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EXHIBIT 10.41
(BELLSOUTH LETTERHEAD)
March 3, 1998
Xx. Xxxx XxXxxxx
KNOLOGY Holdings, Inc.
P.O. Box 5lO
West Point, GA 31833
Attached is the executed license agreement between BellSouth Telecommunications,
Inc. and KNOLOGY Holdings, Inc. for the BellSouth region states. This license
agreement provides for the attachment to and/or occupancy of BellSouth poles,
conduit, and rights of way.
Appropriate agreement requirements must be fulfilled prior to attaching to
BellSouth poles and/or occupying BellSouth conduit. Prior to any work being
performed, KNOLOGY Holdings, Inc. must submit for approval the appropriate
license agreement forms (previously provided). After approval has been granted
and make-ready charges paid, if applicable, KNOLOGY Holdings, Inc. can then
proceed with pole attachments and/or conduit occupancy. The appropriate forms
are to be submitted through my office at the address provided above.
If I can be of any further assistance, call me at (000) 000-0000.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
attachment
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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
X 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 16
5 Facilities and Licenses 17
6 Make-Ready Work 18
7 Application Forms and Fees 19
8 Processing of Applications 22
9 Issuance of Licenses 23
10 Construction of Licensee's Facilities 24
11 Use and Routine Maintenance of Licensee's Facilities 26
12 Modification and Replacement of Licensee's Facilities 28
13 Rearrangement of Facilities at request of Another 28
14 Emergency Repairs and Pole Replacements 30
15 Inspection by BellSouth of Licensee's Facilities 30
16 Notice of Noncompliance 31
17 Unauthorized Occupancy or Utilization of BellSouth's Facilities 32
18 Removal of Licensee's Facilities 33
19 Fees, Charges, and Billing 33
20 Advance Payment and Imputation 34
21 Assurance of Payment 34
22 Insurance 35
23 Authorization Not Exclusive 35
24 Assignment of Rights 36
25 Failure to Enforce 36
26 Term of Agreement 36
27 Supersedure of Agreement(s) 37
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".
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.
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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.
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.
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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.
1.21 Person acting on XxxxXxxxx's behalf. The terms "person acting on
XxxxXxxxx's behalf," "personnel performing work on XxxxXxxxx'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 XxxxXxxxx's behalf," "personnel performing
work on XxxxXxxxx'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 XxxxXxxxx and their respective officers, directors,
employees, agents, and representatives.
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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 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 XxxxXxxxx, 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.
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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 XxxxXxxxx agrees that it
shall not unreasonably withhold or delay issuance of such licenses.
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.
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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
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.
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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 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.
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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.
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.
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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
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-001421, published by Bell 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.
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.
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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
XxxxXxxxx's manhole, the duct and all connections between that duct
and XxxxXxxxx'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 entry of gases and liquids from the
building into BellSouth's conduit system.
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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 XxxxXxxxx 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.
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.
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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
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.
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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.
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
XxxxXxxxx'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 XxxxXxxxx's authorized employee or agent shall not direct or
control the conduct of Licensee's work at the work site, XxxxXxxxx'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;
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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.
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. XxxxXxxxx makes no representations to Licensee or
personnel performing work on Licensee's behalf that XxxxXxxxx'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.ss.ss.9601 et. seq.), the
Toxic Substance Control Act (15 U.S.C.ss.ss.2601-2629), the Clean
Water Act (33 U.S.C.ss.ss.1251 et. seq.), and the Safe Drinking Water
Act (42 X.X.X.xx.xx. 300f- 00j).
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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, BellSouth Practice
Sec. 000-000-000 BT, "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.
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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 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.
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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.
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.
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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 II 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 and right
of way. In providing such records and information, XxxxXxxxx 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 XxxxXxxxx agrees to perform the work on such a basis,
XxxxXxxxx shall recalculate the estimated make-ready charges. If
Licensee accepts XxxxXxxxx's offer, Licensee shall pay such additional
charges.
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6.2 All charges for make-ready work performed by XxxxXxxxx 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 XxxxXxxxx, 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-read work if BellSouth is likewise
precluded from contractor selection under the terms of an applicable
joint use 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.
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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 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 Licensee as follows:
Contact Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
Title VP Operations Attention: Accounts Payable
Company KNOLOGY Holdings, Inc. KNOLOGY Holdings, Inc.
Address 1241 X.X. Xxxxxxx Drive 0000 X.X. Skinner Drive
Address
City, State, and Zip Code West Point, GA. 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, xxx Xxx Xxxx Xxxxxxxxxx, XX 35243
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 use of BellSouth's facilities will be in
compliance with applicable requirements, specifications, rules,
regulations, ordinances, and laws.
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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 rights 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.
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.
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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 XxxxXxxxx to perform make-ready work on an expedited basis,
and if XxxxXxxxx agrees to perform the work on such a basis, XxxxXxxxx
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, XxxxXxxxx 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, 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 estimated dates when construction will begin and end; and
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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
XxxxXxxxx. 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
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.
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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, 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 such 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 XxxxXxxxx's conduit system.
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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
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.
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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:
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.
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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 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 XxxxXxxxx'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.
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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
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.
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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. Xxxxxxxx agrees to acknowledge
receipt of the notice as soon as practicable. If Licensee does not
dispute XxxxXxxxx'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.
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 XxxxXxxxx. 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 XxxxXxxxx'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.
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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
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.
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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
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
utilization is discontinued. A one-month minimum charge is applicable
to all licenses.
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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 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.
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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, 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.
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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.
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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
XxxxXxxxx. 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 XxxxXxxxx,
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.
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.
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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. 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: /s/ Xxxx X, XxXxxxx By: /s/ Xxxxxxx Xxxxx
-------------------- -------------------------------
Signature Signature
Xxxx X, XxXxxxx Xxxxxxx Xxxxx
------------------------ ----------------------------------
Printed Name Printed Name
V.P. Construction Vice President NSP&S
------------------------ ----------------------------------
Printed Title Printed Title
2/20/98 2/27/98
------------------------ ----------------------------------
Date Date
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APPENDIX 1
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
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
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Appendix 11
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 Maintenance Center
2nd Floor North
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 0 X 00
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 Attn.: Right of Way Records
Charlotte, NC 28212 16 GG 1 BST
000 X. Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
