Master Network Interconnection and Resale Agreement [Part K] - Liberty Telecom LLC and Central Telephone Co.-Nevada d/b/a Sprint of Nevada
PART K - COLLOCATION
This Agreement is made this 9th day of August, 2002, by and between Mpower Communications Corp. (“CLEC”), and Central Telephone Company - Nevada dba Sprint of Nevada (“Sprint”).
| 83. | DEFINITIONS. |
For the purposes of this Agreement, the following terms or phrases shall have the meaning set forth below:”
| 84.1. | “Act” means the Communications Act of 1934, as amended. |
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| 83.1. | “Active Collocation Space” means the space within a Sprint premises that has sufficient telecommunications infrastructure systems to house telecommunications equipment. Infrastructure systems includes floors capable of supporting equipment loads, heating, ventilating and air conditioning (HVAC) systems (AC poser), high efficiency filtration, humidity controls, remote alarms, compartmentation and smoke purge. Space within controlled environmental vaults (CEVs), huts and cabinets and similar eligible structures that can be designated for physical collocation shall be considered Active Collocation Space. |
| 83.2. | “Cable Vault” shall mean a location in Premises where facilities enter the Premises from the Outside Cable Duct and access the Inner Duct for distribution within the Premises. |
| 83.3. | “Central Office Building” or “Building” shall mean a structure (not including a controlled environment vault (“CEV”)) housing Sprint equipment that is under the control of Sprint and for which Sprint has the right to grant access and/or occupation by third parties. |
| 83.4. | “Collocation Arrangement” refers to a single, specific provision of Collocation in a particular Premises, not limited to a cage enclosing CLEC’s equipment within the Premises. |
| 83.5. | “Collocation Point of Termination” shall mean the physical demarcation point as described in Section 5. |
| 83.6. | “Collocation Space” shall mean an area of space as agreed between the parties, located in a Building to be used by CLEC to house telecommunications equipment. Additionally, roof or wall space used for wireless interconnection shall be included in the definition where applicable. |
| 83.7. | “Controlled Environment Vault” shall mean a below ground room other than a Central Office Building which is controlled by Sprint and which is suitable for collocation of telecommunications equipment. |
| 83.8. | “Date of Occupancy” shall mean the date on which CLEC first occupies the Collocation Space pursuant to this Agreement. |
| 83.9. | “Effective Date” is the date referenced in the opening paragraph on page 1 of the Agreement, unless otherwise required by the Commission. |
| 83.10. | “Inactive Collocation Space” means the space within the central office where infrastructure systems do not currently exist and must be constructed and where Active Collocation space has been exhausted. The designation of Inactive Collocation Space is applicable to space within central offices only; other Sprint Premises such as CEVs, Huts, and Vaults shall be considered Active Collocation Space. |
| 83.11. | “Inner Duct” or “Conduit” shall mean any passage or opening in, on, under, over or through the Sprint Central Office Building cable or conduit systems. |
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| 83.12. | “Live load capacity” as it relates to a CLEC’s collocation space refers to the structural strength of the floor to support the weight of CLEC’s property and equipment installed in the collocated space. |
| 83.13. | “LOE” shall mean CLEC-owned equipment. |
| 83.14. | “Outside Cable Duct” shall mean any space located outside the Central Office Building and owned by or under the control of Sprint through which Sprint runs its cable, conduit or other associated facilities. |
| 83.15. | “Physical Collocation” is as defined in 47 CFR 51.5. |
| 83.16. | “Premises” is as defined in 47 C.F.R. 51.5. |
| 83.17. | “Tariffed Service” shall mean the interconnection of CLEC’s equipment and Sprint’s equipment pursuant to the Sprint Access Service tariffs as filed with the Federal Communications Commission (“FCC”), or applicable state tariffs. |
| 83.18. | “Virtual Collocation” is as defined in 47 C.F.R. 51.5. |
| 84. | TERM. |
| 1.1. | This Agreement shall be deemed effective upon execution by both Parties, provided however that if Customer has any outstanding past due obligations to Sprint, this Agreement will not be effective until such time as any past due obligations with Sprint are paid in full. |
| 84.1. | This Agreement shall terminate on September 30, 2004. |
| 84.2. | In the event of either Party’s material breach of any of the terms or conditions hereof, including the failure to make any undisputed payment when due, the non-defaulting Party may immediately terminate this Agreement in whole or in part provided that the non-defaulting Party so advises the defaulting Party in writing of the event of the alleged default and the defaulting Party does not remedy the alleged default within ninety (90) days after written notice thereof. |
| 84.3. | Termination of this Agreement for any cause shall not release either Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect to any act or omission prior to termination or from any obligation which is expressly stated herein to survive termination. |
| 84.4. | Notwithstanding the above, should Sprint sell or trade substantially all the assets in an exchange or group of exchanges that Sprint uses to provide Telecommunications Services, then Sprint may terminate this Agreement in whole or in part as to that particular exchange or group of exchanges upon sixty (60) days prior written notice. |
| 84.5. |
Termination. CLEC may terminate occupancy in a particular Collocation Space upon thirty (30) calendar days prior written notice to Sprint. Upon termination of such occupancy, CLEC at its expense shall remove its equipment and other |
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property from the Collocation Space. CLEC shall have thirty (30) calendar days from the termination date to complete such removal, including the removal of all equipment and facilities of CLEC’s Guests; provided, however, that CLEC shall continue payment of monthly fees to Sprint until such date as CIEC has fully vacated the Collocation Space. CLEC will surrender the Collocation Space to Sprint in the same condition as when first occupied by CLEC, except for ordinary wear and tear. |
| 84.6. | CLEC shall be responsible for the cost of removing any enclosure, together with all supporting structures (e.g., racking, conduits), of an Adjacent Collocation arrangement at the termination of occupancy and restoring the grounds to their original condition. Upon termination of CLEC’s right to possession without termination, CLEC shall surrender possession and vacate the Collocation Space within thirty (30) calendar days. Failure to surrender the Collocation Space within 30 days shall be considered abandonment and Sprint will have the right to remove the equipment and other property of CLEC or the CLEC’s Guest at CLEC’s expense and with no liability for damage or injury to CLEC’s property. |
| 84.7. | Should Sprint under any section of this Agreement remove any of CLEC’s equipment from its collocation space, Sprint will deliver to CLEC any equipment removed by Sprint only upon payment by CLEC of the cost of removal, storage and delivery, and all other amounts due Sprint under this Agreement. Sprint is hereby given lien, subordinate only to any purchase money or financing lien in connection with the construction, reconstruction or extension CLEC’s equipment located in Sprint’s premises or removed therefrom, with power of public or private sale, to cover any amounts due Sprint under the provisions of this Agreement. Such lien shall not operate to prevent Sprint or joint users from pursuing, at their option, any other remedy in law, equity or otherwise, including any other remedy provided in this Agreement. |
| 84.8. | Surrender of Keys. CLEC shall surrender all keys, access cards and Sprint-provided photo identification cards to the Collocation Space and the Building to Sprint, and shall make known to Sprint the combination of all combination locks remaining on the Collocation Space. |
| 84.9. | If it becomes necessary in Sprint’s reasonable judgment, and there are no other reasonable alternatives available, Sprint shall have the right, for good cause shown, and upon 30 days prior notice, to reclaim the Collocation Space or any portion thereof, any Inner Duct, Outside Cable Duct, Cable Vault space or other Sprint-provided facility in order to fulfill its common carrier obligations, any order or rule of the state commission or the FCC, or Sprint’s tariffs to provide telecommunications services to its end user customers. In such cases, Sprint will reimburse CLEC for reasonable direct costs and expenses in connection with such reclamation. |
| 84.10. |
If it becomes necessary in Sprint’s reasonable judgment, and there are no other reasonable alternatives, to require CLEC to move to equivalent space in the Building upon receipt of sixty (60) days written notice from Sprint, in which |
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event, Sprint shall pay all moving costs, and the License Fee provided for herein shall remain the same. |
| 85. | SCOPE OF AGREEMENT. |
| 85.1. | Sprint will provide Collocation to CLEC in accordance with this Agreement for the purposes of Interconnection to Sprint pursuant to the Act (including 47 U.S.C. § 251(c)(2)) and for obtaining access to Sprint’s UNEs pursuant to the Act (including 47 U.S.C. §25l(c)(3)). Collocation shall be provided on a nondiscriminatory basis, on a “first-come, first-served” basis, and otherwise in accordance with the requirements of the Act (including 47 U.S.C. § 25l(c)(6)). |
| 85.2. | Prices and fees for collocation and other services under this Agreement are contained in the price list attached hereto. In the event Sprint files tariffs for pricing of collocation and other services covered by this agreement, such pricing in the tariffs will control over those in this Agreement as of the date the tariff becomes effective. The terms and conditions of this Agreement will control over any terms and conditions in the tariff. |
| 85.3. | This Agreement states the general terms and conditions upon which Sprint will grant to CLEC a non-exclusive license to gain access to and occupy the Collocation Space, and other associated facilities as may be necessary, for the sole and exclusive purpose of providing telecommunications service as specifically identified on a completed, numbered and dated Site Collocation License executed by both Parties (which Site Collocation License shall be in substantially the form attached as Attachment A). Such service will be provided by installing, maintaining and operating CLEC’s equipment, which will interconnect with telecommunications services and facilities provided by Sprint or others in accordance with this Agreement. |
| 86. | CHANGE IN LAW |
| 86.1. | The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement are based on the texts of the Act and the rules and regulations promulgated thereunder by the FCC and the Commission as of the Effective Date (“Applicable Rules”). In the event of any amendment of the Act, any effective legislative action or any effective regulatory or judicial order, rule, regulation, arbitration award, dispute resolution procedures under this Agreement or other legal action purporting to apply the provisions of the Act to the Parties or in which the court, FCC or the Commission makes a generic determination that is generally applicable which revises, modifies or reverses the Applicable Rules (individually and collectively, “Amended Rules”), either Party may, by providing written notice to the other Party, require that the affected provisions of this Agreement be renegotiated in good faith and this Agreement shall be amended accordingly to reflect the pricing, terms and conditions of each such Amended Rules relating to any of the provisions in this Agreement. |
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| 86.2. | Notwithstanding any other provision of this Agreement to the contrary, this section shall control. Any rates, terms or conditions thus developed or modified shall be substituted in place of those previously in effect and shall be deemed to have been effective under this Agreement as of the effective date established by the Amended Rules, whether such action was commenced before or after the Effective Date of this Agreement. Should the Parties be unable to reach agreement with respect to the applicability of such order or the resulting appropriate modifications to this Agreement, either party may invoke the Dispute Resolution provisions of this Agreement, it being the intent of the parties that this Agreement shall be brought into conformity with the then current obligations under the Act as determined by the amended rules. |
| 87. | COLLOCATION OPTIONS. |
| 87.1. | Cageless. Sprint will offer Collocation Space to allow CLEC to collocate its equipment and facilities, and without requiring the construction of a cage or similar structure. Sprint will allow CLEC to have access to its equipment and facilities 24 hours a day, 7 days a week without need for a security escort provided that CLEC has met Sprint’s safety and security requirements. Sprint may require CLEC to use a central entrance to the Sprint Central Office. Sprint shall make cageless collocation available in single bay increments, including space adjacent or next to Sprint’s equipment. Except where CLEC’s equipment requires special technical considerations (e.g., special cable racking, isolated ground plane), Sprint will assign cageless Collocation Space in conventional equipment rack lineups where feasible. For equipment requiring special technical considerations, CLEC must provide the equipment layout, including spatial dimensions for such equipment pursuant to generic requirements contained in Telcordia GR-63-Core and shall be responsible for constructing all special technical requirements associated with such equipment pursuant to this Agreement. |
| 87.2. | Caged. Sprint will authorize the enclosure of CLEC’s equipment and facilities at CLEC’s option. Sprint will provide guidelines and specifications upon request. Based on CLEC’s request, space and cage enclosures in amounts as small as that sufficient to house and maintain a single rack or bay or equipment will be made available. At CLEC’s option, Sprint will permit CLEC to arrange with a third party vendor to construct a Collocation Arrangement enclosure at CLEC’s sole expense. If CLEC is the first CLEC in a Sprint Premises, CLEC will not be responsible for the entire cost of site preparation and security. CLEC’s third party vendor will be responsible for filing and receiving any and all necessary permits and/or licenses for such construction. The third party vendor shall bill CLEC directly for all work performed for CLEC and Sprint will have no liability for nor responsibility to pay such charges imposed by the third party vendor. CLEC must provide the local Sprint building contact with one Access key used to enter the locked enclosure. Except in case of emergency, Sprint will not access CLEC’s locked enclosure prior to notifying CLEC and obtaining authorization. |
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| 87.2.1. | Sprint has the right to review CLEC’s plans and specifications prior to allowing construction to start. Sprint will complete its review within fifteen (15) calendar days. Sprint has the right to inspect the enclosure after construction to make sure it is constructed according to the submitted plans and specifications. Sprint can require CLEC to remove or correct, at its cost, any structure that does not meet these plans. |
| 87.3. | Shared (Subleased) Caged Collocation. CLEC may allow other telecommunications carriers to share its caged collocation arrangement pursuant to terms and conditions agreed to by CLEC (“Host”) and other telecommunications carriers (“Guests”). CLEC will notify Sprint in writing upon execution of any agreement between the Host and its Guest within twelve (12) calendar days of its execution. Further, such notice shall include the name of the Guest(s) and their term of agreement, and shall contain a certification by CLEC that said agreement imposes upon the Guest(s) the same terms and conditions (excluding rates) for collocation space as set forth in this Agreement. |
| 87.3.1. | As Host, CLEC will be the sole interface and responsible party to Sprint for the purpose of submitting applications for initial and additional equipment placements of Guest (to the extent required under other sections of the Standard Offer); for assessment and payment of rates and charges applicable to the Collocations space; and for the purposes of ensuring that the safety and security requirements of this Agreement are fully complied with by the Guest, its employees and agents. In making shared cage arrangements, Sprint will not increase the cost of site preparation or nonrecurring charges above the cost of provisioning such a cage of similar dimensions and material to a CLEC. |
| 87.3.2. | Sprint will not place unreasonable restrictions on CLEC’s use of a cage, and as such will allow CLEC to contract with other CLECs to share the cage in a sublease type arrangement. If two (2) or more CLECs have interconnection agreements with Sprint utilize a shared collocation cage, Sprint will permit each CLEC to order UNEs and provision service from the shared collocation space, regardless of which CLEC was the original collocator. |
| 87.3.3. | If Host terminates a Collocation Arrangement, Host will provide Guest 30 days notice. Guest will assume all obligations and rights of Host as to that Collocation Arrangement if Guest remains in the Collocation Space, including payment of all charges. |
| 87.4. | Adjacent Collocation. Sprint will provide adjacent collocation arrangements (“Adjacent Arrangement”) where space within the Premises is legitimately exhausted, subject to technical feasibility. Both Parties will mutually agree on the location of the designated space on the Sprint property where the adjacent structure (such as a CEV or similar structure) will be placed. If a mutual agreement cannot be reached, Sprint will decide the location. Unless prohibited by zoning or other state and local regulations, Sprint will not withhold agreement as to the site desired by CLEC, subject only to reasonable safety and maintenance requirements. |
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| 87.4.1. | CLEC will provide a concrete pad, the structure housing the arrangement HVAC, lighting, and all facilities that connect the structure (i.e. racking, conduits, etc.) to the Sprint point of interconnection. Should CLEC elect such an option, CLEC must arrange with a third party vendor to construct an Adjacent Arrangement structure in accordance with this Agreement. |
| 87.4.2. | Sprint maintains the right to review CLEC’s plans and specifications prior to construction of an Adjacent Arrangement(s). Sprint will complete its review within thirty (30) calendar days of receipt of the Bona Fide Firm Order (BFFO). Except that such time period may be extended if any delay is due to the actions of CLEC. Sprint may inspect the Adjacent Arrangement(s) following construction and prior to commencement to ensure the design and construction comply with submitted plans. Sprint may require CLEC to correct any deviations from approved plans found during such inspection(s). |
| 87.4.3. | Sprint will provide AC power, as requested, subject to being technically feasible. At its option, CLEC may choose to provide its own AC power to the adjacent structure as long as the AC power source is from the same provider as Sprint’s. |
| 87.4.4. | Subject to CLEC being on the waiting list, in the event that space in a Sprint Premises becomes available, Sprint will provide the option to the CLEC to relocate its equipment from an Adjacent Facility into the Sprint Premises. In the event CLEC chooses to relocate its equipment, appropriate charges applicable for collocation within the Sprint Premises will apply. |
| 87.5. | Contiguous Space. To the extent possible, Sprint will provide CLEC with contiguous space for any subsequent request for physical collocation space, but makes no assurances that contiguous space will be available. |
| 87.6. | Virtual Collocation. Sprint will provide virtual collocation, subject to being technically feasible, if physical collocation is not practical for technical reasons or because of space limitations and in accordance with the Act (including 47 U.S.C. § 25l(c)(6) and 47 C.F.R. § 51.323). |
| 87.6.1. | CLEC may from time to time, lease to Sprint, at no cost to Sprint, equipment that meet applicable FCC requirements and in accordance with this Agreement, for the sole purpose of having Sprint install and maintain the equipment in accordance with terms and conditions mutually agreed upon by the Parties. |
| 87.6.2. | Virtually collocated equipment shall be purchased by CLEC. Sprint does not assume any responsibility for the design, engineering, testing or performance for the end-to-end connection of CLEC’s equipment, arrangement or facilities. |
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| 87.6.3. | Sprint will, at a minimum, install, maintain, and repair CLEC’s collocated equipment within the same time periods and with failure rates that are no greater than those that apply to the performance of similar functions for comparable equipment of Sprint, Sprint’s affiliates or third parties. The following services are not covered by this Agreement: 1) services to resolve software or hardware problems resulting from products provided by parties other than Sprint or causes beyond the control of Sprint; 2) service of attached, related, collateral or ancillary equipment or software not covered by this section; 3) repairing damage caused to CLEC’s collocated equipment by persons other than Sprint, or its authorized contractors, or 4) repairing damage to other property or equipment caused by operation of CLEC’s collocated equipment and not caused by the sole negligence of Sprint. |
| 87.6.4. | CLEC warrants that Sprint shall have quiet enjoyment of the equipment. Sprint will be entitled to the benefit of any applicable manufacturer’s warranties and indemnities and, to the extent assignable, such warranties and indemnities are hereby assigned by CLEC for the benefit of Sprint and CLEC shall take all reasonable action to enforce such warranties and indemnities where available to Sprint. CLEC shall execute, upon presentation, such documents and instruments as may be required to allow Sprint manufacturer’s warranty coverage for any equipment. CLEC warrants that it has full authority to lease the equipment under the terms and conditions set forth herein and that there are no restrictions, legal or otherwise, which would preclude it from so doing. |
| 87.6.4.1. | In the event Sprint’s right to quiet enjoyment is breached, either by CLEC’s failure to make or cause to be made payment to the equipment manufacturer of the full purchase price for the equipment when such payment becomes due, or otherwise, Sprint may give written notice to CLEC and all of Sprint’s obligations relating to the affected equipment shall terminate immediately. |
| 87.6.5. | Sprint’s preparation, if any, of the Premises (e.g., Power, environmental, etc.) for the Virtual Collocation equipment will be charged to CLEC at rates agreed on by the Parties or as filed in a tariff and approved by the Commission. |
| 87.7. | A “Splitter” is a device that divides the data and voice signals concurrently moving across the loop, directing the voice traffic through copper tie cables to the switch and the data traffic through another pair of copper tie cables to multiplexing equipment for delivery to the packet-switched network. The Splitter may be directly integrated into the DSLAM equipment or may be externally mounted. |
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| 87.7.1. | Splitters |
| 87.7.1.1. | Option One. In providing access to the High Frequency Spectrum Network Element, CLEC may purchase, install and maintain the splitter in their caged or cageless collocation space. There are two wiring configurations associated with the DSLAMS: (1) the DSLAM is direct wired to the POTS Splitter and (2) the DSLAM is direct wired to the MDF. All wiring connectivity from CLEC’s Splitter(s) (Sprint analog voice input to the splitter and combined analog voice/data output from the splitter) will be cabled out to the Sprint distribution frame for cross connection with jumpers. Sprint will provide and, if requested, install the cabling from CLEC’s Collocation Space to Sprint’s distribution frame and be reimbursed, as applicable, per the normal collocation process, except that no charges shall apply for any reassignment of carrier facilities (“CFA”) or reduction of existing facilities. CLEC will make all cable connections to their equipment. |
| 87.7.1.2. | Option Two - Lease |
| 87.7.1.2.1. | CLEC may from time to time, lease to Sprint, at no cost to Sprint, rack mounted POTS splitters that meet applicable FCC requirements, such as the requirements for POTS splitters contained in Annex E in the ADSL standard, T1.413-1998 “Network and Customer Interfaces - Asymmetric Digital Subscriber Line (ADSL) Metallic Interface”, and subsequent revisions (the “Splitters”) for the sole purpose of having Sprint install the Splitter(s), replace Splitter(s), and replace the Splitter cards in Sprint’s Central Offices. |
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| 87.7.2. | Application and Provisioning |
| 87.7.2.1 | For each Splitter that CLEC desires to place in a Sprint Central Office in which CLEC is already collocated, CLEC will submit to Sprint an Application. If CLEC is not yet collocated, CLEC will request Splitter provisioning at the time of application for collocation. |
| 87.7.2.2. | Sprint will complete the installation within 60 calendar days following Firm Order Commitment and Sprint’s receipt of the Splitter(s). Sprint will provide CLEC with a deployment schedule for completing installation of the Splitters if the installation will be completed in less than 60 days. |
| 87.7.2.3. | CLEC agrees to pay the actual costs of the engineering work within 30 days of receipt of Sprint’s invoice. CLEC will also pay the full costs of transportation of the Splitters to the applicable Sprint Central Office. |
| 87.7.2.4. | The Parties agree that each Splitter provided by CLEC to Sprint under a License shall constitute a lease of such Splitter by CLEC to Sprint, at no cost, for the term of the License. |
| 87.7.3. | Installation |
| 87.7.3.1. | Sprint agrees to place the Splitters in the applicable Central Offices in an appropriate location chosen by Sprint. Sprint will use reasonable efforts to install the Splitter in a relay rack or bay as close to the main distribution frame as is reasonably practicable. Unless otherwise agreed upon in writing between the Parties, rack space will be allocated on a shelf by shelf basis. |
| 87.7.3.2. | All wiring connectivity from CLEC’s splitter (Sprint analog voice input to the splitter and combined analog voice/data output from the Splitter) will be cabled out to the Sprint main distribution frame for cross connection with jumpers if practicable. |
| 87.7.3.3. | Sprint will provide and install the cabling from the Splitter(s) to Sprint’s main distribution frame and from the Splitter(s) to CLEC’s Collocation Space at pricing set forth in this Agreement, except that no charges shall apply for any reassignment of carrier facilities or reduction of existing facilities. |
| 87.7.4. | Cards |
| 87.7.4.1. |
CLEC is responsible for ordering and providing to Sprint splitter cards as necessary to effectively operate the Splitter. |
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Sprint will install such cards per CLEC’s instructions. CLEC will provide one empty card for every shelf to be used for repair and maintenance until such time as the card must be used to fill the shelf to capacity. CLEC is responsible for Splitter assignments and monitoring for exhaust based on block and pin assignments. |
| 87.7.4.2. | Card and Splitter Replacement |
| 87.7.4.2.1. | During the term of each License that includes Splitters, Sprint agrees to replace the Splitter cards if requested to do so by CLEC. Sprint and CLEC shall take efforts to minimize possible service disruptions, including, but not limited to, replacing Splitter cards during maintenance windows. Sprint will not use the Splitters for any purposes other than that for which they were designed. Sprint may perform these obligations through Sprint’s employees or any qualified company. |
| 87.7.4.2.2. | CLEC will provide replacement cards and replacement Splitters as required. Replacement Splitters will be either new or of like-new quality. Upon CLEC’s written request, Sprint will return the replaced Splitter(s) to CLEC. CLEC agrees to pay the full costs of transportation of replacement Splitters to and from Sprint’s central office. |
| 87.7.4.2.3. | The following services are not covered by this Agreement: 1) services to resolve software or hardware problems resulting from products provided by parties other than Sprint or causes beyond the control of Sprint; 2) service of attached, related, collateral or ancillary equipment or software not covered by this Agreement; 3) repairing damage caused to the Splitter by persons other than Sprint, or its authorized contractors, or 4) repairing damage to other property or equipment caused by operation of the Splitter and not caused by the sole negligence of Sprint. |
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| 87.7.5. | Co-operative Testing and Inspection |
| 87.7.5.1. | CLEC agrees that operation of the Splitters will not commence before CLEC provides a device to Sprint, which will allow Sprint to test when it installs the Splitters and cabling. |
| 87.7.5.2. | Sprint agrees to allow CLEC to have reasonable, escorted access to the Splitters and the termination points for cooperative testing and inspection upon the request of either party, at a time mutually agreeable to both parties and in accordance with Sprint’s Co-operative Testing Policy. The requesting party agrees to pay the other party’s actual costs calculated on a time and material basis. |
| 87.7.5.3. | When the CLEC is provided test access to the splitter and its termination points, CLEC will at all times permit only those of its employees, contractors, or agents to make such testing who are properly certified as qualified under reasonable terms and conditions determined by Sprint within its sole discretion, and under such contract arrangements reasonably required by Sprint of CLEC. |
| 87.7.6. | Payment |
| 87.7.6.1. | Sprint shall perform replacement of the cards and the Splitters on a time and materials basis as needed. CLEC will make Payment according to the License for maintenance services within 30 days of receipt by CLEC of Sprint’s invoice. |
| 87.7.6.2. | Prices for all other services associated with the Splitters, including rack or bay space, are reflected in the price list or applicable tariff. |
| 87.7.7. | Return of Splitters |
| 87.7.7.1. | Upon termination of any License that includes Splitters (by expiration or otherwise) Sprint will insure that the Splitter is in as good operating order, repair, condition and appearance as when received, less normal wear and tear, and excepting physical damage, loss, destruction, theft or governmental taking in which case the provisions of Section 10 shall apply. CLEC agrees to provide Sprint via pre-paid delivery with a medium for packaging and transportation of such Splitter. CLEC absolves Sprint of any damage, which may occur as a result of Splitter transportation to CLEC. |
| 87.7.8. | Labeling |
| 87.7.8.1. |
Sprint agrees that, upon the request of CLEC, it shall cause the Splitters to be plainly, permanently, and conspicuously marked, |
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by metal tag or plate supplied by CLEC to be affixed thereto, indicating CLEC’s ownership of the Splitters. Sprint will not remove, destroy or obliterate any such marking. Sprint agrees to keep all Splitters free from any marking or labeling which might be interpreted as a claim of ownership thereof by Sprint or any party other than the CLEC. |
| 87.7.9. | Loss and Damage |
| 87.7.9.1. | CLEC shall bear the risk of loss or damage to the Splitter, except that occasioned by Sprint’s willful acts or gross negligence, with respect to any damage, destruction, loss, theft or governmental taking of any Splitter. |
| 87.7.10. | Warranty |
| 87.7.10.1. | CLEC warrants to Sprint that, so long as no event of default has occurred and is continuing under this Amendment, neither CLEC nor any assignee of CLEC will disturb Sprint’s quiet and peaceful possession of the Splitters and Sprint’s unrestricted use thereof for its intended purposes and CLEC warrants that Sprint shall have quiet enjoyment of the Splitters. Sprint will be entitled to the benefit of any applicable manufacturer’s warranties and indemnities and, to the extent assignable, such warranties and indemnities are hereby assigned by CLEC for the benefit of Sprint and CLEC shall take all reasonable action to enforce such warranties and indemnities where available to Sprint. CLEC shall execute, upon presentation, such documents and instruments as may be required to allow Sprint manufacturer’s warranty coverage for any Splitter. CLEC warrants that it has full authority to lease the Splitters under the terms and conditions set forth herein and that there are no restrictions, legal or otherwise, which would preclude it from so doing. |
| 87.7.11. | Payment to Manufacturer |
| 87.7.11.1. | In the event Sprint’s right to quiet enjoyment is breached, either by CLEC’s failure to make or cause to be made payment to the Splitter manufacturer of the full purchase price for the Splitter when such payment becomes due, or otherwise, Sprint may give written notice to CLEC and all of Sprint’s obligations relating to the affected Splitters shall terminate immediately. |
| 87.7.12. | Forecast |
| 87.7.12.1. |
CLEC will provide monthly forecast information to Sprint updated quarterly on a rolling twelve-month basis for requests for Voice Grade Loops (including Subloops), Non-Voice |
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Grade Loops (including Subloops), and HFS UNEs. An initial forecast meeting should be held soon after the first implementation meeting. A forecast should be provided at or prior to the first implementation meeting. The forecasts shall project the gain/loss of shared lines on a monthly basis by Sprint wire center and shall include a description of any major network projects planned by CLEC that will affect the demand. Forecast information shall be subject to the confidentiality provisions of this Agreement. Forecast information will be used solely for network planning and operations planning and shall not be disclosed within Sprint except as required for such purposes. Under no circumstances shall CLEC’s specific forecast information be disclosed to Sprint’s retail organization (excluding solely those operational personnel engaged in network and operations planning), product planning, sales or marketing. |
| 87.7.12.2. | Upon request of either Party, the Parties shall meet to review their forecasts going forward if forecasts vary significantly from actual results. |
| 87.7.12.3. | Each Party shall provide a specified point of contact for planning purposes. |
| 87.7.13. | Indemnification |
| 87.7.13.1. | Each Party, whether a CLEC or Sprint, agrees that should it cause any non-standard DSL technologies to be deployed or used in connection with or on Sprint facilities, that Party will pay all costs associated with any damage, service interruption or other telecommunications service degradation, or damage to the other Party’s facilities. |
| 87.7.13.2. |
For any technology, CLEC represents that its use of any Sprint network element, or of its own equipment or facilities in conjunction with any Sprint network element, will not materially interfere with or impair service over any facilities of Sprint, its affiliated companies or connecting and concurring carriers, cause damage to Sprint’s plant, impair the privacy of any communications carried over Sprint’s facilities or create hazards to employees or the public. Upon reasonable written notice and after a reasonable opportunity to cure, Sprint may discontinue or refuse service if CLEC violates this provision, provided that such termination of service will be limited to CLEC’s use of the element(s) causing the violation. Sprint will not disconnect the elements causing the violation if, after receipt of written notice and opportunity to cure, CLEC |
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demonstrates that their use of the network element is not the cause of the network harm. |
| 88. | DEMARCATION POINT. |
| 88.1. | Sprint will designate the point of demarcation, unless otherwise mutually agreed to by the Parties, in or adjacent to its Collocation Space. At CLEC’s request, Sprint will identify the location(s) of other possible demarcation points available to CLEC, and CLEC will designate from these location(s) the point(s) of demarcation between its collocated equipment and Sprint’s equipment. Sprint will use its best efforts to identify the closest demarcation point to CLEC’s equipment that is available. |
| 88.2. | Each Party will be responsible for maintenance and operation of all equipment/facilities on its side of the demarcation point. For 2-wire and 4-wire connections to Sprint’s network, Sprint may offer, as an option to CLEC, a demarcation point that is a common block on Sprint designated conventional distributing frame. CLEC will be responsible for providing, and CLEC’s third party vendor shall be responsible for installing and properly labeling/stenciling, the common block, and necessary cabling. CLEC or its agent must perform all required maintenance to equipment/facilities on its side of the demarcation point, following, and may self-provision cross-connects that may be required within the Collocation Space to activate service requests. |
| 88.3. | At CLEC’s option and expense, a point of termination (POT) bay, frame or digital cross-connect may be placed in or adjacent to the Collocation Space that may, at CLEC’s option, serve as the demarcation point. If CLEC elects not to provide a POT frame, Sprint will agree to handoff the interconnection cables to CLEC at its equipment, at CLEC’s designated demarcation point. When CLEC elects to install its own POT frame/cabinet, Sprint must still provide and install the required DC power panel. |
| 89. | APPLICATION PROCESS. |
| 89.1. | Upon CLEC’s selection of a Premises in which it desires to collocate its Equipment, Sprint will provide a then current collocation application form (the “Application”) to CLEC. CLEC will submit an Application when initially requesting Collocation Space, or modifying the use of the Collocation Space in a manner that exceeds its forecasted space and power requirements. The Application shall contain a detailed description and schematic drawing of the equipment to be placed in CLEC’s Collocation Space(s), an estimate of the amount of square footage required (or, in the case of Cageless Collocation, bay-space), as well as the associated power requirements, floor loading, and heat release of each piece. |
| 89.1.1. |
CLEC will complete the Application, and return it, along with the appropriate Application Fee, to Sprint. The Application shall include complete details of the collocation and interconnection requested, |
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including, but not limited to, specific floor space, power, and environmental conditioning requirements. Sprint will not process an Application until both the Application and the applicable Application fee are received. |
| 89.1.2. | Application Augment Fee. In the event CLEC desires to modify or decommission the use of the Collocation Space in a manner that requires additional engineering or preparation work by Sprint, CLEC will complete a subsequent Application detailing all information regarding the modification to the Collocation Space together with payment of the appropriate Application Augment Fee. Such modifications to the Premises may include but are not limited to, floor loading changes, changes necessary to meet HVAC requirements, changes to power plant requirements, and equipment additions. |
| 89.1.3. | No Subsequent Fee. Where CLEC modifies the use of the Collocation Space or adds equipment that requires no additional engineering or preparation work on the part of Sprint, Sprint will not impose additional charges or additional intervals that would delay CLEC’s operation. CLEC will notify Sprint of the modifications or additional equipment prior to installation. |
| 89.1.4. | If Collocation Space is unavailable or CLEC withdraws its request, the Application fee, less the costs incurred by Sprint (e.g. engineering record search and administrative activities required to process the Application) will be refunded. |
| 89.2. | Multiple Methods. If CLEC wishes Sprint to consider multiple methods for collocation on a single Application, CLEC will need to include in each Application a prioritized list of its preferred methods of collocating, e.g., caged, shared, or other, as well as adequate information, (e.g., specific layout requirements, cage size, number of bays, requirements relative to adjacent bays, etc.) for Sprint to process the Application for each of the preferred methods. If CLEC provides adequate information and its preferences with its Application, Sprint may not require an additional Application, nor would CLEC be required to restart the quotation interval should its first choice not be available in a requested Premises. Sprint will not select for CLEC the type of collocation to be ordered. |
| 89.3. | Within ten days after receiving CLEC’s Application for Physical Collocation, Sprint must inform CLEC whether the Application meets each of Sprint’s established collocation standards. Should CLEC submit a revised Application curing any deficiencies in an Application for Physical Collocation within ten days after being informed of them, CLEC shall retain its original position within any collocation queue that Sprint maintains. If Sprint informs CLEC that there is a deficiency in an Application, Sprint must provide sufficient detail so that CLEC has a reasonable opportunity to cure each deficiency. |
| 89.4. | In order to increase the amount of space available for collocation, Sprint will, upon request, remove obsolete unused equipment, from its Premises to increase the amount of space available for collocation. |
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| 89.5. | Revisions. All revisions to an initial request for a Physical Collocation Arrangement submitted by CLEC must be in writing. A new interval for the Physical Collocation Arrangement will be established which shall not exceed two months beyond the originally established date. CLEC will be required to pay any applicable application fees. |
| 89.6. | Price Quote. Sprint will provide a price quote within fourteen (14) calendar days of providing the response to the request for space availability for one (1) to five (5) applications, and within twenty (20) calendar days for six (6) or more applications. The quotation will include the applicable nonrecurring and recurring rates, and (where applicable) the estimated construction or provisioning interval no later than those specified above. |
| 89.7. | CLEC has sixty-five (65) calendar days from receipt of the quotation to accept the quotation in writing. The quotation expires after sixty-five (65) calendar days. After sixty-five (65) calendar days, a new Application and Application fee are required. Collocation Space is not reserved until the quotation is accepted. Sprint need not meet the deadlines for provisioning Physical Collocation if, after receipt of any price quotation provided by Sprint, CLEC does not notify Sprint that physical collocation should proceed. |
| 89.8. | Bona Fide Firm Order (BFFO). For physical, both caged and cageless, and virtual collocations, CLEC will indicate its intent to proceed with equipment installation in a Sprint Premises by accepting the price quote, which constitutes a BFFO. The BFFO must be received by Sprint no later than sixty-five (65) calendar days after Sprint’s provisioning of the price quote in response to CLEC’s Application. If CLEC makes changes to its application in light of Sprint’s written Application Response, Sprint may be required to re-evaluate and respond to the change(s). In this event, CLEC’s Application will be treated as a Revision. |
| 89.9. | Space preparation for the Collocation Space will not begin until Sprint receives the Bona Fide Firm Order and all applicable fees, including all non-recurring charges. |
| 90. | APPLICATION RESPONSE. |
| 90.1. | Application Intervals. Sprint shall provide confirmation of space availability for one (1) to five (5) applications submitted within ten (10) calendar days from the receipt of a completed application and application fee. For six (6) to twenty (20) applications, Sprint shall provide confirmation of space availability within twenty-five (25) calendar days from the receipt of a completed application and application fee. Should CLEC submit twenty-one (21) or more application request within five (5) business days, confirmation of space availability will be increased by five (5) calendar days for every five (5) additional reports requested or fraction thereof. In addition to response time for confirmation of space availability, and additional twenty (20) calendar days will be required for estimated price. |
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| 90.1.1. | Sprint will notify CLEC in writing as to whether its request for Collocation Space has been granted or denied due to lack of space The notification will also include a possible future space relief date, if applicable. |
| 90.1.2. | In its notification, Sprint will also inform CLEC if the space available for the requested Premises will be Active or Inactive Collocation Space. If CLEC’s space is placed in Inactive Space, then the notification shall also include rationale for placing the requested space in such category, including all power and other factors used in making the determination. |
| 90.2. | Denial of Application. After notifying the CLEC that Sprint has no available space in the requested Central Office (“Denial of Application”), Sprint will allow the CLEC, upon request, to tour the entire Central Office within ten (10) calendar days of such Denial of Application. In order to schedule said tour within ten (10) calendar days, the request for a tour of the Central Office must be received by Sprint within five (5) calendar days of the Denial of Application. |
| 90.2.1. | If CLEC contests Sprint’s notice that there is not sufficient space in the Central Office, the parties agree to seek expedited resolution of the dispute at the Commission pursuant to Section 251(c)(6) of the Act. If the Commission determines that space is not available, Sprint will not be required to conduct a review of floor space availability in the same central office more frequently than once every six months. |
| 90.2.1.1. | At the same time that Sprint notifies CLEC of a denial of space, Sprint will file a copy of the letter with the Commission that contains the information required by Applicable Rules, subject to proprietary protections. |
| 90.2.2. | On a first come, first serve basis, Sprint will maintain a waiting list of requesting carriers who have either received a Denial of Application or, where it is publicly known that the Premises is out of space, have submitted a Letter of Intent to collocate. |
| 90.2.3. | Sprint will simultaneously notify the telecommunications carriers on the waiting list when space becomes available within ten (10) calendar days if there is enough space to accommodate additional collocation. Subsequent to the granting of a Petition for Waiver, if CLEC has been denied space at a Sprint Premises and challenges Sprint on space availability at said Premises, CLEC will be given priority for space assignment if, as a result of the challenge, space is found to be available. CLEC will reaffirm its collocation request within thirty (30) calendar days of such notification; otherwise, it will be dropped to the bottom of the list. Upon request, Sprint will advise CLEC as to its position on the list. |
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| 90.2.4. | If CLEC’s Application for Physical Collocation is denied due to lack of space, Sprint will place CLEC on the waiting list for collocation in particular Premises according to the date CLEC submitted its Application and not the date of denial for lack of space. |
| 90.2.5. | Sprint will maintain on its website a notification document that will indicate all Premises that are without available space. Sprint will update such document within ten (10) calendar days of the date at which a Premises runs out of physical collocation space. |
| 91. | CONSTRUCTION. |
| 91.1. | Sprint shall permit CLEC or its designated subcontractor to perform the construction of physical collocation space, provided however, that any such CLEC subcontractor shall be subject to Sprint’s security standards. Sprint reserves the right to reject any CLEC subcontractor upon the same criteria that Sprint would use on its own subcontractors. CLEC will notify Sprint in writing when construction of physical collocation space is complete. Sprint will commence billing (1) upon notice of completion; (2) 90 business days from CLEC’s acceptance of the price quote; or (3) upon commencement of operations, whichever is earliest. |
| 91.2. | Sprint Inspection. Sprint shall have the right to inspect CLEC’s completed installation of equipment and facilities prior to CLEC turning up such equipment and facilities. CLEC shall provide written notification to Sprint when CLEC has completed its installation of equipment and facilities in the Collocation space, and Sprint shall, within five (5) Business Days of receipt of such notice, either (i) inspect such Collocation space or (ii) notify CLEC that Sprint is not exercising its right to inspect such Collocation space at that time and that CLEC may turn up its equipment and facilities. Failure of Sprint to either inspect the Collocation space or notify CLEC of its election not to inspect such space within the foregoing five (5) Business Day period shall be deemed an election by Sprint not to inspect such Collocation space. CLEC shall have the right to be present at such inspection, and if CLEC is found to be in non-compliance with the terms and conditions of this Agreement that relate to the installation and use of CLEC’s Collocated equipment and facilities, CLEC shall modify its installation to achieve compliance prior to turning up its equipment and facilities. |
| 91.3. | To the extent Sprint performs the construction of the Physical Collocation Arrangement, Sprint shall construct the Collocated Space in compliance with mutually agreed collocation request. Any deviation to CLEC’s order must thereafter be approved by CLEC. The Parties acknowledge that CLEC approved deviations may require additional construction time and may incur additional CLEC expenses. CLEC shall pay the incremental cost incurred by Sprint as the result of Revision applicable to construction of any Collocation Space. CLEC will pay all nonrecurring charges set forth on the price quote, prior to Sprint commencing construction of the collocation space. |
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| 91.4. | Extraordinary Construction Costs. CLEC will be responsible for all extraordinary costs, as determined in accordance with the Act, incurred by Sprint to prepare the Collocation space for the installation of CLEC’s equipment and for extraordinary costs to maintain the Collocation space for CLEC’s equipment on a going-forward basis. Extraordinary costs may include costs for such items as asbestos removal, fire suppression system or containment, modifications or expansion of cable entry facility, increasing the DC power system infrastructure capacity, increasing the capacity of the standby AC system (if available) or the existing commercial power facility, conversion of non-Collocation space, compliance with federal and state requirements, or other modifications required by local ordinances. Sprint will charge for these extraordinary costs on a time-sensitive or time-and-materials basis and will allocate the costs fairly among itself, CLEC and other collocators. An estimate of such costs, as determined in accordance with the Act, will be provided to CLEC prior to commencing such work. Extraordinary costs will only be billed to CLEC if such costs have been authorized by CLEC. Sprint must advise CLEC if extraordinary costs will be incurred. |
| 91.5. | Permits. Each Party or its agents will diligently pursue filing for the permits required for the scope of work to be performed by that Party or its agents. |
| 91.6. | Acceptance Walk Through. Sprint will notify CLEC when construction of a Collocation Space is complete. The Parties will complete an acceptance walk through of each provisioned Collocation Space. Sprint will commence to correct any deviations to CLEC’s original or jointly amended requirements within five (5) calendar days after the walk through. If CLEC does not conduct an acceptance walk through within 15 days of the notification that the Collocation Space construction is complete, CLEC will be deemed to have accepted the Collocation Space and billing will commence. |
| 91.7. | If, at anytime, CLEC cancels its order for Physical Collocation, Caged, Shared Cage, or Adjacent Space Collocation, or Virtual Collocation, CLEC will reimburse Sprint for any actual expenses incurred and not already paid, which may include incidental equipment costs, material ordered, provided or used; labor; transportation, DS0, DSI and DS3 cable and all other associated costs. Sprint shall provide CLEC with a detailed listing showing the costs incurred plus monthly recurring costs for six months or the number of months remaining in the contract term whichever is less. |
| 92. | SPACE RESERVATION. |
| 92.1. | CLEC may reserve Collocation space for its future use in Sprint’s Premises. Sprint shall notify CLEC in writing if another Telecommunications Carrier requests Collocation space that is reserved by CLEC. CLEC shall, within five (5) Business Days of receipt of such notice, provide Sprint either (i) written notice that CLEC relinquishes such space or (ii) enforce its reservation of space. Failure of CLEC to respond to Sprint within the foregoing five (5) Business Day period shall be deemed an election by CLEC to relinquish such space. |
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| 92.2. | The parties may reserve floor space for their own specific uses for the remainder of the current year, plus twelve (12) months. Neither Sprint, nor any of its affiliates, will reserve space for future use on terms more favorable than those that apply to other telecommunications carriers seeking to reserve collocation space for their own future use. Upon request, Sprint will provide justification for denying a request to reserve space to CLEC based on a demand and facility forecast. CLEC will pay the cost of preparing the justification. Sprint will not exclusively and unilaterally reserve active space that is supported by existing telecommunications infrastructure space. Sprint will disclose to CLEC the space it reserves for its own future growth and for its interLATA, advanced services, and other affiliates. |
| 93. | PROVISIONING INTERVALS. |
| 93.1. | Caged Provisioning Intervals: Sprint will complete construction, including power, for collocation arrangements in Active Collocation Space within a maximum of 105 calendar days from receipt of a complete and accurate Bona Fide Firm Order. When Active Collocation Space has been exhausted, Sprint will complete construction of all other caged collocation spaces (i.e., caged, shared cage and adjacent space collocation) within 126 calendar days. If Sprint is unable to complete construction as provided herein, the parties may agree to a mutually acceptable interval or Sprint may petition the Commission for waiver. |
| 93.2. | Cageless Provisioning Intervals: Sprint will complete construction of Active Collocation Space requests for cageless collocation in 60 calendar days from the receipt of CLEC’s Bona Fide Firm order where the CLEC is installing all of its own bays. Sprint will complete construction of Active Collocation Space requests for cageless collocation in 60 calendar days from the receipt of CLEC’s Bona Fide Firm order where Sprint will be installing all or some of the bays. Sprint will complete construction of cageless collocation in Premises such as CEVs, Huts and Vaults in 105 calendar days from the receipt of CLEC’s Bona Fide Firm order where Sprint will be installing all or some of the bays. |
| 93.3. | Virtual Provisioning Intervals: Sprint will complete construction of virtual collocation arrangements in 60 calendar days from the receipt of the CLEC’s Bona Fide Firm Order. |
| 94. | EQUIPMENT. |
| 94.1. | Equipment Type. CLEC may locate equipment necessary for interconnection to Sprint under 47.U.S.C. 251 (C) (2) and accessing Sprint’s unbundled network elements under 47.U.S.C. 251 (C) (3). |
| 94.2. | CLEC’s equipment and facilities shall not be placed or operated in such a manner that creates hazards or causes physical harm to any individual or the public. |
| 94.3. |
All equipment to be collocated must meet Level 1 safety requirements as set forth in Telcordia Network Equipment and Building Specifications (NEBS), but Sprint |
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will not impose safety requirements on CLEC that are more stringent than the safety requirements it imposes on its own equipment. Sprint may not deny collocation of CLEC’s equipment because the equipment fails to meet NEBS reliability standards. If Sprint denies collocation of CLEC’s equipment, citing safety standards, Sprint must provide to CLEC within five (5) business days of the denial a list of all equipment that Sprint locates within the Premises in question, together with an affidavit attesting that all of that equipment meets or exceeds the safety standard that Sprint contends the competitor’s equipment fails to meet. In the event that Sprint believes that the collocated equipment is not necessary for interconnection or access to unbundled network elements or determines that CLEC’s equipment does not meet NEBS Level 1 safety requirements, CLEC will be given ten (10) calendar days to comply with the requirements or remove the equipment from the collocation space. If the parties do not resolve the dispute, the Parties may file a complaint at the Commission seeking a formal resolution of the dispute. While the dispute is pending, Sprint will not prevent or otherwise delay installation of the disputed equipment in the Collocation space; however, CLEC will not activate the equipment during the pendency of the dispute. |
| 94.4. | CLEC must notify Sprint in writing that collocation equipment installation is complete and is operational with Sprint’s network. If CLEC fails to place operational telecommunications equipment in the collocated space and connect with Sprint’s network within 180 calendar days of CLEC’s acceptance of Sprint’s price quote, or other time period mutually agreed to by the CLEC and Sprint, Sprint may terminate the applicable Collocation Space upon written notice. CLEC will reimburse Sprint for any actual expenses incurred and not already paid, which may include incidental equipment costs, material ordered, provided or used; labor; transportation, DSO, DS1 and DS3 cable and all other associated costs. Sprint shall provide CLEC with a detailed listing of the costs incurred plus monthly recurring costs for six months or the number of months remaining in the contract term whichever is less. |
| 95. | AUGMENTS AND ADDITIONS. |
| 95.1. | When CLEC adds equipment within initial forecasted demand parameters that requires no additional space preparation work on the part of Sprint, Sprint may not impose additional charges or additional intervals that would delay the CLEC’s operation. |
| 95.2. | Sprint will provide reduced intervals, not to exceed the interval for a new collocation space, to CLEC with existing physical collocation space that requests augments. In such instances, the CLEC must provide an accurate front equipment view (a.k.a. rack elevation drawing) specifying bay(s) for the CLEC’s point of termination. |
| 95.3. | The reduced provisioning interval will apply only when CLEC provides a complete Application accompanied by the applicable Application Fee. |
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| 95.4. | CLEC must submit an Application and applicable Application fee to obtain a price quote. The price quote will contain the charges and the construction intervals for that application. The construction interval for augments will not exceed 90 calendar days after acceptance and authorization by CLEC. If special or major construction is required, Sprint will work cooperatively with CLEC to negotiate mutually agreeable construction intervals for augments. |
| 96. | USE OF COMMON AREAS. |
| 96.1 | CLEC, its employees, agents and invitees shall have a non-exclusive right to use those portions of the common area of the Building as are designated by Sprint from time to time, including, but not limited to, the right to use rest rooms in proximity to the Collocation Space, corridors and other access ways from the entrance to the Building, the Collocation Space, and the parking areas adjacent to the Building for vehicles of persons while working for or on behalf of CLEC at the Collocation Space; provided, however, that Sprint shall have the right to reserve parking spaces for Sprint’s exclusive use or use by other occupants of the Building. Sprint does not guarantee that there is or will be sufficient parking spaces in parking areas to meet CLEC’s needs. Sprint does not guarantee that restroom facilities or water will be available. All common areas shall remain under the exclusive control and management of Sprint, and Sprint shall have the right to change the level, location and arrangement of parking areas and other common areas, as Sprint may deem necessary. Use of all common areas shall be subject to such reasonable rules and regulations as Sprint may from time to time impose, consistent with CLEC’s right to access its Collocation Space. |
| 96.2. | Water. Sprint, where water is available for its own use, shall furnish running water from regular Building outlets for drinking, lavatory and toilet purposes drawn through fixtures installed by Sprint, for the non-exclusive use of CLEC, Sprint and any other building occupant. CLEC shall not waste or permit the waste of water. |
| 96.3. | Security Service. Sprint shall furnish Building and Premises security in accordance with its normal business practices. Other than the locks on the entrances to the Collocation Space, Sprint shall provide no security specific to CLEC’s Collocation Space. Sprint shall not be liable to CLEC or any other party for loss of or damage to the Collocation Space or LOE unless Sprint has failed to provide Building and Premises security in accordance with its normal business practices. |
| 96.4. | Elevator Service. Sprint shall furnish passenger elevator service as necessary to reach the Collocation Space or common areas to which CLEC has access pursuant to the terms of this Agreement 24 hours a day, seven days a week. Freight elevator service when used by CLEC’s contractors, employees or agents shall be provided in a non-discriminatory manner as reasonably determined by Sprint. |
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| 97. | SPRINT’S SERVICES AND OBLIGATIONS. |
| 97.1. | Adjacent collocation refers to collocations in the same premises that have a common border; and is not referring to a form of physical collocation as described in CFR Part 47 51.323(k)(3). |
| 97.2. | For the term of this Agreement, unless earlier terminated Sprint shall furnish the following services: |
| 97.3. | Interconnection. Sprint shall permit CLEC to interconnect its network, via cross- connect facilities, with that of another adjacent collocating telecommunications carrier at the Sprint Premises. Sprint will provide such cross-connect facilities for non- adjacent locations at the expense of the CLEC per the CLEC’s request. |
| 97.3.1. | If a CLEC occupies more than one Collocation Space location within the Premises, CLEC may interconnect its equipment contained in the two separate adjacent Collocation Space locations. Sprint will provide such cross-connect facilities for non- adjacent locations at the expense of the CLEC per the CLEC’s request. |
| 97.4. | Transmission Facility Options. For both Physical Collocation and Virtual Collocation, CLEC may purchase unbundled transmission facilities (and any necessary Cross-Connection) from Sprint, provide its own transmission facilities, or utilize the transmission facilities of a third party. The transmission facilities shall be terminated at the CLEC’s Collocation Space or at a mutually agreed upon location within Sprint’s Premises. |
| 98. | RATES. |
| 98.1. | The rates for collocation are listed on Page 199 of this Section. |
| 98.2. | If CLEC is the first CLEC in the Sprint premises, CLEC will not be responsible for the entire cost of site preparation and security. However, ancillary charges for unique collocator requests for collocation options directly attributable to the requesting collocator will not be prorated. Examples include power arrangements, remote switch module related options and POT bay-related options. |
| 98.3. | The rates and charges in this Agreement do not include costs for any Americans with Disability Act (ADA) construction generated or caused by the physical collocation space request. If required, ADA construction will be provided on an ICB. If Sprint is required to upgrade a Premises, or portion of the Premises to comply with the ADA which arises as a direct result of CLEC’s Collocation Arrangement, Sprint will prorate the total forward-looking economic cost of the upgrade, and allocate the charge to each CLEC collocated within the Premises, based on the total space utilized by each collocated CLEC. Should Sprint benefit in any way whatsoever from the ADA upgrades, it shall share in the proration of costs. Should Sprint be the sole beneficiary of an upgrade (e.g., an upgrade would have had to be made regardless of whether or not a CLEC was collocated in the Premises), Sprint shall absorb all of the costs related to such an upgrade. |
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| 99. | SPRINT SERVICES AND OBLIGATIONS. |
| 99.1. | Environmental Controls. Sprint shall furnish air conditioning and/or other environmental controls for the area in which the Collocation Space is located in a manner consistent with those provided elsewhere in the Building. Sprint shall furnish air conditioning and/or other environmental controls for the Collocation Space based on information provided by CLEC to Sprint in its application which CLEC hereby represents to Sprint is sufficient to allow the LOE to function without risk of harm or damage to the Collocation Space, the Building or any equipment or facilities of Sprint or any other occupant of the Building. These environmental conditions shall adhere to Telcordia Network Equipment Building System (NEBS) standards GR-63-CORE Issue 2 or other mutually agreed standards. |
| 99.1.1. | If CLEC locates equipment or facilities in the Collocation Space which Sprint determines, in the exercise of its sole discretion, affect the temperature or other environmental conditions otherwise maintained by Sprint in the Building, Sprint reserves the right to provide and install supplementary air conditioning units or other environmental control devices in the Collocation Space, and the cost of providing, installing, operating and maintaining any such supplementary air conditioning units or other environmental control devices made necessary solely by CLEC’s equipment or facilities shall be paid by CLEC to Sprint. If supplementary air conditioning units or other environmental control devices are required for more than one CLEC each CLEC will pay a pro-rata share of such costs, in proportion to the space occupied by each as compared to the total space available for collocation. |
| 99.2. | Electricity. If Sprint, in the exercise of its reasonable business judgment, determines that the electricity provided to CLEC pursuant to this Section is insufficient to support the activity being carried on by the CLEC in the Collocation Space, Sprint may require the installation of additional electrical circuits to provide CLEC with additional electricity and CLEC shall reimburse Sprint for any expenses incurred in making such additional electrical circuits available to CLEC’s Collocation Space. CLEC shall also pay for additional electricity provided via these circuits. |
| 99.2.1. | CLEC covenants and agrees that Sprint shall not be liable or responsible to CLEC for any loss, damage or expense which CLEC may sustain or incur if either the quality or character of electrical service is changed or is no longer suitable for CLEC’s requirements. |
| 99.2.2. | CLEC covenants and agrees that its use of electric current shall never exceed the capacity of existing feeders to the Building or the Collocation Space, when reviewed in conjunction with electrical usage of other occupants in the Building. |
| 99.2.3. |
Central office power supplied by Sprint into the CLEC equipment area shall be supplied in the form of power feeders (cables) on cable racking into the designated CLEC equipment area. The power feeders (cables) |
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shall efficiently and economically support the requested quantity and capacity of CLEC equipment. The termination location shall be as agreed by the parties. |
| 99.2.4. | Sprint shall provide power as requested by CLEC to meet CLEC’s need for placement of equipment, interconnection, or provision of service |
| 99.2.5. | Sprint power equipment supporting CLEC’s equipment shall: |
| 99.2.5.1. | Comply with applicable industry standards (e.g., Telcordia, NEBS and IEEE) or manufacturer’s equipment power requirement specifications for equipment installation, cabling practices, and physical equipment layout or at minimum, at parity with that provided for similar Sprint equipment; |
| 99.2.5.2. | Have redundant power feeds with physical diversity and battery back-up as required by the equipment manufacturer’s specifications for CLEC equipment, or, at minimum, at parity with that provided for similar Sprint equipment; |
| 99.2.5.3. | Provide, upon CLEC’s request, the capability for real time access to power performance monitoring and alarm data that impacts (or potentially may impact) CLEC traffic; |
| 99.2.5.4. | Provide central office ground, connected to a ground electrode located within the Collocated Space, at a level above the top of CLEC equipment plus or minus 2 feet to the left or right of CLEC’s final request; and |
| 99.2.5.5. | Provide feeder cable capacity and quantity to support the ultimate equipment layout for CLEC’s equipment in accordance with CLEC’s collocation request. |
| 99.2.6. | Sprint shall provide cabling that adheres to Telcordia Network Equipment Building System (NEBS) standards GR-63-CORE Issue 2; |
| 99.2.7. | Sprint shall provide Lock Out-Tag Out and other electrical safety procedures and devices in conformance with the most stringent of OSHA or industry guidelines. |
| 99.2.8. | Sprint will provide CLEC with written notification within ten (10) business days of any scheduled AC or DC power work or related activity in the collocated facility that will or might cause an outage or any type of power disruption to CLEC equipment located in Sprint facility. Sprint shall provide CLEC immediate notification by telephone of any emergency power activity that would impact CLEC’s equipment. |
| 99.3. Fire |
Safety System. Sprint may furnish an existing Halon 1301 Fire Suppression System, or may, but is not obligated to, provide its equivalent, to provide fire protection in the Collocation Space designed to comply with the National Fire |
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Protection Association (“NFPA”) 12A Standard on Halon 1301 Fire Extinguishing Systems or with NFPA standard 2001 dealing with alternative five suppression agents. Sprint shall furnish fire and smoke detection systems designed to comply with the NFPA 72E Standard on Automatic Fire Detectors in effect as of the collocation date. |
| 99.3.1. | Stand-alone fire extinguishers will be provided in and about the Building and the Collocation Space by Sprint as required by applicable fire codes. |
| 99.3.2. | Sprint and Sprint’s insurance carriers will perform regular inspections of fire protection systems, and CLEC hereby agrees to provide Sprint and Sprint’s insurance carriers access to the Collocation Space for purposes of such inspections, via pass key or otherwise. Sprint agrees to provide CLEC with notice of its intent to access CLEC’s Collocation Space where, in Sprint’s sole discretion, such notice is practicable; provided, however, that no failure of Sprint to give such notice will affect Sprint’s right of access or impose any liability on Sprint. Sprint will, at its expense, maintain and repair the fire and smoke detection systems unless maintenance or repair is required due to the act or omission of CLEC, its employees, agents or invitees, in which case CLEC shall reimburse Sprint for the cost of such repair or replacement. If a Halon or alternative fire suppression system is in place, the CLEC shall, if at fault, and at Sprint’s option, replace Halon or other fire extinguishing material discharged as a result of CLEC’s act or omission. CLEC shall have no duty to inspect fire protection systems outside the Collocation Space; provided, however, if CLEC is aware of damage to the fire protection systems it shall promptly notify Sprint. |
| 99.3.3. | CLEC is aware the Collocation Space will contain a fire detection system and may contain a fire suppression system. In the event of discharge, Sprint is relieved of all liability for damage to equipment or personal injury except in cases where such damage to equipment or personal injury is due to the gross negligence or willful misconduct of Sprint, its officers, agents or employees. |
| 99.4. | Repairs. Sprint shall, at its sole expense, except as hereinafter provided, provide repair and maintenance of heating, cooling and lighting equipment and regularly scheduled refurbishment or decorating to the Collocation Space, Building and Premises, in a manner consistent with Sprint’s normal business practices. |
| 99.4.1. |
Sprint shall not be obligated to inspect the Collocation Space, make any repairs or perform any maintenance unless first notified of the need in writing by CLEC. If Sprint shall fail to commence such repairs or maintenance within 20 days after written notification, provided that such delays are not caused by CLEC, CLEC’s sole right and remedy shall be, after further notice to Sprint, to make such repairs or perform such maintenance and to deduct that cost and expenses from the physical collocation fees payable; provided, however, that the amount of such |
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deduction shall not exceed the reasonable value of such repairs or maintenance. |
| 99.4.2. | Sprint shall, where practical, provide CLEC with 24 hours prior notice before making repairs and/or performing maintenance on the Collocation Space; provided, however, that Sprint shall have no obligation to provide such notice if Sprint determines, in the exercise of its sole discretion, that such repair or maintenance must be done sooner in order to preserve the safety of the Building or the Collocation Space, or if required to do so by any court or governmental authority. Work shall be completed during normal working hours or at other times identified by Sprint; provided, however, that CLEC shall pay Sprint for overtime and for any other expenses incurred if such work is done during other than normal working hours at CLEC’s request. CLEC shall have the right, at its sole expense, to be present during repair or maintenance of the Collocation Space. |
| 99.4.3. | The cost of all repairs and maintenance performed by or on behalf of Sprint to the Collocation Space which are, in Sprint’s reasonable judgment, beyond normal repair and maintenance, or are made necessary as a result of misuse or neglect by CLEC or CLEC’s employees, invitees or agents, shall be paid by CLEC to Sprint within 10 days after being billed for such repairs and maintenance by Sprint. |
| 99.5. | Sprint shall provide CLEC with notice via email three (3) business days prior to those instances where Sprint or its subcontractors perform work which is known to be a service affecting activity. Sprint will inform CLEC by email of any unplanned service outages. Notification of any unplanned service outages shall be made as soon as practicable after Sprint learns that such outage has occurred. |
| 99.6. | Interruption of Services. Sprint reserves the right to stop any service when Sprint deems such stoppage necessary by reason of accident or emergency, or for repairs, improvements or otherwise; however, Sprint agrees to use its best efforts not to interfere with CLEC’s use of Collocation Space. Sprint does not warrant that any service will be free from interruptions caused by labor controversies, accidents, inability to obtain fuel, water or supplies, governmental regulations, or other causes beyond the reasonable control of Sprint. |
| 99.6.1. | No such interruption of service shall be deemed an eviction or disturbance of CLEC’s use of the Collocation Space or any part thereof, or render Sprint liable to CLEC for damages, by abatement of CLEC Fees or otherwise, except as set forth in the Tariff, or relieve CLEC from performance of its obligations under this Agreement. CLEC hereby waives and releases all other claims against Sprint for damages for interruption or stoppage of service. |
| 99.7. | Access. For physical collocation, subject to reasonable building rules and any applicable Security Arrangements, CLEC shall have the right of entry twenty-four (24) hours per day seven (7) days a week to the Building, common areas, Collocation Space and common cable space. |
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| 99.7.1. | Sprint, at CLEC’s expense, may issue non-employee photo identification cards for each CLEC employee or vendor Temporary identification cards may otherwise be provided by Sprint for employees or agents, contractors and invitees of CLEC who may require occasional access to the Collocation Space. |
| 99.7.2. | Sprint may issue access cards, codes, or keys to CLEC’s listed employees or vendors where such systems are available and their use by CLEC will not otherwise compromise building security. |
| 99.7.3. | Sprint reserves the right to close and keep locked all entrance and exit doors of the Premises during hours Sprint may deem advisable for the adequate protection of the Premises. Use of the Premises at any time it is unattended by appropriate Sprint personnel, or on Sundays and state and federal or other holidays recognized by Sprint, or, if CLEC’s Collocation Space is not fully segregated from areas of the Premises containing Sprint equipment, shall be subject to such reasonable rules and regulations as Sprint may from time to time prescribe for its own employees and third party contractors. |
| 99.7.4. | To require all persons entering or leaving the Premises during such hours as Sprint may from time to time reasonably determine to identify themselves to a watchman by registration or otherwise and to establish their right to leave or enter, and to exclude or expel any solicitor or person at any time from the Collocation Space or the Premises. Sprint assumes no responsibility and shall not be liable for any damage resulting from the admission or refusal to admit any unauthorized person or from the admission of any authorized person to the Premises, provided that such damage is not the result of gross negligence or willful misconduct on the part of Sprint. |
| 99.8. | Access Right of Sprint. Sprint shall have access to CLEC’s Physical Collocation Space at all times, via pass key or otherwise, to allow Sprint to react to emergencies, to maintain the space (not including CLEC’s equipment), and to monitor compliance with the rules and regulations of the Occupational Health and Safety Administration or Sprint, or other regulations and standards including but not limited to those related to fire, safety, health, and environmental safeguards. If a secure enclosure defining the location of the CLEC’s Collocation Space has been established, and if conditions permit, Sprint will provide CLEC with notice (except in emergencies) of its intent to access the Collocation Space, thereby providing CLEC the option to be present at the time of access. CLEC shall not attach, or permit to be attached, additional locks or similar devices to any door or window, nor change existing locks or the mechanism thereof. |
| 99.8.1. |
To enter the Collocation Space for the purposes of examining or inspecting same and of making such repairs or alterations as Sprint deems necessary. CLEC hereby waives any claim for damage, injury, |
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interference with CLEC’s business, any loss of occupancy or quiet enjoyment of the Collocation Space, and any other loss occasioned by the exercise of Sprint’s access rights, except in the event such damages result solely from the gross negligence or willful misconduct of Sprint |
| 99.8.2. | To use any means Sprint may deem proper to open Collocation Space doors or enclosures in an emergency. Entry into the Collocation Space obtained by Sprint by any such means shall not be deemed to be forcible or unlawful entry into or a detainment of or an eviction of CLEC from the Collocation Space or any portion thereof. |
| 100. | CLEC’S OBLIGATIONS. |
| 100.1. | Inspection and Janitorial. CLEC shall regularly inspect the Collocation Space to ensure that the Collocation Space is in good condition. CLEC shall promptly notify Sprint of any damage to the Collocation Space or of the need to perform any repair or maintenance of the Collocation Space, fixtures and appurtenances (including hardware, heating, cooling, ventilating, electrical and other mechanical facilities in the Collocation Space). CLEC shall provide regular janitorial service to its Collocation Space and keep the Collocation Space clean and trash free. |
| 100.2. | Security Arrangements. CLEC agrees to abide by all of Sprint’s security practices for non-Sprint employees with access to the Building, including, without limitation: |
| 100.2.1. | CLEC will supply to Sprint, and update as changes occur, a list of its employees or approved vendors who require access to the Premises. The list will include the social security numbers of all such individuals. Sprint may reasonably object to any person on the list, in which case that person will be denied entry into the building. Sprint’s objections will be consistent with the grounds for denying access to personnel of its own contractors or for denying employment directly with Sprint. |
| 100.2.2. | CLEC is responsible for returning identification and access cards, codes, or keys of its terminated employees or its employees who no longer require access to the Collocation Space. All cards, codes, or keys must be returned upon termination of the applicable Collocation Space. CLEC will reimburse Sprint actual costs due to unreturned or replacement cards, codes, or keys. |
| 100.2.3. | CLEC’s employees, agents, invitees and vendors must display identification cards at all times. |
| 100.2.4. | CLEC will assist Sprint in validation and verification of identification of its employees, agents, invitees and vendors by providing a telephone contact available 24 hours a day, seven days a week to verify identification. |
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| 100.2.5. | Removal of all furniture, equipment or similar articles will be based on local Sprint security practices. These security practices will not be more stringent for CLEC than Sprint requires for its own employees of Sprint’s contractors. |
| 100.2.6. | Before leaving the Collocation Space unattended, CLEC shall close and securely lock all doors and windows and shut off unnecessary equipment in the Collocation Space. Any injury to persons or damage to the property of Sprint or any other party with equipment in the Building resulting from CLEC’s failure to do so shall be the responsibility of CLEC. CLEC will defend and indemnify Sprint from and against any claim by any person or entity resulting in whole or in part from CLEC’s failure to comply with this section. |
| 100.2.7. | CLEC agrees that Sprint may provide a security escort for physical collocation, at no cost or undue delay to CLEC, to CLEC personnel while on Sprint Premises. While such escort shall not be a requirement to CLEC’s entry into the Building, CLEC must allow the security escort to accompany CLEC personal at all times and in all areas of the Building, including the Collocation Space, if so requested. |
| 100.2.8. | CLEC shall post in a prominent location visible from the common Building area, the names and telephone numbers of emergency contact personnel along with names and telephone numbers of their superiors for 24 hour emergency use by Sprint. CLEC shall promptly update this information as changes occur. |
| 100.3. | Electricity. CLEC will provide Sprint with written notification within ten (10) business days of any scheduled AC or DC power work or related activity in the collocated facility that will or might cause an outage or any type of power disruption to Sprint equipment located in CLEC facility. CLEC shall provide Sprint immediate notification by telephone of any emergency power activity that would impact Sprint equipment. |
| 100.4. | Uninterruptible Power Supply (UPS). CLEC shall not provision and/or install UPS systems within the Sprint premises. The customer is permitted to install Inverted Power Systems if and only if documented compliance with National Equipment Building Standards (NEBS) III and Listing by Underwriters Laboratory (UL) has been met. |
| 100.5. | Electro-Chemical Stationary Batteries. CLEC shall not place Electro-Chemical Storage Batteries of any type inside the collocation space. |
| 100.6. | Interruption of Services. CLEC shall provide Sprint with written notice three (3) business days prior to those instances where CLEC or its subcontractors perform work, which is to be a known service affecting activity. CLEC will inform Sprint by email of any unplanned service outages. The parties will then agree upon a plan to manage the outage so as to minimize customer interruption. Notification of any unplanned service outage shall be made as soon as practicable after CLEC learns that such outage has occurred so that Sprint can take any action required to monitor or protect its service. |
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| 100.7. | Telephone. CLEC may, at its own expense, install and maintain regular business telephone service in the Collocation Space. If requested by CLEC and at CLEC’s expense, Sprint will provide basic telephone service with a connection jack in the Collocation Space. |
| 100.8. | Fire Protection Systems. CLEC shall, with the prior written consent of Sprint, have the right to provide additional fire protection systems within the Collocation Space; provided, however, that CLEC may not install or use sprinklers or carbon dioxide fire suppression systems within the Building or the Collocation Space. |
| 100.8.1. | If any governmental bureau, department or organization or Sprint’s insurance carrier requires that changes or modifications be made to the fire protection system or that additional stand alone fire extinguishing, detection or protection devices be supplied within that portion of the Building in which the Collocation Space of CLECs in general are located, such changes, modifications, or additions shall be made by Sprint and CLEC shall reimburse Sprint for the cost thereof in the same proportion as the size of the CLEC’s Collocation Space as compared to the total available collocation space in the affected portion of the Building. |
| 100.9. | Hazardous Materials. CLEC shall identify and shall notify Sprint in writing of any Hazardous Materials CLEC may bring onto the Premises, and will provide Sprint copies of any inventories or other data provided to State Emergency Response Commissions (“SERCs”), Local Emergency Planning Committees (“LEPCs”), or any other governmental agencies if required by the Emergency Planning and Community Right to Know Act (41 U.S.C. 11001, et seq.). CLEC, its agents and employees shall transport, store and dispose of Hazardous Materials in accordance with all applicable federal, state or local laws, ordinances, rules and regulations. CLEC will promptly notify Sprint of any releases of Hazardous Materials and will copy Sprint on any notification of or correspondence with any governmental agency which may be required by any environmental law as a result of such release. |
| 100.9.1. | CLEC shall provide Sprint copies of all Material Safety Data Sheets (“MSDSs”) for materials or chemicals regulated under the OSHA Hazard Communication Standard (29 C.F.R. 1910.1200) that are brought onto the property. All such materials shall be labeled in accordance with 29 C.F.R. 1910.1200 and applicable state regulations if such regulations are more stringent. |
| 100.9.2. |
If Sprint discovers that CLEC has brought onto Sprint’s Premises Hazardous Materials without notification, or is storing or disposing of such materials in violation of any applicable environmental law, Sprint may, at Sprint’s option and without penalty, terminate the applicable Collocation Space or, in the case of pervasive violation, this Agreement or suspend performance hereunder. CLEC shall be responsible for, |
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without cost to Sprint, the complete remediation of any releases or other conditions caused by its storage, use or disposal of Hazardous Materials. CLEC shall also be responsible for removing and disposing of all Hazardous Materials on its Collocation Space at the termination of the applicable Collocation Space or this Agreement. If Sprint elects to terminate the applicable Collocation Space or this Agreement or discontinue the performance of services hereunder due to the storage, use or disposal of Hazardous Materials contrary to the terms of this Agreement, CLEC shall have no recourse against Sprint and shall be responsible for all costs and expenses associated with such termination or suspension of service in addition to being responsible for any remedies available to Sprint for defaults under this Agreement. |
| 100.9.3. | CLEC shall indemnify and hold harmless Sprint, its successors and assigns against, and in respect of, any and all damages, claims, losses, liabilities and expenses, including, without limitation, all legal, accounting, consulting, engineering and other expenses, which may be imposed upon, or incurred by, Sprint or asserted against Sprint by any other party or parties (including, without limitation, Sprint’s employees and/or contractors and any governmental entity) arising out of, or in connection with, CLEC’s use, storage or disposal of Hazardous Materials. |
| 100.9.4. | For purposes of this Section, “Hazardous Materials” shall mean any toxic substances and/or hazardous materials or hazardous wastes (including, without limitation, asbestos) as defined in, or pursuant to, the OSHA Hazard Communication Standard (29 CFR Part 1910, Subpart Z), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901, et seq.), or regulations adopted pursuant to those statutes, the Toxic Substances Control Act (15 U.S.C. Section 2601, et seq.), the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601, et seq.) or any other federal, state or local environmental law, ordinance, rule or regulation. The provisions of this Section shall survive the termination, cancellation, modification or recession of this Agreement. |
| 100.10. | Various Prohibited Uses. CLEC shall not do or permit anything to be done upon the Collocation Space, or bring or keep anything thereon which is in violation of any federal, state or local laws or regulations (including environmental laws or regulations not previously described), or any rules, regulations or requirements of the local fire department, Fire Insurance Rating Organization, or any other similar authority having jurisdiction over the Building. CLEC shall not do or permit anything to be done upon the Collocation Space which may in any way create a nuisance, disturb, endanger, or otherwise interfere with the telecommunications services of Sprint, any other occupant of the Building, their patrons or customers, or the occupants of neighboring property, or injure the reputation of the Premises. |
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| 100.10.1. | CLEC shall not exceed the Uniformly Distributed Live Load Capacity. Sprint LTD Real Estate Planning shall evaluate and determine live load capacity rating on a site-specific basis prior to equipment installation. CLEC agrees to provide Sprint Real Estate Planning with equipment profile information prior to installation authorization. |
| 100.10.2. | CLEC shall not paint, display, inscribe or affix any sign, trademark, picture, advertising, notice, lettering or direction on any part of the outside or inside of the Building, or on the Collocation Space, without the prior written consent of Sprint. |
| 100.10.3. | CLEC shall not use the name of the Building or Sprint for any purpose other than that of the business address of CLEC, or use any picture or likeness of the Building on any letterhead, envelope, circular, notice, or advertisement, without the prior written consent of Sprint. |
| 100.10.4. | CLEC shall not exhibit, sell or offer for sale, rent or exchange in the Collocation Space or on the Premises any article, thing or service except those ordinarily embraced within the use of the Collocation Space specified in Sections 87 and 100 of this Agreement without the prior written consent of Sprint. |
| 100.10.5. | CLEC shall not place anything or allow anything to be placed near the glass of any door, partition or window which Sprint determines is unsightly from outside the Collocation Space; take or permit to be taken in or out of other entrances of the Building, or take or permit to be taken on any passenger elevators, any item normally taken through service entrances or elevators; or whether temporarily, accidentally, or otherwise, allow anything to remain in, place or store anything in, or obstruct in any way, any passageway, exit, stairway, elevator, or shipping platform. CLEC shall lend its full cooperation to keep such areas free from all obstruction and in a clean and neat condition, move all supplies, furniture and equipment directly to the Collocation Space as soon as received, and move all such items and waste, other than waste customarily removed by employees of the Building. |
| 100.10.6. | CLEC shall not, without the prior written consent of Sprint: install or operate any lead-acid batteries, refrigerating, heating or air conditioning apparatus or carry on any mechanical business in the Collocation Space. Sprint may, in its sole discretion, withhold such consent, or impose any condition in granting it, and revoke its consent at will. |
| 100.10.7. | CLEC shall not use the Collocation Space for housing, lodging or sleeping purposes. |
| 100.10.8. | CLEC shall not permit preparation or warming of food, presence of cooking or vending equipment, sale of food or smoking in the Collocation Space. |
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| 100.10.9 | CLEC shall not permit the use of any fermented intoxicating or alcoholic liquors or substances in the Collocation Space or permit the presence of any animals except those used by the visually impaired. |
| 100.11. | Rules of Conduct. CLEC, its employees, agents, contractors, and business invitees shall |
| 100.11.1. | comply with all rules and regulations which Sprint may from time to time adopt for the safety, environmental protection, care, cleanliness and/or preservation of the good order of the Building, the Premises and the Collocation Space and its tenants and occupants, and |
| 100.11.2. | comply, at its own expense, with all ordinances which are applicable to the Collocation Space and with all lawful orders and requirements of any regulatory or law enforcement agency requiring the correction, prevention and abatement of nuisances in or upon the Collocation Space during the Term of this Agreement or any extension hereof. |
| 100.12. | Alterations. CLEC shall not make installations, alterations or additions in or to the Collocation Space without submitting plans and specifications to Sprint and securing the prior written consent of Sprint in each instance. Sprint’s consent shall not be unreasonably withheld or unduly delayed for non-structural interior alteration to the Collocation Space that do not adversely affect the Building’s appearance, value, structural strength and mechanical integrity. Such work shall be done at the sole expense of CLEC. |
| 100.12.1. | All installations, alterations and additions shall be constructed in a good and workmanlike manner and only new and good grades of material shall be used, and shall comply with all insurance requirements, governmental requirements, and terms of this Agreement. Work shall be performed at such times and in such manner as to cause a minimum of interference with Sprint’s transaction of business. CLEC shall permit Sprint to inspect all construction operations within the Collocation Space. |
| 100.12.2. | All installations, alterations and additions which take the form of fixtures, except trade fixtures, placed in the Collocation Space by and at the expense of CLEC or others shall become the property of Sprint, and shall remain upon and be surrendered with the Collocation Space. Upon termination of this Agreement, however, Sprint shall have the right to require CLEC to remove such fixtures and installations, alterations or additions at CLEC’s expense, and to surrender the Collocation Space in the same condition as it was prior to the making of any or all such improvements, reasonable wear and tear excepted. |
| 100.12.3. | All fixtures and other equipment to be used by CLEC in, about or upon the Collocation Space shall be subject to the prior written approval of Sprint, which shall not be unreasonably withheld. |
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| 100.13. | Fireproofing Policy. CLEC shall not cut or drill into, drive nails or screws into install conduit or wires, or in any way deface any part of the Collocation Space or the Building, outside or inside, without the prior written consent of Sprint. If CLEC desires signal, communications, alarm or other utility or service connections installed or changed, the same shall be made by and at the expense of CLEC. Sprint shall have the right of prior approval of such utility or service connections, and shall direct where and how all connections and wiring for such service shall be introduced and run. In all cases, in order to maintain the integrity of the Halon space for proper Halon concentration, and to ensure compliance with Sprint’s fireproofing policy, any penetrations by CLEC, whether in the Collocation Space, the Building or otherwise, shall be sealed as quickly as possible by CLEC with Sprint-approved fire barrier sealants, or by Sprint at CLEC’s cost. |
| 100.14. | Equipment Grounding. LOE shall be connected to Sprint’s grounding system. |
| 100.15. | Representations and Warranties. CLEC hereby represents and warrants that the information provided to Sprint in any application or other documentation relative to CLEC’s request for telecommunications facility interconnection and Central Office Building collocation as contemplated in this Agreement is and shall be true and correct, and that CLEC has all necessary corporate and regulatory authority to conduct business as a telecommunications carrier. Any violation of this Section shall be deemed a material breach of this Agreement. |
| 101. | BUILDING RIGHTS. |
| 101.1. | Sprint may, without notice to CLEC: |
| 101.1.1. | Change the name or street address of the Premises; |
| 101.1.2. | Install and maintain signs on the exterior and interior of the Premises or anywhere on the Premises; |
| 101.1.3. | Designate all sources furnishing sign painting and lettering, ice, mineral or drinking water, beverages, foods, towels, vending machines or toilet supplies used or consumed in the Collocation Space; |
| 101.1.4. | Have pass keys or access cards with which to unlock all doors in the Collocation Space, excluding CLEC’s safes; |
| 101.1.5. | Reduce heat, light, water and power as required by any mandatory or voluntary conservation programs; |
| 101.1.6. | Approve the weight, size and location of safes, computers and all other heavy articles in and about the Collocation Space and the Building, and to require all such items and other office furniture and equipment to be moved in and out of the Building or Collocation Space only at such times and in such a manner as Sprint shall direct and in all events at CLEC’s sole risk and responsibility; |
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| 101.1.7. | At any time, to decorate and to make, at its own expense, repairs, alterations, additions and improvements, structural or otherwise, in or to the Collocation Space, the Premises, or any part thereof (including, without limitation, the permanent or temporary relocation of any existing facilities such as parking lots or spaces), and to perform any acts related to the safety, protection of preservation thereof, and during such operations to take into and through the Collocation Space or any part of the Premises all material and equipment required, and to close or suspend temporarily operation of entrances, doors, corridors, elevators or other facilities, provided that Sprint shall limit inconvenience or annoyance to CLEC as reasonably possible under the circumstances; |
| 101.1.8. | Do or permit to be done any work in or about the Collocation Space or the Premises or any adjacent or nearby building, land, street or alley; |
| 101.1.9. | Grant to anyone the exclusive right to conduct any business or render any service on the Premises, provided such exclusive right shall not operate to exclude CLEC from the use expressly permitted by this Agreement, unless Sprint exercises its right to terminate this Agreement with respect to all or a portion of the Collocation Space; |
| 101.1.10. | Close the Building at such reasonable times as Sprint may determine, under such reasonable regulations as shall be prescribed from time to time by Sprint subject to CLEC’s right to access. |
| 101.2. | If the owner of the Building or Sprint sells, transfers or assigns any interest in the Building, or there is any material change in the Lease to which the Building is subject, and such sale, transfers assignment or material change in the Lease gives rise to an obligation which is inconsistent with this Agreement, Sprint’s performance under this Agreement shall be excused to the extent of the inconsistency. Sprint hereby agrees that it will use its reasonable efforts to avoid any such inconsistency; provided, however, that this obligation shall in no way obligate Sprint to incur any out of pocket expenses in its efforts to avoid such inconsistencies. |
| 101.3. | This Agreement shall at all times be subject and subordinate to the lien of any mortgage (which term shall include all security instruments) that may be placed on the Collocation Space and CLEC agrees, upon demand, to execute any instrument as may be required to effectuate such subordination. |
102. INSURANCE.
| 102.1. | During the term of this Agreement, CLEC shall carry, and shall cause any subcontractors to carry, with financially reputable insurers which are licensed to do business in all jurisdictions where any Property is located, not less than the following insurance: |
| 102.1.1. |
Commercial General Liability with limits of not less than $1,000,000 combined single limit per occurrence and aggregate for bodily injury, |
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property damage and personal and advertising injury liability insurance to include coverage for contractual and products/completed operations liability, naming Sprint as additional insured; |
| 102.1.2. | Business Auto liability, including all owned, non-owned and hired automobiles, in an amount of not less than $1,000,000 combined single limit per accident for bodily injury and property damage liability, naming Sprint as additional insured; |
| 102.1.3. | Workers’ Compensation as provided for in the jurisdiction where the Property is located, with an Employer’s Liability limit of not less than $500,000 per accident or disease; and |
| 102.1.4. | Umbrella or excess liability in an amount not less than $5,000,000 per occurrence and aggregate in excess of the above-referenced Commercial General, Business Auto and Employer’s Liability, naming Sprint as additional insured; and |
| 102.1.5. | “All Risk” property insurance on a full replacement cost basis insuring CLEC’s property situated on or within the Property, naming Sprint as loss payee. CLEC may elect to insure business interruption and contingent business interruption, as it is agreed that Sprint has no liability for loss of profit or revenues should an interruption of service occur. |
| 102.2. | Nothing contained in this section shall limit CLEC’s liability to Sprint to the limits of insurance certified or carried. |
| 102.3. | All policies required of the CLEC shall contain evidence of the insurer’s waiver of the right of subrogation against Sprint for any insured loss covered thereunder. All policies of insurance shall be written as primary policies and not contributing with or in excess of the coverage, if any, that Sprint may carry. |
| 102.4. | CLEC shall furnish to Sprint a certificate or certificates of insurance, satisfactory in form and content to Sprint, evidencing that the above coverage is in force and has been endorsed to guarantee that the coverage will not be cancelled or materially altered without first giving at least 30 days prior written notice to Sprint. |
| 102.5. | CLEC may, upon written notice to Sprint, self-insure all or part of the above requirements. Upon such disclosure, CLEC agrees that nothing diminishes CLEC’s responsibilities to Sprint that would have otherwise been covered by the required insurance. |
| 102.6. | Sprint will carry not less than the insurance coverage and limits required of CLEC. |
| 103. | INDEMNIFICATION. |
| 103.1. | CLEC shall indemnify and hold Sprint harmless from any and all claims arising from: |
| 103.1.1. | CLEC’s use of the Collocation Space; |
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| 103.1.2. | the conduct of CLEC’s business or from any activity, work or things done, permitted or suffered by CLEC in or about the Collocation Space or elsewhere; |
| 103.1.3. | any and all claims arising from any breach or default in the performance of any obligation on CLEC’s part to be performed under the terms of this Agreement; and |
| 103.1.4. | any negligence of the CLEC, or any of CLEC’s agents, and fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. |
| 103.2. | If any action or proceeding is brought against Sprint by reason of any such claim, CLEC, upon notice from Sprint, shall defend it at CLEC’s expense employing counsel satisfactory to Sprint. CLEC, as a material part of the consideration to Sprint, hereby assumes all risk of damage to property or injury to persons in, upon or about the Collocation Space arising from any cause other than the sole negligence of Sprint, and CLEC hereby waives all claims in respect thereof against Sprint. |
| 103.3. | CLEC shall at all times indemnify, defend, save and hold harmless Sprint clear and harmless from any claims, liens, demands, charges, encumbrances, litigation and judgments arising directly or indirectly out of any use, occupancy or activity of CLEC, or out of any work performed, material furnished, or obligations incurred by CLEC in, upon or otherwise in connection with the Collocation Space. CLEC shall give Sprint written notice at least 10 business days prior to the commencement of any such work on the Collocation Space in order to afford Sprint the opportunity of filing appropriate notices of non-responsibility. However, failure by Sprint to give notice does not reduce CLEC’s liability under this section. |
| 103.3.1. | If any claim or lien is filed against the Collocation Space, or any action or proceeding is instituted affecting the title to the Collocation Space, CLEC shall give Sprint written notice thereof as soon as CLEC obtains such knowledge. |
| 103.3.2. | CLEC shall, at its expense, within 30 days after filing of any lien of record, obtain the discharge and release thereof or post a bond in an amount sufficient to accomplish such discharge and release. Nothing contained herein shall prevent Sprint, at the cost and for the account of CLEC, from obtaining such discharge and release if CLEC fails or refuses to do the same within the 30-day period. |
| 103.3.3. | If CLEC has first discharged the lien as provided by law, CLEC may, at CLEC’s expense, contest any mechanic’s lien in any manner permitted by law. |
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| 104. | LIMITATION OF LIABILITY. |
| 104.1. | SPRINT SHALL BE LIABLE FOR DAMAGE TO OR DESTRUCTION OF CLEC’S EQUIPMENT AND OTHER PREMISES ONLY IF SUCH DAMAGE OR DESTRUCTION IS CAUSED BY SPRINT’S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. |
| 104.2. | SPRINT WILL NOT BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (B) ANY COMMERCIAL LOSS OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS), OR (C) ANY LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM USE OF OR INABILITY TO USE THE COLLOCATION SPACE EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT OR SOFTWARE, BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT SPRINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. |
| 105. | PARTIAL DESTRUCTION. |
| 105.1. | If the Collocation Space or a portion thereof sufficient to make the Collocation Space substantially unusable shall be destroyed or rendered unoccupiable by fire or other casualty, Sprint may, at its option, restore the Collocation Space to its previous condition. CLEC’s rights to the applicable Collocation Space shall not terminate unless, within 90 days after the occurrence of such casualty, Sprint notifies CLEC of its election to terminate CLEC’s rights to the applicable Collocation Space. If Sprint does not elect to terminate CLEC’s rights to the applicable Collocation Space, Sprint shall repair the damage to the Collocation Space caused by such casualty. |
| 105.2. | Notwithstanding any other provision of this Agreement to the contrary, if any casualty is the result of any act, omission or negligence of CLEC, its agents, employees, contractors, CLECs, customers or business invitees, unless Sprint otherwise elects, the CLEC’s rights to the applicable Collocation Space shall not terminate, and, if Sprint elects to make such repairs, CLEC shall reimburse Sprint for the cost of such repairs, or CLEC shall repair such damage, including damage to the Building and the area surrounding it, and the License Fee shall not abate. |
| 105.3. | If the Building shall be damaged by fire or other casualty to the extent that portions are rendered unoccupiable, notwithstanding that the Collocation Space may be directly unaffected, Sprint may, at its election within 90 days of such casualty, terminate CLEC’s rights to the applicable Collocation Space by giving written notice of its intent to terminate CLEC’s rights to the applicable Collocation Space. The termination as provided in this paragraph shall be effective 30 days after the date of the notice. |
| 105.4. | Notwithstanding any other provision of this Agreement, Sprint shall not be liable for any repair or restoration until, and then only to the extent that, insurance proceeds are received. |
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| 106. | EMINENT DOMAIN. |
| 106.1. | If the Premises, or any portion thereof which includes a substantial part of the Collocation Space, shall be taken or condemned by any competent authority for any public use or purpose, CLEC’s rights to the applicable Collocation Space shall end upon, and not before, the date when the possession of the part so taken shall be required for such use or purpose. If any condemnation proceeding shall be instituted in which it is sought to take or damage any part of the Premises, or if the grade of any street or alley adjacent to the Premises is changed by any competent authority and such change of grade makes it necessary or desirable to remodel the Premises to conform to the changed grade, Sprint shall have the right to terminate CLEC’s rights to the applicable Collocation Space upon not less than 30 days notice prior to the date of cancellation designated in the notice. No money or other consideration shall be payable by Sprint to CLEC for such cancellation, and the CLEC shall have no right to share in the condemnation award or in any judgment for damages caused by such eminent domain proceedings. |
| 107. | BANKRUPTCY. |
| 107.1. | If any voluntary or involuntary petition or similar pleading under any section or sections of any bankruptcy act shall be filed by or against CLEC, or any voluntary or involuntary proceeding in any court or tribunal shall be instituted to declare CLEC insolvent or unable to pay CLEC’s debts, or CLEC makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for CLEC or for the major part of CLEC’s property, Sprint may, if Sprint so elects but not otherwise, and with or without notice of such election or other action by Sprint, forthwith terminate this Agreement. |
| 108. | CONFIDENTIALITY AND PUBLICITY. |
| 108.1. | ALL INFORMATION WHICH IS DISCLOSED BY ONE PARTY (“DISCLOSING PARTY”) TO THE OTHER (“RECIPIENT”) IN CONNECTION WITH THIS AGREEMENT, OR ACQUIRED IN THE COURSE OF PERFORMANCE OF THIS AGREEMENT, SHALL BE DEEMED CONFIDENTIAL AND PROPRIETARY TO THE DISCLOSING PARTY AND SUBJECT TO THIS AGREEMENT, SUCH INFORMATION INCLUDING BUT NOT LIMITED TO, ORDERS FOR SERVICES, USAGE INFORMATION IN ANY FORM, AND CPNI AS THAT TERM IS DEFINED BY THE ACT AND THE RULES AND REGULATIONS OF THE FCC (“CONFIDENTIAL AND/OR PROPRIETARY INFORMATION”). |
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| 109.2. | During the term of this Agreement, and for a period of one (1) year thereafter, as to Confidential and/or Proprietary Information Recipient shall |
| 109.2.1. | use it only for the purpose of performing under this Agreement, |
| 109.2.2. | hold it in confidence and disclose it only to employees or agents who have a need to know it in order to perform under this Agreement, and |
| 109.2.3. | safeguard it from unauthorized use or Disclosure using no less than the degree of care with which Recipient safeguards its own Confidential Information. |
| 109.3. | Recipient shall have no obligation to safeguard Confidential Information |
| 109.3.1. | which was in the Recipient’s possession free of restriction prior to its receipt from Disclosing Party, |
| 109.3.2. | which becomes publicly known or available through no breach of this Agreement by Recipient, |
| 109.3.3. | which is rightfully acquired by Recipient free of restrictions on its Disclosure, or |
| 109.3.4. | which is independently developed by personnel of Recipient to whom the Disclosing Party’s Confidential Information had not been previously disclosed. |
| 109.4. | Recipient may disclose Confidential Information if required by law, a court, or governmental agency, provided that Disclosing Party has been notified of the requirement promptly after Recipient becomes aware of the requirement, and provided that Recipient undertakes all lawful measures to avoid disclosing such information until Disclosing Party has had reasonable time to obtain a protective order. Recipient agrees to comply with any protective order that covers the Confidential Information to be disclosed. |
| 109.5. | Each Party agrees that in the event of a breach of this Section by Recipient or its representatives, Disclosing Party shall be entitled to equitable relief, including injunctive relief and specific performance. Such remedies shall not be exclusive, but shall be in addition to all other remedies available at law or in equity. |
| 109.6. | Unless otherwise agreed, neither Party shall publish or use the other Party’s logo, trademark, service mark, name, language, pictures, symbols or words from which the other Party’s name may reasonably be inferred or implied in any product, service, advertisement, promotion, or any other publicity matter, except that nothing in this paragraph shall prohibit a Party from engaging in valid comparative advertising. This section shall confer no rights on a Party to the service marks, trademarks and trade names owned or used in connection with services by the other Party or its Affiliates, except as expressly permitted by the other Party. |
| 109.7. |
Neither Party shall produce, publish, or distribute any press release nor other publicity referring to the other Party or its Affiliates, or referring to this |
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Agreement, without the prior written approval of the other Party. Each party shall obtain the other Party’s prior approval before discussing this Agreement in any press or media interviews. In no event shall either Party mischaracterize the contents of this Agreement in any public statement or in any representation to a governmental entity or member thereof. |
| 109.8. | Except as otherwise expressly provided in this Section, nothing herein shall be construed as limiting the rights of either Party with respect to its customer information under any applicable law, including without limitation § 222 of the Act. |
| 109. | ASBESTOS. |
| 109.1. | CLEC is aware the Premises in which the Collocation Space is located may contain or have contained asbestos or asbestos containing building materials, and CLEC is hereby notified that the Premises in which the Collocation Space is located may contain asbestos or asbestos containing building material (ACBM). CLEC agrees that it is responsible for contacting the appropriate Sprint manager responsible for the Premises to determine the presence, location and quantity of asbestos or ACBM that CLEC’s employees, agents, or contractor’s may reasonably expect to encounter while performing activities in the Premises. CLEC shall not have responsibility or liability for any damages, expenses, costs, fees, penalties of any kind arising out of, or in connection with, or resulting from the disturbance of asbestos or ACBM in the Premises unless such disturbance arises out of or in connection with, or results from CLEC’s use of the Collocation Space or placement of equipment onto ACBM or into areas containing asbestos identified by Sprint. Sprint agrees to provide CLEC reasonable notice prior to undertaking any asbestos control, abatement, or other activities which may disturb asbestos or ACBM that could potentially affect CLEC’s equipment or operations in the Collocation Space, including but not limited to the contamination of such equipment. Sprint will not have responsibility or liability for any damages, expenses, costs, fees, penalties of any kind arising out of, or in connection with the presence of asbestos in Sprint Premises. |
| 110. | ASSIGNMENT. |
| 110.1. | This Agreement is not assignable in whole by CLEC without the prior written consent of Sprint, which consent shall not be unreasonably withheld; provided, however, that CLEC may assign this Agreement to a subsidiary or affiliate of CLEC if such subsidiary or affiliate (i) agrees in writing to be bound by the terms of this Agreement, and (ii) provides Sprint with any and all evidence of its compliance with the terms hereof as would have been required of CLEC had this Agreement not been assigned, including, but not limited to, current certificates of insurance as required herein. |
| 110.2. |
Any attempt to assign this Agreement without such prior written consent shall be void and of no effect and will be a material breach of this Agreement. Sprint’s consent to any assignment of this Agreement shall not be deemed a waiver of the |
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need to obtain such consent as to any future assignment or of Sprint’s right to withhold consent to such assignment. If CLEC requests that Sprint consent to the assignment of this Agreement, CLEC shall pay all costs and expenses, including, but not limited to, reasonable attorneys’ fees, of Sprint in evaluating, processing. documenting, administering and approving such assignment, whether or not the requested assignment is eventually approved. |
| 110.3. | In no event shall this Agreement or any rights or privileges hereunder be an asset of CLEC under any bankruptcy, insolvency or reorganization proceedings. |
| 110.4. | Sprint may assign this Agreement and thereafter shall not be liable hereunder. |
| 110.5. | Subject to the terms of this Agreement, Sprint and CLEC agree this Agreement shall bind and inure to the benefit of the respective successors and assigns of both Sprint and CLEC. |
| 111. | ENTIRE AGREEMENT. |
| 111.1. | This Agreement and any Exhibits made a part of this Agreement, subject only to the terms of any applicable tariff on file with the state Commission or the FCC, contains the entire agreement between the parties. |
| 112. | NO PARTNERSHIP. |
| 112.1. | Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent, partnership, joint venturers or of any other association between Sprint and CLEC. |
| 113. | DISPUTE RESOLUTION. |
| 114.1. | The Parties recognize and agree that the Commission has jurisdiction to implement and enforce all terms and conditions of this Agreement. Accordingly, the Parties agree that any dispute arising out of or relating to this Agreement that the Parties themselves cannot resolve may be submitted to the Commission for resolution. The Parties agree to seek expedited resolution by the Commission, and shall request that resolution occur in no event later than sixty (60) days from the date of submission of such dispute. If the Commission appoints an expert(s) or other facilitator(s) to assist in its decision making, each party shall pay half of the fees and expenses so incurred. During the Commission proceeding each Party shall continue to perform its obligations under this Agreement provided, however, that neither Party shall be required to act in any unlawful fashion. This provision shall not preclude the Parties from seeking relief available in any other forum. |
| 114.2. | If any matter is subject to a bona fide dispute between the Parties, the disputing Party shall within thirty (30) days of the event giving rise to the dispute, give written notice to the other Party of the dispute and include in such notice the specific details and reasons for disputing each item. |
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| 114.3. | If the Parties are unable to resolve the issues related to the dispute in the normal course of business within thirty (30) days after delivery of notice of the Dispute, to the other Party, the dispute shall be escalated to a designated representative who has authority to settle the dispute and who is at a higher level of management than the persons with direct responsibility for administration of this Agreement. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the dispute and negotiate in good faith in an effort to resolve such dispute, but in no event shall such resolution exceed 60 days from the initial notice. The specific format for such discussions will be left to the discretion of the designated representatives, provided, however, that all reasonable requests for relevant information made by one Party to the other Party shall be honored. |
| 114.4. | After such period either Party may file a complaint with the FCC or the Commission. |
| 114. | MISCELLANEOUS. |
| 114.1. | Force Majeure. Wherever there is provided in this Agreement a time limitation for performance of any construction, repair, maintenance or service, the time provided for shall be extended for as long as, and to the extent that, delay in compliance with such limitation is due to an act of God, strikes, governmental control or other factors beyond the reasonable control of Sprint or CLEC. |
| 114.2. | Unenforceable Provisions. If any term, provision, covenant or condition of this Agreement, or any application thereof, should be held by a court or regulatory agency to be invalid, void, or unenforceable, the remainder of this Agreement, and all applications thereof, not held invalid, void or unenforceable, shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby. |
| 114.3. | The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement are based on the text of the Act and the rules and regulations promulgated thereunder by the FCC and the Commission as of the Effective Date (“Applicable Rules”). In the event of any amendment to the Act, any effective legislative action or any effective regulatory or judicial order, rule, regulation, arbitration award, dispute resolution procedures under this Agreement or other legal action purporting to apply the provisions of the Act to the Parties or in which the FCC or the Commission makes a generic determination that is generally applicable which revises, modifies or reverses the Applicable Rules (individually and collectively, Amended Rules), either Party may, by providing written notice to the other party, require that the affected provisions of this Agreement be renegotiated in good faith and this Agreement shall be amended accordingly to reflect the pricing, terms and conditions of each such Amended Rules relating to any of the provisions in this Agreement. |
| 114.4. | Contingency. This Agreement is subject to change, modification, or cancellation as may be required by a regulatory authority or court in the exercise of its lawful jurisdiction. |
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| 114.5. | Headings. The headings of this Agreement are for convenience only and shall not be used to construct or modify the terms of this Agreement. |
| 114.6. | Brokers. CLEC warrants that it has had no dealings with any broker or agent in connection with this Agreement, and covenants to pay, hold harmless and indemnify Sprint from and against any and all cost, expense or liability for any compensation, commissions and charges claimed by any broker or agent with respect to this Agreement or the negotiation thereof. |
| 114.7. | Waiver of Default. Sprint and CLEC agree that the waiver by either party of a breach of any term, covenant, or condition contained herein shall not be deemed a waiver of any subsequent breach of the same any other term, covenant or condition. |
| 114.8. | Changes to Agreement. This Agreement and all of its terms, provisions, covenants and conditions cannot be changed or terminated orally. This Agreement may only be modified or amended by an instrument in writing executed by Sprint and CLEC. |
| 114.9. | Agreement Effective. Submission of this instrument for examination or signature by Sprint does not constitute a reservation of or option for license, and it is not effective, as a license or otherwise, until execution and delivery by both Sprint and CLEC. |
| 114.10. | Representations. Neither Sprint nor its agents have made any representation or warranties with respect to the Collocation Space of this Agreement except as expressly set forth herein; no rights, easements, or licenses shall be acquired by CLEC by implication or otherwise unless expressly set forth herein. |
| 114.11. | Work Stoppages. In the event of work stoppages, Sprint may establish separate entrances for use by personnel of CLEC. CLEC shall comply with any emergency operating procedures established by Sprint to deal with work stoppages. |
| 114.12. | Governing Law. The laws of the State of Kansas shall govern the validity, construction, performance and effect of this Agreement. |
| 114.13. | Authorized Representatives. The individuals executing this Agreement on behalf of CLEC represent and warrant to Sprint they are fully authorized and legally capable of executing this Agreement on behalf of CLEC. |
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Site License Example:
Sprint and [enter CLEC name] are Parties to a Master Collocation Agreement dated [enter agreement date]. Capitalized terms used in this Site Collocation License Agreement have the same meaning as such terms in the Master Collocation Agreement unless otherwise indicated.
| 1. | Site name (central office name): |
| 2. | Site code (CLLI code): |
| 3. | Site address: |
| 4. | Site Legal Description: |
| 5. | ¨ The Site is owned by Sprint. |
¨ The Site is leased by Sprint. A copy of the lease is attached to this Site Collocation License.
| 6. | Type of Physical Collocation |
¨ Caged Collocation
¨ Cageless Collocation
¨ Virtual Collocation
| 7. | Description of CLEC’s Equipment: |
| 8. | Effective Date of Lease: |
| 9. | Term: 2 years from effective date |
|
10. Early Termination: | If CLEC desires to terminate this site lease before the end of the term shown above the CLEC shall submit a collocation augment application and applicable augment application fee reflecting a decommissioning of the collocation space. The CLEC shall surrender the collocation space to Sprint in the same condition as when first occupied by CLEC, except for ordinary wear and tear. |
| 11. | Sprint contact for emergencies: |
| 12. | CLEC contact for emergencies: |
| 13. | Special Provisions: |
| 14. | Notices: |
| Sprint: |
Director-Local Carrier Markets 6480 Sprint Parkway Mailstop: KSOPHM0316 Overland Park, KS 66251 | CLEC: |
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|
Site License Itemized Listing of Fees (Specify which unit of measure used) | NRC or MRC1 | Rate per Unit |
Quantity (list unit of |
Total (Rate X Quantity) | ||||||
|
APPLICATION FEE, Per Application | NRC | $ | $ | |||||||
|
AUGMENT APPLICATION FEE, Per Modification | NRC | $ | $ | |||||||
|
COLLOCATION SPACE, Per Square Foot -or- Per Equipment Bay | MRC | $ | $ | |||||||
|
DC POWER INSTALLATION, Per Power Lead, Per Foot | NRC | $ | $ | |||||||
|
DC POWER CONSUMPTION, Per Fuse Ampere | MRC | $ | $ | |||||||
|
DC POWER CONSUMPTION (Nevada only), Per Load Ampere | MRC | $ | $ | |||||||
|
DC POWER CONNECTION (Nevada only), Per Load Ampere (0-50, 51-100 or 101-200) | NRC | $ | $ | |||||||
|
DC POWER CONNECTION (Nevada only), Per Load Ampere (0-50, 51-100 or 101-200) | MRC | $ | $ | |||||||
|
AC POWER INSTALLATION, Per 20 Ampere Outlet | NRC | $ | $ | |||||||
|
SECURITY ENCLOSURE, Per Square Foot (100 or 200 sq. ft.) -or- Per Cage and Per Linear Foot | NRC | $ | $ | |||||||
|
INTERNAL CABLING, Per Linear Foot -or- Per Fiber Cable Arrangement | MRC | $ | $ | |||||||
|
INTERNAL CONDUIT, Per Linear Foot | MRC | $ | $ | |||||||
|
CONDUIT SPACE-PER FOOT, Per Linear Foot | MRC | $ | $ | |||||||
|
CONDUIT SPACE-VAULT, Per Linear Foot -or- Per Fiber Cable Access | MRC | $ | $ | |||||||
|
RISER SPACE, Per Foot | MRC | $ | $ | |||||||
|
DIVERSE RISER SPACE, Per Foot | MRC | $ | $ | |||||||
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|
Site License Itemized Listing of Fees (Specify which unit of measure used) | NRC or MRC1 | Rate per Unit |
Quantity (list unit of |
Total (Rate X Quantity) | ||||||
|
INSTALLATION and/or MAINTENANCE. Per Half Hour -or- Per Quarter Hour (Nevada only) | NRC | $ | $ | |||||||
|
CABLE PULL AND SPLICE, Per Half Hour | NRC | $ | $ | |||||||
|
GROUNDING, Per Equipment Bay -or- Per 100 Sq. Ft. Caged Space | MRC | $ | $ | |||||||
|
SECURITY CARD, Per Card | NRC | $ | $ | |||||||
|
SWITCHBOARD CABLE & BLOCK, Per 100 Pair Cable with 100-pin Connecting Block | MRC | $ | Total cross- connects ordered during term of this agreement. | | Customer will pay the total charges which equal the quantity ordered times the rate listed. | |||||
| Cross-connects are usually ordered after the collocation is set-up, therefore the actual quantity may not be known at the time this agreement is signed. The CLEC will pay the rates shown below for each cross-connect ordered during the term of this agreement. | ||||||||||
|
DS0 ELECTRICAL CROSS-CONNECT, Per Single 2-Wire Connection | MRC | $ | Total cross- connects ordered during term of this agreement. | | Customer will pay the total charges which equal the quantity ordered times the rate listed. | |||||
|
DS1 ELECTRICAL CROSS-CONNECT, Per Single 2-Wire Connection | MRC | $ | Total cross- connects ordered during term of this agreement. | | Customer will pay the total charges which equal the quantity ordered times the rate listed. | |||||
|
DS3 ELECTRICAL CROSS-CONNECT, Per Single 2-Wire Connection | MRC | $ | Total cross- connects ordered during term of this agreement. | | Customer will pay the total charges which equal the quantity ordered times the rate listed. | |||||
| 1 | “MRC” shall mean monthly recurring charge, “NRC” shall mean non-recurring charge. |
| 115. | ADJUSTMENTS |
All rates will be subject to adjustment at the end of the initial term.
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Collocation Rates:
|
Rate Element, Unit of Measure | NRC or MRC | Nevada | |||
|
Physical Collocation | |||||
|
Application Fee - per application | NRC | $ | 3,106.79 | ||
|
Augment Application Fee - per modification | NRC | $ | 982.52 | ||
| Collocation Space | |||||
|
Floor Space - per square foot | MRC | $ | 8.75 | ||
|
Floor Space - per equipment bay | MRC | $ | 85.75 | ||
|
Roof Space - per square foot | MRC | N/A | |||
|
Transmitter/Receiver Space - per square foot | MRC | N/A | |||
| Enclosures | |||||
|
Security Enclosure - per 100 sq. ft. enclosure | NRC | N/A | |||
|
Security Enclosure - per 200 sq. ft. enclosure | NRC | N/A | |||
|
Security Enclosure - per cage | NRC | $ | 414.10 | ||
|
Security Enclosure - per linear foot | NRC | $ | 25.35 | ||
| DC Power | |||||
|
DC Power - per fuse amp | MRC | N/A | |||
|
DC Power - per power lead per foot | NRC | N/A | |||
| DC Power (Nevada only) | |||||
|
(non-redundant, only bill for 1 lead of A&B lead combination) | |||||
|
DC Power - per load ampere (and one of the following NRC/MRC pairs...) | MRC | $ | 14.94 | ||
|
DC Power - Connection to power plant 0-50 amperes | NRC | $ | 2,076.09 | ||
|
DC Power - Connection to power plant 0-50 amperes | MRC | $ | 42.17 | ||
|
DC Power - Connection to power plant 51-100 amperes | NRC | $ | 3,631.32 | ||
|
DC Power - Connection to power plant 51-100 amperes | MRC | $ | 65.85 | ||
|
DC Power - Connection to power plant 101-200 amperes | NRC | $ | 6,511.88 | ||
|
DC Power - Connection to power plant 101-200 amperes | MRC | $ | 120.28 | ||
| AC Power/Additional Lighting | |||||
|
AC Outlet - per 20 ampere increments for outlet | NRC | $ | 851.32 | ||
|
Additional Overhead Lighting - per dual 8_ fixture with cable (qty 1 = 2 fixtures + 1 cable) | NRC | $ | 1,066.32 | ||
| Cabling and Conduit, Vault & Riser Space | |||||
|
Internal Cabling - per linear foot | MRC | N/A | |||
|
Internal Cabling - per fiber cable arrangement | MRC | $ | 84.93 | ||
|
Internal Conduit - per linear foot | MRC | N/A | |||
|
Conduit Space - per linear foot | MRC | N/A | |||
|
Conduit Space - per foot from 1st manhole to vault (fiber) | MRC | $ | 0.05 | ||
|
Conduit Space - Vault - per ft. of 9 conduit vault | MRC | N/A | |||
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|
Vault per fiber cable access | MRC | $ | 6.78 | ||
|
Riser space per foot | MRC | N/A | |||
|
Diverse Rise Space – per foot | MRC | N/A | |||
|
Riser Space – per foot from vault to cage (fiber) | MRC | 0.08 | |||
|
Cross Connects | |||||
|
Switchboard Cable - per 100 pair with connecting block | MRC | $ | 31.26 | ||
|
DSO Electrical Cross-Connect - per single DS0 connection | MRC | N/A | |||
|
DS1 Electrical Cross-Connect-per single DS1 connection | MRC | $ | 1.53 | ||
|
DS3 Electrical Cross-Connect - per single DS3 connection | MRC | $ | 22.56 | ||
|
Optical Cross-Connect - per 4-fiber connection | MRC | $ | 40.46 | ||
|
Installation and/or Maintenance | |||||
|
Installation and/or Maintenance - Basic First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Basic Add’l Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Overtime First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Overtime Add’l Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Premium First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Premium Add’l Half Hour | NRC | N/A | |||
|
Maintenance - per 1/4 hour increments (Nevada only) | NRC | $ | 12.19 | ||
|
Cable Pull and Splice – per half hour | |||||
|
Cable Pull and Spice - Basic First Half Hour | NRC | N/A | |||
|
Cable Pull and Spice - Basic Add’l Half Hour | NRC | N/A | |||
|
Cable Pull and Spice - Overtime First Half Hour | NRC | N/A | |||
|
Cable Pull and Spice - Overtime Add’l Half Hour | NRC | N/A | |||
|
Cable Pull and Spice - Premium First Half Hour | NRC | N/A | |||
|
Cable Pull and Spice - Premium Add’l Half Hour | NRC | N/A | |||
|
Miscellaneous | |||||
|
Grounding - per equipment bay | MRC | $ | 2.92 | ||
|
Grounding - per 100 sq. ft. caged space | MRC | $ | 23.34 | ||
|
Security Card - per card | NRC | $ | 15.00 | ||
|
Rate Element, Unit of Measure | NRC or MRC | Nevada | |||
|
Virtual Collocation | |||||
|
Application Fee - per application | NRC | $ | 3,106.79 | ||
|
Augment Application Fee - per modification | NRC | $ | 982.52 | ||
|
Collocation Space | |||||
|
Floor Space - per square foot | MRC | N/A | |||
|
Rack Space - per square foot | MRC | N/A | |||
|
Floor Space - per equipment bay | MRC | $ | 85.75 | ||
|
DC Power | |||||
|
DC Power - per AMP | MRC | N/A | |||
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|
DC Power - per power lead per foot | NRC | N/A | |||
|
DC Power (Nevada only) | |||||
|
(non-redundant, only bill for 1 lead of A&B lead combination) | |||||
|
DC Power - per load ampere (and one of the following NRC/MRC pairs . . . .) | MRC | $ | 14.94 | ||
|
DC Power - Connection to power plant 0-50 amperes | NRC | $ | 2,076.09 | ||
|
DC Power - Connection to power plant 0-50 amperes | MRC | $ | 42.17 | ||
|
DC Power - Connection to power plant 51-100 amperes | NRC | $ | 3,631.32 | ||
|
DC Power - Connection to power plant 51-100 amperes | MRC | $ | 65.85 | ||
|
DC Power - Connection to power plant 101-200 amperes | NRC | $ | 6,511.88 | ||
|
DC Power - Connection to power plant 101-200 amperes | MRC | $ | 120.28 | ||
|
AC Power/Additional Lighting | |||||
|
AC Outlet - per 20 ampere increments for outlet | NRC | $ | 851.32 | ||
|
Additional Overhead Lighting - per dual 8_ fixture with cable (qty 1 = 2 fixtures + 1 cable) | NRC | $ | 1,066.32 | ||
|
Cabling and Conduit, Vault & Riser Space | |||||
|
Internal Cabling - per linear foot | MRC | N/A | |||
|
Internal Cabling - per fiber cable arrangement | MRC | $ | 84.93 | ||
|
Internal Conduit - per linear foot | MRC | N/A | |||
|
Conduit Space - per foot from 1st manhole to vault (fiber) | MRC | $ | 0.05 | ||
|
Vault - per fiber cable access | MRC | $ | 6.78 | ||
|
Riser Space - per foot from vault to cage (fiber) | MRC | $ | 0.08 | ||
|
Cross Connects | |||||
|
Switchboard Cable - per 100 pair with connecting block | MRC | $ | 31.26 | ||
|
DS0 Electrical Cross-Connect - per single DS0 connection | MRC | N/A | |||
|
DS1 Electrical Cross-Connect - per single DS1 connection | MRC | $ | 1.53 | ||
|
DS3 Electrical Cross-Connect - per single DS3 connection | MRC | $ | 22.56 | ||
|
Optical Cross-Connect - per 4-fiber connection | MRC | $ | 40.46 | ||
|
Installation and/or Maintenance | |||||
|
Installation and/or Maintenance - Basic First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Basic Add’l Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Overtime First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Overtime Add’l Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Premium First Half Hour | NRC | N/A | |||
|
Installation and/or Maintenance - Premium Add’l Half Hour | NRC | N/A | |||
|
Maintenance - per 1/4 hour increments (Nevada only) | NRC | $ | 12.19 | ||
|
Miscellaneous | |||||
|
Grounding - per equipment bay | MRC | $ | 2.92 | ||
182
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Rate Element, Unit of Measure | NRC or MRC | Nevada | |||
|
Line Sharing | |||||
|
96-Line Splitter Shelf per shelf in common area only | MRC | $ | 18.84 | ||
|
Cross-Connect MDF to Collo Space - per 100 pair cable | MRC | N/A | |||
|
Cross-Connect MDF to Splitter in Common Area - per 100 pair cable | MRC | $ | 24.31 | ||
|
Cross-Connect Splitter Common Area to Collo Space - per 100 pair cable | MRC | $ | 18.40 | ||
|
Rate Element, Unit of Measure | NRC or MRC | Nevada | |||
|
Adjacent On-Site Collocation | |||||
|
Application Fee - per application | NRC | $ | 4,586.42 | ||
|
Augment Fee - per modification | NRC | $ | 1,397.39 | ||
|
Collocation Space | |||||
|
Land Space - per square foot | MRC | $ | 0.08 | ||
|
AC Power - if not available from power company | |||||
|
Power costs - per Kilowatt Hour | MRC | $ | 0.08 | ||
|
100 Amp Connection - Single Phase - 6 linear feet or less from CO | MRC | $ | 45.71 | ||
|
100 Amp Connection - Single Phase - 6 linear feet or less from CO | NRC | $ | 4,363.43 | ||
|
100 Amp Connection - Three Phase - 6 linear feet or less from CO | MRC | $ | 56.78 | ||
|
100 Amp Connection - Three Phase - 6 linear feet or less from CO | NRC | $ | 5,420.18 | ||
|
100 Amp Connection - Single Phase - more than 6 linear feet from CO | MRC | ICB | |||
|
100 Amp Connection - Single Phase - more than 6 linear feet from CO | NRC | ICB | |||
|
100 Amp Connection - Three Phase - more than 6 linear feet from CO | MRC | ICB | |||
|
100 Amp Connection - Three Phase - more than 6 linear feet from CO | NRC | ICB | |||
|
DC Power | N/A | ||||
|
Cabling and Conduit, Vault & Riser Space | |||||
|
Conduit Space - per 4 conduits CO to Adjacent Structure | MRC | $ | 87.85 | ||
|
Conduit Space - per 4 conduits CO to Adjacent Structure | NRC | $ | 8,386.87 | ||
|
Conduit Space - per linear foot First Manhole to Vault | MRC | $ | 0.05 | ||
|
Riser Space - per linear foot Vault to Collo Area | MRC | $ | 0.08 | ||
|
Vault Space - cost per fiber cable access | MRC | $ | 6.78 | ||
|
Internal Cabling - per 24-fiber cable | MRC | $ | 84.93 | ||
|
Cross Connects / Racking | |||||
|
Switchboard Cable - per 100 DS0 | MRC | $ | 32.98 | ||
|
DS1 - per DSl | MRC | $ | 1.65 | ||
|
DS3 - per DS3 | MRC | $ | 24.52 | ||
|
Optical (OCC) - per 4 fibers | MRC | $ | 46.37 | ||
|
Dedicated Cable Racking - per site | MRC | $ | 2.23 | ||
|
Dedicated Cable Racking - per site | NRC | $ | 1,448.90 | ||
|
Miscellaneous | |||||
|
Maintenance | MRC | $ | 12.19 | ||
|
Security Card - per card | NRC | $ | 15.00 | ||
183
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly authorized representatives.
|
“Sprint” Central Telephone Company Nevada dba Sprint of Nevada |
“CLEC” Mpower Communications Corp | |||||||
| By: |
/s/ WILLIAM E. CHEEK | By: |
/s/ S. GREGORY CLEVENGER | |||||
|
Name (typed): | William E. Cheek |
Name (typed): | S. Gregory Clevenger | |||||
|
Title: | President - Wholesale Markets |
Title: | Executive Vice President and Chief Financial Officer | |||||
|
Date: |
8/12/02 |
Date: |
8/13/02 | |||||
184