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EXHIBIT 10.41
LICENSE AGREEMENT
for
RIGHTS OF WAY (ROW), CONDUITS, AND POLE ATTACHMENTS
Dated: March 3, 1998
Between
BELLSOUTH TELECOMMUNICATIONS, INC.
(Licensor)
And
KNOLOGY HOLDINGS, INC.
(Licensee)
Licensee desires to conduct business in the following area(s):
AL KY LA MS TN FL GA NC SC
or
T BellSouth Region
BELLSOUTH LICENSE AGREEMENT NUMBER - BSIC981002
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CONTENTS
SECTION PAGE
1. Definitions.................................................................................... 1
2. Scope of Agreement............................................................................. 5
3. Requirements and Specifications................................................................ 9
4. Additional Legal Requirements.................................................................. 18
5. Facilities and Licenses........................................................................ 19
6. Make-Ready Work................................................................................ 20
7. Application Form and Fees...................................................................... 21
8. Processing of Applications (Including Prelicense Surveys and Field Inspections)................ 24
9. Issuance of Licenses........................................................................... 25
10. Construction of Licensee's Facilities.......................................................... 26
11. Use and Routine Maintenance of Licensee's Facilities........................................... 29
12. Modification and Replacement of Licensee's Facilities.......................................... 30
13. Rearrangement of Facilities at the Request of Another.......................................... 31
14. Emergency Repairs and Pole Replacements........................................................ 32
15. Inspection By BellSouth of Licensee's Facilities............................................... 33
16. Notice of Noncompliance........................................................................ 33
17. Unauthorized Occupancy or Utilization of BellSouth's Facilities................................ 35
18. Removal of Licensee's Facilities............................................................... 36
19. Fees, Charges, and Billing..................................................................... 36
20. Advance Payment and Imputation................................................................. 37
21. Assurance of Payment........................................................................... 37
22. Insurance...................................................................................... 38
23. Authorization Not Exclusive.................................................................... 39
24. Assignment of Rights........................................................................... 39
25. Failure To Enforce............................................................................. 39
26. Term of Agreement.............................................................................. 40
27. Supersedure of Previous Agreement(s)........................................................... 40
APPENDICES
I Schedule of Fees, Charges, and Attachment Transfer Rate Schedule
II Records Maintenance Centers
EXHIBITS
I Administrative Forms and Notices
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RIGHTS OF WAY (ROW), CONDUITS AND POLE ATTACHMENTS
This Agreement sets forth the terms and conditions under which BellSouth shall
afford to Licensee access to BellSouth's poles, ducts, conduits and
rights-of-way, pursuant to the Act.
1. DEFINITIONS
Definitions in General. Except as the context otherwise requires, the
terms defined in this Section shall, as used herein, have the meanings
set forth in 1.1 through 1.29.
1.1 Anchor. The term "anchor" refers to a device, structure, or assembly
which stabilizes a pole and holds it in place. An anchor assembly may
consist of a rod and fixed object or plate, typically embedded in the
ground, which is attached to a xxx xxxxxx or guy wire, which, in turn,
is attached to the pole. The term "anchor" does not include the xxx
xxxxxx which connects the anchor to the pole and includes only those
anchors which are owned by BellSouth, as distinguished from anchors
which are owned and controlled by other persons or entities.
1.2 Anchor/xxx xxxxxx. The term "anchor/xxx xxxxxx" refers to supporting
wires, typically stranded together, or other devices attached to a pole
and connecting that pole to an anchor or to another pole for the
purpose of increasing pole stability. The term "anchor/xxx xxxxxx"
includes, but is not limited to, strands sometimes referred to as
"anchor strands," "down guys," "guy strands," and "pole-to-pole guys."
1.3 Communications Act of 1934. The terms "Communications Act of 1934" and
"Communications Act" refer to the Communications Act of June 19, 1934,
48 Stat. 1064, as amended, including the provisions codified as 47
U.S.C. Sections 151 et seq. The Communications Act includes the Pole
Attachment Act of 1978, as defined in 1.23 following.
1.4 Assigned. The term "assigned", when used with respect to conduit or
duct space or pole attachment space, refers to any space in such
conduit or duct or on such pole that is occupied by a
telecommunications service provider or a municipal or other
governmental authority. To ensure the judicious use of poles and
conduits, space "assigned" to a telecommunications service provider
must be physically occupied by the service provider, be it BellSouth or
a new entrant, within twelve (12) months of the space being "assigned."
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1.5 Available. The term "available", when used with respect to conduit or
duct space or pole attachment space, refers to any usable space in such
conduit or duct or on such pole not assigned to a specific provider at
the applicable time.
1.6 Conduit occupancy. The terms "conduit occupancy" and "occupancy" refer
to the presence of wire, cable, optical conductors, or other facilities
within any portion of BellSouth's conduit system.
1.7 Conduit system. The term "conduit system" refers to any combination of
ducts, conduits, manholes, and handholes joined to form an integrated
whole. In this Agreement, the term refers to conduit systems owned or
controlled by BellSouth.
1.8 Cost. The term "cost" as used herein refers to charges made by
BellSouth to Licensee for specific work performed, and shall be (a) the
actual charges made by subcontractors to BellSouth for work and/or, (b)
if the work was performed by BellSouth employees, the rates set forth
in the Price Schedule of the General Terms and Conditions of BellSouth.
1.9 Duct. The term "duct" refers to a single enclosed tube, pipe, or
channel for enclosing and carrying cables, wires, and other facilities.
As used in this Agreement, the term "duct" includes "inner ducts"
created by subdividing a duct into smaller channels.
1.10 Facilities. The terms "facility" and "facilities" refer to any property
or equipment utilized in the provision of telecommunication services.
1.11 The acronym "FCC" refers to the Federal Communications Commission.
1.12 Inner-Duct. The term "inner-duct" refers to a pathway created by
subdividing a duct into smaller channels.
1.13 Joint User. The term "joint user" refers to a utility which has entered
into an agreement with BellSouth providing reciprocal rights of
attachment of facilities owned by each party to the poles, ducts,
conduits and rights-of-way owned by the other party.
1.14 Licensee. The term "licensee" refers to a person or entity which has
entered or may enter into an agreement or arrangement with BellSouth
permitting such person or entity to place its facilities in BellSouth's
conduit system or attach its facilities to BellSouth's poles or
anchors.
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1.15 Lashing. The term "lashing" refers to the attachment of a
licensee's-sheath or inner-duct to a supporting strand.
1.16 License. The term "license" refers to any license issued pursuant to
this Agreement and may, if the context requires, refer to conduit
occupancy or pole attachment licenses issued by BellSouth prior to the
date of this Agreement.
1.17 Make-Ready work. The term "make-ready work" refers to all work
performed or to be performed to prepare BellSouth's conduit systems,
poles or anchors and related facilities for the requested occupancy or
attachment of Licensee's facilities. "Make-Ready work" includes, but is
not limited to, clearing obstructions (e.g., by "rodding" ducts to
ensure clear passage), the rearrangement, transfer, replacement, and
removal of existing facilities on a pole or in a conduit system where
such work is required solely to accommodate Licensee's facilities and
not to meet BellSouth's business needs or convenience. "Make-Ready
work" may require "dig-ups" of existing facilities and may include the
repair, enlargement or modification of BellSouth's facilities
(including, but not limited to, conduits, ducts, handholes and
manholes) or the performance of other work required to make a pole,
anchor, conduit or duct usable for the initial placement of Licensee's
facilities.
1.18 Manhole. The term "manhole" refers to an enclosure, usually below
ground level and entered through a hole on the surface covered with a
cast iron or concrete manhole cover, which personnel may enter and use
for the purpose of installing, operating, and maintaining facilities in
a conduit.
1.19 Occupancy. The term "occupancy" shall refer to the physical presence of
telecommunication facilities in a duct, on a pole, or within a
Right-of-way.
1.20 Person acting on Licensee's behalf. The terms "person acting on
Licensee's behalf," "personnel performing work on Licensee's behalf,"
and similar terms include both natural persons and firms and ventures
of every type, including, but not limited to, corporations,
partnerships, limited liability companies, sole proprietorships, and
joint ventures. The terms "person acting on Licensee's behalf,"
"personnel performing work on Licensee's behalf," and similar terms
specifically include, but are not limited to, Licensee, its officers,
directors, employees, agents, representatives, attorneys, contractors,
subcontractors, and other persons or entities performing services at
the request of or as directed by Licensee and their respective
officers, directors, employees, agents, and representatives.
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1.21 Person acting on BellSouth's behalf. The terms "person acting on
BellSouth's behalf," "personnel performing work on BellSouth's behalf,"
and similar terms include both natural persons and firms and ventures
of every type, including but not limited to corporations, partnerships,
limited liability companies, sole proprietorships, and joint ventures.
The terms "person acting on BellSouth's behalf," "personnel performing
work on BellSouth's behalf," and similar terms specifically include,
but are not limited to, BellSouth, its officers, directors, employees,
agents, representatives, attorneys, contractors, subcontractors, and
other persons or entities performing services at the request or on
behalf of BellSouth and their respective officers, directors,
employees, agents, and representatives.
1.22 Pole. The term "pole" refers to both utility poles and anchors but only
to those utility poles and anchors owned or controlled by BellSouth,
and does not include utility poles or anchors with respect to which
BellSouth has no legal authority to permit attachments by other persons
or entities.
1.23 Pole Attachment Act. The terms "Pole Attachment Act" and "Pole
Attachment Act of 1978" refer to those provisions of the Communications
Act of 1934, as amended, now codified as 47 U.S.C. ss. 224.
1.24 Prelicense survey. The term "prelicense survey" refers to all work and
activities performed or to be performed to determine whether there is
adequate capacity on a pole or in a conduit or conduit system
(including manholes and handholes) to accommodate Licensee's facilities
and to determine what make-ready work, if any, is required to prepare
the pole, conduit or conduit system to accommodate Licensee's
facilities.
1.25 Right of Way (ROW). The term "right of way" refers to the right to use
the land or other property of another party to place poles, conduits,
cables, other structures and equipment, or to provide passage to access
such structures and equipment. A Right of Way may run under, on, or
above public or private property (including air space above public or
private property) and may include the right to use discrete space in
buildings, building complexes, or other locations.
1.26 Sheath. The term "sheath" refers to a single outer covering containing
communications wires, fibers, or other communications media.
1.27 Spare Capacity. The term "spare capacity" refers to any pole attachment
space, conduit, duct or inner-duct not currently assigned or
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subject to a pending application for attachment/occupancy. Spare
capacity does not include an inner duct (not to exceed one inner-duct
per party) reserved by BellSouth, Licensee, or a third party for
maintenance, repair, or emergency restoration.
1.28 State. When capitalized, the term "State" (as used in terms such as
"this State") refers to the State of Georgia.
1.29 Third Party. The terms "third party" and "third parties" refer to
persons and entities other than Licensee and BellSouth. Use of the term
"third party" does not signify that any such person or entity is a
party to this Agreement or has any contractual rights hereunder.
2. SCOPE OF AGREEMENT
2.1 Undertaking of BellSouth. BellSouth shall provide Licensee with equal
and nondiscriminatory access to pole space, conduits, ducts, and
rights-of-way on terms and conditions equal to those provided by
BellSouth to itself or to any other telecommunications service
provider. Further, BellSouth shall not withhold or delay assignment of
such facilities to Licensee because of the potential or forecasted
needs of itself or other parties.
2.2 Attachments and Occupancies Authorized by this Agreement. BellSouth
shall issue one or more licenses to Licensee authorizing Licensee to
attach facilities to BellSouth's owned or controlled poles and to place
facilities within BellSouth's owned or controlled conduits, ducts or
rights-of-way under the terms and conditions set forth in this Section
and the Telecommunications Act of 1996.
2.2.1 Unless otherwise provided herein, authority to attach facilities to
BellSouth's owned or controlled poles, to place facilities within
BellSouth's owned or controlled conduits, ducts or rights-of-way shall
be granted only in individual licenses granted under this Agreement and
the placement or use of such facilities shall be determined in
accordance with such licenses and procedures established in this
Agreement.
2.2.2 Licensee agrees that its attachment of facilities to BellSouth's owned
or controlled poles, occupancy of BellSouth's owned or controlled
conduits, ducts or rights-of-way shall take place pursuant to the
licensing procedures set forth herein, and BellSouth agrees that it
shall not unreasonably withhold or delay issuance of such licenses.
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2.3 Licenses. Subject to the terms and conditions set forth in this
Agreement, BellSouth shall issue to Licensee one or more licenses
authorizing Licensee to place or attach facilities in or to specified
poles, conduits, ducts or rights-of-way owned or controlled by
BellSouth located within this state on a first come, first served
basis. BellSouth may deny- a license application if BellSouth
determines that the pole, conduit or duct space specifically requested
by Licensee is necessary to meet BellSouth's present needs, or is
licensed by BellSouth to another licensee, or- is otherwise unavailable
based on engineering concerns. BellSouth shall provide written notice
to Licensee within a reasonable time specifying in detail the reasons
for denying Licensee's request. BellSouth shall have the right to
designate the particular duct(s) to be occupied, the location and
manner in which Licensee's facilities will enter and exit BellSouth's
conduit system and the specific location and manner of installation for
any associated equipment which is permitted by BellSouth to occupy the
conduit system.
2.4 Access and Use of Rights-of-Way. BellSouth acknowledges that it is
required by the Telecommunications Act of 1996 to afford Licensee
access to and use of all associated rights-of-way to any sites where
BellSouth's owned or controlled poles, manholes, conduits, ducts or
other parts of BellSouth's owned or controlled conduit systems are
located.
2.4.1 BellSouth shall provide Licensee with access to and use of such
rights-of-way to the same extent and for the same purposes that
BellSouth may access or use such rights-of-way, including but not
limited to access for ingress, egress or other access and to construct,
utilize, maintain, modify, and remove facilities for which pole
attachment, conduit occupancy, or ROW use licenses have been issued,
provided that any agreement with a third party under which BellSouth
holds such rights expressly or impliedly grants BellSouth the right to
provide such rights to others.
2.4.2 Where BellSouth notifies Licensee that BellSouth's agreement with a
third party does not expressly or impliedly grant BellSouth the ability
to provide such access and use rights to others, upon Licensee's
request, BellSouth will use its best efforts to obtain the owner's
consent and to otherwise secure such rights for Licensee. Licensee
agrees to reimburse BellSouth for the reasonable --and demonstrable
costs incurred by BellSouth in obtaining such rights for Licensee.
2.4.3 In cases where a third party agreement does not grant BellSouth the
right to provide access and use rights to others as contemplated in
2.4.1 and BellSouth, despite its best efforts, is unable to secure such
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access and use rights for Licensee in accordance with 2.4.2, or, in the
case where Licensee elects not to invoke its rights under 2.4.1 or
2.4.2, Licensee shall be responsible for obtaining such permission to
access and use such rights-of-way. BellSouth shall cooperate with
Licensee in obtaining such permission and shall not prevent or delay
any third party assignment of ROW's to Licensee.
2.4.4 Where BellSouth has any ownership or rights-of-way to buildings or
building complexes, or within buildings or -building complexes,
BellSouth shall offer to Licensee through a license or other
attachment:
2.4.4.1 The right to use any available space owned or controlled by BellSouth
in the building or building complex to install Licensee equipment and
facilities; and
2.4.4.2 Ingress and egress to such space.
2.4.5 Except to the extent necessary to meet the requirements of the
Telecommunications Act of 1996, neither this Agreement nor any license
granted hereunder shall constitute a conveyance or assignment of any of
either party's rights to use any public or private rights-of-way, and
nothing contained in this Agreement or in any license granted hereunder
shall be construed as conferring on one party any right to interfere
with the other party's access to any such public or private
rights-of-way.
2.5 No Effect on BellSouth's Right to Convey Property. Nothing contained in
this Agreement or in any license issued hereunder shall in any way
affect the right of BellSouth to convey to any other person or entity
any interest in real or personal property, including any poles, conduit
or ducts to or in which Licensee has attached or placed facilities
pursuant to licenses issued under this Agreement provided however that
BellSouth shall give Licensee reasonable advance written notice of such
intent to convey.
2.6 No Effect on BellSouth's Rights to Manage its Own Facilities. This
Agreement shall not be construed as limiting or interfering with
BellSouth's rights set forth below, except to the extent expressly
provided by the provisions of this Agreement or licenses issued
hereunder or by the Telecommunications Act of 1996 or other applicable
laws, rules or regulations:
2.6.1 To locate, relocate, move, replace, modify, maintain, and operate
BellSouth's own facilities within BellSouth's conduits, ducts or
rights-of way or any of BellSouth's facilities attached to BellSouth's
poles at
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any time and in any reasonable manner which BellSouth deems appropriate
to serve its customers, avail itself of new business opportunities, or
otherwise meet its business needs; or
2.6.2 To enter into new agreements or arrangements with other persons or
entities permitting them to attach or place their facilities to or in
BellSouth's poles, conduits or ducts; provided, however, that such
relocations, moves, replacements, modifications, maintenance and
operations or new agreements or arrangements shall not substantially
interfere with Licensee's pole attachment, conduit occupancy or ROW
use, rights provided by licenses Issued pursuant to this Agreement.
2.7 No Effect on Licensee's Rights to Manage its Own Facilities. This
Agreement shall not be construed as limiting or interfering with
Licensee's rights set forth below, except to the extent expressly
provided by the provisions of this Agreement or licenses issued
hereunder or by the Telecommunications Act of 1996 or other applicable
laws, rules or regulations:
2.7.1 To locate, relocate, move, replace, modify, maintain, and operate its
own facilities within BellSouth's conduits, ducts or rights-of-way or
its facilities attached to BellSouth's poles at any time and in any
reasonable manner which Licensee deems appropriate to serve its
customers, avail itself of new business opportunities, or otherwise
meet its business needs; or
2.7.2 To enter into new agreements or arrangements with other persons or
entities permitting Licensee to attach or place its facilities to or in
such other persons' or entities' poles, conduits or ducts, or
rights-of-way; provided, however, that such relocations, moves,
replacements, modifications, maintenance and operations or new
agreements or arrangements shall not conflict with Licensee's
obligations under licenses issued pursuant to this Agreement.
2.8 No Right to Interfere with Facilities of Others. The provisions of this
Agreement or any license issued hereunder shall not be construed as
authorizing either party to this Agreement to rearrange or interfere in
any way with any of the other party's facilities, with the facilities
of other persons or entities, or with the use of or access to such
facilities by such other party or such other persons or entities,
except to the extent expressly provided by the provisions of this
Agreement or any license issued hereunder or by the Telecommunications
Act of 1996 or other applicable laws, rules or regulations.
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2.8.1 Licensee acknowledges that the facilities of persons or entities other
than BellSouth and Licensee may be attached to or occupy BellSouth's
poles, conduits, ducts and rights-of-way.
2.8.2 BellSouth shall not attach, or give permission to any third parties to
attach facilities to, existing Licensee facilities without Licensee's
prior written consent. If BellSouth becomes aware of any such
unauthorized attachment to Licensee facilities, BellSouth shall use its
best efforts to rectify the situation as soon as practicable.
2.8.3 With respect to facilities occupied by Licensee or the subject of an
application for attachment by Licensee, BellSouth will give to Licensee
60 days' written notice for conduit extensions or reinforcements, 60
days' written notice for pole line extensions, 60 days' written notice,
for pole replacements, and 60 days' written notice of BellSouth's
intention to construct, reconstruct, expand or place such facilities or
of BellSouth's intention not to maintain or use any existing facility
and, in the case of an existing facility which BellSouth elects not to
maintain or use, BellSouth will grant to Licensee a right to maintain
and use such facility. If an emergency or provisions of an applicable
joint use agreement require BellSouth to construct, reconstruct, expand
or replace poles, conduits or ducts occupied by Licensee or the subject
of an application for attachment by Licensee, BellSouth will notify
Licensee as soon as reasonably practicable of such proposed
construction, reconstruction, expansion or replacement to enable
Licensee, if it so desires, to request that a pole, conduit or duct of
greater height or capacity be utilized to accommodate an anticipated
facility need of Licensee.
2.8.4 At Licensee's expense, BellSouth shall remove any retired cable from
conduit systems to allow for the efficient use of conduit space within
a reasonable period of' time.
2.9 Assignment of Space. Assignment of space on poles, in conduits or ducts
and within ROW's will be made pursuant to licenses granted by BellSouth
on an equal basis to BellSouth, Licensee and other telecommunication
service providers.
3. REQUIREMENTS AND SPECIFICATIONS
3.1 Published Standards Incorporated in this Section by Reference. Licensee
agrees that its facilities shall be placed, constructed, maintained,
repaired, and removed in accordance with current (as of the date when
such work is performed) editions of the following
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publications, each of which is incorporated by reference as part of
this Section:
3.1.1 The Blue Book Manual of Construction Procedures, Special Report
SR.-TAP-00 142 1, published by Xxxx Communications Research, Inc.
("BellCore"), and sometimes referred to as the "Blue Book";
3.1.2 The National Electrical Code (NEC); and
3.1.3 The National Electrical Safety Code (NESC).
3.2 Changes in Published Standards. Licensee agrees to rearrange its
facilities in accordance with changes in the standards published in the
publications specified in Article 3.1 of this Agreement if required by
law to do so or upon the mutual agreement of the parties.
3.3 Additional Electrical Design Specifications. Licensee agrees that, in
addition to specifications and requirements referred to in Article 3.1
above, Licensee's facilities placed in BellSouth's conduit system shall
meet all of the following electrical design specifications:
3.3.1 No facility shall be placed in BellSouth's conduit system in violation
of FCC regulations.
3.3.2 Licensee's facilities placed in BellSouth's conduit system shall not be
designed to use the earth as the sole conductor for any part of
Licensee's circuits.
3.3.3 Licensee's facilities carrying more than 50 volts AC (rms) to ground or
135 volts DC to ground shall be enclosed in an effectively grounded
sheath or shield.
3.3.4 No coaxial cable of Licensee shall occupy a conduit system containing
BellSouth's cable unless such cable of Licensee meets the voltage
limitations of Article 820 of the National Electrical Code.
3.3.5 Licensee's coaxial cable may carry continuous DC voltages up to 1800
volts to ground where the conductor current will not exceed one-half
amperes and where such cable has two separate grounded metal sheaths or
xxxxxxx and a suitable insulating jacket over the outer sheath or
shield. The power supply shall be so designed and maintained that the
total current carried over the outer sheath shall not exceed 200 micro
amperes under normal conditions. Conditions which would increase the
current over this level shall be cleared promptly.
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3.3.6 Neither party shall circumvent the other party's corrosion mitigation
measures. Each party's new facilities shall be compatible with the
other party's facilities so as not to damage any facilities of the
other party by corrosion or other chemical reaction.
3.4 Additional Physical Design Specifications. Licensee's facilities placed
in BellSouth's conduit system must meet all of the following physical
design specifications:
3.4.1 Cables bound or wrapped with cloth or having any kind of fibrous
coverings or impregnated with an adhesive material shall not be placed
in BellSouth's conduit or ducts.
3.4.2 The integrity of BellSouth's conduit system and overall safety of
BellSouth's personnel and other personnel working in BellSouth's
conduit system requires that "dielectric cable" be required when
Licensee's cable facility utilizes an alternative duct or route that is
shared in the same trench by any current carrying facility of a power
utility.
3.4.3 New construction splices in Licensee's fiber optic and twisted pair
cables shall be located in manholes, pull boxes or handholes.
3.5 Additional Specifications Applicable to Connections. The following
specifications apply to connections of Licensee's conduit to
BellSouth's conduit system:
3.5.1 Licensee will be permitted to connect its conduit or duct only at the
point of a BellSouth manhole. No attachment will be made by entering or
breaking into conduit between manholes. All necessary work to install
Licensee facilities will be performed by Licensee or its contractor at
Licensee's expense. In no event shall Licensee or its contractor "core
bore" or make any other modification to BellSouth manhole(s) without
the prior written approval of BellSouth, which approval will not be
unreasonably delayed or withheld.
3.5.2 BellSouth may monitor, at Licensee's expense, the entrance and exit of
Licensee's facilities into BellSouth's manholes and the placement of
Licensee's facilities in BellSouth's manholes.
3.5.3 If Licensee constructs or utilizes a duct connected to BellSouth's
manhole, the duct and all connections between that duct and BellSouth's
manhole shall be sealed, to the extent practicable, to prevent the
entry of gases or liquids into BellSouth's conduit system. If
Licensee's duct enters a building, it shall also be sealed where it
enters the building and at all other locations necessary to prevent the
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entry of gases and liquids from the building into BellSouth's conduit
system.
3.6 Requirements Relating to Personnel, Equipment, Material, and
Construction Procedures Generally. Duct clearing, rodding or
modifications required to grant Licensee access to BellSouth's conduit
systems may be performed by BellSouth at Licensee's expense at charges
which represent BellSouth's actual costs. Alternatively (at Licensee's
option) such work may be performed by a contractor who demonstrates
compliance with BellSouth certification requirements, which
certification requirements shall be consistent with F.C.C. rules. The
parties acknowledge that Licensee, its contractors, and other persons
acting on Licensee's behalf will perform work for Licensee (e.g.,
splicing Licensee's facilities) within BellSouth's conduit system.
Licensee represents and warrants that neither Licensee nor any person
acting on Licensee's behalf shall permit any person to climb or work on
or in any of BellSouth's poles or to enter BellSouth's manholes or work
within BellSouth's conduit system unless such person has the training,
skill, and experience required to recognize potentially dangerous
conditions relating to pole or the conduit systems and to perform the
work safely.
3.6.1 Licensee's facilities within BellSouth's conduit system shall be
constructed, placed, rearranged, modified, and removed upon receipt of
license specified in 5.1. However, no such license will be required for
the inspection, maintenance, repair or non-physical modifications of
Licensee's facilities.
3.6.2 "Rodding" or clearing of ducts in BellSouth's conduit system shall be
done only when specific authorization for such work has been obtained
in advance from BellSouth, which authorization shall not be
unreasonably delayed or withheld by BellSouth. The parties agree that
such rodding or clearing shall be performed according to existing
industry standards and practices. Licensee may contract with BellSouth
for performance of such work or (at Licensee's option) with a
contractor who demonstrates compliance with BellSouth certification
requirements.
3.6.3 Personnel performing work on BellSouth's or Licensee's behalf in
BellSouth's conduit system shall not climb on, step on, or otherwise
disturb the other party's or any third party's cables, air pipes,
equipment, or other facilities located in any manhole or other part of
BellSouth's conduit system.
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3.6.4 Personnel performing work on BellSouth's or Licensee's behalf within
BellSouth's conduit system (including any manhole) shall, upon
completing their work, make reasonable efforts to remove all tools,
unused materials, wire clippings, cable sheathing and other materials
brought by them to the work site.
3.6.5 All of Licensee's facilities shall be firmly secured and supported in
accordance with BellCore and industry standards.
3.6.6 Licensee's facilities shall be plainly identified with Licensee's name
in each manhole with a firmly affixed permanent tag that meets
standards set by BellSouth for its own facilities.
3.6.7 Manhole pumping and purging required in order to allow Licensee's work
operations to proceed shall be performed by a vendor approved by
BellSouth in compliance with BellSouth Practice Sec. 620-145-011BT,
"Manhole Contaminants, Water, Sediment or Debris Removal and Reporting
Procedures," and any amendments, revisions or supplements thereto and
in compliance with all regulations and standards established by the
United States Environmental Protection Agency and by any applicable
state or local environmental regulators.
3.6.8 Planks or other types of platforms shall not be installed using cables,
pipes or other equipment as a means of support. Platforms shall be
supported only by cable racks.
3.6.9 Any leak detection liquid or device used by Licensee or personnel
performing work on Licensee's facilities within BellSouth's conduit
system shall be of a type approved by BellSouth or BellCore.
3.6.10 When Licensee or personnel performing work on Licensee's behalf are
working within or in the vicinity of any part of BellSouth's poles or
conduit system which is located within, under, over, or adjacent to
streets, highways, alleys or other traveled rights-of-way, Licensee and
all personnel performing work on Licensee's behalf shall follow
procedures which Licensee deems appropriate for the protection of
persons and property. Licensee shall be responsible, at all times, for
determining and implementing the specific steps required to protect
persons and property at the site. Licensee will provide all traffic
control and warning devices required to protect pedestrian and
vehicular traffic, workers and property from danger. Licensee has sole
responsibility for the safety of all personnel performing work on
Licensee's behalf, for the safety of bystanders, and for insuring that
all operations conform to current OSHA regulations and all other
governmental rules, ordinances or statutes. BellSouth reserves the
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right to suspend Licensee's activities on, in or in the vicinity of
BellSouth's poles or conduit system if, in BellSouth's reasonable
judgment, any hazardous condition arises due to the activity (including
both acts and. omissions) of Licensee or any personnel performing work
on Licensee's behalf, which suspension shall cease when the condition
has been rectified.
3.6.11 Except for protective screens, no temporary cover shall be placed by
Licensee or personnel performing work on Licensee's behalf over an open
manhole unless it is at least four feet above the surface level of the
manhole opening.
3.6.12 Smoking or the use of any open flame is prohibited in BellSouth's
manholes, in any other portion of BellSouth's conduit system, or within
10 feet of any open manhole entrance; provided that this provision will
not prohibit the use of spark producing tools such as electric drills,
fusion splicers, etc.
3.6.13 Artificial lighting, when required, will be provided by Licensee. Only
explosion-proof lighting fixtures shall be used.
3.6.14 Neither Licensee nor personnel performing work on Licensee's behalf
shall allow any combustible gas, vapor, liquid, or material to
accumulate in BellSouth's conduit system (including any manhole) during
work operations performed within or in the vicinity of BellSouth's
conduit system.
3.6.15 Licensee will abide by any laws, regulations or ordinances regarding
the use of spark producing tools, equipment or devices in BellSouth's
manholes, in any other portions of BellSouth's conduit system, or
within 10 feet of any open manhole opening. This includes, but is not
limited to, such tools as electric drills and hammers, meggers,
breakdown sets, induction sets, and the like.
3.7 Opening of Manholes. The following requirements apply to the opening of
BellSouth's manholes and the authority of BellSouth personnel present
when work on Licensee's behalf is being performed within or in the
vicinity of BellSouth's conduit system.
3.7.1 BellSouth's manholes shall be opened only as permitted by BellSouth's
authorized employees or agents, which permission shall not be
unreasonably denied or delayed.
3.7.2 Licensee shall notify BellSouth forty-eight (48) hours in advance of
any routine work operation requiring entry into any of BellSouth's
manholes.
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3.7.3 Licensee shall be responsible for obtaining any necessary authorization
from appropriate authorities to open manholes for conduit work
operations therein.
3.7.4 BellSouth's authorized employee or agent shall not direct or control
the conduct of Licensee's work at the work site. The presence of
BellSouth's authorized employee or agent at the work site shall not
relieve Licensee or personnel performing work on Licensee's behalf of
their responsibility to conduct all work operations within BellSouth's
conduit system in a safe and workmanlike manner.
3.7.5 Although BellSouth's authorized employee or agent shall not direct or
control the conduct of Licensee's work at the work site, BellSouth's
employee or agent shall have the authority to suspend Licensee's work
operations within BellSouth's conduit system if, in the reasonable
discretion of such BellSouth employee or agent, it appears that any
hazardous conditions arise or any unsafe practices are being followed
by Licensee or personnel performing work on Licensee's behalf.
3.8 OSHA Compliance: Notice to BellSouth of Unsafe Conditions. Licensee
agrees that:
3.8.1 Its facilities shall be constructed, placed, maintained, repaired, and
removed in accordance with the Occupational Safety and Health Act
(OSHA) and all rules and regulations promulgated thereunder;
3.8.2 All persons acting on Licensee's behalf, including but not limited to
Licensee's employees, agents, contractors, and subcontractors shall,
when working on or within BellSouth's poles or conduit system, comply
with OSHA and all rules and regulations thereunder,
3.8.3 Licensee shall establish appropriate procedures and controls to assure
compliance with all requirements of this section; and
3.8.4 Licensee (and any person acting on Licensee's behalf) may report unsafe
conditions on, in or in the vicinity of BellSouth's poles or conduit
system to BellSouth.
3.9 Compliance with Environmental Laws and Regulations. Licensee
acknowledges that, from time to time, environmental contaminants may
enter BellSouth's conduit system and accumulate in manholes or other
conduit facilities and that certain conduits (transite) are constructed
with asbestos-containing materials. If BellSouth has knowledge of the
presence of such contaminants in a conduit for which Licensee has
applied for or holds a license, BellSouth will promptly notify Licensee
of such fact.
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Notwithstanding any of BellSouth's notification requirements in this
Attachment, Licensee acknowledges that some of BellSouth's conduit is
fabricated from asbestos-containing materials. Such conduit is
generally marked with a designation of "C Fiber Cement Conduit,"
"Transite," or "Xxxxx-Xxxxxxxx." Until proven otherwise, Licensee will
presume that all conduit not fabricated of plastic, tile, or wood is
asbestos-containing and will handle it pursuant to all applicable
regulations relating to worker safety and protection of the
environment. BellSouth makes no representations to Licensee or
personnel performing work on Licensee's behalf that BellSouth's conduit
system or any specific portions thereof will be free from environmental
contaminants at any particular time. The acknowledgments and
representations set forth in the two preceding sentences are not
intended to relieve BellSouth of any liability which it would otherwise
have under applicable law for the presence of environmental
contaminants in its conduit facilities. Licensee agrees to comply with
the following provisions relating to compliance with environmental laws
and regulations:
3.9.1 Licensee's facilities shall be constructed, placed, maintained,
repaired, and removed in accordance with all applicable federal, state,
and local environmental statutes, ordinances, rules, regulations, and
other laws, including but not limited to the Resource Conservation and
Recovery Act (42 U.S.C. xx.xx. 9601 et. seq.), the Toxic Substance
Control Act (15 U.S.C. xx.xx. 2601-2629), the Clean Water Act (33
U.S.C. xx.xx. 1251 et. seq.), and the Safe Drinking Water Act (42
U.S.C. xx.xx. 300f-300j).
3.9.2 All persons acting on Licensee's behalf, including but not limited to
Licensee's employees, agents, contractors, and subcontractors, shall,
when working on, within or in the vicinity of BellSouth's poles or
conduit system, comply with all applicable federal, state, and local
environmental laws, including but not limited to all environmental
statutes, ordinances, rules, and regulations.
3.9.3 Licensee shall establish appropriate procedures and controls to assure
compliance with all requirements of this section. BellSouth will be
afforded a reasonable opportunity to review such procedures and
controls and provide comments that will be reasonably considered in
advance of their implementation. Review and comment by BellSouth
pursuant to this section will be provided in a timely manner.
3.9.4 Licensee and all personnel performing work on Licensee's behalf shall
comply with such standards and practices as BellSouth and Licensee may
from time to time mutually agree to adopt to comply with environmental
laws and regulations including, without limitation,
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BellSouth Practice Sec. 620-145-011BT, "Manhole Contaminants, Water,
Sediment or Debris Removal and Reporting Procedures". Pursuant to this
practice, neither Licensee nor BellSouth nor personnel performing work
on either party's behalf shall discharge water or any other substance
from any BellSouth manhole or other conduit facility onto public or
private property, including any storm water drainage system, without
first testing such water or substance for contaminants in accordance
with mutually agreed standards and practices and determining that such
discharge would not violate any environmental law, create any
environmental risk or hazard, or damage the property of any person. No
such waste material shall be deposited on BellSouth premises for
storage or disposal.
3.10 Compliance with Other Governmental Requirements. Licensee agrees that
its facilities attached to BellSouth's facilities shall be constructed,
placed, maintained, and removed in accordance with the ordinances,
rules, and regulations of any governing body having jurisdiction of the
subject matter. Licensee shall comply with all statutes, ordinances,
rules, regulations and other laws requiring the marking and lighting of
aerial wires, cables and other structures to ensure that such wires,
cables and structures are not a hazard to aeronautical navigation.
Licensee shall establish appropriate procedures and controls to assure
such compliance by all persons acting on Licensee's behalf, including
but not limited to, Licensee's employees, agents, contractors, and
subcontractors.
3.11 Differences in Standards or Specifications. To the extent that there
may be differences in any applicable standards or specifications
referred to in this Article 3, the most stringent standard or
specification shall apply.
3.12 Licensee Solely Responsible for the Condition of Its Facilities.
Licensee shall be responsible at all times for the condition of its
facilities and its compliance with the requirements, specifications,
rules, regulations, ordinances, and laws specified above. In this
regard, BellSouth shall have no duty to Licensee to inspect or monitor
the condition of Licensee's facilities (including but not limited to
splices and other facilities connections) located within BellSouth's
conduit and ducts or any attachment of Licensee's facilities to
BellSouth's poles, anchors, anchor/guy strands or other pole
facilities. BellSouth may, however, conduct such inspections and audits
of its poles and conduit system as BellSouth determines reasonable or
necessary. Such inspection and audits shall be conducted at BellSouth's
expense with the exception of (1) follow-up inspection to confirm
remedial action after an observed Licensee violation of the
requirements of this
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Agreement; and (2) inspection of Licensee facilities in compliance with
a specific mandate of appropriate governmental authority for which
inspections the cost shall be borne by Licensee. Either party may audit
the other party's compliance with the terms of this Section. Observed
safety hazards or imminent facility failure conditions of another party
shall be reported to the affected party where such party can be readily
identified.
3.13 Efficient use of Conduit. BellSouth will install inner-ducts to
increase duct space in existing conduit as facilities permit. The full
complement of inner-ducts will be installed which can be accommodated
under sound engineering principles. The number of inner-ducts which can
reasonably be installed will be determined by BellSouth.
4. ADDITIONAL LEGAL REQUIREMENTS
4.1 Third Party Property Owners. Licenses granted under this Section
authorize Licensee to place facilities in, or attach facilities to,
poles, conduits and ducts owned or controlled by BellSouth but do not
affect the rights of landowners to control terms and conditions of
access to their property.
4.1.1 Licensee agrees that neither Licensee nor any persons acting on
Licensee's behalf, including but not limited to Licensee's employees,
agents, contractors, and subcontractors, shall engage in any conduct
which damages public or private property in the vicinity of BellSouth's
poles or conduit system, interferes in any way with the use or
enjoyment of public or private property except as expressly permitted
by the owner of such property, or creates a hazard or nuisance on such
property (including, but not limited to, a hazard or nuisance resulting
from any abandonment or failure to remove Licensee's facilities or any
construction debris from the property, failure to erect warning signs
or barricades as may be necessary to give notice to others of unsafe
conditions on the premises while work performed on Licensee's behalf is
in progress, or failure to restore the property to a safe condition
after such work has been completed).
4.2 Required Permits, Certificates and Licenses. Licensee shall be
responsible for obtaining any building permits or certificates from
governmental authorities necessary to construct, operate, maintain and
remove its facilities on public or private property.
4.2.1 Licensee shall not attach or place its facilities to or in BellSouth's
poles, conduit or duct located on any property for which it or
BellSouth has not first obtained all required authorizations.
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4.2.2 BellSouth shall have the right to request evidence that all appropriate
authorizations have been obtained. However, such request shall not
delay BellSouth's prelicense survey work.
4.3 Lawful Purposes. All facilities placed by Licensee in BellSouth's
conduit and ducts or on BellSouth's poles, anchors or anchor/guy
strands must serve a lawful purpose and the uses made of Licensee's
facilities must comply with all applicable federal, state, and local
laws and with all federal, state, and local regulatory rules,
regulations, and requirements. In this regard, Licensee shall not
utilize any facilities occupying or attached to BellSouth's conduits,
ducts or poles for the purpose of providing any services which it is
not authorized by law to provide or for the purpose of enabling any
other person or entity to provide any such services.
5. FACILITIES AND LICENSES
5.1 Licenses Required. Before placing any facilities in BellSouth's
conduits or ducts or attaching any facilities to BellSouth's poles,
anchors or anchor/guy strands, Licensee must first apply for and
receive a written license from BellSouth. BellSouth shall not
unreasonably deny or delay issuance of any license.
5.2 Provision of Records and Information to Licensee. In order to obtain
information regarding facilities, Licensee shall make a written request
to BellSouth, identifying with reasonable specificity the geographic
area for which facilities are required, the types and quantities of the
required facilities and the required in-service date. In response to
such request, BellSouth shall provide Licensee with information
regarding the types, quantity and location (which may be provided by
provision of route maps) and availability of BellSouth poles, conduit
and right-of-way located within the geographic area specified by
Licensee. Provision of information under the terms of this section
shall include the right of Licensee employees or agents to inspect and
copy engineering records or drawings which pertain to those facilities
within the geographic area identified in Licensee's request. Such
inspection and copying shall be done at a time and place mutually
agreed upon by the parties. See Appendix 11 for records location
centers.
5.3 No Warranty of Record Information. Licensee acknowledges that records
and information provided by BellSouth pursuant to paragraph 5.2 may not
reflect field conditions and that physical inspection is necessary to
verify presence and condition of outside plant facilities
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and right of way. In providing such records and information, BellSouth
assumes no liability to Licensee or any third party for
errors/omissions contained therein.
5.4 Determination of Availability. BellSouth shall provide pole, conduit
and right-of way availability information in response to a request from
Licensee which identifies with reasonable specificity the facilities
for which such information is desired. Licensee may elect to be present
at any field based survey of facilities identified pursuant to this
paragraph and BellSouth shall provide Licensee at least forty-eight
(48) hours notice prior to initiating such field survey. Licensee
employees or agents shall be permitted to enter BellSouth manholes and
inspect such structures to confirm usability and/or evaluate condition
of the structure(s) with at least forty-eight (48) hours notice to
BellSouth, with a BellSouth representative present and at Licensee's
expense.
6. MAKE-READY WORK
6.1 Work Performed by BellSouth. If performed by BellSouth, make-ready work
to accommodate Licensee's facilities shall be included in the normal
work load schedule of BellSouth with construction responsibilities in
the geographic areas where the relevant poles or conduit systems are
located and shall not be entitled to priority, advancement, or
preference over other work to be performed by BellSouth in the ordinary
course of BellSouth's business.
6.1.1 If Licensee desires make-ready work to be performed on an expedited
basis and BellSouth agrees to perform the work on such a basis,
BellSouth shall recalculate the estimated make-ready charges. If
Licensee accepts BellSouth's offer, Licensee shall pay such additional
charges.
6.2 All charges for make-ready work performed by BellSouth are payable in
advance, with the amount of any such advance payment to be due within
sixty (60) days after receipt of an invoice from BellSouth.
6.3 Work Performed by Certified Contractor. In lieu of obtaining
performance of make-ready work by BellSouth, Licensee at its option may
arrange for the performance of such work by a contractor certified by
BellSouth to work on or in its facilities. Certification shall be
granted based upon reasonable and customary criteria employed by
BellSouth in the selection of its own contract labor. Notwithstanding
any other provisions of this Section, Licensee may not employ a
contractor to accomplish make-ready work if BellSouth is likewise
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precluded from contractor selection under the terms of an applicable
joint use agreement or collective bargaining agreement. In accordance
with section 3.6.7, all manhole pumping and purging shall be performed
by a vendor approved by BellSouth.
6.4 Completion of Make-Ready Work. BellSouth will issue a license to
Licensee at the time all make-ready work necessary to Licensee's
attachment or occupancy has been completed.
7. APPLICATION FORM AND FEES
7.1 Application Process. To apply for a license under this Section,
Licensee shall submit to BellSouth two signed copies of an Application
and Conduit Occupancy License form or an Application and Pole
Attachment License form. BellSouth will process license applications in
the order in which they are received; provided, however, that when
Licensee has multiple applications on file with BellSouth, Licensee may
designate its desired priority of completion of prelicense surveys and
make-ready work with respect to all such applications.
7.1.1 Each application for a license under this Section shall specify the
proposed route of Licensee's facilities and identify the conduits and
ducts or poles and pole facilities along the proposed route in which
Licensee desires to place or attach its facilities, and describe the
physical size, weight and jacket material of the cable which Licensee
desires to place in each conduit or duct or the number and type of
cables, apparatus enclosures and other facilities which Licensee
desires to attach to each pole.
7.1.2 Each application for a license under this Section shall be accompanied
by a proposed (or estimated) construction schedule containing the
information specified below in 10.1 of this Agreement, and an
indication of whether Licensee will, at its option, perform its own
make-ready work.
7.2 Multiple Cables, Multiple Services, Lashing or Placing Additional
Cables, and Replacement of Facilities. Licensee may include multiple
cables in a single license application and multiple services (e.g.,
CATV and non-CATV services) may be provided by Licensee in the same
cable sheath. Licensee's lashing additional cable to existing
facilities and placing additional cables in conduits or ducts already
occupied by Licensee's facilities shall be permitted, and no additional
fees will be applied; provided, however, that if Licensee desires to
lash additional cable to existing facilities of a third party Licensee
shall provide BellSouth with reasonable notice, and shall obtain
written permission
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from the owner of the existing facilities. If BellSouth determines that
the requested lashing would violate safety or engineering requirements,
BellSouth shall provide written notice to Licensee within a reasonable
time specifying in detail BellSouth's findings. If Licensee desires to
place additional cables in conduits or ducts which are already
occupied, or to replace existing facilities with new facilities
substantially different from those described in licenses in effect,
Licensee must apply for and acquire a new license specifically
describing the physical size, weight and jacket material of the cable
to be placed in BellSouth's conduits and ducts or the physical size,
weight, and jacket type of cables and the size and weight of apparatus
enclosures and other facilities to be attached to BellSouth poles.
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7.3 Each party hereby designates the employees named below as their single
point of contact for any and all purposes of this Section, including,
but not limited to, processing licenses and applications and providing
records and information. Each party may at any time designate a new
point of contact by giving written notice of such change.
NOTICES BILLING ADDRESS
------- ---------------
To License as follows:
Contact Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Title VP Operations Attention: Accounts Payable
Company KNOLOGY Holdings, Inc. KNOLOGY Holdings, Inc.
Address 0000 X.X. Xxxxxxx Xxxxx 0000 X.X. Xxxxxxx Drive
Address
City, State and Zip Code Xxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
Telephone (000) 000-0000 (000) 000-0000
Facsimile (000) 000-0000
With a copy to: Xxxxx Xxxxx
(000) 000-0000
And to Licensor as follows:
Contact Xxxx X. Xxxxxxx
Title Specialist
Company BellSouth Telecommunications, Inc.
Address North W3D2
Address 0000 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxx and Zip Code Xxxxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
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8. PROCESSING OF APPLICATIONS (INCLUDING PRELICENSE SURVEYS AND
FIELD INSPECTIONS)
8.1 Licensee's Priorities. When Licensee has multiple applications
on file with BellSouth, Licensee shall designate its desired
priority of completion of prelicense surveys and make-ready
work with respect to all such applications.
8.2 Prelicense Survey. After Licensee has submitted its written
application for a license, a prelicense survey (including a
field inspection) will be performed by either party, in the
company of a representative of the other party as mutually
agreed, to determine whether BellSouth's poles, anchors and
anchor/guy strands, or conduit system, in their present
condition, can accommodate Licensee's facilities, without
substantially interfering with the ability of BellSouth or any
other authorized person or entity to use or access the pole,
anchor or anchor/xxx xxxxxx or any portion of BellSouth's
conduit system or facilities attached to BellSouth's pole or
placed within or connected to BellSouth's conduit system. If
Licensee gives its prior written consent in writing, the
determination of duct availability may include the "rodding"
of ducts at Licensee's expense.
8.2.1 The purpose of the prelicense survey is to determine whether
Licensee's proposed attachments to BellSouth's poles or
occupancy of BellSouth's conduit and ducts will substantially
interfere with use of BellSouth's facilities by BellSouth and
others with facilities occupying, connected or attached to
BellSouth's pole or conduit system; and to provide information
to Licensee for its determination of whether the pole, anchor,
anchor/xxx xxxxxx, conduit, duct, or right-of-way is suitable
for its use.
8.2.2 Based on information provided by BellSouth, Licensee shall
determine whether BellSouth's pole, anchor, anchor/xxx xxxxxx,
conduit and duct facilities are suitable to meet Licensee's
needs.
8.2.3 BellSouth may not unreasonably refuse to continue to process
an application based on BellSouth's determination that
Licensee's proposed use of BellSouth' s facilities will not be
in compliance with applicable requirements, specifications,
rules, regulations, ordinances, and laws. Licensee shall be
responsible for making its own, independent determination that
its use of such facilities will be in compliance with such
requirements, specifications, rules, regulations, ordinances
and laws. Licensee acknowledges that BellSouth is not
explicitly or implicitly warranting to Licensee that
Licensee's proposed
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use of BellSouth's facilities will be in compliance with
applicable requirements, specifications, rules, regulations,
ordinances, and laws.
8.3 Administrative Processing. The administrative processing
portion of the prelicense survey (which includes without
limitation processing the application, preparing make-ready
work orders, notifying joint users and other persons and
entities of work requirements and schedules, coordinating the
relocation/rearrangement of BellSouth and/or other licensed
facilities) will be performed by BellSouth at Licensee's
expense. Anything to the contrary herein notwithstanding,
BellSouth shall bear no responsibility for the relocation,
rearrangement or removal of facilities used for the
transmission or distribution of electric power.
9. ISSUANCE OF LICENSES
9.1 Obligation to Issue Licenses. BellSouth shall issue a license
to Licensee pursuant to this Article 9. BellSouth and Licensee
acknowledge that each application for a license shall be
evaluated on an individual basis. Nothing contained in this
section shall be construed as abridging any independent pole
attachment fights or conduit or duct access rights which
Licensee may have under the provisions of any applicable
federal or state laws or regulations governing access to
BellSouth's poles, conduits and ducts, to the extent the same
are not inconsistent with the Telecommunications Act of 1996.
Each license issued hereunder shall be for an indefinite term,
subject to Licensee's compliance with the provisions
applicable to such license and further subject to Licensee's
right to terminate such license at any time for any reason
upon at least thirty (30) days' prior written notice.
9.2 Multiple Applications. Licensee acknowledges that multiple
parties including BellSouth may seek to place their facilities
in BellSouth's conduit and ducts at or about the same time,
that the make-ready work required to prepare BellSouth's
facilities to accommodate multiple applicants may differ from
the make-ready work required to accommodate a single
applicant, that issues relating to the proper apportionment of
costs arise in multi-applicant situations that do not arise in
single-applicant situations, and that cooperation and
negotiations between all applicants and BellSouth may be
necessary to resolve disputes involving multiple applications
for permission to place facilities in/on the same pole,
conduit, duct, or right-of-way.
9.2.1 All applications will be processed on a first-come,
first-served basis.
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9.3 Agreement to Pay for All Make-Ready Work Completed. Licensee's
submission of written authorization for make-ready work shall
also constitute Licensee's agreement to pay additional
cost-based charges, if any, for completed make-ready work.
9.4 Payments to Others for Expenses Incurred in Transferring or
Arranging Their Facilities. Licensee shall make arrangements
with the owners of other facilities located in or connected to
BellSouth's conduit system or attached to BellSouth's poles,
anchors or anchor/guy strands regarding reimbursement for any
expenses incurred by them in transferring or rearranging their
facilities to accommodate the placement or attachment of
Licensee's facilities in or to BellSouth's structures.
9.5 Make-Ready Work on an Expedited Basis. If Licensee is willing
to authorize BellSouth to perform make-ready work on an
expedited basis, and if BellSouth agrees to perform the work
on such a basis, BellSouth shall recalculate the estimated
make-ready charges. If Licensee accepts BellSouth's offer,
Licensee shall pay such additional charges, if any.
9.6 License. When Licensee's application for a pole attachment or
conduit occupancy license is approved, and all required
make-ready work completed, BellSouth will execute and return a
signed authorization to Licensee, as appropriate, authorizing
Licensee to attach or place the specified facilities on
BellSouth's poles or in BellSouth's conduit or ducts.
9.6.1 Each license issued under this Section shall authorize
Licensee to attach to BellSouth's poles or place or maintain
in BellSouth's conduit or ducts only those facilities
specifically described in the license, and no others.
9.6.2 Except as expressly stated to the contrary in individual
licenses issued hereunder, each license issued pursuant to
this Section shall incorporate all terms and conditions of
this Section whether or not such terms or conditions are
expressly incorporated by reference on the face of the license
itself.
10. CONSTRUCTION OF LICENSEE'S FACILITIES
10.1 Construction Schedule. Licensee shall submit with Licensee's
license application a proposed or estimated construction
schedule. Promptly after the issuance of a license permitting
Licensee to attach facilities to BellSouth's poles or place
facilities in BellSouth's conduit or ducts,
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Licensee shall provide BellSouth with an updated construction
schedule and shall thereafter keep BellSouth informed of
significant anticipated changes in the construction schedule.
Construction schedules required by this Section shall include,
at a minimum, the following information:
10.1.1 The name, title, business address, and business telephone
number of the manager responsible for construction of the
facilities;
10.1.2 The names of each contractor and subcontractor which will be
involved in the construction activities;
10.1.3 The approximate dates when construction will begin and end;
and
10.1.4 The approximate dates when Licensee or persons acting on
Licensee's behalf will be performing construction work in
connection with the placement of Licensee's facilities in
BellSouth's conduit or ducts.
10.2. Additional Pre-construction Procedures for Facilities Placed
in Conduit System. The following procedures shall apply before
Licensee places facilities in BellSouth's conduit system:
10.2.1 Licensee shall give written notice of the type of facilities
which are to be placed; and
10.2.2 BellSouth shall designate the particular duct or ducts or
inner ducts (if available) to be occupied by Licensee's
facilities, the location and manner in which Licensee's
facilities will enter and exit BellSouth's conduit system, and
the specific location and manner of installation of any
associated equipment which is permitted by BellSouth to occupy
the conduit system. Licensee may not occupy a duct other than
the specified duct without the express written consent of
BellSouth. BellSouth shall provide to Licensee space in
manholes for racking and storage of up to fifty (50) feet of
cable, provided space is available.
10.3 BellSouth Not Responsible for Constructing or Placing
Facilities. BellSouth shall have no obligation to construct
any facilities for Licensee or to attach Licensee's facilities
to, or place Licensee's facilities in, BellSouth's poles or
conduit system, except as may be necessary to facilitate the
interconnection of unbundled network elements or except to the
extent expressly provided in this Section, any license issued
hereunder, or by the Telecommunications Act of 1996 or any
other applicable law.
10.4 Licensee Responsible for Constructing, Attaching and Placing
Facilities. Except where otherwise mutually agreed by Licensee
and
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BellSouth, Licensee shall be responsible for constructing its
own facilities and attaching those facilities to, or placing
them in BellSouth's poles, conduit or ducts at Licensee's sole
cost and expense. Licensee shall be solely responsible for
paying all persons and entities who provide materials, labor,
access to real or personal property, or other goods or
services in connection with the construction and placement of
Licensee's facilities and for directing the activities of all
persons acting on Licensee's behalf while they are physically
present on BellSouth's pole, in any part of BellSouth's
conduit system or in the vicinity of BellSouth's poles or
conduit system.
10.5 Compliance with Applicable Standards, Health and Safety
Requirements, and Other Legal Requirements. Licensee shall
construct its facilities in accordance with the provisions of
this Section and all licenses issued hereunder.
10.5.1 Licensee shall construct, attach and place its facilities in
compliance with all Requirements and Specifications set forth
above in this Agreement.
10.5.2 Licensee shall satisfy all Legal Requirements set forth above
in this Agreement.
10.5.3 Licensee shall not permit any person acting on Licensee's
behalf to perform any work on BellSouth's poles or within
BellSouth's conduit system without first verifying, to the
extent practicable, on each date when such work is to be
performed, that the condition of the pole or conduit system is
suitable for the work to be performed. If Licensee or any
person working on Licensee's behalf determines that the
condition of the pole or conduit system is not suitable for
the work to be performed, Licensee shall notify BellSouth of
the condition of the pole or conduit system in question and
shall not proceed with construction activities until Licensee
is satisfied that the work can be safely performed.
10.6 Construction Notices. If requested to do so, Licensee shall
provide BellSouth with information to reasonably assure
BellSouth that construction has been performed in accordance
with all applicable standards and requirements.
10.7 Points for Attachment. BellSouth shall specify, using the same
selection criteria it uses for its own operating company, the
point of attachment of each pole or anchor to be occupied by
Licensee's facilities. When the facilities of more than one
applicant are involved,
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BellSouth will attempt, to the extent practicable, to
designate the same relative position on each pole or anchor
for each applicant's facilities.
10.8 Manhole and Conduit Break-Outs. Licensee shall be permitted to
add conduit ports to BellSouth manholes when existing conduits
do not provide the pathway connectivity needed by Licensee;
provided the structural integrity of the manhole is
maintained, and sound engineering judgment is employed.
11. USE AND ROUTINE MAINTENANCE OF LICENSEE'S FACILITIES
11.1 Use of Licensee's Facilities. Each license granted under this
Section authorizes Licensee to have access to Licensee's
facilities on or in BellSouth's poles, conduits and ducts as
needed for the purpose of serving Licensee's customers,
including, but not limited to, powering electronics,
monitoring facilities, or transporting signaling.
11.2 Routine Maintenance of Licensee's Facilities. Each license
granted under this Section authorizes Licensee to engage in
routine maintenance of Licensee's facilities located on or in
BellSouth's poles, conduits, ducts and ROW pursuant to xx.xx
license. Licensee shall give reasonable notice to the affected
public authority or private landowner as appropriate before
commencing the construction or installation of its attachments
or making any material alterations thereto. Licensee shall
give reasonable notice to BellSouth before performing any
work, whether or not of a routine nature, in BellSouth's
conduit system.
11.3 Licensee Responsible for Maintenance of Licensee's Facilities.
Licensee shall maintain its facilities in accordance with the
provisions of this Section (including but not limited to all
requirements set forth above in this Agreement) and all
licenses issued hereunder. Licensee shall be solely
responsible for paying all persons and entities who provide
materials, labor, access to real or personal property, or
other goods or services in connection with the maintenance of
Licensee's facilities and for directing the activities of all
persons acting on Licensee's behalf while they are physically
present on BellSouth's poles, within BellSouth's conduit
system or in the immediate vicinity of such poles or conduit
system.
11.4 BellSouth Not Responsible for Maintaining Licensee's
Facilities. BellSouth shall have no obligation to maintain any
facilities which Licensee has attached or connected to, or
placed in, BellSouth's poles, conduits, ducts or any portion
of BellSouth's conduit system, except to
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the extent expressly provided by the provisions of this
Section or any license issued hereunder, or by the
Telecommunications Act of 1996 or other applicable laws, rules
or regulations.
11.5 Information Concerning the Maintenance of Licensee's
Facilities. Promptly after the issuance of a license
permitting Licensee to attach facilities to, or place
facilities in BellSouth's poles, conduits or ducts, Licensee
shall provide BellSouth with the name, title, business
address, and business telephone number of the manager
responsible for routine maintenance of Licensee's facilities,
and shall thereafter notify BellSouth of changes to such
information. The manager responsible for routine maintenance
of Licensee's facilities shall, on BellSouth's request,
identify any contractor, subcontractor, or other person
performing maintenance activities on Licensee's behalf at a
specified site and shall, on BellSouth's request, provide such
additional documentation relating to the maintenance of
Licensee's facilities as reasonably necessary to demonstrate
that Licensee and all persons acting on Licensee's behalf are
complying with the requirements of this Section and licenses
issued hereunder.
11.6 Identification of Personnel Authorized to Have Access to
Licensee's Facilities. All personnel authorized to have access
to Licensee's facilities shall, while working on BellSouth's
poles, in its conduit system or ducts or in the vicinity of
such poles, ducts or conduit systems, carry with them suitable
identification and shall, upon the request of any BellSouth
employee, produce such identification.
12. MODIFICATION AND REPLACEMENT OF LICENSEE'S FACILITIES
12.1 Notification of Planned Modification or Replacement of
Facilities. Licensee shall, when practicable, notify BellSouth
in writing at least 60 days before adding to, relocating,
replacing or otherwise modifying its facilities attached to a
BellSouth pole, anchor or anchor/xxx xxxxxx or located in any
BellSouth conduit or duct. The notice shall contain sufficient
information to enable BellSouth to determine whether the
proposed addition, relocation, replacement, or modification is
permitted under Licensee's present license or requires a new
or amended license.
12.2 New or Amended License Required. A new or amended license will
be required if the proposed addition, relocation, replacement,
or modification:
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12.2.1 Requires that Licensee use additional space on BellSouth's
poles or in its conduits or ducts (including but not limited
to any additional ducts, inner ducts, or substantial space in
any handhole or manhole) on either a temporary or permanent
basis; or
12.2.2 Results in the size or location of Licensee's facilities on
BellSouth's poles or in its conduit or ducts being appreciably
different from those described and authorized in Licensee's
present license (e.g. different duct or size increase causing
a need to re-calculate storm loadings, guying, or pole class).
13. REARRANGEMENT OF FACILITIES AT THE REQUEST OF ANOTHER
13.1 Make-Ready Work at the Request of Licensee. If, prior to the
issuance of a license, Licensee determines that any pole,
anchor, anchor/xxx xxxxxx, conduit or duct is inadequate to
accommodate Licensee's proposed pole attachment or conduit
occupancy or that it will be necessary or desirable for
BellSouth or any other person or entity to rearrange existing
facilities or structures to accommodate Licensee, Licensee
shall promptly advise BellSouth of the make-ready work it
believes necessary to enable the accommodation of Licensee's
facilities.
13.1.1 BellSouth shall determine, in the exercise of sound
engineering judgment, whether or what make-ready work is
necessary or possible. In determining whether make-ready work
is necessary or what make-ready work is necessary, BellSouth
shall endeavor to minimize its costs to Licensee. If it is
determined that such make-ready work is required, BellSouth
shall provide Licensee with the estimated costs for make-ready
work and a Make Ready Due Date.
13.1.2 Licensee shall be solely responsible for negotiating with
persons or entities other than BellSouth for the rearrangement
of such persons' or entities' facilities or structures and,
except where such rearrangement is for the benefit of
BellSouth and/or other licensees as well as Licensee, shall be
solely responsible for paying all charges attributable to the
rearrangement of such facilities; provided, however, that if
facilities rearrangements require new licenses from BellSouth,
BellSouth shall issue such licenses in conjunction with the
issuance of the applied-for license to Licensee.
13.2 Rearrangement of Licensee's Facilities at BellSouth's Request.
Licensee acknowledges that, from time to time, it may be
necessary or desirable for BellSouth to change out poles,
relocate, reconstruct, or modify portions of its conduit
system or rearrange facilities contained
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therein or connected thereto and that such changes may be
necessitated by BellSouth's business needs or authorized
application of another entity seeking access to BellSouth's
poles or conduit systems. Licensee agrees that Licensee will,
upon BellSouth's request, and at BellSouth's expense, but at
no cost to Licensee, participate with BellSouth (and other
licensees) in the relocation, reconstruction, or modification
of BellSouth's conduit system or facilities rearrangement.
Licensee acknowledges that, from time to time, it may be
necessary or desirable for BellSouth to change out poles,
relocate, reconstruct, or modify portions of its conduit
system or rearrange facilities contained therein or connected
thereto as a result of an order by a municipality or other
governmental authority. Licensee shall, upon BellSouth's
request, participate with BellSouth (and other licensees) in
the relocation, reconstruction, or modification of BellSouth's
conduit system or facilities rearrangement and pay its
proportionate share of any costs of such relocation,
reconstruction, or modification that are not reimbursed by
such municipality or governmental authority.
13.2.1 Licensee shall make all rearrangements of its facilities
within such period of time as is jointly deemed reasonable by
the parties based on the amount of rearrangements necessary
and a desire to minimize chances for service interruption or
facility-based service denial to a Licensee customer.
13.2.2 If Licensee fails to make the required rearrangements within
the time prescribed or within such extended periods of time as
may be granted by BellSouth in writing, BellSouth may perform
such rearrangements with written notice to Licensee, and
Licensee shall reimburse BellSouth for actual costs and
expenses incurred by BellSouth in connection with the
rearrangement of Licensee's facilities; provided, however,
that nothing contained in this Section or any license issued
hereunder shall be construed as requiring Licensee to bear any
expenses which, under the Telecommunications Act of 1996 or
other applicable federal or state laws or regulations, are to
be allocated to persons or entities other than Licensee; and
provided further, however, that Licensee shall have no
responsibility for rearrangement costs and expenses relating
to rearrangements performed for the purpose of meeting
BellSouth's business needs.
14. EMERGENCY REPAIRS AND POLE REPLACEMENTS
14.1 Licensee Responsible for Emergency Repairs to its Own
Facilities. In general, Licensee shall be responsible for
making emergency repairs to its own facilities and for
formulating appropriate plans and practices
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which will enable it to make such emergency repairs. BellSouth
shall be under no obligation to perform any repair or service
restoration work of any kind with respect to Licensee's
facilities.
15. INSPECTION BY BELLSOUTH OF LICENSEE'S FACILITIES
15.1 BellSouth's Right to Make Periodic or Spot Inspections.
BellSouth shall have the right to make periodic or spot
inspections at any time of any part of Licensee's facilities
attached to BellSouth's poles, anchors or anchor/guy strands
or occupying any BellSouth conduit or duct for the limited
purpose of determining whether Licensee's facilities are in
compliance with the terms of this Section and licenses
hereunder; provided that such inspections must be non-invasive
(e.g., no splice cases may be opened).
15.1.1 BellSouth will give Licensee advance written notice of such
inspections, and Licensee shall have the right to have a
representative attend such inspections, except in those
instances where safety considerations justify the need for
such inspection without the delay of waiting until written
notice has been forwarded to Licensee.
15.1.2 Such inspections shall be conducted at BellSouth's expense;
provided, however, that Licensee shall bear the cost of
inspections as delineated in 3.12.
15.2 No Duty to Licensee. Neither the act of inspection by
BellSouth of Licensee's facilities nor any failure to inspect
such facilities shall operate to impose on BellSouth any
liability of any kind whatsoever or to relieve Licensee of any
responsibility, obligations or liability under this Section or
otherwise existing.
16. NOTICE OF NONCOMPLIANCE
16.1 Notice of Noncompliance. If, at any time, BellSouth determines
that Licensee's facilities or any part thereof have not been
placed or maintained or are not being used in accordance with
the requirements of this Agreement, BellSouth may send written
notice to Licensee specifying the alleged noncompliance.
Licensee agrees to acknowledge receipt of the notice as soon
as practicable. If Licensee does not dispute BellSouth's
assertion that such facilities are not in compliance, Licensee
agrees to provide BellSouth with a schedule for bringing such
facilities into compliance, to bring the facilities into
compliance within a reasonable time, and to notify BellSouth
in writing when the facilities have been brought into
compliance.
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16.2 Disputes over Alleged Noncompliance. If Licensee disputes
BellSouth's assertion that Licensee's facilities are not in
compliance, Licensee shall notify BellSouth in writing of the
basis for Licensee's assertion that its facilities are in
compliance.
16.3 Failure to Bring Facilities into Compliance. If Licensee has
not brought the facilities into compliance within a reasonable
time or provided BellSouth with proof sufficient to persuade
BellSouth that BellSouth erred in asserting that the
facilities were not in compliance, and if BellSouth determines
in good faith that the alleged noncompliance causes or is
likely to cause material damage to BellSouth's facilities or
those of other users, BellSouth may, at its option and
Licensee's expense, take such non-service affecting steps as
may be required to bring Licensee's facilities into
compliance, including but not limited to correcting any
conditions which do not meet the specifications of this
Agreement.
16.4 Correction of Conditions by BellSouth. If BellSouth elects to
bring Licensee's facilities into compliance, the provisions of
this Section shall apply.
16.4.1 BellSouth will, whenever practicable, notify Licensee in
writing before performing such work. The written notice shall
describe the nature of the work to be performed and
BellSouth's schedule for performing the work.
16.4.2 If Licensee's facilities have become detached or partially
detached from supporting racks or wall supports located within
a BellSouth manhole, BellSouth may, at Licensee's expense,
reattach them but shall not be obligated to do so. If
BellSouth does not reattach Licensee's facilities, BellSouth
shall endeavor to arrange with Licensee for the reattachment
of any facilities affected.
16.4.3 BellSouth shall, as soon as practicable after performing the
work, advise Licensee in writing of the work performed or
action taken. Upon receiving such notice, Licensee shall
inspect the facilities and take such steps as Licensee may
deem necessary to insure that the facilities meet Licensee's
performance requirements.
16.5 Licensee to Bear Expenses. Licensee shall bear all expenses
arising out of or in connection with any work performed to
bring Licensee's facilities into compliance with this Section;
provided, however that nothing contained in this Section or
any license issued hereunder shall be construed as requiring
Licensee to bear any expenses which, under
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applicable federal or state laws or regulations, must be borne
by persons or entities other than Licensee.
17. UNAUTHORIZED OCCUPANCY OR UTILIZATION OF BELLSOUTH'S
FACILITIES
17.1 Licensing or Removal of Unauthorized Attachments. If any of
Licensee's attachments shall be found attached to pole(s) or
occupying conduit systems for which no license is outstanding,
BellSouth, without prejudice to its other rights or remedies
under this Agreement, including termination of licenses, may
impose a charge and require Licensee to submit in writing,
within thirty (30) days after receipt of written notification
from BellSouth of the unauthorized attachment or conduit
occupancy, a pole attachment or conduit occupancy license
application. If such application is not received by BellSouth
within the specified time period, Licensee may be required at
BellSouth's option to remove its unauthorized attachment or
occupancy within sixty (60) days of the final date for
submitting the required application, or BellSouth may at
BellSouth's option remove Licensee's facilities without
liability, and the expense of such removal shall be borne by
Licensee. Charges for any such unauthorized occupancy shall be
equal to the applicable license fees and charges which would
have been payable from and after the date such facilities were
first placed on BellSouth's poles or in BellSouth's conduit
system, if Licensee provides reasonable documentation of such
placement. If Licensee is unable to provide such reasonable
documentation, then Licensee will pay two years worth of the
applicable charges.
17.1.1 Nothing contained in the Agreement or any license issued
hereunder shall be construed as requiring Licensee to bear any
expenses which, under applicable federal or state laws or
regulations, must be borne by persons or entities other than
Licensee.
17.2 Prompt Payment of Applicable Fees and Charges. Fees and
charges for pole attachments and conduit system occupancies,
as specified herein and as modified from time to time, shall
be due and payable immediately whether or not Licensee is
permitted to continue the pole attachment or conduit
occupancy. See Appendix I for applicable annual rental fees.
17.3 No Implied Waiver or Ratification of Unauthorized Use. No act
or failure to act by BellSouth with regard to said unlicensed
use shall be deemed as a ratification of the unlicensed use;
and if any license should be subsequently issued, said license
shall not operate
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retroactively or constitute a waiver by BellSouth of any of
its rights or privileges under this Agreement or otherwise;
provided, however, that Licensee shall be subject to all
liabilities, obligations and responsibilities of this
Agreement in regard to said unauthorized use from its
inception.
18. REMOVAL OF LICENSEE'S FACILITIES
18.1 Pole Attachments. Licensee, at its expense, will remove its
attachments from any of BellSouth's poles within thirty (30)
days after termination of the license covering such
attachments. If Licensee fails to remove its attachments
within such thirty (30) day period, BellSouth shall have the
right to remove such attachments at Licensee's expense and
without any liability on the part of BellSouth for damage or
injury to Licensee's attachments unless caused by the
negligence or intentional misconduct of BellSouth.
18.2 Conduit Occupancy. Licensee, at its expense, will remove its
communications facilities from a conduit system within sixty
(60) days after:
18.2.1 Termination of the license covering such conduit occupancy; or
18.2.2 The date Licensee replaces its existing facilities in one duct
with substitute facilities in another duct.
18.2.3 If Licensee fails to remove its facilities within the
specified period, BellSouth shall have the right to remove
such facilities at Licensee's expense and without any
liability on the part of BellSouth for damage or injury to
such facilities unless caused by the negligence or intentional
misconduct of BellSouth.
18.3 Continuing Responsibility for Fees and Charges. Licensee shall
remain liable for and pay to BellSouth all fees and charges
pursuant to provisions of this Agreement until all of
Licensee's facilities are physically removed from BellSouth's
poles or conduit system.
19. FEES, CHARGES, AND BILLING
19.1 License Charges. License charges commence on the first day of
the calendar month following the date a license is issued.
Such charges cease as of the final day of the calendar month
preceding the month in which the attachment or occupancy is
physically removed or the
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utilization is discontinued. A one-month minimum charge is
applicable to all licenses.
19.2 Notice of Rate and Computation of Charges. On or about
November 1 of each year, BellSouth will notify Licensee by
certified mail, return receipt requested, of the rental rate
and pole transfer rate to be applied in the subsequent
calendar year. The letter of notification shall be
incorporated in, and governed by, the terms and conditions of
this Agreement. Attachment and occupancy rates shall be
applied to the number of pole(s) and duct feet of conduit for
which licenses have been issued before December 1 of each
calendar year. Charges for attachment(s) and occupancy which
commenced during the preceding twelve (12) month period will
be prorated accordingly.
20. ADVANCE PAYMENT AND IMPUTATION
20.1 Attachment and Occupancy Fees. Fees for pole attachment and
conduit occupancy shall be based on the facilities for which
licenses have been issued as of the date of billing by
BellSouth, shall be computed as set forth herein.
20.1.1 Charges associated with newly licensed attachments or
occupancies and other attachments or occupancies of less than
the entire annual billing period shall be prorated.
20.1.2 Charges shall be prorated retroactively in the event of the
removal of Licensee's facilities.
20.1.3 The amount of any advance payment required shall be due within
sixty (60) days after receipt of an invoice from BellSouth.
20.2 Imputation. BellSouth shall impute to its costs of providing
telecommunications services (and charge any affiliate,
subsidiary, or associate company engaged in the provision of
such services) an equal amount to the charges set forth in
this Section for all of the conduits, ducts, and poles it
occupies and uses.
21. ASSURANCE OF PAYMENT
21.1 Necessity and Level of Security. In the event Licensee fails
to demonstrate credit worthiness, Licensee may be required to
furnish a bond, letter of credit or other evidence of
financial security having a minimum face amount of $10,000.00
per state or $50,000.00 per region. Such bond, letter of
credit or other security shall be in a form
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satisfactory to BellSouth and may be increased from time to
time as reasonably required by BellSouth to guarantee the
performance of all obligations of Licensee hereunder. The
amount of the bond, letter of credit or other security shall
not operate as a limitation upon the obligations of Licensee
hereunder.
22. INSURANCE
22.1 Licensee shall obtain and maintain insurance (or provide
written evidence of being self-insured), including
endorsements insuring the contractual liability and
indemnification provisions of this Agreement, issued by an
insurance carrier reasonably satisfactory to Licensor to
protect the Licensor, other authorized Licensees, and Joint
User(s) from and against all claims demands, causes of action,
judgments, costs, including reasonable attorneys' fees,
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 this Agreement
including Article XIV preceding.
22.2 Licensee shall maintain the following amounts of insurance in
compliance with (22.1) above:
22.2.1 Commercial General Liability Insurance with limits of not less
than $1,000,000 per occurrence and $1,000,000 annual
aggregate.
22.2.2 Umbrella or Excess Liability Insurance with limits of not less
than $10,000,000 per occurrence and in the aggregate.
22.3 Licensee shall submit to Licensor certificates by each company
insuring Licensee with respect to any insurance required
hereunder, such certificate(s) to specify the coverage
provided and that such company will not cancel or change any
such policy of insurance issued to Licensee except after sixty
(60) days written notice to Licensor.
22.4 Licensee shall also carry such insurance as will protect it
from all claims under any Worker's Compensation Law in effect
that may be applicable to it as a result of work performed
pursuant to this Agreement.
22.5 All insurance required in accordance with 22.2) and 22.3)
preceding must be effective before Licensor will authorize
attachment to a Pole and/or Anchor, or occupancy of a Conduit
System and shall remain in force until such Licensee's
facilities have been removed from all such Pole(s), Anchor(s),
Conduit System, or Right of Way. In the event that the
Licensee shall fail to maintain the required insurance
coverage,
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Licensor may pay any premium thereon falling due, and the
Licensee shall forthwith reimburse the Licensor for any such
premium paid.
22.6 Licensee may self-insure any or all of the insurance coverages
required in the Agreement.
23. AUTHORIZATION NOT EXCLUSIVE
23.1 Nothing herein contained shall be construed as a grant of any
exclusive authorization, right or privilege to Licensee.
BellSouth 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, Anchor, or Conduit
System covered by this Agreement and Licensee's rights
hereunder.
24. ASSIGNMENT OF RIGHTS
24.1 Licensee shall not assign or transfer this Agreement or any
license or any authorization granted under this Agreement, and
this Agreement shall not inure to the benefit of Licensee's
successors or assigns, without the prior written consent of
BellSouth. BellSouth shall not unreasonably withhold such
consent.
24.2 Not withstanding the above, BellSouth hereby consents to
assignment by Licensee of this Agreement any license and
authorization granted under this agreement to any entity
controlling, controlled by or under common control with the
Licensee.
24.3 In the event such consent or consents are granted by
BellSouth, then the provisions of this Agreement shall apply
to and bind the successors and assigns of the Licensee. Form
NT-13 shall be used for this purpose.
25. FAILURE TO ENFORCE
25.1 Failure of BellSouth 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.
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26. TERM OF AGREEMENT
Unless sooner terminated as herein provided, this Agreement
shall continue in effect for a term of one (1) year from the
date hereof and thereafter from year to year until either
party hereto terminates this Agreement by giving the other
party at least ninety (90) days prior written notice thereof.
Such ninety (90) days notice of termination may be given to
take effect at the end of the original one (1) year period or
any time thereafter.
26.1 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.
27. SUPERSEDURE OF PREVIOUS AGREEMENT(S)
27.1 This Agreement supersedes all previous agreements, whether
written or oral, between BellSouth and Licensee for attachment
and maintenance of Licensee's Communications Facilities on
Pole(s), Anchor(s), and in Conduit Systems within the
geographical area covered by this Agreement; and there are no
other provisions, terms or conditions to this Agreement except
as expressed herein. All currently effective licenses
heretofore granted pursuant to such previous agreements shall
be subject to the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
on the day and year written below.
KNOLOGY HOLDINGS, INC. BELLSOUTH TELECOMMUNICATIONS, INC.
Name of Licensee Name of Licensor
By: By:
/s/ Xxxx X. XxXxxxx /s/ Xxxxxxx Xxxxx
------------------------- -------------------------
Signature Signature
Xxxx X. XxXxxxx Xxxxxxx Xxxxx
------------------------- -------------------------
Printed Name Printed Name
VP - Construction Vice President NSP&S
------------------------- -------------------------
Printed Title Printed Title
2/20/98 2/27/98
------------------------- -------------------------
Date Date
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APPENDIX I
1998 FCC FORMULA SUPPORTED FEES
(Re-calculated annually)
Licensee shall pay to Licensor the following fees:
----------------------------------------------------------------------------------------------------------------------
STATE POLES ANCHORS CONDUIT
(ea. / yr.) (ea. / yr.)
----------------------------------------------------------------------------------------------------------------------
($ / ft. / yr.)
----------------------------------------------------------------------------------------------------------------------
Alabama $3.46 $4.89 $0.40
----------------------------------------------------------------------------------------------------------------------
Kentucky # 0.70
----------------------------------------------------------------------------------------------------------------------
2-user 9.45 $12.90
----------------------------------------------------------------------------------------------------------------------
3-user 5.35 8.60
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Louisiana 8.30 .64
----------------------------------------------------------------------------------------------------------------------
Mississippi 4.89 2.50*
----------------------------------------------------------------------------------------------------------------------
Tennessee 5.13 .59
----------------------------------------------------------------------------------------------------------------------
Florida 4.26 .80
----------------------------------------------------------------------------------------------------------------------
Miami River Crossing 17.13
----------------------------------------------------------------------------------------------------------------------
Georgia** 4.20 .56
----------------------------------------------------------------------------------------------------------------------
North Carolina 4.16 .59
----------------------------------------------------------------------------------------------------------------------
South Carolina 3.31 .48
----------------------------------------------------------------------------------------------------------------------
# All rates in Kentucky are by tariff
* Tariff rate in Mississippi
** Per Docket 7061-U; differs from FCC supported rates
i) For the purpose of determining the Duct feet chargeable, the Duct
considered occupied shall be measured from the center to center of
adjacent Manhole(s), or from the center of a Manhole to the end of a Duct
not terminated in a Manhole.
ii) The above rates are not applicable for crossings of any navigable
waterway. Rates for navigable waterway crossings will be calculated on an
individual case basis.
POLE ATTACHMENT TRANSFER RATE
Per pole (throughout BellSouth region) $41.00
45
APPENDIX II
RECORDS MAINTENANCE CENTERS
For ALABAMA plant and right of way records:
Records Maintenance Center
S04
0000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
For KENTUCKY plant and right of way records:
Records Maintenance Center
Room 2-SW
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
For LOUISIANA plant and right of way records:
Records Xxxxxxxxxxx Xxxxxx
0xx Xxxxx Xxxxx
0000 Xxxxx Xxxx
Xxx Xxxxxxx, XX 00000
For MISSISSIPPI plant and right of way records:
Records Maintenance Center
0000 Xxx. 00 X
Xxxxxxx, XX 00000
For TENNESSEE plant and right of way records:
Records Maintenance Center
Room 9 B 15
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
For GEORGIA, FLORIDA, NORTH CAROLINA, AND SOUTH CAROLINA:
Plant Records Right of Way Records
------------- --------------------
Records Maintenance Center Regional Landbase Admin. Center
0000 Xxxxxxx Xxxxxx Xxxx.: Right of Way Records
Xxxxxxxxx, XX 00000 16 GG 1 BST
000 X. Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
