LICENSE AGREEMENT BETWEEN
ENTERGY SERVICES, INC.
LICENSOR
AND
IWL COMMUNICATIONS, INC.
dba IWL CONNECT
LICENSEE
FOR
ATTACHMENT OF FIBER OPTIC CABLES TO FACILITIES
DATED November 25, 1996
Legend: Confidential Treatment Requested. A series of XXX's has been
inserted in this exhibit to indicate redactions for which
confidential treatment has been requested. The redacted
portions of this exhibit have been separately filed with the
Commission.
LICENSE AGREEMENT
FOR
ATTACHMENTS OF FIBER OPTIC CABLES TO FACILITIES
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS 4
ARTICLE 2 - SCOPE OF AGREEMENT 5
ARTICLE 3 - ACCESS 5
ARTICLE 4 - PRACTICES 5
ARTICLE 5 - ACCESS RIGHTS 5
ARTICLE 6 - APPLICATION REQUIREMENTS 7
ARTICLE 7 - PLACING OR REARRANGING ATTACHMENTS 7
ARTICLE 8 - MODIFICATIONS AND/OR REPLACEMENTS 8
ARTICLE 9 - MAINTENANCE OF FACILITIES 9
ARTICLE 10 - ABANDONMENT AND REMOVAL OF FACILITIES 10
ARTICLE 10.5 - ALLOCATION OF COSTS FOR REARRANGEMENT,
RELOCATION AND REMOVAL OF FACILITIES 10
ARTICLE 11 - SPECIAL PROJECTS & CHANGES IN CHARACTER OF SERV. 11
ARTICLE 12 - TERMINATION OF PERMITS 11
ARTICLE 13 - PAYMENTS OF BILLS 12
ARTICLE 14 - TRANSFERS 12
ARTICLE 15 - RENTAL PAYMENTS 12
ARTICLE 16 - REVISION OF THE RENTAL RATE 13
ARTICLE 17 - FEES, CHARGES AND RENTS 14
ARTICLE 18 - LIABILITY AND DAMAGES 15
ARTICLE 19 - DUTIES, RESPONSIBILITIES, AND EXCULPATION 17
ARTICLE 20 - TAXES 19
ARTICLE 21 - SUBORDINATION 19
ARTICLE 22 - RIGHTS OF OTHER PARTIES 19
ARTICLE 23 - SERVICE OF NOTICES 19
ARTICLE 24 - TERMINATION OF AGREEMENT 20
ARTICLE 25 - ASSIGNMENT OF RIGHTS 21
ARTICLE 26 - CONVEYANCE OR SALE OF FACILITIES 21
ARTICLE 27 - TERM OF AGREEMENT 21
ARTICLE 28 - AMENDMENTS 22
ARTICLE 29 - EXISTING CONTRACTS 22
ARTICLE 30 - ELECTRICAL SERVICE TO LICENSEE 22
ARTICLE 31 - FRANCHISE RIGHTS 22
ARTICLE 32 - WAIVER 22
ARTICLE 33 - CONFIDENTIALITY 23
ARTICLE 34 - ENVIRONMENTAL 23
ARTICLE 35 - SIGNS 23
ARTICLE 36 - SURRENDER; HOLD-OVERS 23
ARTICLE 37 - PARTIAL INVALIDITY 24
ARTICLE 38 - WAIVER OF JURISDICTION 24
ARTICLE 39 - GOVERNING LOANS 25
ARTICLE 40 - JURISDICTION 25
EXHIBIT A - APPLICATION AND PERMIT FOR ATTACHMENTS TO FACILITIES
EXHIBIT B - NOTICE OF REMOVAL OF ATTACHMENTS TO FACILITIES
EXHIBIT C - SPACE RESERVATION DRAWINGS
EXHIBIT D - FEES, CHARGES AND RENTS
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LICENSE AGREEMENT
FOR
ATTACHMENTS OF FIBER OPTIC CABLES TO FACILITIES
THIS LICENSE AGREEMENT (hereinafter, the "Agreement") made as of this
25th day of November, 1996, by and between Entergy Services, Inc., a Delaware
corporation, on behalf of Entergy Arkansas, Inc., an Arkansas corporation,
Entergy Gulf States, Inc., a Texas Corporation, Entergy Louisiana, Inc., a
Louisiana corporation, Entergy Mississippi, Inc., a Mississippi Corporation,
and Entergy New Orleans, Inc., a Louisiana corporation, (hereinafter called
"Licensor"), and IWL Communications, Inc. DBA IWL Connect., a corporation
organized and existing under the laws of the State of Texas, (hereinafter
called "Licensee"), herein represented by Xxxxxxxx Xxxxxxxx its President,
duly authorized to act herein pursuant to general resolution of its Board of
Directors evidenced by its Secretary's Certificate, a copy of which is
attached hereto and made a part hereof.
WITNESSETH:
WHEREAS, Licensee proposes to install fiber optic cables and associated
equipment for the purpose of providing telecommunications in such allocated
territory of the States of Arkansas, Louisiana, Mississippi, and Texas in which
both parties operate, and desires to erect and maintain aerial cables, wires and
associated appliances in connection therewith, antennas or such other
attachments described herein above and also desires to attach or install such
cables, wires and appliances to certain facilities of Licensor ("Licensor's
facilities") and for which application is made to Licensor on the Application
and Permit for Attachment to Facilities attached hereto as Exhibit A (such
approved attachments hereinafter referred to as "authorized attachments" or
"attachments"); and
WHEREAS, Licensee agrees that this Agreement is limited to the uses
specifically stated above and any other use shall be considered a breach of this
Agreement.
WHEREAS, subject in all instances to considerations of Licensor's service
requirements including considerations of economy and safety, Licensor is
agreeable to permit the attachment or installation of Licensee's Authorized
Attachments to Licensor's facilities, except where provided otherwise in this
Agreement. Additionally, Licensor shall have the right to refuse to issue any
permit hereunder whenever Licensor, in its judgment, determines that the
issuance of such a permit is not possible for safety, reliability and generally
applicable engineering purposes, including the operation of Licensor's
distribution or transmission systems.
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NOW, THEREFORE, in consideration of the premises, the mutual covenants,
terms and conditions herein contained, the parties do hereby mutually covenant
and agree as follows:
ARTICLE 1 - DEFINITIONS
For the purpose of this Agreement, the following terms when used herein
shall have the following meanings:
A. ATTACHMENT is any material or apparatus now or hereafter used by
either party in the construction, operation or maintenance of its plant
installed on Licensor's facilities.
B. CHANGE IN CHARACTER OF SERVICE occurs whenever Licensee causes a
change in the physical characteristics of the attachment such as overlashing or
increasing the number of attachments, as well as the intended usage of the
attachment that Licensor determines is a deviation from or not accommodated in
the original application.
C. CODE means the applicable National Electrical Safety Code, as it may
be amended from time to time, the latest requirements of the Occupational Safety
and Health Act of 1970 and compliance with any lawful rules or orders now in
effect or that may hereafter be issued by Licensor or other authority having
jurisdiction.
D. OCCUPANCY is the maintaining or specifically reserving space for the
attachments of parties on the same pole at the same time.
E. LICENSOR'S FACILITY is any owned by Licensor upon which space is
provided or offered under this Agreement for the attachments of both parties,
and any other occupant subject to a similar license agreement.
F. REARRANGING OF ATTACHMENTS is the moving of attachments from one
position to another on Licensor's facilities.
G. TRANSFERRING OF ATTACHMENTS is the removing of attachments from one
facility and placing them upon another facility.
H. STANDARD SPACE ALLOCATION means an allocation of remaining space on
facility.
I. OVERLASHING is the attachment by winding, securing, fastening,
lashing, threading or looping of fiber optic cable onto a cable.
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J. TAGGING is the identification of Licensee's attachments at each point
of attachment to Licensor's facilities. Identification must be readable from
ground level with the naked eye and acceptable to Licensor.
K. LICENSOR CONTRACTORS are the contractors who regularly do work for
Licensor. Identification of those contractors will be available to Licensee
upon request.
ARTICLE 2 - SCOPE OF AGREEMENT
This Agreement shall cover all of Licensee's attachments to Licensor's
facilities approved and agreed to in Exhibit A.
ARTICLE 3 - ACCESS
Licensor is granting Licensee access to its facilities but is not offering
any warranty of conditions or any grant of easement. Specific sites will be
agreed to by the parties subject to availability and safety concerns, but do not
include the provision of utility services including electricity. Licensee will
be required to make separate and independent arrangements for these services.
ARTICLE 4 - PRACTICES
(a) Licensee's attachments, in each and every location, shall be installed
and maintained in accordance with the requirements and specifications of the
National Electrical Safety Code, the latest requirements of the Occupational
Safety and Health Act of 1970 and in compliance with any lawful rules or orders
now in effect or that may hereafter be issued by Licensor or other authority
having jurisdiction. If Licensee's attachment is being made to Licensor's pole,
the initial location of Licensee's attachments to be made on each pole will be
designated by Licensor. Licensee also shall promptly reimburse Licensor all
costs in connection with the initial installation or rearrangement of
Attachments as outlined in Exhibit C. The location of any attachment may be
redesignated by Licensor, and Licensee shall promptly change Licensee's
attachment to the redesignated location at Licensee's expense.
(b) Failure of Licensee to comply with this Article of this Agreement
shall constitute a default of this Agreement on the part of Licensee.
ARTICLE 5 - ACCESS RIGHTS
(a) Licensee shall secure satisfactory lawful authority, permits and
rights to place, maintain and operate its attachments on Licensor's facilities
and obtain agreements from the owners of private property, if required,
including the right to construct, maintain and operate the attachments on
Licensor's facilities which it occupies. Licensee shall defend, indemnify and
reimburse Licensor all loss and
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expense, including attorneys' fees, as provided for in Article 18, which
Licensor may incur as a result of claims from governmental bodies, owners of
property or others that Licensee has not a sufficient right or authority for
placing, operating and maintaining Licensee's attachments on Licensor's
facilities.
(b) Licensee and Licensor shall at all times observe and comply with all
laws, ordinances and regulations which in any manner affect the rights and
obligations of Licensor under this Agreement, so long as such laws, ordinances
or regulations remain in effect; and the provisions of this Agreement shall be
subject to all such laws, ordinances and regulations. Licensee will also
undertake the requisite environmental assessments it deems appropriate.
(c) The primary use of any facility is for the provision of utility
service. (i) Licensor may reserve space on its own facilities if such
reservation is consistent with a bona fide development plan that reasonably and
specifically projects a need for that space in the provision of its core utility
service. Licensor may permit Licensee to use the reserved space until the
Licensor has an actual need for that space. When Licensor reclaims the space,
it must afford the Licensee the opportunity to pay for the cost of any
modifications needed to expand capacity in order to maintain its attachment.
(ii) In the event Licensee's attachments interfere with the provision of
electric service, Licensee agrees to remove its attachments at its own expense.
Licensee shall not permit or suffer the installation and existence of any other
improvement (including, without limitation, transmission or reception devices)
upon the Licensee's attachments to Licensor's facilities or premises if such
improvement materially interferes with transmission or reception by Licensor's
facility in any manner whatsoever.
(d) Any offer and acceptance of an attachment agreement may be subject to
regulatory approval.
(e) Licensee shall be solely responsible for securing all necessary or
appropriate approvals, consents, permits, permission, certificates or other
authority (the "Approvals") from any Governmental Authority having jurisdiction
over Licensee's use of the Licensor's Facilities, including but not limited to
the Federal Communications Commission ("FCC") and the Federal Aviation
Administration ("FAA"). Upon reasonable notice and request, Licensor shall
provide Licensee with existing documentation or information regarding
Licensor's facilities that Licensee may need to secure the necessary approvals.
Licensee shall obtain all required approvals prior to effective date, including
but not limited to (1) a completed copy of FAA Form 7460 or study number and (2)
copies of current AM/FM FCC licenses relating to Licensee's attachments.
(f) Without limiting the generality of the foregoing, all installations,
lighting, obstruction markings, and operations in connection with this Agreement
by Licensee shall comply with all Applicable Law promulgated by each
Governmental Authority having jurisdiction over same, including but not limited
to the FAA and the FCC, and Licensor has no responsibility or liability for any
of same.
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(g) Failure to comply with this Article shall constitute a default of this
Agreement on the part of Licensee.
ARTICLE 6 - APPLICATION REQUIREMENTS
(a) Before Licensee shall have a right to attach to any facility of
Licensor, Licensee shall make application and receive a permit therefor. The
application shall be in the form of Exhibit A, hereto attached and made a part
hereof. Upon issuing such permit, Licensor agrees that Licensee is permitted to
make the attachments thereby covered, subject to the terms and conditions of
this Agreement. In accordance with this Agreement, Licensor reserves the right
to determine whether or not to issue a permit. Licensor may consider in
reviewing a permit application, issues of capacity, safety, reliability and
generally applicable engineering requirements, including the operation of
Licensor's distribution and/or transmissions systems, any presently existing
contractual obligation of Licensor to any public utilities, governmental bodies
or other entities which may be entitled to use of, or control of such facilities
and the terms of this agreement. Licensor may also consider the adverse effect
on any of Licensor's facilities including, but not limited to, all questions of
economy, safety and future needs of Licensor. This application and permitting
process is also a requirement for every instance where overlashing or Change in
Character of Service is proposed. Licensor shall state the reasons for any
denial in writing upon request of Licensee
(b) Upon Licensor's receipt of Licensee's "Application for Attachment
Permit", (Exhibit A) Licensee's design and layout proposal will be subject to
review by the Licensor.
(c) When Licensor reviews the application, an "Attachment Permit" in the
form of Exhibit A, hereto attached and made a part hereof, will be signed and
returned to Licensee indicating the Licensee's proposal acceptance or denial by
Licensor without unreasonable delay.
(d) If Licensee makes attachments without benefit of the requisite permit,
Licensee is deemed in default of this Agreement.
ARTICLE 7 - PLACING OR REARRANGING ATTACHMENTS
(a) Licensor reserves the right to refuse on a non-discriminatory basis to
grant a permit in accordance with this Agreement, and reserves the right to
revoke any such permit for the attachment to its facilities when Licensor
determines, in its judgment, that such facility is required for its exclusive
use or that the facility may not reasonably be rearranged or replaced to
accommodate the attachment.
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(b) Where Licensor rearranges its facilities to accommodate Licensee, the
Licensee shall pay Licensor's estimated cost of rearrangement in accordance with
Article 10.5. Said estimate expires after the lapse of three (3) months.
(c) Licensee is prohibited from tampering with, interfering with, removing
or relocating Licensor's facilities subject to this Agreement.
(d) Licensor has the option of placing or rearranging the property of
Licensee as provided in Article 14 herein or can require Licensee to perform the
work. Licensee shall, at its own expense and to the satisfaction of the
Licensor, place guys and anchors to sustain any unbalanced loads caused by the
Licensee's attachments.
(e) When Licensor is requested by Licensee to install grounds or make
connections to Licensor's system neutral, Licensee shall pay Licensor for the
estimated cost of installing such grounds or making such connections.
(f) In the event that a request for attachments is made by Licensee and
steps are taken by Licensor to carry out the request by performing necessary
engineering and administrative work and the job is canceled by Licensee causing
the job not to be done or completed, Licensee shall reimburse Licensor in
accordance with Article 10.5.
(g) Licensor reserves the right to inspect each attachment of Licensee on
its facilities or in the vicinity of its equipment and to make periodic
inspections as plant conditions may warrant; and Licensee shall reimburse
Licensor for the expense of such inspections. Inspections will not be made more
often than once a year and upon notice to Licensee unless, in Licensor's
judgment, such inspections are required for reasons involving safety or are
required because of a violation of the terms of this Agreement by Licensee. The
making of such inspections or the failure to do so shall not operate to relieve
Licensee of any responsibility, obligation or liability assumed under this
Agreement.
(h) Licensee shall assure that all of its work performed on Licensor's
facilities, either by its own employees or contractors shall be in compliance
with all applicable NESC requirements. Licensee shall assure that any party
installing facilities be familiar with the NESC requirements before being
allowed to perform work on Licensor's facilities.
ARTICLE 8 - MODIFICATIONS AND/OR REPLACEMENTS
(a) In the event that any facility to which Licensee desires to make
attachments is inadequate to support or accommodate the additional facilities in
accordance with the aforesaid specifications, Licensor will notify Licensee of
the changes necessary to accommodate the requested attachments, together with
the estimated cost thereof. Licensee shall pay to Licensor the estimated cost of
making the changes in advance and Licensor shall make such changes. Should
conditions
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significantly change between the time of the estimate and time work is
performed so that actual costs exceed the estimate, Licensee shall reimburse
Licensor the additional costs over the estimate. Licensee shall also pay in
advance to the owner or owners of other facilities attached to such
facilities any expense actually incurred by them for rearranging or
transferring their facilities.
(b) Should Licensor's need for its own service requirements or for
changes it is required to make as a result of any governmental mandate, the
space occupied by Licensee's attachments on any of Licensor's facilities,
Licensor will notify Licensee in writing and will include the estimated costs
necessary to accomplish the changes. If the changes are of the character
provided for in Article 14, they may be performed by Licensor. Within thirty
(30) calendar days after receipt of such notice, Licensee shall indicate in
writing to Licensor either that Licensee or Licensor will remove its
attachments. If Licensee requests Licensor to make such changes, Licensee shall
pay to Licensor the estimated cost of making the changes in advance before
Licensor will make such changes except as may be provided under the bundled rate
in Exhibit D.
(c) Licensee shall not be entitled to reimbursement of any amounts paid to
Licensor by any governmental entity or authorized user.
ARTICLE 9 - MAINTENANCE OF FACILITIES
(a) In instances of unplanned maintenance such as vehicle accident
involving Licensor's facilities, Licensor may remove Licensee's attachments or
may temporarily or permanently relocate or replace Licensee's attachments. In
the event its attachments are relocated or replaced, Licensee shall pay Licensor
as provided for in Exhibit D.
Licensor is in the business of providing electric service through its own
attachments to its poles and towers. In the event of major damage to those poles
and towers and Licensor's attachments thereto, including, but not limited to,
damage caused by hurricanes or tornadoes and/or ice or wind storms, Licensor's
primary responsibility is to restore service to its electric customers. At
Licensee's option, Licensee's qualified contractor may reattach Licensee's
attachments simultaneously with Licensor's restoration efforts so long as the
repairs to Licensee's attachments do not interfere with Licensor's restoration
efforts. Otherwise, Licensee's undamaged attachments will be reattached by
Licensor upon completion of its own power restoration as provided for in
Exhibit D.
(b) Any rearrangements of Licensor's facilities or replacement of
facilities required to accommodate Licensee's attachments shall be done by
Licensor in accordance with Article 10.5.
(c) Licensee shall reimburse Licensor for keeping facilities clear of
obstructions such as trees or brush as provided for in Exhibit D.
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ARTICLE 10 - ABANDONMENT AND REMOVAL OF FACILITIES
(a) If Licensor desires at any time to abandon any of its facilities to
which Licensee's attachments are attached, it will attempt to give Licensee
notice in writing to that effect at least thirty (30) calendar days prior to the
date on which it intends to abandon such facility. If Licensee's attachments
are not removed at the time of abandonment, Licensor will remove Licensee's
attachments and notify Licensee where its attachments are stored. Licensee will
be billed in accordance with Exhibit D. Licensee shall save harmless the
Licensor from all obligation, liability, damages, costs, expenses or charges
incurred because of or arising out of the removal of Licensee's attachments.
(b) Upon receipt of not less than thirty (30) days' prior written notice
from Licensor to Licensee that any attachment must be removed by reason of any
Federal, State, Parish, County, Municipal or other governmental requirement, or
the requirement of a property owner other than Licensor, the permit covering the
use of said poles shall terminate and the attachments of Licensee will be
removed promptly from Licensor's facilities at a cost due Licensor from Licensee
in accordance with Exhibit D.
ARTICLE 10.5 - ALLOCATION OF COSTS FOR REARRANGEMENT, RELOCATION
AND REMOVAL OF FACILITIES
(a) The costs for any rearrangement, relocation and removal of Licensee's
facilities not requested by the Licensee, including those required by Articles
8, 9,10 and 14 shall be allocated to the Licensor, Licensee or other entity on
the following basis:
(1) if the rearrangement, relocation or removal of Licensee's facilities
is the result of an additional attachment or the modification of an existing
attachment sought by an entity other than the Licensor or Licensee, Licensee may
request reimbursement for transfers or rearrangements from the third party
requesting the modification;
(2) if the rearrangement, relocation or removal of Licensee's facilities
is the result of the need to upgrade or reconfigure Licensor's energy
distribution/transmission system, the Licensee shall be responsible for the
rearrangement, relocation or removal of Licensee's facilities provided however
that Licensor shall make such transfers as may be applicable if Licensee has
elected to purchase services included in the bundled services rate as set forth
in Exhibit D. Licensor shall make a good faith effort to provide Licensee with
adequate notice of the need for the rearrangement, relocation or removal and
attempt to minimize the need for rearrangement, relocation or removal of
Licensee's facilities. If rearrangement, relocation or removal of Licensee's
facilities is required which Licensor would not make under the bundled rate in
Exhibit D, Licensee shall make such modifications as quickly as possible.
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(b) Where Licensor rearranges its facilities to accommodate Licensee,
Licensee shall pay Licensor's estimated cost of rearrangement in advance and
Licensor shall thereupon make such changes in accordance with Exhibit A. Said
estimate expires after the lapse of three (3) months.
(c) In the event a request for attachments is made by Licensee and
steps are taken by Licensor to carry out the request by performing necessary
engineering and administrative work and the job is canceled by Licensee
causing the job not to be done or completed, Licensee shall reimburse
Licensor for the actual costs incurred by Licensor with respect to the
canceled job, including engineering, clerical, administrative and
construction costs.
ARTICLE 11 - SPECIAL PROJECTS AND CHANGES IN CHARACTER OF SERVICE
(a) Installations other than those covered specifically by this
Agreement shall be considered special projects submitted by Licensee to
Licensor in writing on Exhibit A and shall be subject to separate
negotiations. The design, construction and cost of such projects shall be
decided and agreed upon, based on mutual benefits of both parties; but no
such project shall be undertaken without the prior written consent of
Licensor.
(b) Should Licensee propose a Change in the Character of Service,
Licensee shall notify Licensor in writing of such proposal. Such requests
will be handled in the same manner as in Paragraph (a) of this Article for
special projects.
ARTICLE 12 - TERMINATION OF PERMITS
(a) Upon written notice from Licensor to Licensee that the use of any
facility is no longer available for occupancy pursuant to this Agreement, the
permit covering the use of such facility shall immediately terminate and
Licensee shall remove, within thirty (30) calendar days or other reasonable
period agreed upon by the Licensor and Licensee, its attachments from the
affected facility at Licensee's expense. Upon receipt of written notice,
Licensee shall have thirty (30) calendar days to propose an alternative
location for its attachment. Upon agreement of the Licensee and Licensor
such attachment shall be moved to the alternative location as an authorized
attachment. If, after notice to remove is given, Licensee fails to remove its
facilities within thirty (30) calendar days, Licensor shall proceed with the
removal with no liability or repercussion from Licensee for damage that
Licensee might sustain. Costs associated with removal by Licensor shall be
borne by Licensee in accordance with Exhibit D.
(b) Licensee may at any time request removal of its attachments from any
facility of Licensor, and shall immediately give Licensor written notice of such
removal in the form of Exhibit B, hereto attached and made a part hereof. No
refund of any rental or other fees or costs will be made upon removal. If
Licensee surrenders its permit pursuant to the provisions of this Article, but
fails to remove Licensee's attachments
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from Licensor's facilities within thirty (30) days thereafter, Licensor shall
have the right to remove Licensee's attachments at Licensee's expense and
without any liability on the part of Licensor for damage or injury to
Licensee's facilities, and Licensee shall indemnify and hold Licensor
harmless for claims and demands of third parties arising out of such removal
in accordance with Article 18. If Licensee's attachments are removed by
Licensor as provided by this Article, Licensor may dispose of such
attachments at its discretion without the permission of and with no
obligation to Licensee. In the event that Licensee's attachments shall be
removed from any facility as provided by this Article, no attachment shall
again be made to such facility unless Licensee shall have first complied with
all of the provisions of this Agreement as though no such attachment had
previously been made.
ARTICLE 13 - PAYMENTS OF BILLS
Bills for expenses and other charges under this Agreement, except those
advance payments specifically covered herein, shall be payable within thirty
(30) days after presentation. Late charges at the rate of one and one-half
percent (1-1/2%) per month or the maximum provided by law shall accumulate
and be applied to all outstanding bills not paid within sixty (60) days after
receipt thereof.
Nonpayment of any such xxxx by Licensee shall constitute a default of
this Agreement.
ARTICLE 14 - TRANSFERS
All attachments of Licensee on a pole or other facility that is being
replaced or relocated may be transferred to the new pole or other facility by
Licensor and Licensee shall be invoiced and shall pay for such transfers or,
Licensor will make transfers in accordance with the bundled services
provision of Exhibit D if applicable. Licensor, however, reserves the right
to require transfers to be made by Licensee. In such case that transfer is
not made within thirty (30) days, the abandonment provision contained in
Article 10 shall apply.
Charges by Licensor for transfers will be in accordance with attached
Exhibit D. Exhibit D will be updated by Licensor as required to reflect
current costs.
ARTICLE 15 - RENTAL PAYMENTS
(a) Licensee shall pay to Licensor rental fees for each facility to which
any attachment is made pursuant to this Agreement. Said rental fees shall be
paid, in advance, on the first day of the month of each period of rental
(monthly, annually, etc.). For an annual fee, the total fee shall be based on
the number of facilities to which attachments are being maintained on the first
day of December next preceding said payment date. The amount agreed upon shall
be retroactive to the first day of the calendar quarter in which the Application
(Exhibit A) is executed. For the purpose of
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computing these rental payments, each outstanding permit shall be construed
as if the attachment authorized thereby had been made as of the date of the
approval thereof by the Licensor even though the attachment has not been made
on such date. The first payment of rental for each facility shall include an
amount based on a yearly rental amount prorated from the first day of the
calendar quarter in which the license or permit is granted. For a monthly
fee, rental shall be paid for an entire month for the first month of
reservation of space and in advance on the first day of each month thereafter.
(b) No refund of any attachment fee will be paid on account of any
termination or surrender of a permit granted hereunder except for removal of
an entire system which shall be refunded from the date of entire removal of
the system. (c) At intervals not exceeding five (5) years, an actual inventory
of attachments shall be made. The cost of inventory and inspection shall be
borne by Licensee and is due within thirty (30) calendar days upon receipt by
Licensee of billing. If it is found by such inventory that Licensee has made
an attachment to a facility of Licensor without the "Attachment Permit" as
provided in Article 5, Licensee shall pay as liquidated damages for safety
and liability aspects of unauthorized attachments, a per-attachment fee for
unauthorized attachment as provided for in Exhibit D. In addition to
liquidated damages, Licensee shall pay the appropriate rental amount plus
late charges from the first of the year in which the contacts were installed
until the time the contacts are discovered. If said date of attachment
cannot be determined, Licensee shall pay the regular contract rental rate
plus late charges for such attachment from the date of the prior inventory.
No refund shall be made for attachments paid for but found by the
inventory to have been removed without notification.
ARTICLE 16 - REVISION OF THE RENTAL RATE
At one (1) year intervals hereafter, the rental rate shall be reviewed
with Licensee by Licensor except in the event contemplated in Article 38. The
new rental rate shall be applied on a non-discriminatory basis on the first
day of the first month in the year of the annual review.
If Licensee elects to purchase services from Licensor in the bundled
rate as set forth on Exhibit D, the service portion of the rate (excluding
the cable rate) shall not be increased for two consecutive years beginning
from the first full year of rental under this Agreement. At the annual review
to determine the rental rate for the third full year, and on an annual basis
thereafter, the increase in the service portion of the bundled rate shall not
exceed XXXXXXXX from the preceding year except in cases of severely
abnormal catastrophic events experience.
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ARTICLE 17 - FEES, CHARGES AND RENTS
(a) Licensee shall make payment within thirty (30) calendar days of any
fees and charges imposed upon it by this Agreement.
(b) Each application for license shall be accompanied by a Survey Fee
payable to Licensor as provided for in Exhibit D. This fee covers any
pre-licensing inspection of facilities and is an average charge for the
necessary survey and administrative work involved in issuing a License.
(c) Upon execution of this Agreement, Licensee shall pay a License
Preparation Fee to Licensor as provided for in Exhibit D. This fee is a
nonrecurring charge for the necessary administrative and processing work
involved in issuing a License Agreement.
(d) In consideration of being permitted to occupy space on Licensor's
facilities with its equipment, Licensee shall pay rental for each facility
occupied as provided in Exhibit D.
(e) A Fee for Unauthorized Attachment shall be charged when Licensor
determines Licensee has occupied Licensor's facilities without first having
obtained a Permit. The Fee for Unauthorized Attachment shall be as provided
in Exhibit D.
(f) A Reserved Space Fee shall be the same as if an attachment were made.
(g) A Transfer of Attachments Fee shall be the fee charged for the
removal of Licensee's attachments from one of Licensor's facilities to
another of Licensor's facilities in accordance with the terms of this
Agreement.
(h) Right-of-Way Maintenance shall be the cost to Licensor for keeping
Licensee's attachments clear of trees, limbs or brush in connection with
Licensor's maintenance activities.
(i) A Removal of Licensee's Attachments Fee shall be charged to
Licensee in accordance with the terms of this Agreement in every instance
where it is necessary or desirable for Licensor to remove Licensee's
attachments from Licensor's facilities as set out on Exhibit D in this
Agreement.
(j) Licensor may offer and enter into installation or maintenance
agreements with the Licensee in accordance with the attached schedule.
(k) In addition to the assessment of the Fee provided for in Article
17(e), a penalty shall apply for unauthorized attachments as provided in
Exhibit D.
14
(l) The current charges for the Engineering Fee, Application Fee,
Inspection Fee, Rental Fee, and Fee for Unauthorized Attachment and Penalty
Fee for Unauthorized Attachment are set forth in Exhibit D, FEES, CHARGES AND
RENTS, attached hereto and made a part hereof.
(m) The Fees, Charges and Rents set forth on Exhibit D are subject to
adjustment by Licensor annually effective as of January 1, upon thirty (30)
days' prior written notice to Licensee in accordance with Article 16. All
rentals contained in Exhibit D are in effect and payable until adjusted. The
pole attachment rental rate shall conform to public utility accounting
practices.
(n) Wherever this Agreement provides for Licensee to pay for work done by
Licensor, the charge for such work shall include all actual, reasonable, cost-
based material, labor, engineering and administrative costs and applicable
overheads in accordance with public utility accounting practices. Licensor will
credit Licensee for salvage, if any.
ARTICLE 18 - LIABILITY AND DAMAGES
(a) Licensor reserves to itself, its successors and assigns, the right
to maintain its poles and to operate its facilities thereon in such manner as
will best enable it to fulfill its own service requirements. Licensor shall
not be liable to Licensee for any interruption of service of Licensee or for
interference with the operation of facilities of Licensee arising out of the
use of Licensor's facilities. Additionally, Licensor shall not be liable to
Licensee for any interruption of service of Licensee or for any interference
with the operation of facilities of Licensee arising out of a cause outside
the control of Licensor.
(b) Licensee shall exercise special precautions to avoid damaging the
facilities of the Licensor and of others occupying Licensor's facilities and
Licensee hereby assumes all responsibility for the costs of making repairs or
replacements of such damage. Licensee shall make an immediate report to
Licensor of the occurrence of any such damage known to Licensee and hereby
agrees to reimburse the respective owners for the expense incurred in making
repairs. If Licensee shall fail to exercise precautions to avoid damage or if
Licensee shall fail to immediately report the occurrence of such damage, such
failure shall constitute a default of this Agreement.
(c) Licensee shall indemnify, protect, save harmless and defend
Licensor, and its affiliated and associated companies, shareholders,
directors, officers, agents, representatives and employees from and against
any and all claims and demands for damages to property and injury to or death
of persons, including payments made under any Workmen's Compensation Law,
payment for loss of revenue and other consequential damages for Licensor or
third parties and any other appropriate compensation which may arise,
including attorneys' fees, out of or caused by the erection, maintenance, use
or removal of Licensee's cable, equipment and facilities or
15
by any act of Licensee on or in the vicinity of Licensor's facilities or
Licensee's breach of any part of this Agreement regardless of the negligence
of Licensor. Licensee shall also indemnify, protect, save harmless and defend
Licensor and its affiliated and associated companies, shareholders,
directors, officers, agents, representatives and employees from any and all
claims and demands of whatever kind which arise directly or indirectly from
the operation of Licensee's facilities 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 in combination with Licensor's
poles, anchors or other facilities or otherwise regardless of the negligence
of Licensor. Licensee's indemnity obligations hereunder shall extend to and
include all actual costs including overhead costs and/or consequential
damages (including the services of Licensor's regular employees and retained
attorneys) incident to the investigation and defense of all claims and
demands to which Licensee's indemnity obligations apply.
(d) Without limiting any obligations or liabilities of Licensee under this
Agreement, Licensee shall provide and maintain for the term of this Agreement,
at its own expense, without direct reimbursement, insurance coverage's in forms
and amounts that Licensee believes will adequately protect it but in no case
less than:
(1) Workers' Compensation Insurance in accordance with all applicable
state, federal, and maritime laws, including Employer's Liability
Insurance in the amount of $1,000,000 per accident. Policy shall be
endorsed to include a waiver of subrogation in favor of the Entergy
Companies and their affiliated and associated companies.
(2) Commercial General Liability Insurance including Contractual Liability
Coverage, covering liability assumed under this Agreement,
Products/Completed Operations Coverage, Broad Form Property Liability
Coverage, and Personal Injury Coverage in the amount of $5,000,000 per
occurrence for Bodily Injury and Property Damage.
(3) Commercial Automobile Liability Insurance including all owned, hired,
leased assigned, and non-owned vehicles, with a combined single limit
of not less than $5,000,000 per accident.
(4) Excess Liability Coverage to provide excess of 18.d.1 through 18.d.4
in the amount of $5 Million per occurrence.
Licensee's insurance policies required by paragraphs (2) through (4) above,
shall include the Licensor and its affiliated and associated companies as
additional insureds.
16
All of Licensee's policies of insurance shall be primary insurance and
non-contributing with any other insurance, maintained by Licensor, and its
affiliated and associated companies. Policies are to provide Licensor with
thirty (30) days' prior written notice of cancellation or any material
adverse change in conditions. Licensee shall provide Licensor with
Certificates of Insurance issued to the Licensor evidencing coverage
currently in effect upon execution of and for the duration of this Agreement.
Licensee shall be fully responsible for any deductible or self-insured
retention amounts contained in its insurance program or for any deficiencies
in the amounts of insurance maintained.
Unless agreed otherwise in writing by Licensor, any subcontractor
providing services under this Agreement shall be required to carry insurance
coverage's in a form and amount consistent with the requirements of this
Article 18(d) and Certificates of Insurance evidencing such coverage shall be
presented to Licensor prior to commencement of services by the subcontractor.
(e) Licensee shall furnish bond in the penal sum of not less than
$100,000 and in an amount agreed to by Licensor or satisfactory evidence to
Licensor of contractual insurance coverage to guarantee the payment of any
sums which may become due Licensor for rentals, inspections or for work
performed for the benefit of Licensee under this Agreement, including the
removal of attachments upon termination of this Agreement by any of its
provisions. Should Licensee elect to purchase the bundled service package as
set forth on Exhibit D, Licensor may waive the bond requirement on an annual
basis provided the need for a bond may be re-evaluated by the Licensor at the
annual review of the rental rate to be held pursuant to Article 16.
ARTICLE 19 - DUTIES, RESPONSIBILITIES, AND EXCULPATION
(a) Licensee does hereby acknowledge and agree that Licensor does not
warrant the condition of the premises or its facilities and equipment as to
its safety whatsoever and Licensee does hereby assume all risk of any damage,
injury or loss of any nature whatsoever caused by or in connection with the
use of said equipment and that it does hereby agree to indemnify, defend,
protect, and hold Licensor harmless in accordance with Article 18.
(b) If Licensee becomes defunct or files bankruptcy any time during the
term of this Agreement, Licensor shall have the right to utilize the proceeds
of the performance bond for reimbursement for removing Licensee's facilities
located on or adjacent to Licensor's facilities.
(c) By executing this Agreement, Licensee warrants that it has or will
fully acquaint itself and its employees and/or contractors with the conditions
relating to the work it will undertake under this Agreement, that it fully
understands or will acquaint
17
itself with the facilities, difficulties, and restrictions attending the
execution of such work and shall employ or engage only skilled and competent
personnel in the performance of installation and maintenance activities under
this Agreement.
(d) It is further understood and agreed by and between the parties that in
the performance of work performed under this Agreement, Licensee, its agents,
servants, employees, contractors and subcontractors may be required to work
near, about, adjacent to and in the vicinity of electrically energized lines,
transformers, or other equipment of Licensor, and it is the intention that
energy therein will not be interrupted during the continuance of this Agreement,
except in an emergency which might endanger life, cause grave personal injury,
or property damage. Licensee is fully and solely responsible for seeing that its
employees, servants, agents, contractors and subcontractors shall have the
necessary skill, knowledge, training, and experience to protect themselves,
their fellow employees, employees of Licensor, and the general public, from harm
or injury while performing work permitted pursuant to his Agreement, and for
furnishing said employees, servants, agents, contractors and subcontractors with
competent supervision and sufficient and adequate tools and equipment for their
work to be performed in a safe manner while the existing equipment of Licensor
remains energized. Licensee agrees that in emergency situations in which it may
be necessary to de-energize any part of Licensor's equipment, Licensee shall be
solely responsible to see that work is suspended until the facilities have been
de-energized and that no such work is conducted unless and until the facilities
are de-energized.
(e) In the event Licensor de-energizes any equipment or line at
Licensee's request and for its purposes, benefit and convenience in
performing a particular segment of any work, Licensee shall reimburse
Licensor in full for all costs and expenses incurred in order to comply with
Licensee's request for de-energization of any equipment or line. In the event
that Licensee shall cause an interruption of service by damaging or
interfering with any equipment or facilities of Licensor, Licensee shall
immediately do all things reasonable to avoid injury or damages, direct and
incidental, resulting therefrom and shall notify Licensor immediately. In
accordance with Article 18, Licensee shall be solely responsible for any
injuries or damages or claims for losses growing out of such interruption or
de-energization of Licensor's electric system, to all persons whomsoever, and
does hereby indemnify and hold harmless Licensor therefrom.
(f) Licensee further warrants that it is apprised of, conscious of, and
understands the imminent dangers inherent in the work necessary to make
installations on Licensor's facilities by Licensee's personnel, employees,
servants, agents, contractors or subcontractors, and accepts it as its duty
and sole responsibility to notify and inform Licensee's personnel, employees,
contractors and subcontractors of such dangers, and to keep them informed
regarding same.
18
ARTICLE 20 - TAXES
All real property taxes, assessments and other real property charges
levied or assessed against the Facilities shall be paid by Licensor.
All taxes, assessments, license fees, operating fees, and other charges
that are levied or assessed against Licensee's personal or real property
installed or located in or on the Licensor's Facilities, against any business
activities conducted by Licensee in or on Licensor's Facilities, or against
Licensee on account of any activities of Licensee whatsoever in or on Licensor's
Facilities, shall be paid by Licensee.
ARTICLE 21 - SUBORDINATION
Licensor may from time to time, grant liens, deeds of trust, mortgages
or other security interests covering the Licensed Premises herein.
ARTICLE 22 - RIGHTS OF OTHER PARTIES
Nothing herein contained shall be construed as a grant of any exclusive
license, 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 facilities covered by this
Agreement, subject to the prior rights, if any, of Licensee to use such
facilities. No payment made pursuant to this Agreement shall create or vest
in Licensee or anyone else any ownership interest in any property or facility
of Licensor.
ARTICLE 23 - SERVICE OF NOTICES
Wherever in this Agreement notice is provided to be given by either
party to the other, such notice shall be in writing and shall be effective
when personally delivered to, or when mailed by certified mail, return
receipt requested, with postage prepaid and properly addressed as follows:
If to Licensor, at
Entergy Services, Inc.
P. X. Xxx 000
Xxxxxx Xxxx, XX
ATTN: Joint Use Administrator
If to Licensee, at
IWL Communications, Inc.
00000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
ATTN: Contracts Administrator
19
or to such other address as either party may, from time to time, give the
other party written directions to use for such notice.
ARTICLE 24 - TERMINATION OF AGREEMENT
(a) If Licensee shall fail to comply with any of the terms or
conditions of this Agreement or defaults in any of its obligations under this
Agreement and shall fail within thirty (30) days after receipt of written
notice from Licensor to correct such default or noncompliance, Licensor may,
at its option, forthwith terminate this Agreement and all Licenses granted
hereunder, or the licenses covering the facilities as to which such default
or noncompliance shall have occurred; provided, however, that where the
nature or circumstances surrounding such default cannot reasonably, in
Licensor's sole opinion, be cured within said thirty (30) day period, and
further provided that if Licensee has proceeded promptly to cure same and
continues to pursue such curing with all due diligence, the period for curing
such default may be extended for such period of time as may be necessary, in
Licensor's reasonable opinion, to complete such curing.
(b) In addition, subject to subsection (a) above, Licensor shall have
the right to terminate this entire Agreement, or individual licenses granted
hereunder.
(1) If Licensee's attachments are maintained or used in violation of
any law or in aid of any unlawful act or undertaking; or
(2) If any permit or other authorization which may be required by any
governmental authority, or from any property owner, for the use,
operation or maintenance of Licensee's cables, equipment and
facilities on Licensor's facilities is revoked, denied, or not
granted before the date when possession of such permit or
authorization becomes a condition of continued operations; or
(3) Uses of Licensor's facilities not specifically provided for in
this Agreement, or
(4) If Licensee defaults under any of Articles 4, 5, 6,13,18, 25, or
36 of this Agreement unless cured pursuant to this Article.
(c) If any insurance carrier providing any coverage pursuant to Article 18
shall at any time notify Licensor that a policy or policies of insurance, will
be canceled or changed so that the requirements of Article 18 will no longer be
satisfied, then this Agreement shall cease and terminate without further notice,
the effective date of which cancellation or change, unless adequate replacement
coverage is obtained prior to the expiration or termination of the original
coverage.
20
(d) This Agreement shall not automatically cease and terminate in the
event Licensee becomes the target of an involuntary corporate takeover
attempt, if Licensee successfully repels such takeover attempt within one
hundred twenty (120) days of its commencement. Should a takeover attempt be
successful, Article 25 shall apply.
(e) This Agreement shall automatically cease and terminate in the event
either party is unable to permanently perform the duties, obligations and
responsibilities herein and has been given thirty (30) days' written notice
that the events provided in this section have occurred due to circumstances
beyond the control of the party affected, including but not limited to acts
of God, fire, flood, explosion, war, civil unrest, injunction, accident,
lockouts and strikes.
ARTICLE 25 - ASSIGNMENT OF RIGHTS
(a) Licensee shall not assign or transfer the privileges contained in
this Agreement voluntarily or involuntarily without the prior consent in
writing of Licensor. Such consent shall not be unreasonably withheld by
Licensor but said assignment may contain differing terms and conditions. The
assignment or transfer by Licensee of such privileges without written consent
of Licensor shall constitute a default of Licensee's obligations and,
notwithstanding any other provisions of this Agreement, Licensor may at its
option forthwith terminate this Agreement or any license issued hereunder.
(b) Subject to the provisions of paragraph (a) hereof, this Agreement
shall extend to and bind the successors and assigns of the parties hereto.
ARTICLE 26 - CONVEYANCE OR SALE OF FACILITIES
In the event of a sale, donation, exchange, or other disposition or
conveyance by Licensor to a third party of fee simple title to the real
property comprising or including the Facilities or the real property on which
they are constructed as of the date that such conveyance is effective to
third parties, Licensor shall be automatically, irrevocably and completely
relieved from any liability on account of any matters arising or accruing
after said effective date, and the transferee shall for all purposes be
treated and regarded as the Licensor after such effective date.
ARTICLE 27 - TERM OF AGREEMENT
(a) This Agreement shall become effective upon its execution and if not
terminated in accordance with other provisions of this Agreement, shall
continue in effect for an initial term (the "Initial Term") of five (5)
years, with the option to renew this Agreement for an additional term of five
(5) years (the "Renewal Term") upon (a) sixty (60) days' written notice prior
to the expiration of the Initial Term and (b) consent of Licensor; provided,
however, that Licensee or Licensor can shorten the Renewal Term with or
without cause. The Initial Term can only be terminated for breach.
21
(b) Upon termination of the Agreement in accordance with any of its terms
or conditions, all outstanding licenses shall terminate and shall be surrendered
and Licensee shall immediately begin to remove its attachments, and Licensee
shall complete such removal within six (6) months next following the termination
date. Despite any such termination, Licensee shall pay the rental payments
provided herein until all attachments are removed. If not so removed, Licensor
shall have the right to remove Licensee's attachments at the cost and expense of
Licensee and without any liability therefor; and Licensee shall be conclusively
presumed to have abandoned all such attachments not so removed by the Licensee,
so that Licensor may dispose of the same in the manner Licensor wishes to use.
(c) Even after the termination of this Agreement, Licensee's
responsibility and indemnity obligations shall continue with respect to any
claims or demands related to Licensee's attachments as provided for in
Article 18.
ARTICLE 28 - AMENDMENTS
Any amendment to this Agreement, to be effective, must be in writing and
signed by both parties hereto.
ARTICLE 29 - EXISTING CONTRACTS
All existing agreements between the parties hereto for the joint use of
facilities are by mutual consent hereby abrogated and superseded by this
Agreement.
ARTICLE 30 - ELECTRICAL SERVICE TO LICENSEE
Electrical service to Licensee shall be provided according to standard
practices by the Licensor and shall be covered under a separate agreement.
ARTICLE 31 - FRANCHISE RIGHTS
Notwithstanding anything elsewhere herein provided, nothing contained in
this Agreement shall abrogate, limit or affect any obligation of Licensee
under any franchise granted to Licensee.
ARTICLE 32 - WAIVER
Failure to enforce or insist upon compliance with any of the terms or
conditions of this Agreement or failure to give notice to declare this Agreement
or any permits granted hereunder terminated shall not constitute a general
waiver or relinquishment of any such terms, conditions or acts but the same
shall be and remain at all times in full force and effect.
22
The waiver by Licensor or Licensee of the breach of any term, condition,
covenant or provision herein contained shall not be deemed a waiver of such
term condition, covenant or provision or any subsequent breach of the same or
any other term, covenant, condition or provision of this Agreement. The
subsequent acceptance of annual rental hereunder by Licensor shall not be
deemed to be a waiver of any preceding breach by Licensee of any term,
condition, covenant or condition of this Agreement other than the failure of
Licensee to pay the particular rental so accepted, regardless of Licensor's
knowledge of such preceding breach at the time of acceptance of such rental.
No term, condition, covenant and provision of this Agreement shall be deemed
to have been waived by Licensor or Licensee, unless such waiver be in writing
by Licensor or Licensee.
ARTICLE 33 - CONFIDENTIALITY
The terms and conditions of this Agreement are confidential and Licensee
agrees to have its officers or employees execute a Confidentiality Agreement
if requested.
ARTICLE 34 - ENVIRONMENTAL
Each party will be fully and solely responsible for environmental
contamination caused by its facilities, attachments, contractors, agents or
employees, and Licensee will undertake the requisite environmental
assessments it deems appropriate.
ARTICLE 35 - SIGNS
Licensee shall not have the right to place, construct or maintain signs
on the Licensor's facilities or any underlying property without the prior
written consent of Licensor. However, Licensee is required to identify its
attachments by tagging.
ARTICLE 36 - SURRENDER; HOLD OVER
Upon termination of this Agreement, whether by expiration, cancellation,
forfeiture or otherwise, Licensee shall remove the above-ground portions of
its property installed, placed or erected on Licensor's Facilities by
Licensee. Licensee shall have thirty (30) days after termination of this
Agreement within which to dismantle and remove the said property at its cost,
regardless of any considerations of force majeure or factors beyond
Licensee's control. After the aforementioned period, all property not removed
by Licensee shall become the property of Licensor, except that Licensor, at
its option, upon termination of this Agreement, may require Licensee to
remove any or all of the above-ground portions of such property and to pay
the cost of such removal.
In the event Licensee remains in possession of Licensor's Facilities after
the expiration of this Agreement, Licensee shall be deemed to be doing so from
month to
23
month only, at twice the rate of the fee in effect during the last month of
the Term of the Agreement, and subject in all respects, except as to the
duration of the tenancy, to the provisions of this Agreement. Either Licensor
or Licensee may terminate such tenancy upon at least thirty (30) days' prior
written notice.
Any holding-over by Licensee after the expiration of the term of this
Agreement shall be considered a Default by Licensee.
ARTICLE 37 - PARTIAL INVALIDITY
In the event any term, covenant or condition of this Agreement, or the
application thereof, to any person or circumstance shall be deemed by the
appropriate jurisdictional governing or legal authority to be invalid or
unenforceable, the remainder of this Agreement or the application of such
term, covenant, condition or provision to persons or circumstances other than
those as to which it is held unenforceable, shall not be affected thereby and
each term, covenant, condition or provision of this Agreement shall be valid
and enforced to the fullest extent permitted by law.
ARTICLE 38 - WAIVER OF JURISDICTION
Licensee acknowledges and agrees that Licensor makes its facilities available
pursuant to and in consideration of this Agreement only. By execution of
this Agreement by its duly authorized representative, Licensee accepts that
the relationship of the parties will be governed exclusively by this
Agreement and Licensee waives any and all jurisdiction of federal, state or
local regulatory authorities over the terms and conditions of this Agreement,
access to Licensor's facilities, or any other matter respecting attachments
to Licensor's facilities, including without limitation the fees, charges or
rent due hereunder, for a period of two years from the effective date of this
Agreement. In the event that Licensee seeks relief before any federal, state
or local court or authority regarding any such matter, or seeks judicial
relief from or alteration of any term or condition of this Agreement in whole
or in part on the basis of any alleged jurisdiction of federal, state, or
local regulatory authority within two years of the effective date of this
Agreement, this Agreement shall immediately terminate and Licensee agrees
that it shall promptly remove all its attachments from Licensor's facilities
pursuant to this Agreement. Should Licensee fail to effect such removal(s)
within one hundred twenty (120) days of having initiated any such action or
proceeding, Licensor shall have the right without liability to remove or
cause to be removed Licensee's attachments and equipment, at Licensee's sole
expense, pursuant to the terms of this Agreement. Licensee further
acknowledges and agrees that Licensee shall provide Licensor with ninety (90)
days advance written notice of its intent to institute an action or
proceeding before any federal, state, or local court or authority for the
purpose of seeking the alteration of or relief from any term of this
Agreement, in whole or in part. Licensee and Licensor agree that, during such
90 day period, they will actively negotiate in good faith to attempt to
resolve the dispute for which Licensee intends to bring the action. This
waiver shall not preclude Licensee from bringing an action for breach of
contract in federal, state or local court.
24
ARTICLE 39 - GOVERNING LAWS
The interpretation of the provisions of this Agreement and of the rights of
the parties hereto shall be under the laws of the state in which the facilities
are located.
ARTICLE 40 - JURISDICTION
Licensee acknowledges that Licensor and other utility companies have
taken and/or may take the position that the Pole Attachment Act of 1978 as
amended (the "Act"), or regulations promulgated with respect thereto, are
unconstitutional on their face or as applied or are otherwise defective as a
matter of law. Licensee further acknowledges and agrees that in the event
the Act or regulations promulgated with respect thereto are held by a court
or administrative agency of competent jurisdiction to be unconstitutional or
otherwise defective as a matter of law in whole or in part, and such decision
becomes final or is otherwise upheld, in whole or in part, by a final
decision upon appeal to the highest court or body to which appeal is sought,
Licensor and Licensee agree to renegotiate, in good faith, the terms and
conditions of this Agreement. If, following a period of ninety (90) days or
such other period as may be mutually agreed upon by the parties, such
renegotiation is unsuccessful, Licensor, in its sole discretion, may
terminate this Agreement without liability or further obligation upon one
hundred twenty (120) days' written notice, in which event Licensee promptly
shall remove or cause to be removed any and all of its attachments and
equipment from Licensor's poles, ducts, conduits, or rights-of-way. Should
Licensee fail to effect such notice of Licensor's intent to terminate this
Agreement pursuant to this Article 41, Licensor shall have the right, without
liability to remove or cause to be removed Licensee's attachments and
equipment, at Licensee's sole expense, pursuant to the terms of this
Agreement.
25
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed in duplicate on the day and year first above written, each party
hereto retaining an executed copy hereof.
ENTERGY SERVICES, INC.
WITNESS: LICENSOR
----------------------------- BY:
------------------------------
----------------------------- TITLE:
---------------------------
IWL COMMUNICATIONS, INC.
dba IWL CONNECT
WITNESS: LICENSEE
Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------- -----------------------
Xxxxxxxx Xxxxxxxx
Xxxxxxxx X. Xxxxxxx Title: President
----------------------------- --------------------
26
PERMIT NO._________
REF WR#_________
(Entergy use only)
EXHIBIT A
APPLICATION AND PERMIT FOR ATTACHMENT TO FACILITIES
Licensee____________________________________________ _________, 19___
Contract No.______ Town/Operating Area_________________________
(one area per application)
Dear Sir:
In accordance with the terms and conditions of our Agreement dated __________,
application is hereby made for a permit to make _____ attachments to Entergy's
facilities for installation of _______________________ attachments at the
locations detailed below and/or shown on the attached design and layout
proposal.
TYPE OF ATTACHMENT SPECIFIC LOCATION
Advance payment is enclosed for a non-refundable fees as required in the
Agreement in the amount of $_______. Attachments, as provided for under this
"Application and Permit," shall commence within thirty (30) days and be
completed within one hundred twenty (120) days of the approval date as set forth
below, otherwise this application and permit shall become null and void, and
prepaid fees will not be refundable.
Licensee: By:
----------------------------
------------------------------ Title:
-------------------------
______________________________________________________________________________
(To Be Completed By Entergy)
____ Permit will be granted, subject to your approval of the necessary changes
and rearrangements at a cost to
you of $_________________ , payable in advance.
____ Permit denied under Section ________________ ______________, 19 ____
Comments: By:
------------------------ ---------------------------
--------------------------------- Title: -----------------------
_________________________________________________________________________
(To Be Completed By Licensee)
The above changes and rearrangements approved ___________, 19___, and advance
payment is enclosed.
__________________________________ By:
Licensee ----------------------------
Title:
-------------------------
_______________________________________________________________________________
(Entergy)
Permit Issued _______________ , 19___ ENTERGY
Total Previous Attachments______
Attachments This Permit ______ By:
New Total ________ --------------------------------
Title:
Routing Instructions: -----------------------------
(1) The party preparing this application will send three (3) signed copies and
application fee to Entergy.
(2) Entergy will return two (2) copies approving the application or requesting
approval and pre-payment of make ready work when require
(3) The party will return two (2) copies approving make ready work along with
pre-payment.
(4) After receipt of pre-payment, Entergy will return one (1) final approved
copy.
27
PERMIT NO._________
EXHIBIT B
NOTICE OF REMOVAL OF ATTACHMENT TO FACILITIES
Licensee_____________________________ ________, 19___
Contract No.______ Town/Operating Area___________________________
(one area per application)
Dear Sir:
In accordance with the terms and conditions of our Agreement dated
____________,19___, please cancel from your records attachments to the following
facilities from which Licensee's attachments were removed on ___________ 19___.
TYPE OF ATTACHMENT __________ SPECIFIC LOCATION __________
________________________ By:
Licensee ------------------------------
Title:
---------------------------
________________________________________________________________________________
Notice Acknowledged:
_______________,19____ ENTERGY
Total Previous Attachments______
Attachments Removed ______ By:
New Total _______ ----------------------------
Title:
Routing Instructions: ------------------------
(1) The party preparing this application will send two (2) signed copies to
Entergy.
(2) Entergy will return one (1) copy acknowledging the removals.
28
EXHIBIT C
SPACE RESERVATION DRAWINGS
[Drawing depicting transformer installation detail]
EXHIBIT D
FEES, CHARGES AND RENTS
for
IWL Communications, Inc., dba IWL Connect
Effective Date: 11/25, 1996
Application Fee (non-refundable) XXXXX first time new application
(One-time fee) XXXXX subsequent applications in a
new Metropolitan Statistical Area
(MSA) assuming there are no contract
changes
Annual Bundled Rate $ XXXX /pole per year
Pole Attachment Rental Rate Current CATV rental rate as
calculated annually in accordance
with FCC formula
Up Front Engineering Pole Survey Fees $ XXXX /pole applied to make ready
work required on that pole
Periodic Inspection Fee Cost plus standard markup
Rental Fee for Unauthorized $ XXXX /pole
Attachment
Penalty Fee for Unauthorized $ XXXX /pole per year since last
Attachment inventory or date of contract
whichever is the most recent
Transfer of Attachments from old Included in Bundled Rate Pole Rental
facility to new facility for non- Rate or at Licensee's expense
severed cable
Right of Way Maintenance Included in Bundled Rate Pole Rental
Rate or at Licensee's expense
Restoration of service if cable not Included in Bundled Rate Pole Rental
damaged Rate or at Licensee's expense
Rearrangement of Facilities $XXXX per accessible pole (includes
consisting of one secondary and one $XXXX engineering fee)
service Make Ready on a non-
replacement pole. Cost for any $XXXX per non-accessible pole
additional services on a pole or a (includes $XXXX engineering fee)
pole replacement cost will be the
Licensor's Distribution Information
System estimate for that pole or
additional work.
Removal of Licensee Facilities Estimated cost for the specific
facilities to be removed
$_________ Other
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