Common use of Pole Attachment Agreements Clause in Contracts

Pole Attachment Agreements. Operations Co acknowledges and agrees that the Authority will enter into each Pole Attachment Agreement required for the Project. During the Term, the Authority will, if applicable, renew each Pole Attachment Agreement no later than the expiration date set out in such Pole Attachment Agreement to ensure the continuous operation of the NG-KIH System. Subject to Project Co’s obligation to pay Pole Attachment Fees as set out in Section 3.5 of Appendix 4A [Services Specifications] to the Project Agreement, the Authority will fulfill, or cause to be fulfilled, any of the other obligations under the Pole Attachment Agreements. Project Co will cause the Authority to appoint Operations Co as its agent or designee pursuant to each Pole Attachment Agreement. Since Pole Attachment Agreements had not been entered into with all Pole Providers as at the Effective Date, the parties acknowledge that there may be an increase or decrease in the Baseline Pole Attachment Costs. Subject to the remaining provisions of this Section 3.9, Operations Co will finalize a Simple Pole Attachment Agreement with each Pole Provider (other than a Material Telecommunications Company) in accordance with the Project Schedule and subject to the Authority’s right to review each Simple Pole Attachment Agreement before it is finalized in accordance with the agreed review procedure. For clarity, Operations Co will not be entitled to claim a Compensation Event in respect of any delay in obtaining a fully executed Simple Pole Attachment Agreement from each Pole Provider (other than a Material Telecommunications Company) during the Construction Period unless: (a) the Authority does not execute the finalized Simple Pole Attachment Agreement provided to the Authority by Operations Co within 3 Business Days of receipt thereof; or (b) a Pole Provider refuses to enter into a Simple Pole Attachment Agreement. For the five Pole Providers identified with a double asterisk in Appendix 8A [Baseline Pole Attachment Costs] to the Project Agreement, Operations Co will use commercially reasonable efforts to negotiate alternate (i) payment structures, including upfront payment of pole attachment rates, (ii) contract duration, including multi-year pole attachment agreements and/or (iii) other contractual terms and conditions that may result in a Complex Pole Attachment Agreement. Project Co agrees to enforce its contractual rights under Section 3.9 of the Project Agreement against the Authority to ensure that the Authority provides or causes to be provided such 34985-2017 25902380.4 Amended and Restated Project Implementation Agreement NG-KIH Project information, documentation and assistance as Operations Co may request and as the Authority may reasonably be able to provide to support the negotiation of any Complex Pole Attachment Agreement. The parties agree to discuss with the Authority certain of the Simple Pole Attachment Agreements that have been entered into by the Authority in order to determine whether approaching the relevant Pole Provider (each, a “Targeted Pole Provider”) could result in an amended commercial agreement with that Targeted Pole Provider (each, an “Amended Pole Attachment Agreement”) that would benefit the Project. The discussion between the parties and the Authority will determine the list of Targeted Pole Providers to approach, if any, and the elements of the Complex Pole Attachment Agreement that would be presented to such Targeted Pole Provider (such as connections, trades, swaps). The parties and the Authority will take into account any relevant factors in determining whether to approach a Targeted Pole Provider, including the impact or effect on the quality or delivery of the NG-KIH System or the Services, the relationship between the Authority and the Targeted Pole Provider and any negative impact or increased risk to Project Co, Operations Co, any Project Contractor or the Authority. The parties acknowledge that the discussions between the parties and the Authority referenced in the preceding paragraph and any negotiations with a Targeted Pole Provider resulting in an executed Amended Pole Attachment Agreement must occur during the Construction Period and in advance of any make-ready design work in respect of the Targeted Pole Provider’s poles (the “Simple Pole Attachment Agreement Amendment Period”). If Operations Co and the Targeted Pole Provider have negotiated an Amended Pole Attachment Agreement, Operations Co will submit a Pole Attachment Proposal in accordance with Section 5 of Schedule 6 [Changes, Minor Works and Innovation Proposals]. Operations Co acknowledges that, pursuant to Section 3.9 of the Project Agreement, the Authority agrees that it will not enter into an Amended Pole Attachment Agreement until it has completed the process set out in Section 5 of Schedule 6 to the Project Agreement.

Pole Attachment Agreements. Operations Co acknowledges and agrees that the The Authority will enter into each Pole Attachment Agreement required for the Project. During the Term, the Authority will, if applicable, renew each Pole Attachment Agreement no later than the expiration date set out in such Pole Attachment Agreement to ensure the continuous operation of the NG-KIH System. Subject to Project Co’s obligation to pay Pole Attachment Fees as set out in Section 3.5 of Appendix 4A [Services Specifications] to the Project Agreement], the Authority will fulfill, or cause to be fulfilled, any of the other obligations under the Pole Attachment Agreements. Project Co The Authority will cause the Authority to appoint Operations Co as its agent or designee pursuant to each Pole Attachment Agreement. Since Pole Attachment Agreements had not been entered into with all Pole Providers as at the Effective Date, the parties acknowledge that there may be an increase or decrease in the Baseline Pole Attachment Costs. Subject to the remaining provisions of this Section 3.9, Operations Project Co will finalize a Simple Pole Attachment Agreement with each Pole Provider (other than a Material Telecommunications Company) in accordance with the Project Schedule and subject to the Authority’s right to review each Simple Pole Attachment Agreement before it is finalized in accordance with the agreed review procedure. For clarity, Operations Project Co will not be entitled to claim a Compensation Event in respect of any delay in obtaining a fully executed Simple Pole Attachment Agreement from each Pole Provider (other than a Material Telecommunications Company) during the Construction Period unless: (a) the Authority does not execute the finalized Simple Pole Attachment Agreement provided to the Authority by Operations Project Co within 3 Business Days of receipt thereof; or (b) a Pole Provider refuses to enter into a Simple Pole Attachment Agreement. For the five Pole Providers identified with a double asterisk in Appendix 8A [Baseline Pole Attachment Costs] to the ], Project Agreement, Operations Co will use commercially reasonable efforts to negotiate alternate (i) payment structures, including upfront payment of pole attachment rates, (ii) contract duration, including multi-year pole attachment agreements and/or (iii) other contractual terms and conditions that may result in a Complex Pole Attachment Agreement. Project Co agrees to enforce The Authority shall, at its contractual rights under Section 3.9 of the Project Agreement against the Authority to ensure that the Authority provides own cost, provide or causes cause to be provided such 34985-2017 25902380.4 Amended and Restated Project Implementation Agreement NG-KIH Project information, documentation and assistance as Operations Project Co may request and as the Authority may reasonably be able to provide to support the negotiation of any Complex Pole Attachment Agreement. The parties agree to discuss with the Authority certain of the Simple Pole Attachment Agreements that have been entered into by the Authority in order to determine whether approaching the relevant Pole Provider (each, a “Targeted Pole Provider”) could result in an amended commercial agreement with that Targeted Pole Provider (each, an “Amended Pole Attachment Agreement”) that would benefit the Project. The discussion between the parties and the Authority will determine the list of Targeted Pole Providers to approach, if any, and the elements of the Complex Pole Attachment Agreement that would be presented to such Targeted Pole Provider (such as connections, trades, swaps). The parties and the Authority will take into account any relevant factors in determining whether to approach a Targeted Pole Provider, including the impact or effect on the quality or delivery of the NG-KIH System or the Services, the relationship between the Authority and the Targeted Pole Provider and any negative impact or increased risk to Project Co, Operations Co, any Project Contractor or the Authority. The parties acknowledge that the discussions between the parties and the Authority referenced in the preceding paragraph and any negotiations with a Targeted Pole Provider resulting in an executed Amended Pole Attachment Agreement must occur during the Construction Period and in advance of any make-ready design work in respect of the Targeted Pole Provider’s poles (the “Simple Pole Attachment Agreement Amendment Period”). If Operations Project Co and the Targeted Pole Provider have negotiated an Amended Pole Attachment Agreement, Operations Project Co will submit a Pole Attachment Proposal in accordance with Section 5 of Schedule 6 [Changes, Minor Works and Innovation Proposals]. Operations Co acknowledges that, pursuant to Section 3.9 of the Project Agreement, the The Authority agrees that it will not enter into an Amended Pole Attachment Agreement until it has completed the process set out in Section 5 of Schedule 6 to the Project Agreement6.