \l 5
8.1 Due Date and Invoice. Recurring monthly charges for Services
are due and payable by CTC in accordance with the terms of Section 3.2.
All other amounts due under this Agreement shall be reflected on invoices
sent by Williams to CTC no more frequently than monthly. All amounts set
forth on each such invoice shall be due within thirty (30) days after
CTC's receipt of the invoice (the "Due Date"). CTC agrees to remit
payment to Williams at the remittance address set forth in Section 12.2.
In the event CTC fails to make full payment of any amounts due, including
any prior late fees (the "Balance") to the proper address on or before the
Due Date, CTC shall also pay a late fee in the amount of the lesser of one
and one-half percent (1.5%) of the unpaid Balance per month or the maximum
lawful interest rate under applicable state law which shall accrue from
the Due Date. CTC acknowledges and understands that all charges are
computed exclusive of any applicable federal, state or local use, excise,
valued added, gross receipts, sales and privilege taxes, duties, fees or
similar liabilities (other than general income or property taxes imposed
on Williams), whether charged to or against Williams, its suppliers or
affiliates or CTC associated with the Service, Local Access Service or
Ancillary Service provided to CTC ("Additional Charges"). Such Additional
Charges shall be paid by CTC in addition to all other charges provided for
herein.
8.2 Payment Disputes. If CTC in good faith disputes any portion
of an invoice, it shall provide written notice to Williams of the billing
dispute within thirty (30) days after receipt of the invoice. Such notice
must include documentation substantiating the dispute. Upon receipt of
any such notice from CTC, CTC and Williams shall attempt in good faith to
resolve any legitimate dispute arising out of or relating to any monetary
obligation under this Agreement promptly and as expeditiously as possible
by negotiations between a Vice President of CTC or his or her designated
representative with sufficient authority to negotiate a resolution of the
dispute for CTC and an executive with similar authority from Williams. In
the event the amount in dispute is in excess of Twenty-five Thousand and
No/100 Dollars ($25,000.00) and is not resolved on or before its actual
due date hereunder, then the amount in dispute shall be deposited by CTC
with an escrow agent mutually acceptable to the parties who shall hold
said sum along with all interest earned thereon, in escrow, pending
resolution of the dispute hereunder and shall distribute said sums in
accordance with the resolution of the parties under this Section 8.2 or
the decision of the arbitrator under Section 12.13. All other payments
shall be paid by CTC in accordance with the due date set forth herein
regardless of any pending dispute hereunder. Within twenty (20) days
after delivery of notice of a billing dispute as described above, the
designated executives shall meet at a mutually acceptable time and place,
and thereafter as often as they reasonably deem necessary to exchange
information and to attempt to resolve the dispute. If the matter has not
been resolved within thirty (30) days after the first meeting, either CTC
or Williams may demand arbitration in accordance with the provisions of
Section 12.13 below. To the extent any payment dispute described
hereunder is resolved in favor of a party, whether pursuant to the
provisions of this Section or pursuant to arbitration, the escrow agent
shall pay all amounts previously placed in escrow under this Section to
the prevailing party with the other party paying interest at the prime
rate on such amount less, however, any interest earned (net of any account
charges) thereon while in escrow and distributed to the prevailing party.
For purposes of this Section 8.2, the "prime rate" shall mean the variable
rate of interest published in the Money Rates Section of The Wall Street
Journal as the prime rate on corporate loans at large United States money
center commercial banks. All negotiations conducted pursuant to Section
8.2 shall be confidential.
8.3 Suspension of Service.
(a) In the event payment of all amounts not disputed by CTC within
the time limit and in accordance with the terms of Section 8.2
is not received in full from CTC on or before sixty (60) days
following the date of CTC's receipt of any invoice or the due
date for Monthly Recurring Charges, then, in addition to any
and all other rights and remedies of Williams hereunder,
Williams shall have the right to suspend all or any portion of
the Services provided hereunder to CTC. Williams shall
exercise this suspension right by providing CTC with a minimum
of fifteen (15) days' prior written notice specifying the past
due amount, identifying the Services to be suspended and
specifying the date on which such suspension shall occur. If
Williams receives the entire specified past due amount,
including applicable late fees and Additional Charges, prior
to the suspension date specified in the above notice, then
CTC's Service shall not be suspended.
(b) If only a portion of the Services is initially suspended
pursuant to Williams' written notice, and CTC fails to pay the
specified past due amount within an additional fifteen (15)
days after the partial suspension of Service, then after the
additional fifteen (15) day period, Williams may suspend all or
any additional portion of the Services provided hereunder to
CTC with no additional written notice. Further, after the
additional fifteen (15) day period, Williams may continue
suspension until such time as CTC has paid in full all charges
then due including any late fees as specified herein.
Following such payment, Williams shall immediately reinstate
the suspended Services subject to Williams' Right to Assurance
as provided in Section 8.4 below.
(c) In addition to the nonpayment of any sum due hereunder,
Williams may immediately suspend any Services provided
hereunder in whole or part if Williams determines that such
Services violate the Communications Act of 1934, as amended
(including the Telecommunications Act of 1996), or that the
imposition of any state or federal statute, or promulgation of
any rule, regulation, or order of the FCC or other governing
body makes Williams' performance commercially impracticable.
(d) Subject to the provisions of Section 8.2, suspension of any
Services under Subsections (a) and (b) of this Section shall
not affect CTC's obligation to pay for the suspended Services
during the period of suspension in the event of subsequent
reinstatement under the terms hereof.
8.4 Williams' Right to Assurance.
(a) If at any time there is a material adverse change in CTC's
creditworthiness, as hereafter defined, then in addition to
any other remedies available to Williams under this Agreement
or applicable law, Williams may elect, in its sole discretion,
to demand reasonable assurance of payment from CTC. A
"material adverse change in CTC's creditworthiness" shall
include, but not be limited to: (a) CTC's default beyond any
applicable cure period of its obligations to Williams under
this Agreement, the Master Agreement or any other agreement
with Williams; or (b) CTC's being subject to or having filed
for bankruptcy or insolvency proceedings (which proceedings
are not dismissed within sixty (60) days) or the legal
insolvency of CTC. If CTC's financial statements are not
public information, upon Williams' demand for reasonable
assurance of payment, CTC shall provide Williams with copies
of its most recent financial statements. After receipt and
review of CTC's financial information, Williams may require a
reasonable deposit or other means mutually agreed to by the
parties to establish reasonable assurance of payment. All
financial or other information provided by CTC to Williams
under this Section shall be subject to the confidentiality
requirements of Article X of this Agreement.
(b) If CTC has not provided Williams with its financial
information and with reassurance reasonably satisfactory to
Williams within thirty (30) days of Williams' notice of demand
for reassurance, then, in addition to any other remedies
available to Williams, Williams shall have the option, in its
sole discretion, to exercise one or more of the following
remedies: (i) cause the start of any Services described
hereunder or in a previously executed Service Order to be
delayed pending reasonably satisfactory reassurance; or (ii)
decline to accept a Service Order or other requests from CTC
to provide Services hereunder pending reasonably satisfactory
reassurance as described in (a) above.
8.5 Credit. As may be determined by Williams, if the financial
condition or payment history of CTC is determined by Williams to be
unacceptable, Williams may require CTC to post a deposit or irrevocable
letter of credit, at Williams' option, to secure CTC's payment for the
term of this Agreement. Should Williams determine that a deposit or
irrevocable letter of credit is necessary, CTC and Williams will execute a
reasonably appropriate credit or deposit agreement in form and substance
reasonably acceptable to CTC. Should CTC fail to post such deposit or
letter of credit or fail to execute such agreement within fifteen (15)
days after Williams' notice of such requirement, or should CTC fail to
abide by the terms of any credit or deposit agreement, CTC shall be deemed
to be in default of this Agreement and, upon CTC's continued failure to
post such deposit or letter of credit within ten (10) days after notice of
such failure from Williams, Williams may terminate this Agreement in
accordance with Section 9.7 below.
8.6 Taxes. If any sales taxes, valued added taxes or similar
charges or impositions are asserted against Williams after, or as a result
of, CTC's use of any of the Services by any local, state, national,
international, public or quasi-public governmental entity or foreign
government or its political subdivision, including without limitation, any
tax or charge levied to support the federal Universal Service Fund
contemplated by the Telecommunications Act of 1996, or any state
equivalent, CTC shall be solely responsible for such taxes, charges or
impositions attributable to the Services provided hereunder. CTC agrees
to pay any such taxes, charges or impositions and hold Williams harmless
from any liability or expense associated with such taxes, charges or
impositions.
8.8 Adjustments. Williams may correct billing errors for a period
of twelve (12) months after the Due Date of an invoice, or twelve (12)
months after the date a Service is rendered, whichever is later. Williams
shall correct errors within such periods brought to its attention by CTC.
Disputed items shall be subject to Section 8.2.
ARTICLE IX tc "ARTICLE IX " \l 5
GENERAL AGREEMENT tc "GENERAL AGREEMENT " \l 5
9.1 Outage Credits.
(a) CTC acknowledges the possibility of an unscheduled, continuous
and/or interrupted period of time when a Service or Services
provided hereunder become "unavailable" (as defined in the
technical specifications attached hereto as Exhibit B) for a
continuous period of two (2) hours (an "Outage"). The Outage
shall begin upon the earlier of Williams' actual knowledge of
the Outage or Williams' receipt of notice from CTC of the
Outage. In the event of an Outage, CTC shall be entitled to a
credit (the "Outage Credit") for Private Line Service and
Collocation Service in the amount of 1/720 of the monthly
recurring charge for the interexchange portion of the Service
for each hour of the Outage in excess of the first two (2)
consecutive hours that the affected Service fails to conform
to the Technical Specifications.
(b) CTC shall not receive an Outage Credit if the interruptions
are (i) of a duration of less than two (2) consecutive hours,
(ii) directly caused by CTC or others authorized by CTC to use
the Services under this Agreement, (iii) due to the failure of
power, facilities, equipment, systems or connections not
provided by or under the control of Williams, (iv) caused by
the failure of Local Access to Williams' fiber optic network,
or (v) due to a Force Majeure event as defined in Section 9.6
of this Agreement.
(c) In the event Williams in good faith objects to a request for
an Outage Credit submitted by CTC under Section 9.1(a) within
thirty (30) days after Williams' receipt of such notice, then
the parties shall make a good faith effort to resolve the
dispute as expeditiously as possible. If Williams does not
object within such thirty (30) day period or upon Williams'
waiver of such objection, then CTC may credit the amount of
such Outage Credit against CTC's next monthly payment for the
affected Service or against other payments due hereunder if
the affected Service has expired or been terminated under the
terms hereof prior to CTC's application of the Outage Credit
under this Subsection. If there are no further payments due
hereunder for the affected Service or otherwise, then CTC
shall be entitled to a refund in the amount of the Outage
Credit.
(d) Unless caused or contributed to by the intentional misconduct
of Williams, the Outage Credit under this Section shall be the
sole and exclusive remedy of CTC in the event of any Outage
and under no circumstances shall an Outage be deemed a default
under this Agreement.
9.2 WARRANTY AND DISCLAIMER OF WARRANTY. WILLIAMS WARRANTS THAT
ALL SERVICES SHALL BE PROVIDED TO CTC IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT AND THE APPLICABLE TECHNICAL SPECIFICATIONS SET FORTH IN EXHIBIT
B. WILLIAMS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY
DELAYS, INTERRUPTIONS, OMISSIONS, MISTAKES, ACCIDENTS OR ERRORS IN THE
SERVICES AND RESTORE SUCH SERVICES IN AS EXPEDITIOUSLY AS POSSIBLE TO
COMPLY WITH THE TERMS HEREOF. THE FOREGOING WARRANTY IS THE SOLE AND
EXCLUSIVE WARRANTY AND IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES WHETHER
EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE
HEREBY EXPRESSLY DISCLAIMED. THE OUTAGE CREDITS REMEDY PROVIDED TO
CUSTOMER AS SET FORTH IN SECTION 9.1 IS THE SOLE AND EXCLUSIVE REMEDY
PROVIDED TO CUSTOMER AND IS IN LIEU OF ALL OTHER REMEDIES, REGARDLESS OF
WHETHER THIS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
9.3 LIMITATION OF LIABILITY. UNLESS CAUSED OR CONTRIBUTED BY THE
INTENTIONAL MISCONDUCT OF WILLIAMS, IN THE EVENT OF ANY BREACH OF THIS
AGREEMENT OR ANY FAILURE OF THE SERVICES WHATSOEVER, NO PROVIDER (AS
DEFINED IN SECTION 9.4) SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR
ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF THE PROVIDER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
9.4 CTC Content and Indemnity. CTC shall indemnify and hold
Providers (as defined below) harmless against and from any court,
administrative or agency action, suit or similar proceeding, whether civil
or criminal, private or public, brought against Providers arising out of
or related to the contents transmitted hereunder over Williams' network
including, but not limited to, claims, actual or alleged, relating to any
violation of copyright law, export control laws, failure to meet
governmental standards, or that such transmission contents are libelous,
slanderous, an invasion of privacy, pornographic, or otherwise
unauthorized or illegal. "Providers" shall be defined to include Williams
and its parent, subsidiary and affiliated companies, shareholders,
directors, officers, employees and agents, or any third party or
affiliated provider, operator or maintenance/repair contractor of
facilities employed in connection with the provision of Services under
this Agreement. Williams may terminate or restrict any transmissions over
the Williams Network if, in its judgment, such actions are reasonably
appropriate to avoid violation of applicable law. CTC agrees not to use
any Services provided hereunder for any unlawful purpose, including
without limitation any use which constitutes or may constitute a violation
of any local, state or federal obscenity law.
9.5 General Indemnity.
(a) CTC and Williams shall defend, indemnify and hold the other
harmless against and from any and all claims for physical
property damage, physical personal injury or wrongful death to
the extent that such arises out of the negligence (whether
simple or gross negligence) or willful misconduct of the
respective indemnifying party, its employees, agents, or
contractors in connection with the provision or use of any of
the Services or other performance hereunder.
(b) With respect to third parties authorized by CTC to use the
Services provided hereunder, CTC shall defend, indemnify and
hold Providers harmless against any claims by such third
parties for damages arising or resulting from any defect in,
failure to provide or interruption or Outage of any of the
Services.
(c) The indemnifying party agrees to defend the other against the
claims as set forth above and to pay all reasonable litigation
costs, attorneys' fees, court costs, settlement payments, and
any damages awarded or resulting from any such claims. The
indemnified party shall promptly notify the indemnifying party
in writing of any such claims.
9.6 Force Majeure. Neither Williams nor CTC shall be in default
under this Agreement with respect to any delay in its performance (other
than a failure to make payments when due) caused by any of the following
conditions (each a "Force Majeure Event"): (a) act of God; (b) fire; (c)
flood; (d) material shortage or unavailability not resulting from the
responsible party's failure to timely place orders or take other necessary
actions therefor; (e) government codes, ordinances, laws, rules,
regulations, or restrictions not resulting from the responsible party's
failure to abide by such government codes ordinances, laws, rules,
regulations or restrictions; (f) war or civil disorder; or (g) any other
cause beyond the reasonable control of such party. The party claiming
relief under this Article shall promptly notify the other in writing of
the existence of the Force Majeure Event relied on and the cessation or
termination of the Force Majeure Event. The party claiming relief under
this Article shall exercise commercially reasonable efforts to minimize
the time for any such delay.
9.7 Events of Default. Either party may terminate this Agreement
and/or any Service provided hereunder if the other is in default of any
material obligation contained herein or in the Master Agreement, which
default has not been cured within thirty (30) days (or ten (10) days with
respect to monetary defaults) following the receipt of notice of such
default setting forth the specifics of such default ("Event of Default");
provided that where a non-monetary default cannot be cured within such
thirty (30) day period, the period of time shall be extended for up to
ninety (90) days as required for the defaulting party to cure the same on
condition that the defaulting party commence curing within such thirty
(30) day period and thereafter prosecute such curing with due diligence to
completion. Upon an Event of Default by CTC, Williams may, in addition to
any other rights granted under this Agreement: (a) terminate this
Agreement and/or any Services provided hereunder; and/or (b) subject to
the provisions of Section 8.2 and Section 13.13, pursue any other remedies
it may have under applicable law or principles of equity relating to such
breach. Upon an Event of Default by Williams, CTC may terminate this
Agreement and/or any Services provided hereunder. Except as otherwise
provided herein, termination and receipt of any applicable refund are
CTC's sole remedies in the event of an Event of Default by Williams.
Notwithstanding the foregoing provisions of this
Section, neither party shall exercise any of the remedies
described in the preceding paragraph until after it has
notified the other party of its intent to do so and invited
discussions between Vice Presidents of each party to discuss
such other party's default(s). Such Vice Presidents shall
meet within thirty (30) days after receipt of the non-
defaulting party's notice to discuss the status of the
default(s), the reason(s) for the default(s), and possible
efforts that could be undertaken to resolve the problems in a
manner agreeable to the non-defaulting party. If such Vice
Presidents cannot agree upon a mutually agreeable plan to
address the default(s), or if the defaulting party does not
respond to the non-defaulting party's invitation to meet or
fails to meet with the non-defaulting party within the above
30-day period, then the non-defaulting party may exercise any
or all remedies set forth in the preceding paragraph without
further notice to the defaulting party. Nothing in this
paragraph shall obligate the non-defaulting party to waive any
default of the other party hereunder or any rights or remedies
it may have under this Agreement. The non-defaulting party
shall have no obligation under this paragraph if, after any
meeting described hereunder, the default continues and the
defaulting party fails to take the action agreed upon at the
meeting, or upon the subsequent default by the defaulting
party related to the initial default(s) for which the meeting
was held (which is not cured within any applicable cure
period) within the twelve (12) month period following any
meeting described in this paragraph. All negotiations
conducted pursuant to this Section shall be confidential.
Notwithstanding the foregoing, this paragraph shall not
prevent a party from immediately seeking injunctive relief to
prevent perceived irreparable harm and shall not apply to any
such action.
9.8 Use of Services. Williams' obligation to provide Services
hereunder is subject to the following conditions: (a) no Services shall
be used for any unlawful purpose; and (b) at least ten percent (10%) of
the transmissions shall be interstate transmissions. Williams represents
that this Agreement, to the extent it is subject to FCC regulation, is an
inter-carrier agreement not subject to the filing requirements of Section
211(a) of the Communications Act of 1934, as amended. The parties hereto
acknowledge that from time to time a portion or portions of CTC's use of
Services may be intended for transmission upon a portion of the Williams
Network with respect to which Williams is contractually limited to use for
multimedia transmissions (i.e. Internet traffic, video and radio
transmission services and/or related applications, including, graphic,
visual, imaging, interactive and multimedia transmissions)(the "Restricted
Fiber"). Upon request from the Williams, prior to Williams' acceptance of
a Service Order submitted by CTC, CTC agrees within one (1) business day
to identify the nature of its proposed use of the Service so as to permit
Williams to determine whether the Service may be carried over the
Restricted Fiber. The fact that Williams may not utilize the Restricted
Fiber for such transmissions shall not affect Williams' obligation to
provide Services hereunder.
9.9 Intrastate Interexchange Services. CTC may use any
interexchange Service provided under this Agreement only if such
interexchange Service is used for carrying at least ten percent (10%) of
interstate telecommunications (i.e., telecommunications subject to the
jurisdiction of the FCC). Williams and its affiliates shall not be
obligated to make available interexchange Service on a Circuit with end
points within a single state or service on a Circuit which
originates/terminates at points both of which are situated within a single
state unless CTC represents in writing that such interexchange Service or
Circuits shall be used to carry at least ten percent (10%) interstate
telecommunications. If it is determined at any time that such
interexchange Service or Circuit is subject to state regulation, the
interexchange Service or Circuit may be provided by Williams or its
affiliates pursuant to applicable state laws, regulations and applicable
tariffs, or Williams and its affiliates may discontinue provision of the
affected interexchange Service or Circuit.
9.10 Tariff. Based on CTC's representation to Williams that CTC is
a telecommunications carrier, to the best of Williams' knowledge, this
Agreement is not subject to and does not require the filling of a tariff
with the FCC, because this Agreement is subject to the inter-carrier
exemption provided in 47 U.S.C. Sec. 211(a), or is otherwise provided on a
private carriage basis. In the event that due to a court or agency
ruling, or under applicable law or regulation, this Agreement is or
becomes subject to a requirement of an FCC tariff, or if Williams has or
decides to file a tariff that covers some or all of the services provided
hereunder, then Williams will file a contract tariff with the FCC
incorporating all of the material terms and conditions of this Agreement,
including pricing, and the parties agree to abide by that contract tariff.
No such tariff filed by Williams shall be inconsistent with or modify the
terms of this Agreement unless agreed to in writing between the parties.
9.11 CTC Responsibilities. CTC has sole responsibility for
installation, testing and operation of facilities, services and equipment
other than those specifically provided by or arranged for by Williams
under specific Service Orders ("CTC Facilities"). So long as Williams
does not cause any delay in installation or testing of any CTC Facilities,
then any untimely installation or non-operation of CTC Facilities shall
not relieve CTC of its obligation to pay all charges hereunder for the
Services after the Actual Start Date of such Services determined under
Section 5.5.
During the Term of this Agreement, CTC shall provide Williams, on no
more frequent than an annual basis, a universal service exemption
certificate within ninety (90) days after CTC's filing of the universal
service filing made with the appropriate federal agency evidencing that
CTC is required to contribute to the federal Universal Service Fund. CTC
agrees that failure to provide such an exemption shall authorize Williams
to begin billing CTC prospectively for Universal Service Fund
contributions pursuant to the applicable contribution factor (revised
quarterly), plus an administrative charge of one percent (1%) of such
contributions.
ARTICLE X tc "ARTICLE X"
CONFIDENTIALITY
10.1 Confidentiality Obligation. If either party provides
confidential information to the other or, if in the course of performing
under this Agreement or negotiating this Agreement a party learns
confidential information regarding the facilities or plans of the other,
the receiving party shall (a) protect the confidential information from
disclosure to third parties with the same degree of care accorded its own
confidential and proprietary information, but in any case with at least
reasonable care and (b) refrain from using such confidential information
except in negotiating or performing under this Agreement. Notwithstanding
the above, a party may provide such confidential information to its
directors, officers, members, managers, employees, agents, contractors and
consultants (collectively, "Representatives"), Affiliates, financial
institutions, underlying facility owners, potential assignees of this
Agreement (which potential assignees are bound under a separate agreement
with the disclosing party restricting the use of confidential
information), and Representatives of Affiliates, in each case whose access
is reasonably necessary. Each such recipient of confidential information
shall be informed by the party disclosing confidential information of its
confidential nature, and shall be directed to treat such information
confidentially and shall agree to abide by these provisions. In any
event, each party shall be liable (with respect to the other party) for
any breach of this provision by any entity to whom that party discloses
confidential information. The terms of this Agreement (but not its
execution or existence) shall be considered confidential information for
purposes of this Article, except as set forth in Section 10.3. The
obligations set forth in this Section shall survive expiration or
termination of this Agreement for a period of two (2) years, except that,
with respect to any confidential information designated by the disclosing
party as a trade secret, and entitled to protection as such, the
obligations set forth in this Section shall survive such expiration or
termination indefinitely.
10.2 Permitted Disclosures. Notwithstanding any other provision
herein, neither Williams nor CTC shall be required to hold confidential
any information that:
(a) becomes publicly available other than through the recipient;
(b) is required to be disclosed by a governmental, regulatory
authority, or judicial order, rule, or regulation or
proceedings with respect to this Agreement or a party's
obligations as a publicly held company, provided that a party
subject to such requirement shall promptly notify the other
party of such requirement;
(c) is independently developed by the receiving party;
(d) becomes available to the receiving party without restriction
from a third party;
(e) is required by its lender and is given to such lender on a
confidential basis; or
(f) to the extent disclosure by the receiving party is required by
applicable law, rule or regulation.
10.3 Goodwill and Publicity. Neither party shall use the name,
trade name, service mark, or trademark of the other in any promotional or
advertising material without the prior written consent of the other. The
parties shall coordinate and cooperate with each other when making public
announcements related to the terms of this Agreement and each party shall
have the right to promptly review, comment upon, and approve any publicity
materials, press releases, or other public statements by the other party
that refer to, or that describe any aspect of, this Agreement.
Notwithstanding the above, either party may, without the other party's
approval but after allowing the other party a reasonable opportunity to
comment on a proposed press release, issue a press release announcing
execution of this Agreement.
ARTICLE XI tc "ARTICLE XI " \l 5
REPRESENTATIONS AND WARRANTIES tc "REPRESENTATIONS AND WARRANTIES " \l 5
In addition to any other representations and warranties contained in
this Agreement, each party hereto represents and warrants to the other
that:
(a) It has the full right and authority to enter into, execute,
deliver and perform its obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the
execution, delivery and performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding
obligation enforceable against such party in accordance with
its terms; and
(d) Its execution of and performance under this Agreement shall
not violate any applicable existing regulations, rules,
statutes or court orders of any local, state or federal
government agency, court or body.
ARTICLE XII tc "ARTICLE XII " \l 5
MISCELLANEOUS PROVISIONS tc "MISCELLANEOUS PROVISIONS " \l 5
12.1 Title to Equipment. This Agreement shall not, and shall not
be deemed to, convey from either party to the other title of any kind to
any of the transmission facilities, digital encoder/decoders, telephone
lines, microwave facilities or other facilities utilized in connection
with the Services. Any equipment provided by CTC must be itemized on a
schedule listing all such CTC-provided equipment including a detailed
description and serial numbers, and appended to the Service Order to which
use of that equipment relates ("CTC Equipment Inventory").
12.2 Notices. Unless otherwise provided in this Agreement, all
notices and communications concerning this Agreement shall be in writing
and addressed to the other party as follows:
If to CTC: CTC Communications Corp.
Attn: Chief Technology Officer
220 Bear Hill Road
Waltham, Massachusetts 02451
Facsimile No.: (781) 890-1613
Telephone: (918) 466-8080
If to Williams: Williams Communications, Inc.
Attn: Williams Network, Contract
Administration One Williams Center, 26th
Floor
Tulsa, Oklahoma 74172
Facsimile No.: (918) 573-6578
Telephone: (918) 573-6000
with a copy to: Williams Communications, Inc.
Attn: General Counsel
One Williams Center, Suite 4100
Tulsa, Oklahoma 74172
Facsimile No.: (918) 573-3005
Telephone: (918) 573-6000
with payment remittances to:
Williams Communications, Inc.
Dept. 1409
Tulsa, Oklahoma 74172
or at such other address as may be designated in writing to the other
party.
Unless otherwise provided herein, notices shall be hand delivered,
sent by registered or certified U.S. Mail, postage prepaid, or by
commercial overnight delivery service, or transmitted by facsimile, and
shall be deemed served or delivered to the addressee or its office when
received at the address for notice specified above when hand delivered,
upon confirmation of sending when sent by facsimile, on the next business
day after being sent when sent by priority overnight delivery service, or
three (3) United States Postal Service business days after deposit in the
mail when sent by registered or certified U.S. mail.
12.3 Merger/Integration. This Agreement and the Master Agreement
(including the attached Exhibits, as they may be modified from time to
time) constitute the complete and exclusive statement of the understanding
between the parties and supersedes all proposals and prior agreements
(oral or written) between the parties relating to the Services provided
hereunder. The terms of this Agreement shall control over any conflicting
terms in a Service Order except with respect to specific terms therein
pertaining to pricing, description of services or provisioning
requirements.
12.4 Written Amendment. Any addition, deletion or modification to
this Agreement shall not be binding on either party except by written
amendment executed by both parties.
12.5 No Venture. The relationship between Williams and CTC shall
not be that of partners, agents or joint venturers for one another, and
nothing contained in this Agreement shall be deemed to constitute a
partnership or agency agreement between them for any purposes, including,
but not limited to federal income tax purposes. Williams and CTC, in
performing any of their obligations hereunder, shall be independent
contractors or independent parties and shall discharge their contractual
obligations at their own risk.
12.6 Intentionally omitted.
12.7 Effect of Change in Law. Upon thirty (30) days' prior written
notice to the other party, either CTC or Williams shall have the right,
without disconnection charge or other liability to the other party, to
cancel the affected portion of any Services provided hereunder if Williams
is prohibited by governmental authority from furnishing or CTC is
prohibited from using such portion, or if any material rate or term
contained herein and relevant to the affected portion of any such Services
is substantially changed by order of the highest court of competent
jurisdiction to adjudicate the matter, the FCC, or other local, state or
federal government authority.
12.8 Assignment.
(a) Conditions to Effective Assignment. An assignment (or other
transfer) of this Agreement or a party's rights or obligations
hereunder to any other party shall not be effective without
(a) either the prior written consent of the non-assigning
party, or, if such consent is not required pursuant to
specific terms of this Section 12.8, written notice to the
non-assigning party, (b) the written agreement of the assignee
to be bound by all terms and conditions of this Agreement
including, without limitation, the indemnification provisions
and limitations on liability and recourse set forth in this
Agreement, and (c) such assignee's agreement to cure all prior
defaults of the assigning party under this Agreement.
Notwithstanding any provision hereof to the contrary,
Williams' consent shall not be required and CTC shall not be
prevented from using capacity obtained hereunder for providing
service to its customers in the ordinary course of business.
(b) Impermissible Assignments. Except as set forth in Section
12.8(d), the non-assigning party may withhold consent to an
assignment in its sole discretion, if the assignment:
(i) is made by CTC within one (1) year of the Effective
Date, other than as part of a sale of substantially all
of CTC's assets; or
(ii) is an assignment of less than all of a party's rights or
obligations hereunder.
(c) Consent not to be Unreasonably Withheld. Except to the extent
Section 12.8(b) provides the non-assigning party the right to
withhold its consent in its sole discretion and except as set
forth in Section 12.8(e), the non-assigning party shall not
unreasonably withhold or delay its consent to an assignment if
neither the assigning party nor the proposed assignee is in
material default under this Agreement or any other agreement
with the non-assigning party. For purposes of this Section, a
party's consent to a requested assignment or transfer shall
not be considered unreasonably withheld if such requested
assignment or transfer is to a party which does not have the
technical ability or financial capability to perform the
assigning party's obligations under this Agreement.
(d) Assignments to Particular Classes of Entities. The provisions
of Section 12.8(b) notwithstanding, Williams may assign some
or all of its rights and obligations hereunder to State Street
Bank and Trust Company of Connecticut, National Association,
in connection with a financing by Williams of construction of
its fiber optic network; in addition, State Street Bank and
Trust Company of Connecticut, National Association, may
further assign this Agreement as collateral for such
financing. If Williams makes an assignment pursuant to this
Subsection 12.8(d), Williams (or its assignee pursuant to an
assignment made under the other provisions of this Article)
shall guarantee performance of the assignee's obligations.
Either party may assign its interest in this Agreement
without the prior consent of the other party (i) to any
corporation or other entity which is a successor to such party
either by merger or consolidation, or (ii) to a purchaser of
all or substantially all of such party's assets, or (iii) to a
corporation or other entity which is an Affiliate of such
party; provided that in the event of an assignment under
clause (iii), the assigning party shall remain fully liable,
jointly and severally with any assignee(s), for all
obligations under this Agreement.
(e) Agreement Binds Successors. This Agreement and the rights
and obligations under this Agreement (including the
limitations on liability and recourse set forth in this
Agreement benefitting the other party) shall be binding upon
and shall inure to the benefit of Williams and CTC and their
respective permitted successors and assigns.
(f) Change in Control Not an Assignment. Notwithstanding any
presumptions under applicable state law that a change in
control of a party constitutes an assignment of an agreement,
a change in control of a party, not made for purposes of
circumventing restrictions on assignment or of depriving the
other party of rights under this Agreement, shall not be
deemed an assignment for purposes of this Agreement.
(g) Right to Subcontract. Williams may subcontract for testing,
maintenance, repair, restoration, relocation, or other
operational and technical services it is obligated to provide
hereunder or may have the underlying facility owner or its
contractor perform such obligations; provided, that, Williams
shall remain primarily liable for the performance of such
obligations.
(h) Financing Arrangements. Either party shall have the right,
directly or through an Affiliate, to enter into financing
arrangements (including secured loans, leases, sales with
lease-back, or leases with lease-back arrangements, purchase-
money or vendor financing, conditional sales transactions, or
other arrangements) with one or more financial institutions,
vendors, suppliers or other financing sources (individually
and collectively, "Lenders").
12.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic law of the State of New York
without reference to its choice of law principles. With respect to any
suit, action or proceedings relating to this Agreement (the
"Proceedings"), each party: (1) irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York and the United States
District Courts located in that state; (2) irrevocably waives any
objection which it may have at any time to the laying of venue of any
proceedings brought in any such court; (3) waives any claim that such
proceedings have been brought in an inconvenient forum; and (4) waives the
right to object, with respect to such proceedings, that such court does
not have jurisdiction over such party. Nothing in this Agreement
precludes either party from enforcing in any jurisdiction any judgment,
order or award obtained in any such court.
12.10 Rules Of Construction. The following rules of construction
shall govern any interpretation of this Agreement:
(a) The captions or headings in this Agreement are strictly
for convenience and shall not be considered in interpreting this
Agreement or as amplifying or limiting any of its content. Words in
this Agreement that import the singular connotation shall be
interpreted as plural, and words that import the plural connotation
shall be interpreted as singular, as the identity of the parties or
objects referred to may require.
(b) Unless expressly defined herein, words having well-known
technical or trade meanings shall be so construed.
(c) Except as set forth to the contrary herein, any right or
remedy of Williams or CTC shall be cumulative and without prejudice
to any other right or remedy, whether contained herein or not.
(d) Nothing in this Agreement is intended to provide any
legal rights to anyone not an executing party of this Agreement
except under the indemnification and insurance provisions.
(e) This Agreement has been fully negotiated between and
jointly drafted by Williams and CTC and no rule of construction
requiring interpretation against the draftsman hereof shall apply in
the interpretation of this Agreement.
(f) Except as otherwise provided herein, in the event of a
conflict between the provisions of this Agreement and those of any
Exhibit, the provisions of this Agreement shall prevail and such
Exhibits shall be corrected accordingly.
(g) All actions, activities, consents, approvals and other
undertakings of the parties in this Agreement shall be performed in
a reasonable and timely manner. Except as specifically set forth
herein, for the purpose of this Section 12.10, the normal standards
of performance within the telecommunications industry in the
relevant market shall be the measure of whether a party's
performance is reasonable and timely.
12.11 No Third Party Beneficiary. The provisions of this
Agreement are for the benefit only of the parties hereto, and no third
party may seek to enforce or benefit from these provisions.
12.12 Attorneys' Fees. If a proceeding is brought for the
enforcement of this Agreement or because of any alleged or actual dispute,
breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and other reasonable costs and expenses
incurred in such action or proceeding in addition to any other relief to
which such party may be entitled.
12.13 Arbitration. Any dispute arising between Williams and CTC in
connection with this Agreement that is not settled to their mutual
satisfaction within the applicable notice or cure periods provided in this
Agreement, shall, upon the demand for arbitration by either party, be
settled by arbitration in New York, New York in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in
effect on the date that a party gives notice of its demand for arbitration
under this Article. If Williams and CTC cannot agree on a single
arbitrator within fifteen (15) days after the notice demanding arbitration
is received by the receiving party, Williams and CTC shall each select an
arbitrator within such fifteen (15) day period and the two (2) arbitrators
shall select a third arbitrator within ten (10) days. If the parties fail
to appoint arbitrators or the arbitrators cannot agree on a third
arbitrator, then either party may request that the American Arbitration
Association shall select and appoint a neutral arbitrator who shall act as
the sole arbitrator. In any such arbitration proceeding, the parties may
take discovery pursuant to applicable laws or rules. The parties shall be
entitled to submit expert testimony and/or written documentation on such
arbitration proceeding. The decision of the arbitrator or arbitrators
shall be final and binding upon Williams and CTC and shall include written
findings of law and fact, and judgment may be obtained thereon by either
Williams or CTC in a court of competent jurisdiction. Williams and CTC
shall each bear the cost of preparing and presenting its own case. The
cost of the arbitration, including the fees and expenses of the arbitrator
or arbitrators, shall be shared equally by Williams and CTC unless the
award otherwise provides. The arbitrator or arbitrators shall be
instructed to establish procedures such that a decision can be rendered
within sixty (60) days after the appointment of the arbitrator or
arbitrators. In no event shall the arbitrator or arbitrators have the
power to award any damages described in and limited by Section 9.3 which
shall be binding on the arbitrator(s). This section shall not be
construed to limit either party's ability to recover under any
indemnification provisions in this Agreement with respect to claims of
third parties brought against such party.
The obligation to arbitrate shall not be binding upon any party with
respect to (a) requests for preliminary injunctions, temporary restraining
orders, specific performance or other procedures in a court of competent
jurisdiction to obtain interim relief when deemed necessary by such court
to preserve the status quo or prevent irreparable injury pending
resolution by arbitration of the actual dispute or (b) actions to collect
payments not subject to bona fide dispute under Section 8.2 of this
Agreement.
Any arbitrator appointed to act under this Section, must agree to be
bound to the provisions of Article X entitled Confidentiality and
Proprietary Information with respect to the terms of this Agreement and
any information obtained during the course of the arbitration proceedings.
12.14 Severability. If any term, covenant or condition in this
Agreement shall, to any extent, be invalid or unenforceable in any respect
under the laws governing this Agreement, the remainder of this Agreement
shall not be affected thereby, and each term, covenant or condition of
this Agreement shall be valid and enforceable to the fullest extent
permitted by law and if appropriate such invalid or unenforceable
provision shall be modified or replaced to give effect to the underlying
intent of the parties hereto and to the intended economic benefits of the
parties.
12.15 No Waiver. The failure of either party to enforce any
provision hereof shall not constitute the permanent waiver of such
provision.
12.16 Counterparts. This Agreement may be executed in one or
more counterparts, all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF and in confirmation of their consent to the terms
and conditions contained in this Agreement and intending to be legally
bound hereby, Williams and CTC have executed this Carrier Services
Agreement as of the Effective Date.
CTC COMMUNICATIONS CORP. WILLIAMS COMMUNICATIONS, INC.
By:/s/ By:/s/
Name: Name:__________________________
Title: Title:_________________________
Date: March 31, 2000 Date: March 31, 2000
Exhibit A
Williams Network Pricing Schedule
THIS EXHIBIT A is attached to and made a part of that certain
Carrier Services Agreement dated as of March 31, 2000, by and between
Williams and CTC ("Agreement"). Capitalized terms used and not defined
herein shall have the meanings set forth for such terms in the Agreement.
A. Private Line Services*
B. Collocation Services. The monthly recurring charges for
Collocation Services shall be specified in the applicable Collocation
Service Orders.
*THIS PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION
Exhibit B
Williams Network Technical Specifications
I. Technical Specifications for Private Line Service
A. Interconnection Specifications
1. DS-1. DS-1 service is provided in accordance with ANSI
Standard T1.102 and T1.403 (formerly AT&T Compatibility
Bulletin 119). DS-1 Service operates at 1.544 Mbps.
2. DS-3. DS-3 service is provided in accordance with ANSI
Standard T1.102 (formerly AT&T Compatibility Bulletin 119)
and Technical Reference 54014 `4. DS-3 Service operates at
44.736 Mbps.
3. Optical SONET Services (OC-N). Optical SONET Services are
provided in accordance with ANSI Standard T1.105. OC-3
Service operates at 155.520 Mbps and is configured with 3
separate STS-1 signaling paths. OC-3C Service operates at
155.520 Mbps and is configured with 1 STS-3C signaling path
(or 3 concatenated STS-1 signaling paths). OC-12 Service
operates at 622.080 Mbps with 12 separate STS-1 signaling
paths. OC-12C Service operates at 622.080 Mbps with 1 STS-
12C signaling path (or 4 separate STS-3C signaling paths).
OC-48 Service operates at 2488.320 Mbps and is configured
with 48 separate STS-1 signaling paths.
B. Availability.
1. Availability on the Williams Network. Availability is a
measurement of the percent of total time that service is
operative when measured over a 365 consecutive day (8760
hour) period. DS-3 and Optical SONET Service is considered
inoperative when there has been a loss of signal or when two
consecutive 15 second loop-back tests confirm the
observation of a bit error rate equal to or worse than 1 x
10-6. For Services on the Williams Network, availability
shall be 99.95% from POP to POP measured over a one year
period.
2. Availability for Services not on Williams Network. For
Services not on the Williams Network, the off-net provider
will establish availability. The Local Access availability
standards for DS-3 and Optical SONET Services are
established by the Local Access Provider and approved by
CTC.
3. See General Provisions for other factors affecting
availability.
C. Performance (% Error Free Seconds, while Available).
1. Error Free Seconds on Williams Network. Performance is
noted in Error Free Seconds which are a measure of the
percentage of total seconds that do not contain bit errors
when measured over a consecutive 24 hour period.
Performance shall be measured on a one-way basis using a
Pseudo Random Bit Sequence test pattern as defined in CCITT
Recommendation 0.151. For Services on the Williams Network,
Error Free Seconds shall be 99.5% from POP to POP measured
over a monthly period
2. Error Free Seconds for Services Not on Williams Network.
The Error Free Seconds standards for the Local Access for
DS-3 and Optical SONET Service is established by the Local
Access Provider and approved by CTC. For multi-media
services, Error Free Seconds will be as defined by WorldCom,
Inc.
II. General Provisions Relating to Private Line Technical Specifications
A. Quality Standards.
1. Standards apply on a one-way basis between Williams Point(s)
of Presence (POP) only.
2. All standards exclude nonperformance due to force majeure or
planned interruptions for necessary maintenance purposes in
accordance with the Agreement.
3. All standards exclude nonperformance due to acts or
omissions of CTC or due to any failure of CTC-provided
equipment.
B. Maintenance
1. Williams will undertake repair efforts on equipment or fiber
when Williams first becomes aware of it, or when notified by
CTC and CTC has released all or part of the Service for
testing. The maintenance standards in this Section II B
only apply for Equipment or Fiber on Williams' owned and
operated network and from Williams' POP to Williams' POP.
2. Mean Time to Restore (MTTR) is the average time required to
restore service and resume availability and is stated in
terms of equipment and cable outages. The time is measured
from the moment the outage is reported until the service is
available.
3. MTTR Objective: 2 Hours (Network Equipment)
6 Hours (First Fibers on Cable)
C. Calculation. Williams Network calculates network availability
upon written request from customers. CTC must notify the Williams Network
Customer Care department and initiate an action request to determine if
the standards stated above were met.
EXHIBIT C
WILLIAMS' ON-NET POPS*
*THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
