Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
AERIAL LICENSE AGREEMENT
DATED OCTOBER 28, 1996
BETWEEN
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY
d/b/a NYNEX
(LICENSOR)
AND
WESTERN MASSACHUSETTS ELECTRIC COMPANY
(LICENSOR)
AND
NECOM LLC
(LICENSEE)
CONTENTS
ARTICLE TITLE PAGE
ARTICLE I DEFINITIONS.....................................................................................1
ARTICLE II SCOPE OF AGREEMENT..............................................................................3
ARTICLE III FEES AND CHARGES................................................................................4
ARTICLE IV ADVANCE PAYMENT.................................................................................4
ARTICLE V SPECIFICATIONS..................................................................................5
ARTICLE VI LEGAL REQUIREMENTS..............................................................................6
ARTICLE VII ISSUANCE OF LICENSES............................................................................7
ARTICLE VIII POLE MAKE-READY WORK............................................................................7
ARTICLE IX CONSTRUCTION, MAINTENANCE AND REMOVAL OF
ATTACHMENTS.....................................................................................9
ARTICLE X TERMINATION OF LICENS...........................................................................9
ARTICLE XI INSPECTIONS OF LICENSEE'S ATTACHMENTS..........................................................10
ARTICLE XII UNAUTHORIZED ATTACHMENTS.......................................................................10
ARTICLE XIII LIABILITY AND DAMAGES..........................................................................11
ARTICLE XIV INSURANCE......................................................................................12
ARTICLE XV AUTHORIZATION NOT EXCLUSIVE....................................................................13
ARTICLE XVI ASSIGNMENT OF RIGHTS...........................................................................13
ARTICLE XVII FAILURE TO ENFORCE.............................................................................14
ARTICLE XVIII TERMINATION OF AGREEMENT.......................................................................14
ARTICLE XIX TERM OF AGREEMENT..............................................................................15
ARTICLE XX NOTICES........................................................................................15
APPENDIXES
I Schedule of Fees and Charges
II Multiple Pole Attachment License Applications
III Administrative Forms and Notice
LICENSE AGREEMENT
THIS AGREEMENT, made this 28th day of October, 1996 by and between
Western Massachusetts Electric Company a corporation organized and existing
under the laws of the Commonwealth of Massachusetts, having its principal office
in Town of West Springfield, Massachusetts, and New England Telephone and
Telegraph Company d/b/a NYNEX, a corporation organized and existing under the
laws of the State of New York, having its principal office in the City of
Boston, Massachusetts (either or both hereinafter referred to as the "Licensor")
and NECOM LLC, a Massachusetts LLC, a subsidiary company of FiveCom, Inc.,
organized and existing under the laws of the Commonwealth of Massachusetts,
having a place of business in Waltham, Massachusetts, hereinafter called the
Licensee.
W I T N E S S E T H
WHEREAS, Licensee proposes to furnish communications services in
Springfield in the Commonwealth of Massachusetts; and
WHEREAS, Licensee will need to place and maintain attachments within
the area described above and desires to place such attachments on poles of
Licensor; which poles are either jointly or solely owned by the Licensors; and
WHEREAS, Licensor is willing to permit, to the extent they may lawfully
do so, the placement of said attachments on Licensor's facilities where
reasonably available and where such use will not interfere with Licensor's
service requirements or the use of its facilities by others subject to the terms
of this agreement;
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree
as follows:
ARTICLE I
DEFINITIONS
As Used in This Agreement
A) Anchor Rod
A metal rod connected to an anchor and to which a xxx xxxxxx is
attached. Also known as a "guy rod".
B) Attachment
Any single strand, hardware, cable, wires and/or apparatus attached to
a pole and owned by the Licensee.
C) Xxx Xxxxxx
A metal cable of high tensile strength which is attached to a pole and
anchor rod (or another pole) for the purpose of reducing pole stress.
D) Joint Owner
A person, firm or corporation having an ownership interest in a pole
and/or anchor rod with Licensor.
E) Make-Ready Work
The work required (rearrangement and/or transfer of existing facilities
on a pole, replacement of pole or any other changes) to accommodate the
Licensee's attachments on Licensor's pole.
F) Field Survey Work or Survey Work
A survey of the poles on which Licensee wishes to attach in order to
determine what work, if any, is required to make the pole ready to
accommodate the required attachment, and to provide the basis for
estimating the cost of this work.
G) Other Licensee
Any entity, other than Licensee herein or a joint user, to whom
Licensor has or hereafter shall extend the privilege of attaching
communications facilities to Licensor's poles.
H) Joint User
A party with whom Licensor has entered into, or may hereafter enter
into, a written agreement covering the rights and obligations of the
parties thereto with respect to the use of poles and anchor rods owned
by each party.
I) Suspension Strand
A metal cable of high tensile strength attached to pole and used to
support communications facilities. Also known as "Messenger Cable".
-2-
J) Identification Tags
Identification tags are used to identify Licensee's plant.
Identification tags shall be made of polyethylene and polyvinyl
chloride with ultraviolet inhibitors. The two types of Identification
tags are cable and apparatus tags as described in Appendix III, Form G.
K) Overlash
Any single strand, hardware, cable, wires and/or apparatus owned by
Licensee which is attached to any strand, hardware, cable, wires and/or
apparatus which is owned by either the individual licensee or another
licensee.
ARTICLE II
SCOPE OF AGREEMENT
A) Subject to the provisions of this Agreement, Licensor agrees to issue
to Licensee for any lawful communications purpose, revocable,
non-exclusive licenses authorizing the attachment of Licensee's
attachments to Licensor's poles within the Town of Springfield,
Massachusetts, specifically as detailed on Attachment #1, hereto
attached and made a part hereof.
B) No use, however extended, of Licensor's poles or payment of any fees or
charges required under this Agreement shall create or vest in Licensee
any ownership or property rights in such poles. Licensee's rights
herein shall be and remain a license. Neither this Agreement nor any
license granted hereunder shall constitute an assignment of any of
Licensor's rights to use the public or private property at the location
of Licensor's poles.
C) Nothing contained in this Agreement shall be construed to compel
Licensor to construct, retain, extend, place or maintain any pole, or
other facilities not needed for Licensor's own service requirements.
D) Nothing contained in this Agreement shall be construed as a limitation,
restriction, or prohibition against Licensor with respect to any
agreement(s) and arrangement(s) which Licensor has heretofore entered
into, or may in the future enter into with others not parties to this
Agreement regarding the poles covered by this Agreement. The rights of
Licensee shall at all times be subject to any such existing
agreement(s) or arrangement(s) between Licensor and any joint owner(s)
or joint user(s) of Licensor's poles.
-3-
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
ARTICLE III
FEES AND CHARGES
A) Licensee agrees to pay to Licensor the fees and charges as specified in
and in accordance with the terms and conditions of APPENDIX I, attached
hereto and made a part hereof.
B) Nonpayment of any amount due under this Agreement shall constitute a
default of this Agreement.
C) Licensee shall furnish bond or other satisfactory evidence of financial
security in such form (Appendix III Form F hereto attached) and amount
as Licensor from time to time may require, in an initial amount of
[**], but not exceeding [**], to guarantee the payment of any sums
which may become due to Licensor for fees due hereunder or charges for
work performed for the benefit of Licensee under this Agreement,
including the removal of Licensee's attachments upon termination of
this Agreement or upon termination of any License issued hereunder. The
financial security requirement may be waived in writing by Licensor or
either of them and reinstated if waived.
D) The Licensor may change the amount of fees and charges specified in
Appendix I by giving the Licensee not less than sixty (60) days'
written notice prior to the date the change is to become effective.
Notwithstanding any other provision of this Agreement, Licensee may
terminate this Agreement at the end of such sixty-day notice period if
the change in fees and charges is not acceptable to Licensee; provided
Licensee gives Licensor written notice of its election to terminate
this Agreement at least thirty (30) days prior to the end of such
sixty-day period.
E) Changes or amendments to APPENDIX I shall be effected by the separate
execution of APPENDIX I as so modified. The separately executed
APPENDIX I shall become a part of and be governed by the terms and
conditions of this Agreement. Such changes or amendments shall become
effective within sixty (60) days and shall be presumed acceptable
unless within that period Licensee advises Licensor in writing that the
changes and amendments are unacceptable and, in addition, within thirty
(30) days thereafter submits the issue to the regulatory body asserting
jurisdiction over this agreement for decision.
-4-
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
u
ARTICLE IV
ADVANCE PAYMENT
A) Licensee shall make an advance payment to the Licensor prior to:
1. any undertaking by Licensor of the required field survey [See
Article VIII par. (A)] in an amount specified by Licensor
sufficient to cover the estimated cost to be incurred by
Licensor to complete such survey.
2. any performance by Licensor of any make-ready work required in
an amount specified by Licensor sufficient to cover the
estimated cost to be incurred by Licensor to complete the
required make-ready work.
B) The amount of the advance payment required will be credited against the
full cost to Licensor for performing such work or having such work
performed by others plus, unless waived by Licensor or either of them,
an amount equal to [**] of Licensor's full cost.
C) Where the advance payment made by Licensee to Licensor for field survey
or make-ready work is less than the full cost to Licensor for such
work, Licensee agrees to pay Licensor all sums due in excess of the
amount of the advance payment
D) Where the advance payment made by Licensee to Licensor for field survey
or make-ready work exceeds the full cost to Licensor for such work,
Licensor shall refund the difference to Licensee.
ARTICLE V
SPECIFICATIONS
A) Licensee's attachments shall be placed and maintained in accordance
with the requirements and specifications of the latest editions of the
Manual of Construction Procedures (Blue Book), Electric Company
Standards, the National Electrical Code (NEC), the National Electrical
Safety Code (NESC) and rules and regulations of the Occupational Safety
and Health Act (OSHA) or any governing authority having jurisdiction
over the subject matter. Where a difference in specifications may
exist, the more stringent shall apply.
-5-
B) If any part of Licensee's attachments is not so placed and maintained,
Licensor may upon ten (10) days written notice to Licensee and in
addition to any other remedies Licensor may have hereunder, remove
Licensee's attachments from any or all of the Licensor's poles or
perform such other work and take such other action in connection with
said attachments that Licensor deems necessary or advisable to provide
for the safety of Licensor's employees or performance of Licensor's
service obligations at the cost and expense to Licensee and without any
liability therefor; provided, however, that when in the sole judgment
of Licensor such a condition may endanger the safety of Licensor's
employees or interfere with the performance of Licensor's service
obligations, Licensor may take such action without prior notice to
Licensee.
C) As described in Appendix III, Form G, Licensee shall place
Identification cable tags on cables located on poles and Identification
Apparatus tags on any associated items of Licensee's Plant, e.g., guys,
anchors or terminals. The Telephone Company, in its sole determination,
has the right to approve all identification tags that are different
than those described in Appendix III, Section G.
ARTICLE VI
LEGAL REQUIREMENTS
A) Licensee shall be responsible for obtaining from the appropriate public
and/or private authority any required authorization to construct,
operate and/or maintain its attachment on public and private property
at the location of Licensor's poles which Licensee uses and shall
submit to Licensor evidence of such authority before making attachments
on such public and/or private property.
B) The applicable provisions in the attachment entitled
"Non-Discrimination Compliance Agreement" shall form a part of this
agreement and any amendments thereto. (Attachment A)
C) The parties hereto shall at all times observe and comply with, and the
provisions of the Agreement are subject to, all laws, ordinances, and
regulations which in any manner affect the rights and obligations of
the parties hereto under this Agreement, so long as such laws,
ordinances or regulations remain in effect.
D) No license granted under this Agreement shall extend to any of
Licensor's poles where the placement of Licensee's attachments would
result in a forfeiture of the rights of Licensor or joint users to
occupy the property on which such poles are located. If placement of
Licensee's attachments would
-6-
result in a forfeiture of the rights of Licensor or joint users, or
both, to occupy such property, Licensee agrees to remove its
attachments forthwith; and Licensee agrees to pay Licensor or joint
users, or both, all losses, damages, and costs incurred as a result
thereof.
ARTICLE VII
ISSUANCE OF LICENSES
A) Before Licensee shall attach to any pole, Licensee shall make
application for and have received a license therefor in the form of
APPENDIX III, Forms A-l and A-2.
B) Licensee agrees to limit the filing of applications for pole attachment
licenses to include not more than 200 poles on any one application and
2,000 poles on all applications which are pending approval by Licensor
at any one time. Such limitations will apply to Licensor's poles
located within a single plant construction district of Licensor.
Licensee further agrees to designate a desired priority of completion
of the field survey and make-ready work for each application relative
to all other of its applications on file with Licensor at the same
time.
ARTICLE VIII
POLE MAKE-READY WORK
A) A field survey will be required for each pole for which attachment is
requested to determine the adequacy of the pole to accommodate
Licensee's attachments. The field survey will be performed jointly by
representatives of Licensor, joint owner and/or joint user and
Licensee.
B) Licensor reserves the right to refuse to grant a license for attachment
to a pole when Licensor determines that the communications space on
such pole is required for its exclusive use or that the pole may not
reasonably be rearranged or replaced to accommodate Licensee's
attachments.
C) In the event Licensor determines that a pole to which Licensee desires
to make attachments is inadequate or otherwise needs rearrangement of
the existing facilities thereon to accommodate the attachments of
Licensee in accordance with the specifications set forth in Article V,
Licensor will indicate on the Authorization for Pole Make-Ready Work
(Appendix III, Form B2) the estimated cost of the required make-ready
work and return it to Licensee.
-7-
D) Any required make-ready work will be performed following receipt by
Licensor of completed Form B2. Licensee shall pay Licensor for all
make-ready work completed in accordance with the provisions of APPENDIX
I, and shall also reimburse the owner(s) of other facilities attached
to said poles for any expense incurred by it or them in transferring or
rearranging such facilities to accommodate Licensee's pole attachments.
Licensee shall not be entitled to reimbursement of any amounts paid to
Licensor for pole replacements or for rearrangement of attachments on
Licensor's poles by reason of the use by the Licensor or other
authorized user(s) of any additional space resulting from such
replacement or rearrangement.
E) Should Licensor, or another party with whom it has a joint use
agreement, for its own service requirements, need to attach additional
facilities to any of Licensor's poles, to which Licensee is attached,
Licensee will either rearrange its attachments on the pole or transfer
them to a replacement pole as determined by Licensor so that the
additional facilities of Licensor or joint user may be attached. The
rearrangement or transfer of Licensee's attachments will be made at
Licensee's sole expense. If Licensee does not rearrange or transfer its
attachments within fifteen (15) days after receipt of written notice
from Licensor requesting such rearrangement or transfer, Licensor or
joint user may perform or have performed such rearrangement or transfer
and Licensee agrees to pay the costs thereof.
F) Licensor may, when it deems an emergency to exist, rearrange, transfer
or remove Licensee's attachments to Licensor's poles, at Licensee's
expense, and without any liability on the part of the Licensor for
damage or injury to Licensee's attachments.
G) License applications received by Licensor from two or more licensees
for attachment accommodations on the same pole, prior to the
commencement of any field survey or make-ready work required to
accommodate any licensee, will be processed by Licensor in accordance
with the procedures detailed in APPENDIX II attached hereto.
H) In performing all make-ready work to accommodate Licensee's
attachments, Licensor will endeavor to include such work in its normal
work load schedule.
I) Licensee may attach its xxx xxxxxx to Licensor's existing anchor rod at
no charge where Licensor determines that adequate capacity is
available; provided that Licensee agrees to secure any necessary
right-of-way therefore from the appropriate property owner. Should
Licensor, or joint user, if any, for its own service requirements, need
to increase its load on the anchor rod to which Licensee's guy is
attached, Licensee will either rearrange its xxx xxxxxx on the anchor
rod or transfer it to a replacement anchor as determined by Licensor.
-8-
The cost of such rearrangement and/or transfer, and the placement of a
new or replacing anchor will be at the sole expense of Licensee, which
Licensee agrees to pay. If Licensee does not rearrange or transfer its
xxx xxxxxx within fifteen (15) days after receipt of written notice
from Licensor regarding such requirement, Licensor or joint user may
perform, or have performed, the work involved and Licensee agrees to
pay the full costs thereof.
ARTICLE IX
CONSTRUCTION, MAINTENANCE AND REMOVAL OF ATTACHMENTS
A) Licensee shall, at its own expense, construct and maintain its
attachments on Licensor's poles in a safe condition and in a manner
acceptable to Licensor, so as not to conflict with the use of the
Licensor's poles by Licensor or by other authorized users of Licensor's
poles, nor electrically interfere with Licensor's facilities attached
thereon.
B) Licensor shall specify the point of attachment on each of Licensor's
poles to be occupied by Licensee's attachments. Where multiple
licensees' attachments are involved, Licensor will attempt to the
extent practical, to designate the same relative position on each pole
for each licensee's attachments.
C) Licensee shall obtain specific written authorization from Licensor
before relocating materially altering or replacing its attachments or
overlapping its own cable on Licensor's poles.
D) All tree trimming made necessary, in the opinion of the Licensors, by
reason of the Licensee's proposed attachments at the time of attachment
or thereafter, provided the owner(s) of such trees grants permission to
the Licensee, shall be performed by contractors approved by Licensors,
at the sole cost, expense and direction of the Licensee, except such
trimming as may be required on Licensee's customers' premises, to clear
Licensee's cable drops, which trimming shall be done by the Licensee at
its expense.
E) Licensee, at its expense, will remove its attachments from any of
Licensor's poles within fifteen (15) days after termination of the
license covering such attachments.
If Licensee fails to remove its attachments within such fifteen (15)
day period, Licensor shall have the right to remove such attachments at
Licensee's expense and without any liability on the part of the
Licensor for damage or injury to Licensee's attachments.
ARTICLE X
-9-
TERMINATION OF LICENSE
A) Any license issued under this Agreement shall automatically terminate
when Licensee ceases to have authority to construct, operate and/or
maintain its attachments on the public or private property at the
location of the particular pole covered by the license.
B) Licensee may at any time remove its attachments from a pole after first
giving Licensor written notice of such removal (APPENDIX III, Form D).
Following such removal, no attachment shall again be made to such pole
until Licensee shall have first complied with all of the provisions of
this Agreement as though no such attachment had previously been made.
ARTICLE XI
INSPECTIONS OF LICENSEE'S ATTACHMENTS
A) Licensor reserves the right to make periodic inspections of any part of
Licensee's attachments, including guying, attached to Licensor's poles,
and Licensee shall reimburse Licensor for the expense of such
inspections.
B) The frequency and extent of such inspections by Licensor will depend
upon Licensee's adherence to the requirements of Articles V and VII
herein.
C) Licensor will give Licensee advance written notice of such inspections,
except in those instances where, in the sole judgment of Licensor,
safety considerations justify the need for such an inspection without
the delay of waiting until a written notice has been forwarded to
Licensee.
D) The making of periodic inspections or the failure to do so shall not
operate to relieve Licensee of any responsibility, obligation or
liability assumed under this Agreement.
E) Any charge imposed by Licensor for such inspections shall be in
addition to any other sums due and payable by Licensee under this
Agreement. No act or failure to act by Licensor with regard to said
charge or any unlicensed use by Licensee shall be deemed as a
ratification or the licensing of the unlicensed use; and if any license
should subsequently be issued, said license shall not operate
retroactively or constitute a waiver by Licensor of any of its rights
or privileges under this Agreement or otherwise.
ARTICLE XII
-10-
UNAUTHORIZED ATTACHMENTS
A) If any of Licensee's attachments shall be found attached to Licensor's
poles for which no license is outstanding, Licensor, without prejudice
to its other rights or remedies under this Agreement (including
termination) or otherwise, may impose a charge and require Licensee to
submit in writing, within fifteen (15) days after receipt of written
notification from Licensor of the unauthorized attachment, a pole
attachment application. If such application is not received by the
Licensor within the specified time period, Licensee shall remove its
unauthorized attachment within fifteen (15) days of the final date for
submitting the required application, or Licensor may remove Licensee's
facilities without liability, and the expense of such removal shall be
borne by Licensee.
B) For the purpose of determining the applicable charge, absent
satisfactory evidence to the contrary, the unauthorized pole attachment
shall be deemed as having existed since the date of this agreement, and
the fees and charges as specified in APPENDIX I, shall be applicable
thereto and due and payable forthwith whether or not Licensee is
permitted to continue the pole attachment.
ARTICLE XIII
LIABILITY AND DAMAGES
A) Licensor reserves to itself, its successors and assigns, the right to
locate and maintain its poles and to operate its facilities in
conjunction therewith in such a manner as will best enable it to
fulfill its own service requirements. Licensor shall not be liable to
Licensee for any interruption of Licensee's service or for interference
with the operation of Licensee's communications services arising in any
manner, except from Licensor's sole negligence, out of the use of
Licensor's poles.
B) Licensee shall exercise precaution to avoid damaging the facilities of
Licensor and of others attached to Licensor's poles, and Licensee
assumes all responsibility for any and all loss from such damage caused
by Licensee's employees, agents or contractors. Licensee shall make an
immediate report to Licensor and any other user of the occurrence of
any such damage and agrees to reimburse the respective parties for all
costs included in making repairs.
C) Except, as may be caused by the sole negligence of Licensor, or either
of them, Licensee shall defend, indemnify and save harmless Licensor,
or either of them, against and from any and all liabilities, claims,
suits, fines, penalties, damages, losses, fees, costs and expenses
arising from or in connection with
-11-
this Agreement (including reasonable attorneys' fees) including, but
not limited to, those which may be imposed upon, incurred by or
asserted against Licensor, or either of them by reason of (a) any work
or thing done upon the poles licensed hereunder or any part thereof
performed by Licensee or any of its agents, contractors, servants, or
employees; (b) any use, occupation, condition, operation of said poles
or any part thereof by Licensee or any of its agents, contractors,
servants, or employees; (c) any act or omission on the part of Licensee
or any of its agents, contractors, servants, or employees, for which
Licensor may be found liable; (d) any accident, injury (including
death) or damage to any person or property occurring upon said poles or
any part thereof arising out of any use thereof by Licensee or any of
its agents, contractors, servants, or employees; (e) any failure on the
part of Licensee to perform or comply with any of the covenants,
agreements, terms or conditions contained in this Agreement, (f)
payments made under any Workers' Compensation Law or under any plan for
employees disability and death benefits arising out of any use of the
poles by Licensee or any of its agents, contractors, servants,
employees or by (g) the erection, maintenance, presence, use, occupancy
or removal of Licensee's attachments by Licensee or any of its agents,
contractors, servants or employees or by their proximity to the
facilities of other parties attached to Licensor's poles.
D) Licensee shall indemnity, save harmless and defend Licensor from any
and all claims and demands of whatever kind which arise directly or
indirectly from the operation of Licensee's attachments, including
taxes, special charges by others, claims and demands for damages or
loss for infringement of copyright, for libel and slander, for
unauthorized use of television broadcast programs, and for unauthorized
use of other program material, and from and against all claims and
demands for infringement of patents with respect to the manufacture,
use and operation of Licensee's attachments in combination with
Licensor's poles, or otherwise.
The provisions of this Article shall survive the expiration or earlier
termination of this Agreement or any license issued thereunder.
ARTICLE XIV
INSURANCE
A) Licensee shall carry insurance issued by an insurance carrier
satisfactory to Licensor to protect the parties hereto from and against
any and all claims, demands, actions, judgments, costs, expenses and
liabilities of every kind and nature which may arise or result,
directly or indirectly from or by reason of such loss, injury or damage
as covered in Article XIII preceding.
-12-
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
B) The amounts of such insurance, without deductibles:
1. against liability due to damage to property shall not be less
than [**] as to any one occurrence and [**] aggregate, and
2. against liability due to injury to or death of persons shall
be not less than [**] as to any one person and [**] as to any
one occurrence.
C) Licensee shall also carry such insurance as will protect it from all
claims under any Workers' Compensation Law in effect that may be
applicable to it.
D) All insurance must be effective before Licensor will authorize Licensee
to make attachments to any pole and shall remain in force until such
attachments have been removed from all such poles.
E) Licensee shall submit to Licensor certificates of insurance including
renewal thereof, by each company insuring Licensee to the effect that
it has insured Licensee for at liabilities of Licensee covered by this
Agreement; and that such certificates will name the Licensor as an
additional insured under the public liability policy and that it will
not cancel or change any such policy of insurance issued to Licensee
except after the giving of not less than 30 days' written notice to
Licensor.
ARTICLE XV
AUTHORIZATION NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any exclusive
authorization, right or privilege to Licensee. Licensor shall have the right to
grant, renew and extend rights and privileges to others not parties to this
Agreement, by contract or otherwise, to use any pole covered by this Agreement.
ARTICLE XVI
ASSIGNMENT OF RIGHTS
A) Licensee shall not assign or transfer this Agreement or any
authorization granted hereunder, and this Agreement shall not inure to
the benefit of Licensee's successors, without the prior written consent
of Licensor.
-13-
B) In the event such consent or consents are granted by Licensor, then
this Agreement shall extend to and bind the successors and assigns of
the parties hereto.
C) Pole space licensed to Licensee hereunder is for Licensee's use only,
and Licensee shall not lease, sublicense, share with, convey or resell
to others any such space or rights granted hereunder.
ARTICLE XVII
FAILURE TO ENFORCE
Failure of Licensor to enforce or insist upon compliance with any of the terms
or conditions of this Agreement or to give notice or declare this Agreement or
any authorization granted hereunder terminated shall not constitute a general
waiver or relinquishment of any term or condition of this Agreement, but the
same shall be and remain at all times in full force and effect.
ARTICLE XVIII
TERMINATION OF AGREEMENT
A) If Licensee shall fail to comply with any of the terms or conditions of
this Agreement or default in any of its obligations under this
Agreement, or if Licensee's facilities are maintained or used in
violation of any law and Licensee shall fail within thirty (30) days
after written notice from Licensor to correct such default or
noncompliance, Licensor may at its option forthwith terminate this
Agreement and all authorizations granted hereunder, or the
authorizations covering the poles as to which such default or
noncompliance shall have occurred.
B) If an insurance carrier shall at any time notify Licensor that the
policy or policies of insurance, required under ARTICLE XIV hereof,
will be canceled or changed so that the requirements of ARTICLE XIV
will no longer be satisfied, then this Agreement terminates unless
prior to effective date thereof Licensee shall furnish to Licensor
certificates of insurance including insurance coverage in accordance
with the provisions of ARTICLE XIV hereof.
C) In the event of termination of this Agreement Licensee shall remove its
attachments from Licensor's poles within six (6) months from date of
termination; provided, however, that Licensee shall be liable for and
pay all fees pursuant to the terms of this Agreement to Licensor until
Licensee's attachments are removed from Licensor's poles.
-14-
D) If Licensee does not remove its attachments from Licensor's poles
within the applicable time periods specified in this Agreement,
Licensor shall have the right to remove them at the expense of Licensee
and without any liability on the part of Licensor to Licensee therefor,
and Licensee shall be liable for and pay all fees pursuant to the terms
of this Agreement to Licensor until such attachments are removed.
ARTICLE XIX
TERM OF AGREEMENT
A) This Agreement shall remain in effect for a term of one (1) year from
the date hereof.
B) Termination of this Agreement or any licenses issued hereunder shall
not affect Licensee's liabilities and obligations incurred hereunder
prior to the effective date of such termination.
ARTICLE XX
NOTICES
All written notices required under this Agreement shall be given by posting the
same in first class mail as follows:
To Licensee: NECOM LLC
Attention: Xxxxxxx X. Xxxxx
000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
To Licensor: For Licenses:
New England Telephone and Telegraph Company
d/b/a NYNEX
c/o Reimbursable Construction
(same as above)
To Licensor: Western Massachusetts Electric Company
000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
This agreement cancels and supersedes any and all previous poles
attachment agreements between the Licensors and Licensee insofar as the
aforementioned municipalities are concerned except as to liabilities already
accrued, if any.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
triplicate on the day and year first above written.
NECOM LLC
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
(Title) Manager
-------------------------------
Date of Execution: 8/29/96
-----------------
NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY d/b/a NYNEX
By/s/ X. Xxxxx
-------------------------------
(Title) General Manager
-------------------------------
Date of Execution: 10/28/96
-----------------
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By/s/ X X Lanta
-------------------------------
(Title) Regional Director of Custumer
-------------------------------
Service Operations
-------------------------------
Date of Execution: 10/23/96
-----------------
-16-
Confiential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
APPENDIX I
SCHEDULE OF FEES AND CHARGES
Pole Attachments
A) Attachment
1. General
(a) Attachment fees commence on the first day of the
month following the date the license is issued.
(b) Fees shall be payable yearly in advance on the first
day of January.
(c) For the purpose of computing the attachment fees due
hereunder, the fee shall be based upon the number of
poles for which licenses have been issued. The
advance payment of the fee for licenses under this
Agreement shall include a proration from the first
day of the month following the date the license was
issued.
2. Annual Attachment Fee
For each pole solely owned by the Licensor and on which space
has been reserved or occupied by the Licensee pursuant to this
Agreement payment shall be as follows:
MAY 1, 1995 AND PRIOR
[**] per attachment per solely owned Western
Massachusetts Company pole
[**] per attachment per solely owned Telephone Company
pole
[**] per attachment per pole on jointly owned or used
Telephone Company and Western Massachusetts Company
poles; [**] of which is to be paid to the Western
Massachusetts Company and [**] to be paid to the
Telephone Company
App. I-1
Appendix I
Confiential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
MAY 1, 1995 - DECEMBER 31, 1995
[**] per attachment per solely owned Western Massachusetts
Company pole
[**] per attachment per solely owned Telephone Company
pole
[**] per attachment per pole on jointly owned or used
Telephone Company and Western Massachusetts Company
poles; [**] of which is to be paid to the Western
Massachusetts Company and [**] to be paid to the
Telephone Company
JANUARY 1, 1996 - DECEMBER 31, 1996
[**] per attachment per solely owned Western Massachusetts
Company pole
[**] per attachment per solely owned Telephone Company
pole
[**] per attachment per pole on jointly owned or used
Telephone Company and Western Massachusetts Company
poles; [**] of which is to be paid to the Western
Massachusetts Company and [**] to be paid to the
Telephone Company
JANUARY 1, 1997 - DECEMBER 31, 1997
[**] per attachment per solely owned Western Massachusetts
Company pole
[**] per attachment per solely owned Telephone Company
pole
[**] per attachment per pole on jointly owned or used
Telephone Company and Western Massachusetts Company
poles; [**] of which is to be paid to the Western
Massachusetts Company and [**] to be paid to the
Telephone Company
App. I-2
Appendix I
Confiential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
JANUARY 1, 1998 - DECEMBER 31, 1998
[**] per attachment per solely owned Western
Massachusetts Company pole
[**] per attachment per solely owned Telephone
Company pole
[**] per attachment per pole on jointly owned or
used Telephone Company and Western
Massachusetts Company poles; [**] of which
is to be paid to the Western Massachusetts
Company and [**] to be paid to the Telephone
Company
JANUARY 1, 1999 - DECEMBER 31, 1999 AND THEREAFTER
(UNLESS NOTICE OF INCREASE IS ISSUED)
[**] per attachment per solely owned Western
Massachusetts Company pole
[**] per attachment per solely owned Telephone
Company pole
[**] per attachment per pole on jointly owned or
used Telephone Company and Western
Massachusetts Company poles; [**] of which
is to be paid to the Western Massachusetts
Company and [**] to be paid to the Telephone
Company
B) Other Charges
Computation
All charges for field survey, inspections, removal of
Licensee's facilities from Licensor's poles and any other work
performed for Licensee shall be based upon the full cost and
expense to Licensor of such work or for having such work
performed by an authorized representative plus, unless waived
by Licensor or either of them, an amount equal to [**] of
Licensor's full cost.
App. I-3
Appendix I
C) Cost of Pole Replacements, Rearrangements and Changes
1. Whenever any pole is, or becomes, after initial Licensee's
attachments, in the opinion of the Licensor, insufficient in
height or strength for the Licensee's proposed attachments
thereon in addition to the existing attachments of the
Licensor and municipality the Licensor shall replace such pole
with a new pole of the necessary height and class and shall
make such other changes in the existing pole line in which
such pole is included as the conditions may then require. The
Licensee shall pay the Licensor for the expense thereof,
including, but not limited, to the following:
(a) The net loss to the Licensor on the replaced pole
based on its reproduction cost less depreciation plus
cost of removal.
(b) Excess height or strength of the new pole over the
existing pole necessary by reason of the Licensee's
attachments.
(c) Transferring Licensor's attachments from the old to the
new pole.
(d) Any other rearrangements and changes necessary by
reason of the Licensee's proposed or existing
attachments.
2. In the event that the Licensors or either of them shall permit
the Licensee to place its attachments in space reserved by
either of them or for any municipality and the Licensors or
either of them or any municipality shall deem it necessary to
use such space, or the pole is to be replaced at any time
because of obsolescence, public requirement or other reason,
then the Licensors shall replace the pole with a suitable pole
to provide the basic space reservation where necessary, and
the Licensee shall be billed, as provided for in Section (C)1,
a-d, inclusive, above.
D) Payment Date
Failure to pay all fees and charges within 30 days after presentment of
the xxxx therefore or on the specified payment date, whichever is
later, shall constitute a default of this Agreement.
For bills rendered by Licensor, New England Telephone and Telegraph
Company, the following shall be applicable:
App. I-4
Appendix I
"Interest shall accrue and be payable to Licensor at the rate set by
the Commissioner of Internal Revenue pursuant to Internal Revenue Code,
Section 6621; Treasury Regulations Section 301.6621-1, from and after
the payment date of any payment required by this License. The payment
of any interest shall not cure or excuse any default by Licensee under
this License."
App. I-5
Appendix II
APPENDIX II
MULTIPLE POLE ATTACHMENT LICENSE APPLICATIONS
App. II-1
Appendix II
Procedure for Processing
Multiple Pole Attachment License Applications
The following procedure shall be adhered to in processing applications to attach
to Licensor's poles by multiple licensees.
A) DEFINITIONS
Simultaneous license applications
Properly completed pole license applications relative to the
same pole which are received by the Licensor from multiple
applicants on the same business day.
Non-Simultaneous license applications
Properly completed pole license applications relative to the
same pole which are received by the Licensor from multiple
applicants on different business days.
Initial applicant
The applicant filing the first properly completed license
application (non-simultaneous) for attachment to a specific
pole.
Additional applicant
Each applicant filing a properly completed license application
(non-simultaneous) for attachment to a specific pole for which
a prior license application has been received by the Licensor.
Make-Ready Work
The work required (including rearrangement and transfer of
existing facilities on a pole, replacement of poles or any
other changes) to accommodate the Licensee's attachments on
Licensor's pole.
App. II-2
Appendix II
Option 1
An arrangement whereby Licensor will process the license
application of initial applicant as if there is no other
license application on file for the same pole.
Option 2
An arrangement whereby Licensor will process license
applications of initial and additional applicant in accordance
with the procedure applicable for simultaneous multiple
license applications.
B) MULTIPLE LICENSE APPLICATION PROCESSING
Both simultaneous and non-simultaneous multiple license
applications for the same pole will be processed by the
Licensor in accordance with the procedures set forth in the
flow chart which comprises pages 5 to 7 inclusive, of this
Appendix.
C) OPTION ARRANGEMENTS
1. Upon being offered Options 1 and 2, the initial applicant will
be advised that he may make an immediate selection of the
option he desires or he may delay his selection until the
required make-ready survey work has been completed and the
estimate of make-ready charges quoted by the Licensor. Where
the initial applicant elects to delay his decision, he shall
be required to indicate the option he desires within 15 days
after the Licensor has quoted the estimate of the make-ready
charges that will apply, otherwise, the Licensor will deem the
initial applicant to have selected Option 1.
2. The license application processing procedure to be adhered to
in accordance with Option 2 will be subject to acceptance by
all of the multiple applicants involved. The additional
applicant(s) will have 15 days from the date he is advised by
the Licensor that the initial applicant has selected Option 2
to accept or reject the conditions applicable under Option 2,
otherwise, the Licensor will deem the additional applicant(s)
to have rejected such conditions.
3. All work in progress on the initial applicant's license
application involving multiple pole attachments will be
suspended by the Licensor from the time that the initial
applicant is offered Options 1 and 2 until
App. II-3
Appendix II
he notifies the Licensor of the option he elects in accordance
with C.1. above.
D) MAKE-READY SURVEY REQUIREMENT
1. Where required make-ready survey is to be completed on two
bases, the multiple applicants shall be so advised before such
survey is commenced.
2. The make-ready survey required to develop the estimated
charges applicable for Options 1 and 2 will include a
determination of the work requirements necessary to:
(a) issue licenses simultaneously to the multiple
applicants and,
(b) issue licenses to the initial applicant before
commencing the required make-ready work necessary to
accommodate the additional applicant(s).
3. Licensor will consider any license application involving
simultaneous multiple attachments as canceled upon the failure
of an applicant to notify the Licensor in writing of his
acceptance of the estimate of make-ready charges and accompany
such acceptance with the advance payment within 15 days
following his receipt of such estimate from the Licensor.
4. Licensor or his authorized representative will perform the
make-ready survey in all situations involving simultaneous
license applications.
5. Where an initial applicant has been authorized by Licensor to
perform its own make-ready survey, and properly completed pole
applications are received from an additional applicant(s),
establishing a non-simultaneous license application situation,
the conditions of Option 1 will automatically apply and the
option arrangements, detailed in Section C of this Appendix,
will not be applicable.
E) MAKE-READY WORK SCHEDULE
Any simultaneous multiple applicant who cannot agree with the
alternative arrangement that provides for the Licensor to complete ALL
make-ready work before simultaneously granting licenses to all multiple
applicants will be deemed by the Licensor to have canceled his
application.
App. II-4
Appendix II
F) CHANGES IN APPENDIX
This Appendix may be changed in whole or in part at any time during the
term of this Agreement at the sole option of the Licensor upon the
giving of not less than 30 days written notice thereof to the
Licensee(s) and to substitute in place thereof such other provisions as
the Licensor may deem necessary as relative to multiple attachments to
poles of the Licensor.
App. II-5
PROCEDURE FOR PROCESSING
MULTIPLE POLE ATTACHMENT LICENSE APPLICATIONS
1. WHERE NO-MAKE
READY SURVEY
EXPENSE HAS
BEEN INCURRED
BY LICENSOR
MAKE-READY SURVEY MAKE-READY SURVEY MAKE-READY WORK SCHEDULE MAKE-READY COST ALLOCATIONS
REQUIREMENT COST ALLOCATION
MULTIPLE APPLICANTS MUST TOTAL COST SHARED EQUALLY BY
TO BE DONE ON TWO DEVELOP MUTUALLY MULTIPLE APPLICANTS.
BASES TO DETERMINE AGREEABLE:
ACCOMMODATION - IF ONLY ONE APPLICANT
REQUIREMENTS FOR: 1. order of pole AGREES TO ESTIMATED
availability and SHARED PORTION OF TOTAL
2. overall completion COST, THAT APPLICANT
1. attachment by single schedule WILL BE QUOTED TPE COST
licensee APPLICABLE TO ACCOMMODATE
A. SIMULTANEOUS TOTAL COST TO BE - WHERE MULTIPLE A SINGLE LICENSEE (SEE 1.
APPLICATIONS 2. attachment by multiple SHARED EQUALLY BY APPLICANTS CANNOT AGREE UNDER MAKE-READY SURVEY
licensees MULTIPLE APPLICANTS WITHIN 15 DAYS FROM REQUIREMENT)
RECEIPT OF ESTIMATE FROM
LICENSOR, LICENSOR WILL
OFFER AS AN ALTERNATIVE,
TO COMPLETE ALL MAKE-
---
READY WORK INVOLVED
BEFORE SIMULTANEOUSLY
GRANTING LICENSES TO
MULTIPLE APPLICANTS.
App. II-6
B. NON-
SIMULTANEOUS
APPLICATIONS INITIAL APPLICANT INITIAL APPLICANT
OPTIONS AVAILABLE
INITIAL APPLICANT LICENSOR WILL TREAT AS A IS CHARGED THE COST
NON-MULTIPLE APPLICANT ATTRIBUTABLE TO THE WORK
OPTION 1 INVOLVED TO ACCOMMODATE
- ANY CHANGE OF PRIORITY ATTACHMENT BY ONE LICENSEE.
(LICENSOR WILL OF POLE AVAILABILITY OR
PROCESS AS IF NO OVERALL COMPLETION
MULTIPLE LICENSE SCHEDULE THAT IS DESIRED ADDITIONAL APPLICANT
APPLICATION TO BE DONE ON TWO AFTER EITHER HAS BEEN
EXIST.) BASIS TO DETERMINE INITIALLY AGREED UPON IS CHARGED THE COST
ACCOMMODATION WITH THE LICENSOR IS ATTRIBUTABLE TO THE WORK
REQUIREMENTS FOR: SUBJECT TO LICENSOR'S INVOLVED TO ACCOMMODATE
ABILITY TO ACCOMMODATE ATTACHMENT BY AN ADDITIONAL
_________________ 1. attachment by TOTAL COST TO IN ITS ESTABLISHED WORK LICENSEE ON A POLE ALREADY
OPTION 2 single licensee BE SHARED SCHEDULE. ATTACHED BY INITIAL LICENSEE.
EQUALLY BY
(LICENSOR WILL 2. attachment by MULTIPLE ADDITIONAL APPLICANT
PROCESS AS multiple licensees APPLICANTS
SIMULTANEOUS REQUIRED MAKE-READY WORK
LICENSE (a) simultaneously WILL NOT BE PERFORMED UNTIL
APPLICATIONS) (b) non-simultaneously LICENSES HAVE BEEN GRANTED
TO INITIAL APPLICANT UNLESS
THE PERFORMANCE OF SUCH
WORK WILL NOT DELAY THE
COMPLETION OF THE
MAKE-READY WORK REQUIRED TO
ACCOMMODATE THE INITIAL
APPLICANT.
__________________________________________________________
SAME AS I.A. SAME AS I.A.
App. II-7
II. WHERE PARTIAL
MAKE-READY
SURVEY EXPENSE
HAS BEEN
INCURRED BY
LICENSOR
MAKE-READY SURVEY MAKE-READY SURVEY MAKE-READY WORK SCHEDULE MAKE-READY COST ALLOCATIONS
TO REQUIREMENT COST ALLOCATION
OPTIONS INITIAL APPLICANT
AVAILABLE
TO INITIAL BALANCE OF REQUIRED WILL BE CHARGED THE
APPLICANT SURVEY TO BE COST INCURRED FOR
COMPLETED ON TWO THAT PORTION OF THE
OPTION 1 SURVEY WHICH HAS
ACCOMMODATION BASES DETERMINE
(LICENSOR WILL REQUIREMENTS FOR: ALREADY BEEN
PROCESS AS IF NO COMPLETED.
MULTIPLE LICENSE 1. attachment by single
APPLICATIONS licensee ADDITIONAL APPLICANT
EXIST)
2. attachment by WILL BE CHARGED THE
multiple licensees COST INCURRED TO
RESURVEY THE SAME AS I.B. SAME AS I.B.
_________________ (a) simultaneously COMPLETED PORTION OF
(b) non-simultaneously THE SURVEY TO
DETERMINE THE _____________________________________________________________
OPTION 2 PORTION OF SURVEY REQUIREMENTS TO
ALREADY COMPLETED ACCOMMODATE
(LICENSOR WILL FOR INITIAL APPLICANT ATTACHMENT BY
PROCESS AS WILL BE RESURVEYED TO MULTIPLE LICENSEES.
"SIMULTANEOUS" DETERMINE THE SAME AS I.A. SAME AS I.A.
LICENSE REQUIREMENTS TO TOTAL COST OF THE
APPLICATIONS). ACCOMMODATE AN BALANCE OF THE
ADDITIONAL LICENSEE REQUIRED SURVEY WILL
BE SHARED EQUALLY BY
THE MULTIPLE
APPLICANTS.
App. II-8
II. WHERE MAKE-
READY SURVEY
IS COMPLETE
BUT MAKE-READY
WORK HAS NOT
PHYSICALLY
COMMENCED
MAKE-READY SURVEY MAKE-READY SURVEY MAKE-READY WORK SCHEDULE MAKE-READY COST ALLOCATIONS
REQUIREMENT COST ALLOCATION
INITIAL APPLICANT
WILL BE CHARGED THE
OPTIONS RESURVEY REQUIRED TO COST OF THE SURVEY
AVAILABLE DETERMINE WHICH HAS ALREADY
TO INITIAL ACCOMMODATION BEEN COMPLETED.
APPLICANT REQUIREMENTS FOR
ATTACHMENT BY ADDITIONAL APPLICANT SAME AS I.B. SAME AS I.B.
OPTION 1 --------------------
-------- MULTIPLE LICENSEES:
WILL BE CHARGED THE
(LICENSOR WILL 1. SIMULTANEOUSLY COST TO RESURVEY TO
PROCESS AS IF NO 2. NON- DETERMINE THE
MULTIPLE LICENSE SIMULTANEOUSLY REQUIREMENTS FOR
APPLICATIONS ACCOMMODATING
EXIST) MULTIPLE LICENSEES.
_____________________________________________________________
_________________ SAME AS I.A. SAME AS I.A.
OPTION 2
--------
(LICENSOR WILL
PROCESS AS
"SIMULTANEOUS"
MULTIPLE LICENSE
APPLICATIONS)
App. II-9
REVISED 5-11-94
APPENDIX III
Index of License Application Forms
Application and Pole Attachment License A-1
Pole Details A-2
Authorization for Field Survey Work B-1
Authorization for Pole Make-Ready Work B-2
Itemized Pole Make-Ready Work and Charges C
Notification of Discontinuance of Use of Poles D
App. III-1
EXPLANATION OF THE USE OF APPENDIX III
ADMINISTRATIVE FORMS
1. At the time any Licensee anticipates a request for a new license, it
should (pursuant to Article VII) submit to each Licensor: Form A-1
(Application and Pole Attachment License) and Form A-2 (Pole Details) -
(pursuant to Article VIII) Form B-1 (Authorization for Field Survey
Work), Form B-2 (Authorization for Pole Make-Ready Work) and Form C
(Itemized Estimate of Pole Make-Ready Work and Charges, which will be
completed by New England Telephone.
2. Each Licensor shall fill out Part I of Form B-1 (Authorization for
Field Survey Work). If Licensee agrees to the field survey estimate, it
will fill out, execute and return the form to the Licensor with the
appropriate fee.
3. Each Licensor shall fill out Form B-2 (Authorization for Pole Make
Ready Work) when appropriate. If Licensee agrees to the make ready
changes, it will execute and return to the Licensor with the
appropriate fee. (See Article VIII, par. D.)
4. Form C is used by New England Telephone to more fully explain the
estimated charges. When requested by the Licensee, this breakdown of
charges may be sent by New England Telephone.
5. After the completion of the Make Ready Work, the Licensor shall
complete Form A-1 with a license number, date and signature. Licensee's
receipt of this executed A-1 is its authorization to make the
attachments described in the application.
6. Any time a Licensee discontinues the use of a pole or poles upon which
it has a license, it shall submit Form D (Notification of
Discontinuance of the Use of Poles) to each Licensor.
7. Form F (Bond) will be submitted by the Licensee to the appropriate
Licensor from time to time as specified in Article III, par. C.
8. Form E (Certificate of Insurance) will be submitted by Licensee prior
to the execution of the License Agreement.
App. III-2
Appendix III
Form A-1
Revised 5-11-94
APPLICATION AND POLE ATTACHMENT LICENSE
Licensee NECOM LLC
Street Address_____________________________________
City and State _________________________________
Date_______________________________________________
In accordance with the terms and conditions of the License
Agreement between us, dated October 28, 1996, application is hereby made for a
license to make _____________ attachments to JO poles, ______ attachments to FO
poles, ____________ attachments to JU poles and _____________ Power Supply
attachments located in the municipality of ________________, as indicated on
Form A-2. This request will be designated Pole Attachment License Application
Number ___________.
Licensee's Name (Print)___________________________________
-- X.Xx.Xxxx.Xx. -- Signature __________________________________________
Power Company
Title __________________________________________
Tel. No. __________________________________________
Fax No. __________________________________________
*****************For license use, do not write below this line******************
Pole Attachment License Application Number ____ is hereby
granted to make the attachments described in this application to ______
attachments to JO poles, _______ attachments to FO poles, _______ attachments to
JU poles and _______________ Power Supply attachments located in the
municipality of _____________________, as indicated on the attached Form A-2.
This request will be designated Pole Attachment License Application Number
______________.
Licensee's Name (Print)___________________________________
Signature __________________________________________
__________________ Title __________________________________________
(AGREEMENT ID#)
Tel. No. __________________________________________
Fax No. __________________________________________
App. III-3
Appendix III
Form A-1
Revised 5-11-94
It is the Licensee's responsibility to submit an original copy of this
application to New England Telephone and Telegraph Company d/b/a NYNEX and the
appropriate Power Company.
Individual applications to be numbered in sequential ascending order by Licensee
for each License Agreement. Licensor will process applications in sequential
ascending order according to the application numbers assigned by the Licensee.
App. III-4
Appendix III
Form B-1
Revised 5-11-94
POLE DETAILS
License Application Number ____
Licensee NECOM LLC
--------------------------
----------------------------------------
Power Company Involved
----------------------------------------
Municipality where poles are located (Note: Provide separate applications for
each municipality)
Pole No. Location(1) Attach.(2) _________________________(3)
Tax Lic. Lic.
Dist. No. Date
-------- ------- --------
LICENSOR WILL PROVIDE AN
ITEMIZED ESTIMATE OF POLE
MAKE READY WORK REQUIRED AND
ASSOCIATED CHARGES (APPENDIX
III FORM C).
Licensee's Signature _____________________________________
Title _____________________________________
--------
(1) Indicate location by providing name of street, highway, route, etc., e.g.,
Xxxxx Xxxxxx, xxxxx xx (X/X) Xxxxx Xxxx. Private Property Poles should be
identified as such e.g., P.P. (lead off pole 0000 Xxxxx Xxxxxx).
(2) A complete description of all facilities shall be given including
quantities, sizes and types of all cables and equipment.
(3) Completed by Licensor.
Note: Attach Additional sheets if necessary.
App. III-5
Appendix III
Form B-1
Revised 5-11-94
AUTHORIZATION FOR FIELD SURVEY WORK
Licensee NECOM LLC
----------------
In accordance with Article IV, Paragraph (A)(1) of the License Agreement,
following is a summary of the estimated charges which will apply to complete a
field survey covering Pole Attachment License Application Number _____________.
Hours Rate/Hour Total
Field Survey $
--------- ------------ ---------
Plus 10% Administrative Compensation $
---------
TOTAL $
---------
If you wish us to complete the required field survey, please sign this copy
below and return with an advance payment in the amount of $________________.
Please note, this quote is only valid for 30 days.
Licensee's Name (Print)___________________________________
Signature __________________________________________
Title __________________________________________
Date __________________________________________
The required field survey covering License Application No. _______ is authorized
and the costs therefore will be paid to Licensor in accordance with Appendix I
to License Agreement.
App. III-6
Appendix III
Form B-1
Revised 5-11-94
My anticipated date of attachment is _______________________.
Licensee's Name (Print)___________________________________
Signature __________________________________________
Title __________________________________________
Date __________________________________________
App. III-7
Appendix III
Form B-2
Revised 5-11-94
AUTHORIZATION FOR POLE MAKE READY WORK
Licensee NECOM LLC
----------------------
Field survey work associated with your License Application No. __________ dated,
________________ 19__, for attachment to poles has been completed.
Following is a summary of the make ready charges which will apply.
Hours Rate/Hour Total
Field Survey $
--------- ------------ ---------
Plus 10% Administrative Compensation $
---------
TOTAL $
---------
Make-Ready Work Hours Rate/Hour Total
Labor $
--------- ------------ ---------
Material $
---------
Sub Total $
---------
Plus 10% Administrative Compensation $
---------
Total $
---------
Attached is an itemized summary (Form C) of required make-ready work and
associated charges. If you wish us to complete the required make-ready work,
please sign this copy below and return with an advance payment in the amount of
$-----------------.
Licensor's Name (Print)___________________________________
Signature __________________________________________
Title __________________________________________
Address __________________________________________
__________________________________________
Tel. No. __________________________________________
Date __________________________________________
The replacements and rearrangements included in License Application No. ________
are authorized and the costs therefore will be paid to Licensor in accordance
with Appendix I to License Agreement.
Licensee's Name (Print)________________________
Tel. No. ______________________
Signature _______________________________
Date ______________________
Title _______________________________
App. III-8
Appendix III
Form C
Revised 2/7/94
ITEMIZED SUMMARY OF POLE MAKE READY WORK AND CHARGES
------------------------------------ Sheet _______ of ________
Licensee
------------------------------------ --------------------------------------
Polos Located in Municipality, State Date Prepared
------------------------------------- KC#_____________________
------------------------------------ Exchange or Wire Center Keep Cost Order Number
License Application Number
POLE INFORMATION MAKE READY WORK MATERIAL (5) LABOR (6)
REQUIREMENTS
--------------------- ------------------- --------- ---------------------------- ------------------------------
Licensor Performed No. & Unit
Pole No. Location Description of Work by Item Cost Total Hours Rate/Hour Total
(1) (2) (3) (4)
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
--------
----------------------------------------------------------------------------------------------------------------------------
(see next page)
App. III-9
EXPLANATION OF COLUMNS FOR FORM C
To be filled in by Licensee:
(1) Designate pole number assigned by each utility company
T -- Telephone E -- Electric
(2) Name of Street, Road, Highway, Route, etc.
To be filled in by Licensor:
(3) Work Operation Description, e.g. Lwr 2 Ca 1' Rse Rack 2'
Lwr Top Ca 1' Plc A&G
Lwr Ca & Xxxx 00" Xxx Fire Alm 1'
Rpl Pole Rse Trnsf 1'
(4) Indicate Company to perform work operation, e.g.
T-- Telephone P-- Police
E -- Electric M -- Municipality
C -- CATV O -- Other License
F -- Fire
T/C -- Option-- Either Telephone or CATV
(5) List Non-exempt Material Only
(6) Indicate labor hours and costs required to perform work
operations listed in (3).
App. III-10
Appendix III
Form D
Revised 5/11/94
NOTIFICATION OF DISCONTINUANCE OF USE OF POLES
Licensee NECOM LLC
-----------------------------------------
Street Address ____________________________________
City and State ____________________________________
Date ______________________________________________
In accordance with the terms of License Agreement dated October 28,
1996, notice is hereby given that attachments to the following poles in the
municipality of _________________ covered by permit number ____________________
were removed on , 19__.
Pole Number Location Attachment
----------- -------- ----------
___________ _________________________________ ____________________________
___________ _________________________________ ____________________________
___________ _________________________________ ____________________________
___________ _________________________________ ____________________________
Total number of attachments to JO poles to be discontinued ____________________
Total number of attachments to FO poles to be discontinued ____________________
Total number of attachments to JU poles to be discontinued ____________________
Total number of Power Supplies to be discontinued ____________________
Said permit is to be cancelled in its entirety/partially as above.
(circle one)
Licensee _____________________________________ Print Name _________________
Signature ____________________________________ Tel. No. _________________
Title ______________________________________ Date _________________
................................................................................
Use of poles has been discontinued as above.
____________________________________________________ __________________________
Licensor's Name (Print) Signature
____________________________________________________ __________________________
Title Date
____________________________________________________
Tel. No.
It is the Licensee's responsibility to submit an original copy of this form to
New England Telephone and Telegraph Company d/b/a NYNEX, and the appropriate
Power Company.
App. XXX-00
Xxxxxxxx XXX
Xxxx X, 0000XX
REV. 12-88
OMITTED 11/18/94
App. III-12
APPENDIX III
Form F
REVISED 6-88
(NAME OF INSURANCE COMPANY)
BOND
Bond No. ______________________
KNOW ALL MEN BY THESE PRESENTS, THAT ________________________________ a
corporation of the _________________________________________________, located at
_______________________________________________ (hereinafter called the
Principal), as the Principal and the
____________________________________________________, a corporation organized
under the laws of ________________________________________ and authorized to do
business in the State/Commonwealth of _____________________ and having its
office at _____________________________________________ (hereinafter called the
Surety), as Surety, are held firmly bound unto the ____________________
____________________________ Corporation, and NEW ENGLAND TELEPHONE AND
TELEGRAPH COMPANY d/b/a NYNEX, New York corporation, hereinafter referred to as
Obligee, in the full and just sum of ________________________ to the payment of
which sum well and truly to be made, the Principal and Surety bind themselves,
and each of their successors and assigns, jointly and severally, firmly by these
presents.
WHEREAS, the Principal has entered into a written Agreement wherein the Obligees
have granted permission to the Principal to make attachment of Cables together
with the necessary Appurtenant Facilities including attachments for service
wires leading from poles to Principal's customers, to certain poles of the
Obligees, located in the City/Town of
____________________________________________.
WHEREAS, THE OBLIGEES are willing to permit such attachments to be made subject
to the terms and conditions of the aforesaid Agreement and providing a bond is
given by the Principal covering the true and faithful performance of said
Agreement, which Agreement is or may be attached hereto for reference.
NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal
shall well and truly perform and carry out the covenants, terms and conditions
of said agreement, then this obligation shall be void; otherwise it shall remain
in full force and effect.
The surety may cancel and terminate this Bond by giving thirty (30) days written
notice thereof by the Registered Mail to the Obligee, in which event the
cancellation and termination shall be effected thirty (30) days after said
obligees received such notice, but notwithstanding said cancellation or said
expiration date, this bond shall remain in full force and effect as to
attachments authorized under said agreement prior to the effective date of
cancellation or expiration date until all of said attachments shall have been
removed and as to any other obligations or responsibilities accrued prior to
said cancellation date or said expiration date.
App. III-13
APPENDIX III
Form F
REVISED 6-88
SIGNED, SEALED AND DATED this ______________ day of ___________, 19 ___
(PRINCIPAL)
By ____________________________________________
ATTEST: (SURETY)
_____________________________ _______________________________________________
App. III-14
APPENDIX III
Form G
IDENTIFICATION TAGS
1. GENERAL
This Appendix provides a method for Licensee to follow in attaching
identification tags to cables and other apparatus so that ownership of such
cable and apparatus can be readily determined.
2. DESCRIPTION OF TAGS
- - + +
CAUTION CAUTION
NON-NET CABLE NON-NET APPARATUS
CUSTOMER OWNED CUSTOMER OWNED
- - + +
------------------------ ---------------------------
Figure I Figure II
Identification Cable Tags Identification Apparatus Tags
The Identification Cable Tags, shown in Figure I are made of polyethylene and
polyvinyl chloride and have ultraviolet inhibitors. The tags will be yellow with
black lettering. The respective sizes are 1-3/4" x 4" and 1-1/4" x 3".
The cable tag will be used on cables, and will read as follows:
"CAUTION: NON-NET CABLE. CUSTOMER OWNED." There will be a section at
the bottom of the tag to place the owner's name, using indelible ink.
The apparatus tags will be place on Licensee's Plant, other than cables,
including, but not limited to, guys, terminals, and terminal closures. The
Identification Apparatus tag will read as follows: "CAUTION: NON-NET APPARATUS.
CUSTOMER OWNED." This tag will also have a place at the bottom on the tag to
write the owner's name using indelible ink.
3. PROCUREMENT OF TAGS
It is the responsibility of the Licensee to obtain, place and maintain
Identification tags.
4. INSTALLATION OF CABLE TAGS - AERIAL APPLICATION
The cable tag shall be placed on the bottom of the cable at the pole either
under the suspension clamp or just between the suspension clamp and cable
spacer. Such placement will make it visible from the ground that the cable is
not owned by the
App. III-15
APPENDIX III
Form G
Telephone Company. An E-Z twist cable tie shall be used to attach the cable tag.
At anchor and guy locations, the apparatus tag shall be placed between the
device used to secure the strand (i.e., strandvise, guy, grips or clamps) and
the eye of the rod. If a xxx xxxxxxx is in place, the apparatus tag can be
attached at the top of the xxx xxxxxx on the strand.
At terminal locations, the Identification tag shall be placed around the neck of
the terminal, on the stub, An E-Z twist tie shall be used to attach this tag.
An Identification tag shall be placed on each cable at each pole that is on a
separate suspension strand, if the lead is ten poles or less. If the lead is
more than ten poles, it is permissible to place a tag on every fourth pole.
App. III-16
Attachment A
NON-DISCRIMINATION SERVICE AGREEMENT
To the extent that this contract is subject to them, contractor shall comply
with the applicable provisions of the following: Exec. Order No. 11246, Exec.
Order No. 11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order
11758, Section 503 of the Rehabilitation Act of 1973 as amended by XX00-000,
Xxxxxxx Era Veteran's Readjustment Assistance Act of 1974 and the rules,
regulations and relevant Orders of the Secretary of Labor pertaining to the
Executive Orders and Statutes listed above.
Monetary amounts or contractual or purchasing relationships, together with the
number of the contractors employees, determine which Executive Order provisions
are applicable. For contracts valued at less than $2,500, none of the clauses
shall be considered a part of this contract. However, for contracts of or which
aggregate to 2,500 or more annually, the following table describes the clauses
which are included in the contract.
1. Inclusion of the "Equal Employment Opportunity" clauses in all contracts and
orders.
2. Certification of non-segregated facilities. 3. Certification that an
Affirmative Action program has been developed and is being followed.
4. Certification that an annual Employers Information Report (EEO-1 Standard
Form 100) is being filed.
5. Inclusion of the "Utilization of Minority And Women's Business Enterprises"
clause in all contracts and orders.
6. Inclusion of the "Minority and Women's Business Contracting Program" clause
in all contracts and orders.
7. Inclusion of the "Listing of Employment Openings" clause in all contracts
and orders.
8. Inclusion of the "Employment of the Handicapped" clause in all contracts and
orders.
$2,500 to $5,000 $5,000 to $10,000 $10,000 to $50,000
8 8 1, 2, 5, 6, 7, 8
$50,000 to $500,000 $500,000 or more
1, 2, 3*, 4*, 5, 6, 7, 8 1, 2, 3*, 4*, 5, 6, 7, 8
*Applies only for businesses with 50 or more employees.
1. Equal Employment Opportunity Provisions
In accordance with Executive Order 11246, dated September 24, 1965 and
Part 60-1 of Title 41 of the codes of Federal Regulations (Public
Contracts and Property Management, Office of Federal Contract
Compliance, Obligations of Contractors and Subcontractors), as may be
amended from time to time, the parties incorporate herein by this
reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
2. Certification of Non-segregated Facilities
The contractor certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or
permit its employees to perform their services at any location under
its control, where segregated facilities are maintained; and that it
will obtain a similar certification, prior to the award of any
nonexempt subcontract.
App. III-17
Attachment A
3. Certification of Affirmative Action Program
The contractor affirms that it has developed and is maintaining an
Affirmative Action Plan as required by Part 60-2 of Title 41 of the
codes of Federal Regulation.
4. Certification of Filing Employers Information Reports
The contractor agrees to file annually on or before the 31st day of
March complete and accurate reports on Standard Form 100 (EEO-1) or
such forms as may be promulgated in its place.
5. Utilization of Minority and Women's Business Enterprises
(a) It is the policy of the Government that minority and women's
business enterprises shall have the maximum practicable
opportunity to participate in the performance of the contract.
(b) The contractor agrees to use his best effort to carry
out this policy in the award of his subcontracts to
the fullest extent consistent with the efficient
performance of this contract. As used in this
contract the term "minority or women's business
enterprise" means a business, at least 50 percent of
which is owned, controlled and operated by
minority group members or women, or in the case
of publicly owned businesses, at least 51 percent of
the stock which is owned by minorities or women.
For the purposes of this definition, minority group
members are American: Blacks, Hispanics, Asians,
Pacific Islanders, American Indians and Alaskan
Natives. Contractors may rely on written
representations by subcontractors regarding their
status as minority or women's business enterprises
in lieu of an independent investigation.
6. Minority and Women's Business Enterprises
Subcontracting Program
(a) The contractor agrees to establish and conduct a program which
will enable minority and women's business enterprises (as
defined in paragraph 5) to be considered fairly as
subcontractors and suppliers under the contract. In this
connection, the Contractor shall:
(1) Designate a liaison officer who will administer the
contractor's minority and women's business
enterprises programs.
(2) Provide adequate and timely consideration of the
potentialities of known minority and women's business
enterprises in all "make or buy" decisions.
(3) Assure that known minority and women's
business enterprises will have an equitable
opportunity to compete for subcontracts,
particularly by arranging solicitations, time
for preparation of bids, quantities,
specifications, and delivery schedules so as
to facilitate the participation of minority and
women's business enterprises.
(4) Maintain records showing (I) procedures
which have been adopted to comply with the
policies set forth in this clause, including the
establishment of a source list of minority and
women's business enterprises, (II) awards to
minority and women's business enterprises
on the source list, and (III) specific efforts to
identify and award contracts to minority and
women's business enterprises.
App. III-18
Attachment A
(5) Include the Utilization Of Minority and Women's
Business Enterprises clause in subcontracts which
offer substantial minority and women's business
enterprises subcontracting opportunities.
(6) Cooperate with the Government's's Contracting Officer
in any studies and surveys of the Contractor's
minority and women's business enterprises procedures
and practices that the Contracting Officer may from
time to time conduct.
(7) Submit periodic reports of subcontracting to
known minority and women's business
enterprises with respect to the records
referred to in subparagraph (4) above, in
such a form and manner and at such time
(not more often than quarterly) as the
Contracting Officer may prescribe.
(b) The contractor further agrees to insert, in any
subcontract hereunder which may exceed $500,000
(or in the case of WBE, $1,000,000 in the case of
contracts for the construction of any public facility
and which offer substantial subcontracting
possibilities) provisions which shall conform
substantially to the language of this agreement,
including this paragraph (b).
7. List of Employment Openings for Veterans
In accordance with Exec. Order 11701, dated January 24, 1973, and Part
60-250 of Title 41 of the Code of Federal Regulations, as may be
amended from time to time, the parties incorporate herein by this
reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
8. Employment of the Handicapped
In accordance with Exec. Order 11758, dated January 15, 1974, and Part
60-741 of Title 41 of the Code of Federal Regulations as may be amended
from time to time, the parties incorporate herein by this reference the
regulations and contract clauses required by those provisions to be
made a part of Government contracts and subcontracts.
App. III-19
Attachment #1
Page 1 of 3
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
NECOM LLC
Attachments to approximately sixteen (16) poles from the Chicopee boundary to
American International College, Springfield College, Western New England
College, 000 Xxxxxx Xxxxxx, Marriott Hotel and 351 Bridge. Cable to service said
locations only.
App. III-20
Attachment #1
Page 2 of 3
Map of Network Backbone
App. III-21
Attachment #1
Page 3 of 3
Fiber Optic Cable One-Line Routing Diagram
App. III-22
