Fiber Network Construction Contract

NECOM LLC



GENERAL TERMS

AND CONDITIONS









1. GENERAL STATEMENT 5



2. DEFINITIONS 5



3. PRIORITY OF DOCUMENTS 6



4. DESIGN DRAWINGS AND INSTRUCTIONS 6



5. INDEPENDENT CONTRACTOR 7



6. INFORMATION TO BE PROVIDED BY THE CONTRACTOR 7



7. OWNERSHIP AND TITLE TO THE WORK AND DOCUMENTS 7



8. FAMILIARITY WITH WORK 8



9. MATERIALS AND EQUIPMENT 8



10. EMPLOYEES 8



11. INFRINGEMENT OF PROPRIETARY RIGHTS 9



12. SURVEYS 10



13. PERMITS, LICENSES AND REGULATIONS 10



14. PROTECTION OF THE PUBLIC AND OF WORK AND PROPERTY 10



15. INSPECTION AND AUDIT 11



16. PROGRAM MANAGEMENT 12



17. DISCREPANCIES 12



18. CHANGES IN THE WORK 12



19. TIME AND ORDER OF COMPLETION; DELAYS AND EXTENSION OF TIME 13



20. INTERFERENCE WITH OPERATIONS 13



21. FORCE MAJEURE 14





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22. CLAIMS 15



23. DEDUCTIONS FOR UNCORRECTED WORK 15



24. CORRECTION OF WORK BEFORE FINAL PAYMENT 15



25. SUSPENSION OF WORK 15



26. THE OWNER'S RIGHT TO TERMINATE CONTRACT FOR CAUSE 16



27. DEFAULT 16



28. TERMINATION FOR OWNER'S CONVENIENCE 17



29. REMOVAL OF EQUIPMENT 17



30. RESPONSIBILITY FOR WORK 17



31. TAXES 18



32. PAYMENTS WITHHELD PRIOR TO FINAL ACCEPTANCE OF WORK 18



33. PARTIAL COMPLETION AND ACCEPTANCE 19



34. FINAL ACCEPTANCE AND PAYMENT 19



35. CONTRACTOR'S INSURANCE 20



36. INSURANCE TO PROTECT THE WORK 23



37. GUARANTEE OF WORK 23



38. SURETY BONDS 25



39. WAIVER OF MECHANIC'S LIENS 25



40. PROPRIETARY INFORMATION 25



41. RIGHTS OF VARIOUS INTERESTS 26



42. LABOR RELATIONS 27



43. SEPARATE CONTRACTS 27





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44. SUBCONTRACTORS 27



45. OWNER'S REPRESENTATIVE STATUS 28



46. OWNER'S REPRESENTATIVE DECISIONS 28



48. CLEANING UP 30



49. MONTHLY PAYMENTS 30



50. SAFETY PRACTICES 30



51. INDEMNIFICATION AND LIABILITY 31



52. ASSIGNMENT 32



53. SEVERABILITY 32



54. WAIVERS 32



55. APPLICABLE LAW 32



56. RIGHT TO AUDIT 32



57. CONDITION PRECEDENT TO PERFORMANCE 33



58. EXERCISE OF RIGHTS 33



59. NOTICES 34



60. NOTICE TO PROCEED 35



61. COMPLETE AGREEMENT 35











Revision #8, August 8, 1996 Issuing Date: 08/08/96





1. GENERAL STATEMENT



This Contract covers the Contractor's performance of Work for the Owner, as provided hereunder, including all Supplemental Addendum and all General and Special Terms and Conditions pertaining to the Work of the Contractor.



1.1 This agreement made this 14th day of August, 1996, by and between

FiveCom LLC with a principal place of business at 391 Totten Pond Road,

Suite 40151 Waltham, Massachusetts 02154, hereinafter referred to as

Owner and Seaward Corporation, with a principal place of business at

Route 236 Kittery, Maine 03904, hereinafter referred to as the



2. DEFINITIONS



2.1 "Contract Documents" consist of the following listed documents

(including any documents that are referenced in the following

documents):



2.1.1 General Terms and Conditions including Special Terms

and Conditions (the Agreement);



2.1.2 Specification Number T95-4 dated July 20, 1995, the

General Terms and Conditions included in this document are

specifically excluded;



2.1.3 Addendum Numbered 1 through 4;



2.1.4 Contractor's proposal dated May 9, 1996;



2.1.5 Contractor's letters to Northeast Utilities Systems

dated May 9, June 6, July 1 and July 22, 1996.



2.1.6 Approved Change Orders incorporated in any of the

documents before and subject to proper Notice hereafter.



2.2 "Owner" means NECOM LLC; FiveCom LLC, an affiliated company of

FiveCom, Inc., is agent for NECOM LLC. The term "Owner" includes

FiveCom, Inc., FiveCom LLC and NECOM LLC.



2.3 "Contractor" is the bidder who has been issued this Contract to

execute the Work.











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2.4 "Owner's Representative" is the individual person designated by the

Owner to represent the Owner in the execution of the Contract. See

Special Terms and Conditions.



2.5 "Subcontractor" means anyone other than the Owner who furnishes,

under an agreement with the Contractor, labor, materials, or equipment.

The term does not include any person who furnishes services of a

personal nature as an employee.



2.6 "Work" means the furnishing of the goods and services described in

the Contract, and Special Terms and Conditions, including all labor,

supervision, materials, equipment, and all else whatsoever necessary

for carrying out all duties, operations, and obligations required of

the Contractor by the Contract.



2.7 "Extra Work" means such labor, supervision, materials, equipment,

services, and all else whatsoever as may be ordered by Owner in

addition to that Work called for in the Contract Documents.



2.8 "Substantial Completion" means the date when the Work is

sufficiently completed in accordance with the Contract Documents,

including change orders, so that Owner can use the Work for the purpose

for which it was intended.



3. PRIORITY OF DOCUMENTS



3.1 In the event of conflict among the Contract Documents, the order of

supremacy, subject to Special Terms and Conditions shall be based on:



3.1.1 A document with a more recent date will take priority

over a document with an older date;



3.1.2 The General Terms and Conditions will have priority over

the drawings.



4. DESIGN DRAWINGS AND INSTRUCTIONS



4.1 The Owner is responsible for the design, the drawings,

specifications and other instructions. The Owner will furnish free of

charge drawings and instructions which represent the requirements of

the Work to be performed under the Contract. In the case of lump-sum

contracts, drawings and instructions which represent the Work to be

done will be furnished prior to the time of entering into the Contract.

Owner may, during the life of the Contract, issue additional











Revision #8, August 8, 1996 Issuing Date: 08/08/96



instructions by means of drawings or other media to provide

clarification of requirements or in accordance with Section 18 to

indicate changes in the work.



5. INDEPENDENT CONTRACTOR



5.1 The Contractor, its employees, Subcontractors and those under its

control shall perform all Work as independent contractors, and shall

not be deemed to be the employees or agents of the Owner for any

purpose whatsoever.



5.2 This Contract is not intended to create nor shall it be construed

to create any partnership, joint venture, employment or agency

relationship between Contractor and Owner, and no party hereto shall be

liable for the payment or performance of any debts, obligations, or

liabilities of the other party, unless expressly assumed in writing

herein or otherwise. Each party retains full control over the

employment, direction, compensation and discharge of its employees, and

will be solely responsible for all compensation of such employees,

including social security, withholding and worker's compensation



6. INFORMATION TO BE PROVIDED BY THE CONTRACTOR



6.1 The Contractor shall submit at such time as may be requested by

Owner, schedules which show the order in which Contractor proposes to

carry on the Work, with dates at which Contractor will start the

several parts of the Work, and estimated dates of completion of the

several parts.



6.2 If required by the Owner, Contractor shall provide a breakdown of

the cost of the Work, based on a list of cost items that will be

furnished by Owner.



7. OWNERSHIP AND TITLE TO THE WORK AND DOCUMENTS



7.1 The Owner shall have absolute legal and beneficial ownership of the

Work and the material related thereto.



7.2 The Owner shall own all drawings provided to the Contractor for

this Work. Drawings and specifications furnished by Owner are the

property of Owner and shall not be reused on other work. With the

exception of the set included with the Contract documents, all drawings

and specifications are to be returned to Owner on request at the

completion of the Work.













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8. FAMILIARITY WITH WORK



8.1 Such information as Owner may have given to Contractor to assist

him in properly evaluating the amount and character of the Work

required hereunder, such as information as to subsoil conditions in the

vicinity of the Work, topography, or location and condition of existing

structures and equipment to which the Work hereunder may be attached or

which may interfere therewith, was given as being the best factual

information available to Owner, without the assumption of

responsibility for its accuracy or for any conclusions that Contractor

might draw therefrom.



8.2 The Contractor, by careful examination, shall satisfy itself as to

the nature and location of the work, the character of equipment, and

facilities needed prior to and during the execution of the work, the

general and local conditions, and all other matters which can in any

way affect the work under this contract.



8.3 The Contractor shall be responsible for the verification of

existing dimensions affecting the Work. No allowance will be made, and

no responsibility will be assumed by Owner for any failure of

Contractor to estimate correctly any difficulty attendant to the

execution of the Work or to verify any dimension affecting the Work.



9. MATERIALS AND EQUIPMENT



9.1 Unless otherwise stipulated, the Contractor shall provide and pay

for all materials, labor, tools, equipment, transportation, sanitary

facilities, and all other facilities necessary for the execution and

the completion of the Work. Unless otherwise specified, all materials

incorporated permanently in the Work shall be new and shall meet the

requirements of the specifications and drawings. Unless otherwise

specified, workmanship and materials shall be of best commercial

quality. The Contractor shall, if requested by Owner, furnish

satisfactory evidence as to the kind and quality of materials. All Work

not so conforming will be considered defective.



10. EMPLOYEES



10.1 In connection with its performance of each Contract, Contractor

shall comply with the applicable provisions of Executive Order 11246

and the regulations issued pursuant thereto (generally Part 6-1 of

Title 41 of the Code of Federal Regulations), unless exempted by said

regulations, particularly the provisions of the Equal Opportunity

Clause (41 CFR Section 6- 1.4(a)), which are incorporated











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herein by reference; the provisions and regulations pertaining to

nondiscrimination and affirmative action in employment (41 CFR Sections

60-1.4, 1.40, 1.41 and 1.42), and the filing of Standard Form 100 EE-1.

Contractor certifies, in accordance with the requirements of 41 CFR

Section 6-1.8, that its facilities for employees are not segregated. In

addition, Contractor shall comply with the provisions of the

Affirmative Action Clause for Handicapped Workers (41 CFR Section

6-741.4), and for Disabled Veterans and Veterans of the Vietnam Era (41

CFR Section 6-250.4), which are also incorporated herein by reference.



10.2 Contractor shall at all times enforce strict discipline and good

order among its employees, and shall seek to avoid employing on the

Work any unfit person or anyone not skilled in the work assigned.

Contractor shall, if requested to do so by the Owner, remove from the

job site any employee whom the Owner determines to be incompetent or



11. INFRINGEMENT OF PROPRIETARY RIGHTS



11.1 Contractor shall indemnify, defend, and hold harmless the Owner,

its employees, agents and affiliates from any and all liabilities,

penalties, damages, claims, actions, or proceedings based upon any

allegation that any portion or all of the Work furnished under a

Contract, or any use thereof for purposes intended by a Contract

constitutes an infringement of any patent, copyright, trademark, or

other proprietary interest.



11.2 If Owner provides Contractor notice of a claim of infringement

with respect to any Contractor furnished material and equipment, or

Information used in connection with the Work (collectively, the

"Product") or the Owner's use of all or any portion of the Product is

enjoined due to such claim of infringement, Contractor shall promptly

and at its sole expense either (i) procure for the Owner the right to

continue using the Product or (ii) replace the Product with

non-infringing and functionally equivalent Product, (iii) modify the

Product so that it becomes non-infringing and functionally equivalent,

or (iv) takes such other action as is necessary to assure the Owner's

uninterrupted use of the Work.



11.3 Contractor shall not be liable for indemnification to the Owner to

the extent infringement results from (i) design requirements included

in the Work at the specific, written direction of the Owner, or (ii)

because of use or operation of the Work by the Owner in violation of

the written instruction provided as part of the Work by Contractor, its

Subcontractors or suppliers.













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12. SURVEYS



12.1 Unless otherwise specified, the Owner will furnish all land

surveys and establish all base lines for locating the principal

component parts of the Work together with a suitable number of bench

marks adjacent to the Work. From the information provided by Owner,

Contractor shall develop and make all detail surveys needed for

locations and other working points, lines and elevations. Contractor

shall take necessary care to preserve the base line markers, bench

marks and other survey points provided by Owner.



13. PERMITS, LICENSES AND REGULATIONS



13.1 Contractor shall comply with all applicable federal, state and

local laws and ordinances, and all lawful orders, rules, regulations of

governmental agencies.



13.2 Unless otherwise indicated, Contractor shall obtain and pay for

all necessary permits, licenses, and other forms of documentation

required to perform the Work hereunder, and upon request of Owner,

Contractor shall furnish copies thereof to Owner.



13.3 If Contractor observes that the Drawings and Specifications are at

variance with any such laws, rules, ordinances, regulations, or orders,

it shall promptly notify Owner in writing and any necessary changes

will be made as provided in the Contract for changes in the Work. The

continuance of the Work by the Contractor while aware of such

variances, whether or not reported to Owner, shall be at Contractor's

sole risk. Contractor will indemnify, defend, and hold harmless Owner,

its employees, agents, and affiliates from and against any and all

liabilities, penalties, damages, claims, actions, expenses, or

proceedings which may arise as a result of the actual or alleged

violation of any such law, ordinance, rule, regulation or order as a

result of Contractor's performance under this Contract.



14. PROTECTION OF THE PUBLIC AND OF WORK AND PROPERTY



14.1 Contractor shall provide and maintain all necessary watchmen,

barricades, warning lights, signs, flagmen, police details and other

precautions for the protection and safety of the public whether or not

reimbursable to the Contractor. Contractor shall continuously maintain

adequate protection of all Work from damage, and shall take all

necessary precautions to protect the Owner's property from injury or

loss arising in connection with this Contract. Contractor shall make

good and shall repair, at no cost to Owner, any damage resulting from











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Contractor's lack of protective precautions. Contractor shall

adequately protect adjacent private and public property. Contractor

shall exercise the utmost care and shall carry on all activities under

the supervision of properly qualified personnel and shall comply with

all Federal, state and local laws, ordinances, rules, regulations and

orders when the use or storage of explosives or other hazardous

materials or equipment if necessary for the execution of the Work.



14.2 Owner's Representative shall have the right, but not the

obligation, to direct Contractor to stop all Work if Contractor is

violating any safety rule of the Northeast Utilities Accident

Prevention Manual. No claim by the Contractor for additional payment or

an extension of time for performance will be honored by Owner as a

result of such a work stoppage.



14.3 In an emergency affecting the safety of life, of the Work, or of

property, Contractor is, without special instructions or authorization

from the Owner's Representative, hereby permitted to act at its

discretion to prevent such threatened loss or injury. Any compensation

claimed by Contractor on account of emergency work shall be determined

by agreement or by arbitration.



15. INSPECTION AND AUDIT



15.1 The Contractor will be held responsible for the acceptability of

the finished Work. The Owner's Representative shall at all times have

access to the Work and Contractor's facilities for inspection, audit

and survey purposes and the Contractor shall provide reasonable

assistance and cooperation for such inspections, audits and surveys.



15.2 Owner shall have the right to make Periodic Inspections of any

part of Contractor's operations occupying Owner's property. Owner will

give Contractor reasonable advance written Notice of any periodic

inspections, except in those instances where, in the sole judgment of

Owner, safety considerations justify the need for a Periodic Inspection

without notice. A representative of the Contractor may accompany the

Owner's representative on all Periodic Inspections. The making of

Periodic Inspections or the failure to do so shall not impose upon

Owner any liability of any kind whatsoever nor relieve Contractor of

any responsibility, obligations or liability assumed under this



15.3 Re-examination of any Work may be ordered by Owner's

Representative, and, if so ordered, the Work must be uncovered by

Contractor. If such Work is found to be in accordance with the

Contract, Owner shall pay the cost of re-examination. If such Work is

not in accordance with the Contract, Contractor











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shall pay such cost, unless it shall be shown that the defect in the

Work was caused by another contractor employed by Owner, and in that

event, Owner shall pay such cost.



16. PROGRAM MANAGEMENT



16.1 The Contractor shall keep a competent superintendent and any

necessary assistants and other management personnel on the job site

during the performance of the Work. The superintendent shall be

authorized to act for the Contractor, and all instruction given to

him/her shall be binding as if given directly to the Contractor. The

superintendent shall give efficient supervision to the Work using the

best of skill and attention. Owner reserves the right to have a

superintendent removed from the project in the Owner's sole discretion

if the Owner determines that the superintendent fails to comply with

the Owner's specifications or standards.



16.2 The Contractor shall designate a Superintendent and the Owner

shall designate an Owner's Representative (the "Managers"). Whenever

either party is entitled to approve a matter, the Manager for the par ...