1
EXHIBIT 10.44
GPC CONTRACT NO.____
GEORGIA POWER COMPANY
STANDARD POLE ATTACHMENT AGREEMENT
By signing below, Georgia Power Company ("Georgia Power") hereby grants to
below-named Licensee a non-exclusive, revocable license to attach and to retain
previously attached aerial cables, wires and associated appliances owned by
Licensee and used in the provision of telecommunication or cable television
services (collectively, "Equipment") to poles owned by Georgia Power which are
located in public and private rights-of-way and which are used to support power
lines and other equipment used in the distribution of electricity, and Licensee
hereby accepts such license, on and subject to the terms and conditions set on
the following pages of this Agreement, which each party acknowledges having
read, understood and accepted prior to signing below.
Knology Holdings Inc. For Itself and GEORGIA POWER COMPANY
on Behalf of Its Current and Future
Subsidiaries
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 241 ▇▇▇▇▇ ▇▇▇▇▇▇ Blvd.
West Point, Georgia ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel No. (▇▇▇) ▇▇▇-▇▇▇▇ Tel No.
------------------------------ -----------------------
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.
------------------------------ -----------------------
Email Address: Email Address:
----------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇▇
----------------------------------- -------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇▇
--------------------------------- -----------------------------------
Title: VP Construction Title: General Manager of Distribution
-------------------------------- ----------------------------------
Date: 2/18/98 Date: 2/23/98
--------------------------------- -----------------------------------
2
GPC CONTRACT NO.____
1. LICENSE.
1.1 LICENSED POLES. Before attaching Equipment to any pole, Licensee shall
request Georgia Power's permission to attach Equipment to such pole and
shall set forth in such request the Equipment to be attached to such pole.
Georgia Power shall grant or deny such request in a notice to Licensee
within thirty (30) days after Georgia Power's receipt thereof, and each
pole for which Georgia Power grants such permission shall be hereinafter
referred to as a "Licensed Pole." Subject to any contrary requirements set
forth in 47 U.S.C. ss. 224 and the regulations promulgated thereunder,
Georgia Power shall be entitled to deny Licensee permission to use any pole
if there is insufficient capacity on such pole or for reasons of public
safety, reliability or generally applicable engineering purposes. Georgia
Power's records of Licensed Poles shall constitute prima facie evidence of
which poles are Licensed Poles in any dispute between Georgia Power and
Licensee.
1.2 ACCESS. No permission granted to Licensee to attach Equipment to a pole
pursuant to Section 1.1 hereof shall constitute a guarantee or
representation that adequate space exists on such pole for the attachment
of Equipment, nor shall any such permission authorize Licensee to attach
Equipment to such pole in a manner prohibited by the National Electrical
Safety Code, as revised ("NESC"), any successor code designated by Georgia
Power, or any applicable law or regulation.
2. ATTACHMENT AND MAINTENANCE OF
EQUIPMENT.
2.1 COSTS. Licensee has been and shall continue to be solely responsible for
all costs associated with the attachment and maintenance of Equipment on
all Licensed Poles. Licensee has installed and shall continue to install
any anchors, guys or other equipment required to accommodate the
installation of any Equipment at Licensee's expense and to the reasonable
satisfaction of Georgia Power.
2.2 MAINTENANCE. Licensee attached and maintained and shall attach and maintain
all Equipment in accordance with the requirements of NESC and all laws and
regulations now in effect or that hereafter may be issued by any authority
having jurisdiction over the Licensed Poles. Licensee has at all times
attached, maintained, kept rearranged, transferred or removed and shall at
all times attach, maintain, keep, rearrange, transfer and remove Equipment
in a safe condition and in a manner reasonably satisfactory to Georgia
Power. Subject to Section 3 hereof, Licensee shall notify Georgia Power at
least two (2) weeks before attaching Equipment on any pole including, but
not limited to, overlashing existing strand and utilizing pole space
greater than twelve inches (12"), in a writing setting forth the date
Licensee intends to commence attaching, except that no notice shall be
required for attaching a drop line to a customer's premises from a pole
with an existing attachment. Licensee shall, at its own expense, cut and
trim all trees and brush in order to preserve adequate clearance around
Equipment.
2.3 NO INTERFERENCE. Subject to Section 3.4 hereof, Licensee shall attach,
maintain, rearrange, transfer and remove all Equipment so as not to
interfere with the use of the Licensed Poles by Georgia Power or other
licensees thereof.
2.4 INFORMED CONSENT. Before any individual has performed or will perform any
work by, through or for the Licensee on or near any facilities of Georgia
Power, Licensee has adequately warned and shall continue to adequately warn
such employee of the danger inherent in making contact with the electrical
conductors of Georgia Power and of coming closer to such conductors than is
permitted by NESC or by regulations of the Occupational Safety and Health
Administration. Licensee has not permitted nor shall it permit in the
future any such individual to work on any pole or Equipment attached
thereto unless such individual has executed a general release in a form
approved by Georgia Power. Licensee shall maintain such releases at
Licensee's offices and, upon request, deliver the same to Georgia Power.
2.5 IDENTIFICATION OF EQUIPMENT. Using markers unique to Licensee in color and
shape and approved in advance by Georgia Power, Licensee shall (i) ▇▇▇▇ all
Equipment attached to a Licensed Pole; and (ii) ▇▇▇▇ each strand which
comprises part of the Equipment at every first, fifth and last mainline
pole attachment, including the first Licensed Pole in all lateral lines and
at all crossover points. Licensee shall ▇▇▇▇ all Equipment which was
attached to Licensed Poles before the date hereof upon the sooner of
Licensee performance of any maintenance or repairs of such Equipment, or
three (3) months after the Effective Date. Georgia Power may remove
unmarked or improperly marked Equipment without notice.
3. ALTERATIONS OF EQUIPMENT AND POLES.
3.1 NOTICE. Georgia Power hereby notifies Licensee that any Licensed Pole or
Equipment shall be subject to removal, relocation, repair or other work (an
"Alteration"). Georgia Power may make an Alteration to ten (10) or fewer
contiguous Licensed Poles and to any number of Licensed Poles for emergency
service without giving any further notice. In all other cases, Georgia
Power will notify License at least thirty (30) days prior to the
Alteration. The parties hereby stipulate that this Section 3.1 satisfies
the notice requirements of 47 U.S.C. ss. 224(h). If
3
Licensee intends to upgrade its Equipment contemporaneously with such
Alteration, then Licensee shall notify Georgia Power so that the parties
may coordinate such upgrade.
3.2 PERFORMANCE. Upon receiving notice that Georgia Power requires Licensee to
perform work in connection with an Alteration, Licensee shall complete such
work in accordance with reasonable terms set forth in such notice. Georgia
Power may perform an Alteration and shall promptly notify Licensee that it
has done so if Licensee does not timely perform such work or in an
emergency. If Georgia Power removes and does not reattach any Equipment,
then Georgia Power shall notify Licensee, but shall be under no obligation
to perform such reattachment. If Licensee does not timely perform any work
required under this Section 3.2 in connection with a proposed relocation to
a new pole, and Georgia Power does not perform such work, then, at the
election of Georgia Power in writing, such pole shall become the property
of Licensee and Licensee shall pay to Georgia Power an amount equal to the
then-current value of such abandoned pole.
3.3 COSTS. Unless and until the limitations on Licensee's costs set forth in 47
U.S.C. ss. 224 are repealed, overruled or modified by a final and
unappealable order of the FCC or any governing body or court of competent
jurisdiction, Licensee shall not be required to bear the cost of
rearranging or transferring Equipment attached to a Licensed Pole if
required for an additional attachment, or modification of an existing
attachment, by a cable television system or provider of telecommunications
service other than Licensee. In all other cases, Licensee shall be
responsible for its individual costs plus its proportionate share of all
joint costs associated with work performed in accordance with Section 3.2.
Licensee shall reimburse Georgia Power for any reasonable costs incurred in
performing such work based upon Georgia Power's standard charges for such
services. Licensee's payments to Georgia Power under this Section 3.3 shall
be made within thirty (30) days of demand.
4. UNAUTHORIZED ATTACHMENTS. If Licensee attaches any Equipment to any pole
without first obtaining appropriate permission, as required by Section 1
hereof, or if Georgia Power determines that the use of any Licensed Pole by
Licensee is prohibited by public authorities, judicial decree or relevant
property owners, (an "Unauthorized Attachment'), then:
4.1 REMOVAL. Georgia Power may require Licensee to remove the unauthorized
attachment(s) within thirty (30) days of notifying Licensee or such shorter
period as may be required by court order and, if Licensee fails to remove
such attachment within such period, then Georgia Power may remove such
attachment at Licensee's sole cost and expense, without any liability to
Licensee.
4.2 COSTS. If Licensee has made any Unauthorized Attachments, then it shall pay
to Georgia Power, within thirty (30) days of demand, the applicable unpaid
fees for each such attachment. For purpose of such computation, Georgia
Power may assume that each Unauthorized Attachment was made on the day
following the last pole inspection conducted before discovery of the
Unauthorized Attachments. In addition to the fees set forth above, Licensee
shall pay to Georgia Power, within thirty (30) days of demand, (A) an
administrative fee equal to ten percent (10%) of the unpaid fees, (B)
interest on the unpaid fees from the date of attachment until the date of
payment at the rate announced by NationsBank, N.A. (South), from time to
time, as its Prime Rate, plus eight (8) percentage points; and (C) any and
all out-of-pocket expenses incurred by Georgia Power as a result of such
Unauthorized Attachment including, without limitation, legal fees.
5. INSPECTIONS AND SURVEYS; POLE COUNTS.
Georgia Power may inspect all Equipment attached to any pole as it deems
appropriate. Licensee shall reimburse Georgia Power for its costs for
regular periodic inspections of such Equipment, occurring n more than every
twelve (12) months or, if more frequently, the minimum interval recommended
or required by NESC or any other industry standard or applicable law.
Licensee shall reimburse Georgia Power for its costs for special,
non-periodic inspections of such Equipment which Georgia Power conducts if
Georgia Power has discovered any violation of this Agreement in its most
recent periodic inspection of any Equipment. Licensee shall reimburse to
Georgia Power a pro rata amount of any costs incurred by Georgia Power in
conducting pole counts or similar surveys, based on the average number of
licensees with attachments to each pole surveyed or counted. Licensee shall
make its personnel available on a reasonable basis to assist in surveys and
pole counts at the request of Georgia Power.
6. EASEMENTS AND RIGHTS-OF-WAY. Licensee has acquired and shall continue to
acquire in its own name and at its expense any and all easements,
franchises or other rights in land necessary to permit the presence of any
Equipment on any Licensed Pole. This Agreement does not give Licensee any
right to use Georgia Power's rights-of-way which must be separately agreed
upon for further consideration.
4
7. LICENSE FEES; BILLING AND PAYMENT.
7.1 FEES. Licensee shall estimate in advance the total monthly license fee for
all attachments of Equipment to Licensed Poles (the number of all
attachments of Equipment multiplied by the estimated rate for each
attachment specified by Georgia Power for such calendar year divided by
twelve), and pay such estimated monthly license fee by the fifth (5th) day
of the month for which such fee shall accrue. Licensee shall submit a
reconciliation report to Georgia Power by February 15th of the following
calendar year that will reconcile all of Licensee's payments from and
expenses accrued (using the actual rate for each attachment which shall be
provided to Licensee by January 15th of such year) during the previous
calendar year. Licensee shall pay any deficiency at such time. Georgia
Power shall credit Licensee's account for any overpayments. Licensee shall
maintain and provide Georgia Power access to, from time to time, such
records relating to Licensee's payment of license fees (for any prior year
of this Agreement) as Georgia Power determines necessary to audit such
payment of license fees.
7.2 ADDITIONAL EXPENSES. Licensee shall reimburse Georgia Power for all costs
associated with modifications to any Licensed Pole or other make-ready work
necessary to properly affix Licensee's attachments to the Licensed Pole and
all amounts expended to bring any pole into compliance with NESC standards
as a result of Licensee's intended use of such Licensed Pole.
8. INDEMNIFICATION; LIMITATION OF LIABILITY.
8.1 INDEMNIFICATION BY LICENSEE. Licensee shall indemnify and hereby releases
and holds harmless Georgia Power, its affiliates, agents and contractors
and each of its and their respective officers, directors, trustees,
employees, advisers, agents or other, personnel (each an "Indemnitee") from
and against any liability, loss, damage, claim or cause of action of any
kind or nature (including, without limitation, damage to property and
injury to or death of persons), whether actual or alleged by any third
party but excluding any third-party claims to the extent arising from an
lndemnitee's sole or gross negligence or willful misconduct, or payment to
any person and amounts paid in compromise or settlement, whether or not
liability has been shown or can be known, and any expenses connected
therewith (including, without limitation, reasonable litigation expenses
and reasonable attorneys' fees, and expenses incurred in enforcing this
indemnity together with interest) arising out of or in connection with the
following events, whether occurring prior to the execution of this
Agreement or during the Term;
8.1.1 third-party claims which are caused in whole or in part by the presence
of any Equipment on any pole or the performance of any services on or near
any pole by Licensee, its affiliates, agents and contractors and each of
its and their respective offices, directors, trustees, employees, advisers,
agents or other personnel;
8.1.2 any personal injury to or damage to any property of an lndemnitee to the
extent such claims do not arise from Georgia Power's sole or gross
negligence or willful misconduct;
8.1.3 electrical contact with any Equipment attached to any pole;
8.1.4 penalties, fines or forfeitures imposed by a government authority arising
out of any failure or refusal by Licensee or any person acting by, through
or for Licensee to comply with any law, statute, regulation, rule,
ordinance, order, injunction, writ, decree or award of any government
agency, authority, commission, department or instrumentality thereof, or
any court, tribunal or arbitrator, applicable to the attachment of
Equipment to any pole or the furnishing or use of Licensee's services; and
8.1.5 repairing or replacing cables, wires or other facilities damaged as a
result of the negligence of Licensee.
8.2 TIME TO BRING CLAIMS. Licensee shall assert in writing any claim which it
may have against Georgia Power within six (6) months of the sooner of the
date on which Licensee becomes aware, or should have become aware of the
existence of such claim. Failure to assert such claim within such period
constitutes a waiver of such claim.
8.3 LIMITATION OF LIABILITY.
8.3.1 Georgia Power shall not be liable to Licensee for any interruption of
Licensee's service or for interference with Licensee's cables, wires or
related appliances unless caused by Georgia Power's gross negligence or
willful misconduct, or for incidental, special or consequential damages,
including, but not limited to, lost profits, lost savings or loss of use,
even if Licensee has been advised as to the possibility of such damages.
8.3.2 Georgia Power shall not be liable to Licensee for an amount greater than
the aggregate amount Licensee has paid to Georgia Power under this
Agreement as of the date such liability occurs.
8.4 SETTLEMENT AND DEFENSE OF CLAIMS. If any Claim arises or is made for which
Licensee is or may be liable under this Agreement, then Georgia Power shall
promptly notify Licensee in writing of such Claim and Georgia Power shall
be entitled to control the conduct of the defense of such Claim. Georgia
Power shall be entitled to settle such Claim on such terms as it deems
appropriate, and Licensee shall promptly reimburse Georgia Power for the
amount of all expenses, legal and otherwise, incurred by Georgia Power in
connection with the defense and settlement of any such Claim. If no
settlement of a Claim is made, then Licensee shall
5
satisfy any judgment rendered with respect to such Claim before Georgia
Power is required to do so, and shall pay all expenses, legal or otherwise,
incurred by Georgia Power in the defense of such Claim. Licensee shall not
have the right to settle any Claim without the prior written approval of
Georgia Power. The parties hereto shall treat any settlement of a Claim and
the terms thereof as confidential information in accordance with the terms
of Section 12 hereof.
8.5 INSURANCE. Throughout the term of this Agreement, Licensee shall maintain
insurance coverage which is sufficient to protect against any claims of
Georgia Power hereunder. Licensee shall make Georgia Power the named
beneficiary with rights of notice before cancellation and immediately
deliver such certificate to Georgia Power. Without limiting the foregoing,
Licensee shall maintain in force and effect one or more general liability
insurance policies providing minimum coverage (including, without
limitation, coverage for liabilities contractually assumed) of two-million
dollars ($2,000,000) per occurrence and in the aggregate for bodily injury,
one-million dollars ($1,000,000) per occurrence for property damage, and
excess liability umbrella coverage of three-million dollars ($3,000,000)
bringing total coverage to five million dollars ($5,000,000). All insurance
coverage obtained by Licensee pursuant to this Section 8.5 shall include
coverage for liabilities contractually assumed and contain a waiver of
subrogation in favor of Georgia Power or name Georgia Power an additional
insured. Licensee and its employees shall comply with all requirements of
the Workers' Compensation Laws of the State of Georgia.
9. SECURITY. To secure the prompt and full payment by Licensee of all amounts
owing to Georgia Power hereunder:
9.1 SECURITY BOND. Licensee shall furnish Georgia Power with a bond in the
amount corresponding to Licensee's designated position on Georgia Power's
Pole Count and Creditworthiness Matrix. For purposes hereof, the "Pole
Count and Creditworthiness Matrix" determines the amount of bond to be
posted by Licensee as a function of Licensee's creditworthiness and the
number of attachments such Licensee will maintain. Such initial bond amount
may be increased on January 1st of each year to ensure sufficient coverage
as required under this Section 9.1.
9.2 DETERMINATION OF CREDITWORTHINESS. Licensee shall provide Georgia Power,
from time to time, reasonable access to such financial records as Georgia
Power determines necessary to categorize Licensee's creditworthiness at the
time of such access. If Licensee chooses not to provide such access to
Georgia Power, then Georgia Power will be entitled to assume that Licensee
falls within the lowest creditworthiness category for purposes of this
Section 9. Licensee hereby grants Georgia Power full authority to inquire
into Licensee's credit history through any credit reporting agency.
9.3 RIGHT TO SECURITY INTEREST. Notwithstanding anything to the contrary
contained herein, if Licensee fails to meet sufficient creditworthiness
standards as set forth in the Pole Count and Creditworthiness Matrix, then
Georgia Power may require additional security in the form of a security
interest in the Equipment (under the terms and conditions of Section 9.4
hereof). Any waiver of an initial security interest shall not preclude
Georgia Power from later requiring the Security Interest should Licensee's
creditworthiness fall below the creditworthiness standards set forth in the
Pole Count and Creditworthiness Matrix.
9.4 TYPE OF SECURITY INTEREST. If a security interest is required under Section
9.3, then, at such time, Licensee shall execute any security agreements,
financing statements and all other instruments, assignments or documents
and shall take such other action as may be reasonably requested by Georgia
Power to perfect or to continue the perfection of Georgia Power's security
interest in the Equipment.
10. TERMINATION OR MODIFICATION.
10.1 TERMINATION UPON DEFAULT. If Licensee materially fails to comply with
this Agreement and such default continues for more than thirty (30) days
after Georgia Power provides written notice to Licensee of such default,
then Georgia Power may immediately terminate Licensee's rights hereunder
including, without limitation, Licensee's right to attach Equipment to
Georgia Power's poles. However, if a default by Licensee cannot (other than
a failure to make timely payments) reasonably be cured within a thirty (30)
day period and Licensee uses its best efforts to cure such default within
such period, then the time for curing shall be extended as long as
reasonably necessary to complete such cure.
10.2 TERMINATION OR MODIFICATION UPON A CHANGE OF LAW. If, in a final and
unappealable order, the Federal Communications Commission (the "FCC") or
any governing body or court with appropriate jurisdiction repeals,
overrules or modifies 47 U.S.C. ss. 224: 10.2.1 insofar as it requires
Georgia Power to provide pole access to Licensee, then Georgia Power shall
be entitled to terminate Licensee's rights hereunder, including, without
limitation, Licensee's right to attach Equipment to Georgia Power's poles,
immediately or after such period of notice as may be required by law; or
6
10.2.2 insofar as it sets a maximum license fee that Georgia Power may charge
Licensee, then Georgia Power may modify the license fees set forth in
Section 7.1 hereof to the fullest extent then permitted by law.
10.3 REMOVAL OF EQUIPMENT. Licensee shall remove all Equipment from all poles
no later than thirty (30) days after this Agreement is terminated. If
Licensee does not immediately so remove such Equipment, then Georgia Power
shall be entitled to remove such Equipment at Licensee's sole cost and
expense and without any liability therefor.
10.4 WAITING PERIOD. If Georgia Power terminates Licensee's right to attach
Equipment to any of Georgia Power's poles pursuant to Section 10.1 hereof,
then Licensee may not request that Georgia Power enter into a new pole
attachment agreement with Licensee for a period of one (1) year following
the date of such termination. In its application for such new agreement,
Licensee shall provide Georgia Power with evidence satisfactory to Georgia
Power that Licensee is not likely to default in any of its obligations
under such new agreement and such other satisfactory information, including
documentation sufficient to show creditworthiness, as Georgia Power shall
reasonably require, Georgia Power shall not be obligated to enter into any
such new agreement until it is satisfied, in its sole discretion, with such
evidence and information provided by Licensee.
11. VOLUNTARY REMOVAL OF EQUIPMENT BY LICENSEE.
11.1 NOTICE. Subject to Section 2.2 hereof, Licensee may remove any Equipment
from any Licensed Pole and shall provide Georgia Power with notice of such
removal prior to or within ten (10) days following such removal, stating
whether Licensee intends to replace the removed Equipment. If Licensee so
indicating that it does not intend to replace such Equipment, then its
license to use the Licensed Pole from which the Equipment is removed shall
terminate upon Georgia Power's receipt of such notice. If Licensee fails to
provide such notice within the period set forth above, then Licensee's
license to use all Licensed Poles from which Equipment has been removed
shall expire on the thirtieth (30th) day after such removal unless Licensee
replaces such Equipment within such period. Licensee will continue to
accrue license fees for Licensed Poles from which Equipment has been
removed until its license to use such License Poles terminates in
accordance with this Section 11.
11.2 CONTINUED USE OF POLES. If Licensee notifies Georgia Power in accordance
with Section 11.1 hereof that it intends to replace Equipment removed from
a Licensed Pole, then Licensee's license to use such pole, and its
obligation to pay all license fees therefor, shall extend for sixty (60)
days (the "Extended Period") from the date such notice is delivered to
Georgia Power. If Licensee has not replaced Equipment removed from a
Licensed Pole before the expiration of the Extended Period, then Licensee's
license to use such pole shall expire at the end of the Extended Period.
12. CONFIDENTIALITY. Each party, its affiliates, agents, contractors and
subsidiaries and its and their officers, directors, employees and agents
receiving information from a disclosing party that is clearly indicated to
be proprietary and confidential by a label, legend or other notice shall
keep such information in confidence and shall not copy or disclose or
permit others to copy or disclose such information to unauthorized persons
for a period of three (3) years from the date such information is provided
to the receiving party, unless such information constitutes a "trade
secret" under applicable law, in which case the receiving party shall
comply with the foregoing restrictions for as long as such information
constitutes a trade secret. Such information shall at all times remain the
exclusive property of the disclosing party and shall be used by the
receiving party solely for the purpose of performing its obligations under
this Agreement. This Section 12 shall not prohibit any disclosure required
by any court or regulatory authority of competent jurisdiction.
13. NO PROPERTY RIGHT. Licensee's right in the Licensed Poles has been and
remains merely a license and, except as provided in Section 3.3 hereof,
Licensee has not nor shall it acquire any ownership or property rights in
any poles or upgrades thereto by virtue of any attachments of Equipment
thereto, the passage of time, or the payment by Licensee for any upgrades
thereto.
14. CUMULATIVE REMEDIES. All rights and remedies herein or otherwise shall be
cumulative, and the exercise of any right or remedy shall not be construed
as an election of remedies and preclude the right to exercise any other
right or remedy.
15. FORCE MAJEURE. Georgia Power shall not be liable for any damages, costs,
expenses or other consequences incurred by Licensee or by any other person
or entity as a result of, and Licensee shall remain liable for all amounts
owed to Georgia Power hereunder notwithstanding any delay in or inability
to provide usable space to Licensee due to circumstances or events beyond
the reasonable control of Georgia Power, including, without limitation,
acts of God, hurricanes, tornadoes, rain, tidal wave, wind, hail,
lightning, earthquakes, snow or ice, extreme high or low temperatures,
change in the language or
7
in the interpretation of any law or regulation, strikes, sink holes,
lockouts or other labor problems, transportation delays, unavailability of
supplies or materials, fire or explosion, riot, military action or usurped
power, or actions or failures to act on the part of a governmental
authority.
16. MISCELLANEOUS.
16.1 ASSIGNMENT. Georgia Power may assign its rights and executory obligations
under this Agreement with respect to any pole which is transferred by
Georgia Power to another person or entity upon providing written notice to
Licensee. Licensee shall not assign any right or obligation under this
Agreement, except with the prior written consent of Georgia Power, which
consent shall not be unreasonably withheld or delayed.
16.2 AMENDMENT. Except as provided in Section 10 hereof, no change, amendment
or modification of this Agreement shall be binding upon the parties unless
such change, amendment or modification shall be in writing and duly
executed by both parties.
16.3 WAIVER. No party shall be deemed to have waived any provision of this
Agreement unless such waiver is made explicit in writing and signed by the
party waiving such provision. No waiver shall be deemed to be a continuing
waiver unless so stated in writing.
16.4 JUDICIAL INTERPRETATION. If this Agreement requires judicial
interpretation, then the parties hereby stipulate that the court should not
construe the terms of this Agreement more strictly against the party
preparing this Agreement, it being acknowledged that the parties have
sought and received advice of counsel to the extent that each deems
necessary for full understanding of all the consequences hereof.
16.5 SEVERABILITY. If any provision of this Agreement is found to be illegal
or otherwise invalid, then the validity of the remaining provisions shall
not be impaired. The parties shall attempt to replace such invalid
provision with a valid provision having substantially the same commercial
effect as such invalid provision and shall be deemed effective
retroactively to the Effective Date.
16.6 PAYMENT OF EXPENSES. Licensee shall pay all reasonable costs and expenses
of Georgia Power in the enforcement of this agreement. In the event that
Georgia Power is requested to perform administrative services not otherwise
required to be performed by Georgia Power under this agreement, including,
without limitation, services related to credit facilities or consents,
Licensee agrees to pay the fees or disbursements of Georgia Power
(including outside counsel and allocated costs of inside counsel) incurred
in connection with any of the foregoing.
16.7 HEADINGS. The headings in this Agreement have been inserted for
convenience of reference and shall not affect, expand or restrict the terms
or conditions hereof.
16.8 NOTICE. All notices regarding the attachment, maintenance or removal of
Equipment shall be sent electronically using the National Joint Utilities
Notification System. All other notices or communications required or
permitted hereunder shall be sent by internet email (using simple mail
transfer protocol), facsimile or in a writing delivered either personally
or by mail, courier, or similar reliable means of dispatch, addressed as
set forth at the head of this Agreement. Each party may designate by notice
in writing a new address for itself to which any notice or other
communication may thereafter be so given, served or sent. Notices or other
communications delivered personally shall be effective for all purposes
upon delivery and notices or other communications delivered by any other
means shall be effective for all purposes upon their receipt by the party
to whom they are addressed.
16.9 TIME IS OF THE ESSENCE. Time is of the essence hereof.
16.10 JURISDICTION AND GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with Georgia law. Licensee submits to the
jurisdiction of the Georgia courts and shall maintain an agent for service
of process within the state of Georgia throughout the term of this
Agreement. Neither party will bring any action against the other party
arising out of or relating to this Agreement in any forum except as
follows: (i) federal, state or county courts in ▇▇▇▇▇▇ County, Atlanta,
Georgia; (ii) the Georgia Public Service Commission; or (iii) the FCC.
Licensee irrevocably waives any objection it may have to such venue for any
such legal action and irrevocably waives the right to bring any legal
action in any other jurisdiction. The parties waive any right to a jury
trial for the adjudication of any disputes arising from the performance or
non-performance of the obligations under this Agreement.