EXHIBIT 10.11
LICENSE AGREEMENT
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THIS LICENSE AGREEMENT ("Agreement") is entered into as of the 17th
day of June, 1997, by and between BOSTON EDISON COMPANY, a Massachusetts
corporation ("Licensor") and BECOCOM, INC., a Massachusetts corporation
("Licensee").
Recitals:
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A. Licensor is the owner in fee of or holder of rights of access
to various parcels of real property ("Equipment Sites") and either owner or
holder of easements and other rights for transmission and distribution line
rights of way ("Rights of Way") in various parcels of real property and public
ways situated in cities and towns throughout eastern Massachusetts, which
Licensor utilizes in its business of producing and delivering electricity and
related services ("Licensor's Business"). Licensee is a party to that certain
"Construction and Indefeasible Right of Use Agreement" dated of even date
herewith ("IRU Agreement"), by and between Licensee and RCN-BecoCom, LLC, a
Massachusetts limited liability company ("Carrier"). Licensee desires to
license from Licensor the right to use (and to grant to Carrier under the IRU
Agreement the right to use) certain portions of one or more of such Equipment
Sites and Rights of Way for the purpose of constructing and maintaining thereon
certain telecommunications facilities ("Facilities") operated and utilized by
Carrier in its business of providing voice, video, data and other
telecommunications services ("Services") to its customers in the Relevant
Market, as defined in the IRU Agreement ("Business").
B. Licensor is the owner of certain fiber optic cable installed by
Licensor on the Rights of Way and Equipment Sites (the "Existing Facilities").
Licensee desires to obtain an indefeasible right to use the Existing
Facilities (excluding certain dedicated fibers reserved for Licensor's
exclusive use in the operation of Licensor's Business) for purposes of
granting similar rights with respect to such Existing Facilities to Carrier
for use in the Business, pursuant to the terms of the IRU Agreement.
C. Licensor has the capability of providing certain engineering,
design, construction and maintenance services in connection with the design,
installation and maintenance of Facilities and Licensee desires to obtain such
services from Licensor from time to time with respect to the Facilities to be
provided under the IRU Agreement.
D. Licensor is willing to provide such rights and services to
Licensee, upon and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
promises of the parties set forth herein, the parties hereby agree as follows:
All capitalized terms used herein and not otherwise defined shall
have the same meaning assigned to them in the IRU Agreement. Each individual
parcel of real property in which Licensor holds an interest shall be referred
to as the "Premises," and each location within the Premises which the Licensee
desires to license and use, subject to the license hereunder, shall be
referred to individually as an "Equipment Site" or "Site," and collectively as
"Equipment Sites" or "Sites."
1.0 MASTER LICENSE AGREEMENT
1.1 General Intent. It is the general intent of the parties that
the Licensor hereby grant to Licensee such rights and provide to Licensee such
services as may be required, or requested by Licensee from time to time, in
order to permit Licensee to perform its obligations to Carrier under the IRU
Agreement. Notwithstanding anything to the contrary set forth herein, nothing
herein shall obligate Licensor to take any action, or refrain from taking any
action, which would, in Licensor's reasonable opinion, adversely affect the
operation of Licensor's Business.
1.2 License of Existing Facilities. Licensor hereby grants to
Licensee an exclusive, indefeasible and non-cancelable right to use the
Existing Facilities for the conduct of the Business during the Term, with the
exception of up to twelve (12) strands of fiber optic filament reserved for
Licensor's exclusive use (the "Reserved Dedicated Fiber"). Included in the
license with respect to the Existing Facilities is the license to use, at no
additional charge, 150 square feet of space and egress to the distribution
system at each of approximately 24 access points along the route of the
Existing Facilities, as identified on Schedule 1.2 attached.
1.3 License of Rights of Way. Licensor hereby grants to Licensee,
solely with respect to the provision of the Services, an exclusive,
indefeasible and non-cancelable right of access to and use of the Rights of
Way, now owned or hereafter acquired, for the installation and maintenance of
the Facilities, subject to the exceptions relative to exclusivity stated in
Section 5(c)(ii) of the IRU Agreement.
1.4 License of Equipment Sites. Licensor hereby agrees to provide
sufficient space to Licensee to accommodate new Facilities at Equipment Sites,
now owned or hereafter acquired, to the extent required under, and subject to
the limitations set forth in, Section 5(b) of the IRU Agreement.
1.5 License to Construct in Power Space. Subject to the terms and
conditions of this Agreement, Licensor hereby grants to Licensee the exclusive
right to install, maintain and operate new Facilities (including any
Facilities necessary to complete Licensor's fiber optic network) in those
portions of the Rights of Way normally and primarily utilized for the
transmission and distribution of electric power, which space is (a) in the
case of above-ground Rights of Way located on distribution poles, space from
the top of such poles to the communications space, including the neutral
space; (b) in the case of above-ground Rights of Way located on transmission
towers, all space located thereon, except as designated by Licensor, and (c)
in the case of below-ground Rights of Way, all space located therein (the
"Power Space"). Nothing herein shall affect Licensor's continuing right to
use the Equipment Sites and Rights of Way for Licensor's Business.
2.0 EQUIPMENT SITE LICENSE
2.1 This Agreement contains the general terms and conditions
applicable to all Equipment Sites (other than Sites where Existing Facilities
are located) which may from time to time be licensed by Licensor to Licensee.
When the parties have identified a particular Equipment Site, and agreed on
any site-specific terms applicable to such individual Equipment Site, the
parties will execute a completed Site License Addendum ("SLA") in the form
attached as Schedule 2.1. Each executed SLA shall be an integral part of this
Agreement. In the event of a discrepancy or inconsistency between the terms
and conditions of any SLA and this Agreement, the terms and conditions of the
SLA shall control.
2.2 Subject to the terms and conditions contained in this Agreement
and the applicable SLA, Licensor licenses to Licensee that portion of the
Premises described as the Equipment Site on the SLA. The Premises of which
the Equipment Site is a part, and, if any, the structure owned by Licensor
located on the Equipment Site, will be described in the SLA. Each Equipment
Site will comprise the following components, to the extent applicable: (a)
ground area (expressed in terms of square feet) reasonably necessary for
placement and operation of the Facilities to be located thereon, and (b) space
on Licensor's structure, if any (expressed in terms of vertical feet and
degrees horizontally) on which all or a portion of the Facilities may be
mounted. The SLA will contain a description of the equipment comprising all
or a part of the Facilities to be located on the Equipment Site by mutual
agreement of the parties.
2.3 Licensee shall, at Licensee's sole cost and expense, comply
with all laws, orders, ordinances, regulations and directives of applicable
federal, state, county, and municipal authorities or regulatory agencies
having jurisdiction over the Facilities, the Equipment Site, or Business,
including, without limitation, the Federal Communications Commission ("FCC").
Licensor makes no representations or warranties concerning the ability of
Licensee to use the Equipment Site for the Business under applicable law, nor
about the physical suitability of the Equipment Site for the Business, or for
any other purposes.
2.4 Licensor agrees reasonably to cooperate with Licensee, at
Licensee's cost and expense, in executing such documents or applications as
may be required in order for Licensee to obtain such governmental licenses,
permits or approvals as may be necessary for the Business; provided, that
nothing herein shall be construed to require Licensor to act as surety,
guarantor or indemnitor on behalf of Licensee, or to assent to any
restrictions, conditions or limitations which would have an adverse impact on
Licensor's continued operations at the Premises.
2.5 Licensee shall install, operate and maintain the Facilities in
a manner that does not interfere with the Licensor's Business on the Equipment
Site.
2.6 Licensee shall not bring to, store, use, transport across,
release or dispose of any oil or hazardous materials or wastes on any Site,
except with the prior approval of Licensor, which approval shall not be
unreasonably withheld or delayed. Licensee's storage, use, transportation,
disposal and release of any hazardous materials shall comply with all
applicable laws, ordinances, and regulations governing such materials. In the
event of any spill, leak or other release or discharge to the environment,
Licensee shall, in addition to any other requirements imposed by relevant law
or regulation, follow the notification and other procedures established by the
Licensor and described on Schedule 2.6 attached hereto.
3.0 TERM
3.1 Term. This Agreement shall become effective on the date of
execution and delivery by both parties, and shall expire on December 31, 2060
(the "Term"). Each SLA shall become effective on the date of execution
thereof (the "Commencement Date") and shall remain in effect for the balance
of the Term.
3.2 Early Entry. Licensee may enter the Premises before the
Commencement Date, to the extent such entry is related to engineering surveys,
soil borings and inspections, or other reasonably necessary tests required
prior to construction and installation of the Facilities. All such
inspections and tests shall be at Licensee's sole risk, cost and expense, and
without damage or injury to Licensor's property, other than unavoidable soil
disturbance, which Licensee shall minimize, restoring the Premises as
reasonably as possible to the preexisting condition. Any such entry by
Licensee shall be with prior notice to Licensor. Licensor reserves the right
to require that a representative of Licensor be present during any such entry
on the Site.
3.3 Site "AS IS". Commencement of construction activities with
respect to a Facilities on an Equipment Site by Licensee shall be conclusive
evidence that Licensee (a) accepts such Site as suitable for the purposes for
which it is licensed, (b) accepts such Site and any structure on such Site and
every part and appurtenance thereof "AS IS," with all faults; and (c) waives
all claims against Licensor with respect to the condition of the Site, the
Premises, or any structure or other appurtenances and their suitability for
any purpose.
4.0 ADDITIONAL AGREEMENTS
4.1 Use of CAD-Image. Licensor hereby grants to Licensee the use
of Licensor's engineering records relative to the Rights of Way and Equipment
Sites, including the use of the CAD-Image GIS database and search engines, and
agrees to provide such additional records support services, all upon terms and
conditions as are described in the document entitled "Proposal to BecoCom,
Inc., Fibre Optic Information Management System," dated March 21, 1997, a copy
of which is attached hereto as Schedule 4.1, as the same may be modified by
mutual agreement of the parties from time to time.
4.2 Optional Additional Fiber. Licensee hereby grants to Licensor
the right, at its sole election, to acquire the right to use up to twelve (12)
strands of fiber optic filament of any newly constructed Facilities. Licensor
shall exercise its option by notice to Licensee, whereupon the parties shall
execute a separate agreement with respect to such optional additional fiber,
setting forth the terms and conditions, including compensation to be paid by
Licensor to Licensee therefor, which shall consist of a pro-rata share of the
actual costs of construction and maintenance of such newly constructed
Facilities. Such agreement, when executed, shall be filed with the
Massachusetts Department of Public Utilities ("MDPU"), pursuant to the
requirements of Massachusetts General Laws ("M.G.L."), c. 164, s. 85A, as
amended, and the compensation to be paid by Licensor to Licensee thereunder
shall be subject to review and determination by the MDPU, pursuant to M.G.L.
c. 164, s. 94B, as amended.
5.0 RIGHT OF FIRST REFUSAL
5.1 Right of First Refusal. Licensee hereby grants to Licensor the
right of first refusal to perform construction services for Licensee,
consisting of (a) engineering services, (b) fiber optic cable installation
services, (c) fiber optic cable repair and maintenance services, and (d) all
safety and supervision services, associated with the construction and
maintenance of the Facilities ("Construction Services"). The terms and
conditions for the performance of the engineering services shall be as set
forth in the document entitled "Service Level Agreement Between the
Engineering Services Group and BecoCom, Inc.," dated April 17, 1997, a copy of
which is attached hereto as Schedule 5.1, as the same may be modified by mutual
agreement of the parties from time to time. The terms and conditions for the
performance of Construction Services (other than engineering services) shall be
negotiated between the parties on a project-by-project basis. If Licensor
performs Construction Services, such performance shall be on a timely and
efficient basis.
6.0 LICENSE FEES
6.1 As consideration for the various licenses under this Agreement,
Licensee shall pay or provide Licensor the following:
6.1.1 [Intentionally Omitted]
6.1.2 In consideration of the license of the Rights of Way,
Licensee shall pay Licensor a Right of Way use fee and other charges and
expenses with respect to such Rights of Way, as described in Schedule 6.1
attached.
6.1.3 In consideration of the license of the Equipment Sites
(other than Sites where Existing Facilities are located), Licensee shall pay
Licensor a Site Use Fee agreed upon in each individual SLA with respect to
such Site.
6.1.4 In consideration of the exclusive right to construct
Facilities in the Power Space, Licensee shall (a) assume and perform all of
Licensor's obligations with respect to the provision of non-discriminatory
access to utility infrastructure, as mandated by the Telecommunications Act of
1996, by licensing the right to use the Facilities to those parties who pay
for the construction of the same, on non-discriminatory terms; and (b) pay to
Licensor a Right of Way use fee and other charges and expenses with respect to
such Rights of Way, as described in Schedule 6.1 attached.
6.2 Licensee agrees to pay the fees, charges and expenses described
in Schedule 6.1 (collectively, "Fees") quarterly, in arrears, without any
deduction, offset or counterclaim, at the address specified by Licensor, or at
such other address as Licensor may by notice from time to time specify.
6.3 Any Fees not paid within five (5) business days from the date
when due may, at Licensor's option, bear interest until paid at the lesser of
(a) one and one-half percent (1.5%) per month, or (b) the maximum rate allowed
under the law of the Commonwealth of Massachusetts.
6.4 Any Fees not paid within fifteen (15) days from the date when
due shall be subject to a late charge of $150. The late fee shall be due in
addition to the interest Licensor may assess under Section 6.3, but the
combination of the late fee and interest shall in no event exceed limits
imposed by state law.
7.0 CONSTRUCTION
7.1 Approval of Plans. Prior to commencing any work on the Site in
connection with the construction of Facilities (whether initial installation
or a subsequent material alteration), Licensee shall obtain Licensor's
approval of (a) Licensee's plans for all site and construction work,
including access and laydown, and any alterations, modifications or impacts on
any structure existing on the Site or the Premises, (b) the precise location
of the Facilities at the Site, (c) the precise location of any utility
connections to the Facilities at the Site and through the Premises. If
Licensee proposes to install any portion of the Facilities on an existing
structure, Licensor may require Licensee to submit a structural engineering
analysis, prepared by a registered professional engineer, for Licensor's
review and approval. Licensee may propose solutions to any structural
problems identified in its analysis, which solutions Licensee is willing to
implement at its cost; however, Licensor shall be under no obligation to
accept any such proposed solution. Licensor reserves the right to determine,
through its own analysis and operational requirements, that a particular
structure requires replacement or modification as a condition to use by
Licensee, in which case Licensee shall have the option of (a) paying for the
cost (in whole or in part, as may be agreed to by Licensor) of such
replacement or modification, or (b) selecting another Site. Nothing herein
shall require Licensor to make any modifications to its structures to
accommodate Licensee, where such modification would impose additional costs or
operational constraints on Licensee's operations. Licensor in its discretion
may require that a representative of Licensor be present during the
construction of the Facility, or that such representative make periodic
inspections of the progress of the construction work. Licensor shall not
unreasonably withhold or delay its consent to Licensee's plans; however,
depending on the Licensor's own operational needs at the particular Premises
and the Site, Licensor may impose reasonable requirements in order to ensure
electrical system reliability and to minimize or avoid potential adverse
effect on Licensor's Business, which Licensee acknowledges are a matter of
public health and safety. Any alterations or modifications to a structure
existing on the Site must be designed to Licensor's satisfaction by a licensed
engineer at Licensee's sole cost and expense. Licensor, in its discretion,
may require independent engineering review of Licensee's alterations or
modifications, and such independent review shall be at Licensee's cost.
7.2 All of Licensee's installation and alteration work shall be
performed at Licensee's sole cost and expense, in a good and workmanlike
manner by qualified workmen and in accordance with all applicable laws,
ordinances and regulations and any permits or licenses issued by any
governmental authority having jurisdiction. Licensee agrees to implement
reasonable measures requested by Licensor in order to ensure that any
contractors working for Licensee work in harmony with any Licensor
personnel or contractors at a particular Site.
7.3 Licensee shall keep the Premises and the Sites free from any
liens arising from any work performed, materials furnished, or obligations
incurred by or at the request of Licensee. If any lien is filed against the
Premises or the Sites as a result of any such matter, Licensee shall discharge
the lien or bond the lien off in a manner reasonably satisfactory to Licensor
within thirty (30) days after Licensee receives written notice from any party
that a lien has been filed. If Licensee fails to discharge or bond any lien
within such period, then, in addition to any other right or remedy, Licensor
may, at Licensor's election, take such action as Licensor deems appropriate
under the circumstances, and all reasonable attorneys' fees and other legal
expenses of Licensor incurred in obtaining the discharge of such lien,
together with all necessary disbursements in connection therewith, shall be
due and payable by Licensee to Licensor upon demand.
7.4 Licensee shall at all times maintain the Facilities in good,
clean, safe and operable condition and shall not permit the Facilities or the
Sites to deteriorate, become unsightly, unsafe or a nuisance. Licensee shall
not permit stockpiling of materials or accumulation of rubbish or debris on
any Site. Licensee's work shall not adversely affect the structural integrity
or maintenance of any structure on the Sites, nor the physical condition of
the Sites. Licensee shall take proper steps to ensure public safety at all
Sites where Licensee is conducting construction operations. Licensee shall
take reasonable steps to secure the Facilities (and the Site, if Licensor has
no ongoing presence at the Site) in order to avoid damage to the Premises and
the Sites from vandalism, and to prevent claims of attractive nuisance.
7.5 If at any time Licensor reasonably determines that the location
of the Facilities at any Site is disadvantageous to the Licensor in the
operation of Licensor's Business, Licensor shall have the right, by notice to
Licensee, to require Licensee to relocate such Facilities to another
comparable location within the Premises ("Alternate Site"); provided, that
Licensor shall reimburse Licensee for all reasonable costs and expenses of
such relocation. In the event of such relocation of the Facilities to an
Alternate Site, the parties shall execute a new SLA reflecting the Alternate
Site, as if the Alternate Site were the original SLA executed with respect to
such Facilities.
7.6 Licensor's obligations under this Article 7 shall be performed
on a timely and efficient basis.
8.0 UTILITIES
8.1 Licensee shall have the right, at Licensee's sole cost and
expense, to obtain electrical and telephone service from any utility company
that provides such service to the Premises. Licensee shall install, at its
cost, any necessary telecommunications isolation equipment required by the
provider of any utility service to the Facilities.
8.2 Licensee shall pay for all of Licensee's utility service costs
when due.
8.3 Licensee shall be solely responsible for providing any utility
services required during construction.
9.0 ACCESS
9.1 The parties recognize that access to any Site may vary
depending on the nature of the Premises and Licensor's operations thereon, as
well as any special landowner requirements in the case of a Site not owned by
Licensor in fee. Any special access restrictions or requirements imposed by
Licensor shall be specified in the SLA.
9.2 Unless otherwise provided above or in the SLA:
9.2.1 Access for construction, routine maintenance and repair
and other non-emergency visits shall be limited to normal business hours
(defined as Monday through Saturday, 7 AM to 7 PM, excluding holidays).
9.2.2 In the event of an emergency, Licensee is entitled to
access to any Site twenty-four (24) hours per day, seven (7) days per week.
9.2.3 Access to the Premises may be by foot or motor vehicle,
including trucks and equipment.
9.3 Licensee acknowledges that the foregoing access rights are
subject to any limitations or restrictions on access imposed upon Licensor
(and therefore upon Licensee) by the landowner under any underlying deed,
easement, lease or license document relating to a particular Site. Licensee
agrees to abide by such limitations or restrictions, provided that Licensee
has been notified by Licensor of such limitations and restrictions.
10.0 TAXES AND ASSESSMENTS
10.1 Licensor and Licensee shall each be responsible for a portion
of the real property taxes attributable to the Rights of Way and Equipment
Sites, as provided in Schedule 6.1.
10.2 Licensee shall be solely responsible for the payment of all
personal property taxes, assessments and other similar fees or charges
attributable to the Facilities, as well as any increase in real property
taxes, to the extent attributable to the Facilities.
11.0 INSURANCE
11.1 Licensee shall, during the term of this Agreement and at
Licensee's sole expense, obtain and maintain in force (and, to the extent
applicable, shall cause its agents and contractors to obtain and maintain
during the term of any contract), not less than the following insurance:
11.1.1. Property insurance, including coverage for fire,
extended coverage, vandalism and malicious mischief, upon the Facilities, to
the extent used in the Business, in an amount not less than ninety percent
(90%) of the full replacement cost of the Facilities;
11.1.2. Comprehensive Commercial General Liability and Motor
Vehicle Liability insurance, insuring operations hazard, independent contractor
hazard, contractual liability, and products and completed operations
liability, in limits not less than $5,000,000 combined single limit for each
occurrence for bodily injury, personal injury and property damage liability,
including coverage for liability assumed under the indemnification provisions
of this Agreement, and designating Licensor as an additional insured; and
11.1.3. Workers' Compensation and Employer's Liability
insurance as required by law.
11.2 All required insurance policies shall be taken out with
reputable national insurers that are licensed to do business in the
Commonwealth of Massachusetts and having a Best rating of not less than A-X.
Licensee shall deliver certificates of insurance to Licensor as soon as
practicable after the placing of the required insurance, but not later than
the Commencement Date of a particular SLA. All policies must contain an
undertaking by the insurer to notify Licensor in writing not less than fifteen
(15) days before any material change, reduction in coverage, cancellation, or
termination of the insurance.
11.3 Licensor and Licensee shall each year review the limits for the
insurance policies required by this Agreement. Policy limits will be adjusted
to proper and reasonable limits as circumstances warrant, but policy limits
will not be reduced below those stated above and no increases will be
effective unless Licensor and Licensee mutually agree.
11.4 Licensor shall, upon request, provide Licensee with
certificates of insurance indicating the types and amounts of coverages
maintained by Licensor on the Premises and the facilities of Licensor thereon.
11.5 The provision of insurance required in this Agreement shall not
be construed to limit or otherwise affect the liability of any party to the
other party.
11.6 Licensee shall not do or permit to be done in or about the
Premises, nor bring or keep or permit to be brought to the Premises, anything
that (a) is prohibited by any insurance policy carried by Licensor covering
any Site, any improvements thereon, or the Premises; or (b) will increase the
existing premiums for any such policy beyond that contemplated for the
addition of the Facilities. Licensor acknowledges and agrees that the
installation of the Facilities upon any Site in accordance with the terms and
conditions of this Agreement will be considered within the underwriting
requirements of any of Licensor's insurers and such premiums contemplate the
addition of the Facilities.
12.0 INDEMNIFICATION
12.1 Licensee shall indemnify, defend and save Licensor, its
officers, directors and employees, harmless for and from and against any and
all actions, charges, claims, damages, expenses, fines, penalties and
liabilities whatsoever arising from, or out of, or in connection with any of
the following:
12.1.1 The loss of life, personal injury, or damage to
property in, upon or at the Premises or the Sites caused by the act or
omission of Licensee, Licensee's employees or agents, contractors, or any
other person acting by or through, or with the knowledge or approval of
Licensee, except to the extent caused by the negligence or willful misconduct
of Licensor, Licensor's employees or agents, or any other person acting by or
through, or with the knowledge or approval of Licensor;
12.1.2 The violation of federal, state or local law,
regulation or ordinance applicable to the Sites, the Premises and Licensee's
use of, or presence on, the Premises by Licensee or Licensee's employees or
agents, contractors, or any other person acting by or through, or with the
knowledge or approval of Licensee;
12.1.3 The violation or breach by Licensee of any provision or
obligation of this Agreement or of any SLA; or
12.1.4 Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as those terms are
defined by applicable federal or state law from time to time, in or upon any
Site or the Premises by Licensee or Licensee's employees or agents,
contractors, or any other person acting by or through, or with the knowledge
or approval of Licensee.
12.2 Licensor shall indemnify, defend and save Licensee, its
officers, directors and employees, harmless for and from and against any and
all actions, charges, claims, damages, expenses, fines, penalties and
liabilities whatsoever arising from, or out of, or in connection with any of
the following:
12.2.1 The loss of life, personal injury, or damage to
property in, upon or at the Premises or the Sites caused by the act or
omission of Licensor, Licensor's employees or agents, contractors, or any
other person acting by or through, or with the knowledge or approval of
Licensor, except to the extent caused by the negligence or willful misconduct
of Licensee, Licensee's employees or agents, or any other person acting by or
through, or with the knowledge or approval of Licensee;
12.2.2 The violation of federal, state or local law,
regulation or ordinance applicable to the Sites, the Premises and Licensor's
use of, or presence on, the Premises by Licensor or Licensor's employees or
agents, contractors, or any other person acting by or through, or with the
knowledge or approval of Licensor;
12.2.3 The violation or breach by Licensor of any provision or
obligation of this Agreement or of any SLA; or
12.2.4 Any storage, use, spill, discharge or release to the
environment of any oil or hazardous materials or wastes, as those terms are
defined by applicable federal or state law from time to time, in or upon any
Site or the Premises by Licensor or Licensor's employees or agents,
contractors, or any other person acting by or through, or with the knowledge
or approval of Licensor.
12.3 Neither party shall be liable to the other for any
consequential or punitive damages, or losses in the nature of lost profits,
loss of use, or loss of opportunity.
12.4 The indemnity obligation includes reasonable attorneys' fees,
investigation costs, and all other reasonable costs and expenses incurred by
the indemnified party from the first notice that any claim or demand has been
made or may be made, and is not limited in any way by any limitation on the
amount or type of damages, compensation, or benefits payable under applicable
workers' compensation acts, disability benefit acts, or other employee benefit
acts.
12.5 The provisions of this Section shall survive the termination of
this Agreement or any SLA with respect to any cause of action arising before
such termination, or first cognizable after such termination.
13.0 ASSIGNMENT AND TRANSFER
13.1 Licensee, upon prior written notice to Licensor, shall have the
right, without the necessity of obtaining Licensor's consent, to assign or
transfer this Agreement, either in whole or in part, or any rights thereunder,
to (a) any Affiliate of Licensee; (b) any person or entity with whom Licensee
has an agreement for construction and use of newly-constructed Facilities; or
(c) any purchaser of substantially all of the assets of Licensee (collectively
"Permitted Transferees"). No such assignment to a Permitted Transferee shall
relieve Licensee from continuing primary liability and obligation to Licensor
under the terms of this Agreement and any SLA, and Licensor shall have no
obligation to look to such Permitted Transferee for the satisfaction of any
obligations of Licensee hereunder or under any SLA, but may at all times seek
recourse against Licensee. "Affiliate," for purposes of this Agreement, shall
mean any person or entity in which Licensee has an equity interest, or any
entity controlling, controlled by or under common control with any such person
or entity.
13.2 Licensee shall not assign, sublet, or otherwise transfer this
Agreement, any SLA, any Site or any Facilities, or any rights therein or
thereunder, to any party other than Permitted Transferees without in each case
obtaining Licensor's prior written consent, which consent Licensor may
withhold in its discretion, or condition upon payment to Licensor of
additional consideration.
14.0 TRANSFER BY LICENSOR
14.1 Licensor may not make any sale, lease, license or transfer of
any Site, unless such sale, lease, license or transfer is subject to the terms
and conditions of this Agreement and the applicable SLA. Licensee's rights
hereunder are not exclusive, and Licensor may grant to others rights in any
Site coextensive with those of Licensee, so long as such other person or
entity does not unreasonably interfere with the exercise by Licensee of the
rights granted to it under this Agreement and any SLA.
15.0 CASUALTY OR CONDEMNATION
15.1 If there is a casualty to any structure owned by Licensor upon
or within which Facilities are located, Licensor take all reasonable steps to
repair or restore the structure within sixty (60) days. Licensee may
immediately erect on an unused portion of a Site temporary Facilities,
including any supporting structure, while Licensor makes repairs to the
damaged structure. Upon completion of such repair or restoration, Licensee
shall be entitled to reinstall Licensee's Facilities on or within the Site.
15.2 In the event such repair or restoration will reasonably require
more than sixty (60) days to complete, Licensee shall be entitled to terminate
the applicable SLA, effective upon the expiration of thirty (30) days after
written notice to Licensor; provided, that, if after giving such notice,
Licensor is able to complete such repair or restoration within such additional
thirty (30) days, then the notice of termination shall be deemed withdrawn,
and the SLA shall continue.
15.3 If there is a condemnation of any Site, including without
limitation a transfer of such Site by consensual deed in lieu of condemnation,
then the SLA for such condemned Site will terminate upon transfer of title to
the condemning authority, without further liability to either party under this
Agreement. All awards on account of a Site shall be the property of Licensor,
and Licensee hereby assigns over any claim to such award to Licensor.
Licensee shall be entitled to pursue a separate condemnation award for the
Facility from the condemning authority.
16.0 NOTICE
16.1 Any notice or demand required or permitted to be given under
this Agreement or any SLA shall be in writing and shall be made by (a)
certified or registered U.S. mail, return receipt requested, (b) by
established overnight courier providing a receipt, or (c) by facsimile
providing a confirmation of receipt, if followed by hard copy by first class
U.S. mail, to the address set forth below:
To Licensor:
Boston Edison Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, General Manager of
Fossil and Electric Delivery
To Licensee:
BecoCom, Inc.
36th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, President
16.2 Any such notice shall be deemed received one (1) business day
following facsimile or deposit with an overnight courier, or five (5) business
days following deposit in the United States mails, addressed as required
above. Each party may from time to time designate any other address for this
purpose by written notice to the other party as provided herein.
17.0 GENERAL PROVISIONS
17.1 The parties agree that Carrier shall be a third-party
beneficiary of this Agreement, with the power to enforce Licensee's rights
hereunder upon a breach of the obligations of either Licensee or Licensor.
Licensee and Licensor shall not voluntarily amend this Agreement without
the prior written consent of Carrier, which consent shall not be
unreasonably withheld or delayed.
17.2 This Agreement and each SLA constitutes the entire agreement and
understanding between the parties, and supersedes all offers, negotiations and
other agreements concerning the subject matter contained in this Agreement.
There are no representations or understandings of any kind not set forth in
this Agreement. Any amendments to this Agreement or any SLA must be in
writing and executed by both parties.
17.3 If any provision of this Agreement or any SLA is invalid or
unenforceable with respect to any party, the remainder of this Agreement, the
applicable SLA or the application of such provision to persons other than
those as to whom it is held invalid or unenforceable, shall not be affected
and each provision of this Agreement or the applicable SLA shall be valid and
enforceable to the fullest extent permitted by law.
17.4 This Agreement and each SLA shall be binding on and inure to the
benefit of the respective parties and their respective successors and
permitted assigns.
17.5 The captions of this Agreement are inserted for convenience
only and shall not be construed as part of this Agreement or the applicable
SLA or in any way limiting the scope or intent of its provision.
17.6 No provision of this Agreement or a SLA shall be deemed to have
been waived by either party unless the waiver is in writing and signed by the
party against whom enforcement is attempted. No custom or practice which may
develop between the parties in the administration of the terms of this
Agreement or any SLA shall be construed to waive or lessen any party's right
to insist upon strict performance of the terms of this Agreement or any SLA.
The rights granted in this Agreement and under each SLA are cumulative of
every other right or remedy that the enforcing party may otherwise have at law
or in equity, or by statute and the exercise of one or more rights or remedies
will not prejudice or impair the concurrent or subsequent exercise of other
rights or remedies.
17.7 This Agreement and each SLA is governed by the laws of the
Commonwealth of Massachusetts.
17.8 This Agreement and any SLA may be executed in one or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument, by and through their respective duly authorized
representatives, as of the date first above written.
BOSTON EDISON COMPANY BECOCOM, INC.
By: ______________________ By: ___________________________
Title: ___________________ Title: ________________________
SCHEDULE 1.2
ACCESS POINTS
Prudential Center (subject to the termination or expiration of the lease at
such site); Station 150 (Xxxxx); Station 470 (Canton); Station 447 (West
Walpole); Station 446 (West Medway); Station 240 (Framingham); Station 000
(Xxxxxxx); Xxxxxxx 000 (Xxxx Xxxx); Station 282 (Waltham); Station 320
(Lexington); Station 391 (Burlington); Station 250 (Mystic & Head House @
Ryan's Plygrd); Station 80 (Mass Ave.); Station 478 (Xxxxxxxx); Station 146
(Walpole); Station 65 (Medway); Station 274 (Sherborn); Station 000 (Xxxxx
Xxxxxx); Station 000 (Xxxxx Xxxxxx); Station 342 (Sudbury); Station 000
(Xxxxxxx Xxxx); Station 533 (Xxxxxxxx Ave.); Station 211 (Woburn); and Station
514 (Boston).
SCHEDULE 2.1
SITE LICENSE ADDENDUM
This Site License Addendum is made to the License Agreement between Boston
Edison Company, as Licensor, and BecoCom, Inc., as Licensee, dated _____,
1997. Capitalized terms used in this SLA shall have the same meaning as such
terms in the License Agreement, unless otherwise indicated. In the event of
any conflict or inconsistency, the provisions of this Addendum shall control.
1. Site Identification Number:
2. Site Street Address, if any, or general location:
3. Site Legal Description: See Schedule 1 attached.
4. Description of Facilities: See Schedule 2 attached.
6. Plans and Specifications: See Schedule 3 attached.
7. Site Use Fee:
8. Licensor contact for emergencies:
9. Licensee contact for emergencies:
10. Special access and other provisions:
LICENSOR: BOSTON EDISON COMPANY
By: _______________________
Title: _____________________
LICENSEE: BECOCOM, INC.
By: ______________________
Title: ____________________
SCHEDULE 2.6
SPILL NOTIFICATION AND RESPONSE PROCEDURES
All Spills/Releases of oils and/or hazardous materials (hydraulic fluid,
gasoline, etc.) must be reported to the Boston Edison Company Systems
Dispatcher, telephone number 000-000-0000, as soon possible, but within 1
1/2 hours of spill discovery.
NOTIFICATION REQUIREMENTS:
*Your name, Company and association with Boston Edison Company
*Date of release
*Time first observed release
*Location of release
*Source and description of release
*Approximate quantity
*Type of material
*Clean-up crew
*Dispatcher will ask additional questions to complete the Spill Notification
Checklist and to determine if release is reportable to the
Massachusetts DEP
*IF SPILL CONDITION CHANGES, NOTIFY SYSTEMS DISPATCHER
INITIAL RESPONSE ACTIONS:
*Survey the area to determine extent of contamination
*Secure the area
*Stop the leak if possible
*Contain the leak (speedi-dri, sand, absorbent materials, etc)
*Report the release
SCHEDULE 4.1
CAD-IMAGE SERVICES AGREEMENT
SCHEDULE 5.1
ENGINEERING SERVICES AGREEMENT
SCHEDULE 6.1
RIGHT OF WAY USE FEES
Licensee shall pay to Licensor, each quarter during the Term, the following
amounts:
1. A Right-of-Way (ROW) use fee calculated as follows:
a. Distribution Poles:
o $10.37 per attachment per year.
o rate subject to change per the then applicable Aerial
o License Agreement.
b. Overhead Transmission ROWs:
o $0.58 per ROW foot per year through 12/31/98, escalating
at 2% per year thereafter.
o 10 year minimum term.
o no rate changes for duration of minimum term. Thereafter,
rates shall be recalculated with the same methodology in
which the initial rates were calculated, subject to any
applicable change in law or regulation.
c. Underground Conduits:
o $0.86 per conduit foot per year through 12/31/98,
escalating at 2% per year thereafter.
o applicable to Licensor conduits not constructed at the
request and expense of Carrier.
o 10 year minimum term.
o no rate changes for duration of minimum term. Thereafter,
rates shall be recalculated with the same methodology in
which the initial rates were calculated, subject to any
applicable change in law or regulation.
2. The amount of all property taxes directly attributable to the
Facilities.
3. Any other fees, charges, costs or expenses directly related to the
Facilities.
