S-755 - 05/25/1993 - CONTRACT - Ordinances ORDINANCE S- 755
ORDINANCE GRANTING THE FRANCHISE TO
CHICAGO FIBER OPTIC CORPORATION, D/B/A
METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC.
TO OPERATE AND MAINTAIN A DIGITAL FIBER OPTIC
TELECOMMUNICATION SYSTEM
WHEREAS, the Village of Oak Brook has been requested to grant a non-
exclusive franchise to Chicago Fiber Optic Corporation, d/b/a/ Metropolitan
Fiber systems of Chicago,- Inc. (hereinafter referred to as "Metropolitan"; and
WHEREAS, Metropolitan has requested the permission of the Village of Oak
Brook to construct and maintain a digital fiber optic telecommunication system
within the Village of Oak Brook; and
WHEREAS, The President and Board of Trustees have determined that it
would be in the best interests of the citizens of the Village of Oak Brook to
execute a Non-Exclusive Telecommunications Franchise Agreement with
Metropolitan, attached hereto and marked as "Exhibit A".
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES,
ILLINOIS as follows:
Section 1: That the provisions of the preamble hereinabove set forth are
hereby adopted as though fully set forth herein.
Section 2: That the attached Exhibit A be and hereby is adopted as a
Franchise Agreement by and between the Village of Oak Brook and Metropolitan.
Section 3: That the Village President and Village Clerk be and hereby are
authorized to execute Exhibit A.
Section 4: That the terms and conditions of the Franchise Agreement as
contained in Exhibit A are hereby adopted as an Ordinance of the Village of Oak
Brook as if fully set forth in this Ordinance.
Section 5: That this Ordinance shall be in full force and effect from and
after its passage and approval in the manner provided by law.
Ordinance S- 755
Granting Franchise To
Chicago Fiber Optic
Corporation, d/b/a
Metropolitan Fiber
Systems of Chicago, Inc.
To Operate and Maintain
A Digital Fiber Optic
Telecommunication System
Page two
PASSED THIS 25th day of May , 1993.
Ayes: Trustees Bartecki, Kenny, Payovich, Shumate and Skinner
Nays: None
Absent: Node
Abstain: Trustee McInerney
APPROVED THIS 25th day of May , 1993.
C/ Al/tAl 727
Vi age President
ATTEST:
Village erk
Approved as to Form:
11 j , i . /t,‘, (LLL:J/
Village Attorney
Published
Date Paper
� " _ Not Published xx
r
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT
BY AND BETWEEN
THE VILLAGE OF OAK BROOK
AND
CHICAGO FIBER OPTIC CORPORATION, d/b/a
METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC.
DATED: May 25 , 1993
•
•
3` 1
EXHIBIT A
NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT
THIS AGREEMENT is dated this 25th day of May , 1993, and
is by and between the VILLAGE OF OAK BROOK, an Illinois municipal corporation(the
"Village")and CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN
FIBER SYSTEMS OF CHICAGO, INC., an Illinois corporation ("Metropolitan").
IN CONSIDERATION of the recitals and the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
SECTION 1. RECITALS
A. Metropolitan is engaged in the business of designing, selling, constructing,
installing, maintaining and operating a digital, fiber optic based alternative access
telecommunications system, for special access and private line service.
B. At its regular meeting held on the 25th day of May , 1993, the
President and Board of Trustees adopted Ordinance No.S-755 awarding a nonexclusive,
revocable telecommunications franchise to Metropolitan conditioned upon the execution of this
Agreement by Metropolitan and the Village of all terms and conditions of such franchise
agreement.
C. The corporate authorities,after due and careful consideration,have concluded
that granting a nonexclusive telecommunications franchise to Metropolitan pursuant to and in
1
♦ a t l ,
ti
•
accordance with this Agreement would be in the best interests of the Village and its residents.
SECTION 2. INTERPRETATION AND DEFINITIONS
A. Interpretation
1. Word Use. When not inconsistent with the context,words used in the
present tense include the future, words in the plural number include the singular number and
words in the singular number include the plural number. The words"shall"or"will"are always
mandatory and not merely directory, and the word "may" is permissive.
2. Conflicting Provisions.
a. In the event of an express conflict or ambiguity between a provision in
this Agreement and a provision in the Ordinance (as hereinafter
defined), the provision in the Ordinance shall control.
b. In no event shall prior drafts of this Agreement or Ordinance be used,
considered or relied upon in interpreting or construing any provision of
this Agreement.
c. The headings and captions contained in this Agreement are to facilitate
reference only, and shall not in any way affect the construction or
interpretation hereof.
B. Definitions, Whenever used in this Agreement,the following terms shall have
the following meanings unless a different meaning is required by the context:
1. "Alternative Access": The provision of dedicated, high capacity,
digital lines between two points on a predominantly fiber optic network.
2. "Corporate Authorities": The President and Board of Trustees of the
Village.
3. "Effective Date": The date of this Agreement as set forth on the first
page of this Agreement,which date shall be used for reference purposes and all other purposes.
2
4. "Facilities": The individual parts that together make the
Telecommunications System fully operational for the purposes set forth herein, including,
without limitation,all cables, conduits, access manholes, pedestals,boxes,equipment,devices
and other appurtenances in the public way.
5. "Final Plans and Specifications": Those certain plans and
specifications for the Telecommunications System approved by the Village Engineer pursuant
to Section 6 of this Agreement.
6. "Franchise": The nonexclusive, revocable license granted to
Metropolitan in this Agreement, to use certain public ways within the franchise area for the
purposes ofconstructing,installing,using,maintaining,testing,inspecting,operating,repairing
and removing the Telecommunications System pursuant to and in accordance with this
Agreement.
7. "Franchise Fee": The fee required to be paid pursuant to Section 4
of this Agreement in consideration for the franchise.
8. "Governmental Authority": The United States of America,the State
of Illinois and any political subdivision thereof including, without limitation, the Village and
any agency, department, commission, board, bureau or other instrumentality of any of them
that has jurisdiction over the Telecommunications System or any property over,under,above
or along which the Telecommunications System shall be installed.
9. "Gross Revenue": All of the revenue, as determined in accordance
with generally accepted accounting principles,that is derived from or in conjunction with the
operation of the Telecommunications System in the Village including, without limitation, all
revenue received for the provision of service,installation,reconnection,sale of products and the
• i
imputed value of bartered service and the value of all goods and services received by
Metropolitan in exchange for the service;provided,however,that no billings shall be imputed
3
,
related to the services provided to the Village.
10. "Ordinance": Ordinance No. S-755 adopted by the Corporate
Authorities on the 25th day of Nay , 1993, enabling the Village to grant a
nonexclusive,revocable telecommunications franchise.
11. "Permits": All approvals, consents, permits, licenses,easements and
authorizations required to be obtained from all Governmental Authorities and Persons, in
connection with the Telecommunications Systems, including those needed to obtain access to
or use of any real property.
12. "Person": Any natural person, or any association, firm, partnership,
joint venture,corporation,or other legally recognized entity or organization,whether for profit
or not-for-profit,excluding governmental authorities.
13. "Preliminary Plans and Specifications": Those certain plans and
specifications for the Telecommunications System submitted by Metropolitan to the Village
Engineer pursuant to Section 6 of this Agreement.
14. "Products": All equipment,instruments,parts, accessories and other
goods offered by Metropolitan in connection with or otherwise relating to the service.
15. "Public Way": A public street, highway, lane, path, alley, sidewalk,
boulevard,drive,utility easement or other public rights-of-way now or hereafter owned by the
Village or in which the Village has the right to grant to Metropolitan the rights and interests
granted in this Agreement.
16. "Service": The provision or offering of special access or private line
telecommunications service(either directly or as a carrier for others)to Persons by means of the
Telecommunications System, provided that such service shall not include the operation of a
Cable Television System.
17. "Telecommunications System": The telecommunications network
4
consisting primarily of fiber optic cables, to be constructed and installed by Metropolitan
pursuant to and in accordance with this Agreement, including, without limitation, all cables,
conduits,access manholes,pedestals,boxes,equipment,devices and appurtenances to be used
by Metropolitan to make the network fully operational, for the purposes of transmitting,
receiving and distributing telecommunications and other information, including, without
limitation,voice, data, signals and other forms of communications, provided that no portion
of said Telecommunications System shall constitute all or any portion of a Cable Television
System.
SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE
A. Grant of Franchise. The Village hereby grants to Metropolitan the franchise
to use only those certain public ways within the Village with Phase I being detailed on Exhibit
A attached hereto for the purposes of constructing, installing, using, maintaining, testing,
inspecting, operating, repairing and removing the Telecommunications System.
B. Acceptance of Franchise. Metropolitan hereby accepts the franchise and
agrees to strictly comply with this Agreement and the Ordinance.
C. License,.Permits and Approvals. This Agreement shall not take the place
of any license, permit or approval that is, or may in the future be required to be, secured by
Metropolitan from any governmental authority or person in order to:
1. install,use,maintain,test,inspect,operate,repair or remove the
Telecommunications System;
2. access, possess or otherwise use any real property; or
3. engage in, maintain, operate or carry on a business within the
Village.
D. Franchise Term. The term of the franchise shall begin on the effective date
and shall expire 10 years from the effective date,and may be renewed as provided in Section 16.
5
The term may be terminated earlier by mutual agreement or in the event of default.
E. Nonexclusivity of Grant,. Nothing contained in the Ordinance or in this
Agreement shall prohibit the Village from granting to any other person or governmental
authority a franchise similar to the one granted herein to construct, install, maintain and
operate a telecommunications system in the Village. The Village shall use its best efforts to
notify Metropolitan upon the Village's receipt of an application for a franchise similar to the
one granted herein, but, in any event, the Village shall provide notice to Metropolitan of any
additional telecommunication franchises granted by the Village.
SECTION 4. COSTS, EXPENSES. FRANCHISE FEE AND OTHER.
PAYMENTS
A. Unascertainable Costs and Expenses. Metropolitan shall pay to the Village on
the effective date the sum of One Thousand Five Hundred Dollars($1,500.00),which amount
the parties agree is a fair estimate of certain costs and expenses incurred by the Village in
connection with the granting of the Franchise, the precise amount of which are too difficult to
ascertain.
B. Engineering Review Fee. Metropolitan shall pay to the Village, immediately
upon presentation of a written demand or demands therefor,all engineering fees in an amount
equal to 3%of the cost of any proposed construction on the public ways of the Village, as such
cost is reasonably determined by the Village Engineer, as compensation to the Village for the
review and processing of any and all plans for any construction of the Telecommunications
System including, without limitation, the review and processing of the preliminary plans and
specifications and the final plans and specifications.
C. Franchise Fee,
1. Amount of Fee. In addition to all other fees and payments required
pursuant to this Agreement, including, without limitation, the fees and payments paid by
6
1 1 , I • i
+ l 1
Metropolitan pursuant to Subsections 4.A.and 4.B.of this Agreement,Metropolitan shall pay
to the Village an annual fee in the amount that is the greater of(a)(i)$3,000 as general rental
of the public ways and (a) (ii) recognizing AT&T's importance and impact on the
telecommunications industry, an additional $15,000 as rental of the public ways to connect
Metropolitan's system in Oak Brook to AT&T's point of presence,a(b)the total of(i)three
percent of the gross revenue derived from all services originating and terminating end user to
end user within the Village and (ii) three percent of a prorated portion of the gross revenue
derived from services that either(x)originate but do not terminate or(y)terminate but do not
originate within the Village. The proration shall be calculated annually as of May l by dividing
[Metropolitan's total end-to-end mileage on public rights-of-way located within the Village]into
[Metropolitan's total mileage on public rights-of-way within its total Chicago area system].
2. Payment of Fee. The franchise fee shall be paid annually on or before
June 30. The fee shall be payable to"Village of Oak Brook"and shall be delivered to the Village
Treasurer along with a license fee statement showing,in a form prescribed or approved by the
Village,the calculations of the amount of such payment. This statement shall be verified by an
employee of Metropolitan who is responsible for the accuracy of the statement.
D. Municipal Services. In the event that any portion of the Telecommunications
System is placed in any public way located adjacent to property on which a municipal building
is located and used for municipal purposes, Metropolitan shall provide, upon written request
by the Village, at no cost to the Village and as additional compensation to the Village for the
franchise, the following services:
1. Splice Points. Metropolitan shall bring a single termination point into any
such building, which Metropolitan shall terminate with connectors within the
building at or near the building entrance point. The Village Engineer shall
7
designate,in timely fashion,the buildings to be so served and shall arrange for
access for Metropolitan. The maximum number of splice points to be provided
to the Village by Metropolitan is ten(10). The Village shall be responsible for
building and maintaining its system from outside the splice points to its
buildings.
2, Purchase or Lease. In the event that the Village desires to purchase, lease or
use any additional telecommunications service or any facilities or equipment
provided by Metropolitan,Metropolitan shall,subject to applicable law, offer
the same to the Village upon contract terms and conditions offered to any
political subdivision within the State of Illinois. Metropolitan's obligation to
provide service to the Village is dependent on availability of excess capacity.
Metropolitan is not obligated to terminate service to any customer to
accommodate the Village's request.
E. Acceptance by the Village. The acceptance by the Village of any payment shall
not be construed as an accord by the Village that the amount of such payment is the correct
amount due from Metropolitan pursuant to this Agreement, nor shall such acceptance of any
payment be construed to be a release or waiver of any claim the Village may have for further
or additional sums due and payable pursuant to this Agreement.
F. No Right of Setoff, All payments due to the Village from Metropolitan
pursuant to this Agreement shall be paid without counterclaim, setoff, deduction or defense.
In the event Metropolitan does set off or deduct any amount from any such payment or
otherwise reduces the amount due based on a counterclaim or defense, the Village shall have
the right to, without any liability to Metropolitan,its customers or any third persons, pursue
any and all remedies available to it at law or in equity,including without limitation,revocation
of the franchise.
8
G. Fees and Compensation Not a Tax. Payment by Metropolitan to the Village
of the fees and compensation set forth in Section 4 of this Agreement are compensation for use
of the public ways and shall not be considered in the nature of a tax. Such payments shall be
separate from and additional to any and all federal,state,local and municipal taxes,as may be
due, which are separate and distinct obligations of Metropolitan.
SECTION 5. INTER-CITY CIRCUITS AND REPORTING
REQUIREMENTS
A. This Agreement contemplates that Metropolitan might construct circuits
from within the Village limits of the Village extending to points beyond such Village limits and
providing point-to-point nonswitched Interexchange Telecommunications Services with no
intermediate services within the Village ("Intercity Circuits"). Should Intercity Circuits be
established,Metropolitan agrees to bill its customers separately for Telecommunication Services
provided through Intercity Circuits.
B. Metropolitan shall furnish to the Village Treasurer such information as may
be required by the Village Treasurer (including customer lists, if so required) to effect
compliance by Metropolitan and Metropolitan's customers with the Village of Oak Brook
Utility Tax Ordinance(Chapter 13, Article I of the Code of Ordinances of the Village of Oak
Brook)and any other ordinances of the Village of Oak Brook which shall be in effect from time
to time regulating, taxing or otherwise concerning Metropolitan's operation of a
Telecommunication System pursuant to the Agreement. The parties hereto expressly intend and
acknowledge that Metropolitan's fiber optic cables and telecommunication lines will be
personal property of Metropolitan and not fixtures. Metropolitan also specifically
acknowledges its duty to collect and remit to the Village the Village's Utility' Tax and
acknowledges its duty and obligation to comply with the ordinances of the Village, including
9
•
any ordinances that require the payment or collection of another Village tax or the obtaining
of any Village licenses. Breaching the provisions of said subparagraph B shall be a default
under this Agreement.
SECTION 6. LOCATION OF FACILITIES
The following principles,in the following order of priority,shall govern the location of
all facilities:
A. Wherever an existing utility pole can physically accommodate, with or
without modification thereto, the facilities,or whenever an existing utility conduit,duct,vault
or other existing utility facility can physically accommodate, any cable, wire or other facility,
without substantial modification or expense to Metropolitan, Metropolitan shall utilize such
and shall not construct or install any new, different or additional facilities.
B. Wherever the electric or telephone utilities are underground at a
particular location, Metropolitan's facilities must be located underground.
C. Wherever the existing utility facilities cannot physically accommodate
Metropolitan's cable, wire or other facilities, or wherever no such utility facilities exist at the
time of Metropolitan's construction of the Telecommunications System, Metropolitan shall
locate its facilities underground.
D. Except as provided above,all facilities placed on any public way,public
property or private property shall be adequately screened or buried underground so as not to
be visible from any public way and in accordance with all applicable codes. All underground
burial shall be located approximately 2.5 feet below the surface, unless otherwise agreed to by
the Village.
SECTION 7. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM
A. Plans and Specifications,
1. Submission of Preliminary Plans and Specifications,Metropolitan shall,
10
within 45 days after the effective date, submit to the Village Engineer, for his review and
comment, six complete sets of the preliminary plans and specifications which shall include,
without limitation:
(a) A map in sufficient detail indicating(i)the proposed route for all cable
lines, including detailed drawings of the location in each public way where such cables are
proposed to be placed underground and above ground; (ii)all existing utilities in such public
ways;(iii)all trees, structures, improvements and obstructions in such public ways and(iv)the
names of owners of all properties, public or private, under, over or across that the cable lines
are proposed to be constructed and/or installed. Such map shall also identify which trees,utility
facilities,structures,other improvements and all other obstructions that Metropolitan proposes
to temporarily or permanently remove or relocate.
(b) A complete list of all permits required to be obtained from governmental
authorities and from persons.
(c) A written traffic control plan delineating the proposed construction
schedule and traffic impacts on public ways. The plan shall be proposed in accordance with the
manual on uniform traffic control devices published by the Illinois Department of
Transportation.
2. Review by the Village. The Village Engineer shall review, within 45 days, the
preliminary plans and specifications. After his review, the Village Engineer shall submit any
comments he may have to Metropolitan.
3. Submission of Final Plans and Specifications, Metropolitan shall submit to the
Village Engineer, for his review and approval, six complete sets of the final plans and
specifications. The fmal plans and specifications shall consist of final, complete and revised
versions of each of the documents that are specified in Subsections 6.A.1.of this Agreement as
composing the preliminary plans and specifications. If the Village Engineer is satisfied that the
ICI
11
•
final plans and specifications are in order and reflect all of the revisions that the Village
Engineer requested in connection with his review of the preliminary plans and specifications,
then the Village Engineer shall approve the final plans and specifications not later than fifteen
(15) days after his receipt thereof. In the event the plans and specifications do not meet the
requirements of the Village Engineer, he shall notify Metropolitan,in writing, of the denial of
the plans and specifications. No construction of any kind shall commence, and the Village
shall not be required to issue any permits for any construction, unless and until the Village
Engineer approves the final plans and specifications.
4. Resolution of Engineering Disputes. The Village and Metropolitan agree to use
their respective best efforts to resolve all engineering issues regarding the efforts to resolve all
engineering issues regarding the finals plans and specifications to the mutual satisfaction of both
parties;provided,however,that under no circumstances shall the Village be obliged or required
to revise, amend, modify or waive any of the codes, ordinances, rules or regulations of the
Village.
B. Permits
1. Obligation to Obtain Permits. Metropolitan shall, before commencing
construction of any kind in the Village,obtain all permits, as may be necessary or required for
the use of property in connection with, and for the construction of, the Telecommunications
System. Metropolitan shall submit copies of all permits received by it, with the exception of
those issued by the Village,to the Village Engineer prior to the commencement of construction.
Each permit application submitted by Metropolitan to the Village shall contain plans and
specifications sufficiently detailed to demonstrate to the Village that the Telecommunications
System will be constructed in accordance with all applicable codes and ordinances and shall
meet the requirements of paragraph 6.A. Where cable is to be installed on existing utility pales,
the permit application shall include a drawing showing the existing utility poles. Where cable
12
is to be buried underground, the permit application shall include a drawing depicting the
proposed depth of such burial.
2. Membership in J.U.L.I.E. Metropolitan shall, before commencing
construction, become a member of J.U.L.I.E. and shall at all times during the term of the
franchise, comply with all regulations of J.U.L.I.E.
3. Construction in Accordance with Permits. Metropolitan shall construct the
Telecommunications System in strict accordance with all permits issued and all applicable
codes,rules and regulations of all governmental authorities,and the failure to comply with the
permit documents shall constitute a material breach of this Agreement. Metropolitan shall,as
diligently as possible but in no event later than 30 days after delivery of a violation notice by the
Village, correct such violation. Notwithstanding the foregoing, if the violation constitutes a
potential threat to the public, Metropolitan shall correct the violation immediately.
C. Construction On and In Public Ways
1. Minimal Interference. All work performed on, in, under, across or along the
public ways shall be conducted so as to minimize any interference with the rights and
convenience of the general public,including traffic flow. Metropolitan shall,at all times while
performing work in the public ways,(a)employ reasonable care to protect the health and safety
of the public; and (b) operate in accordance with the traffic control plan as approved by the
Village Engineer.
2. Barricades. Metropolitan shall use suitable barricades, flags, lights, flares or
other protective devices at such times and places as are required by its Traffic Control Plan,all
applicable ordinances,codes, rules and regulations and at such additional times and places as
are required for the safety of all members of the general public, so as to prevent injury to any
person or vehicle by reason of any work being performed, as determined by the Village iii its
sole judgment and discretion.
13
D. Excavation Work and Time Periods
1. Prior Notification, Metropolitan shall notify the Village Engineer and the
owner of all private property abutting the proposed excavation at least 72 hours prior to any
such excavation in any public way. Nothing herein shall be construed as preventing
Metropolitan from making immediate repairs to any damage caused to any facilities;provided
that Metropolitan shall notify the Village Engineer as promptly as possible before such repair
work or if in an emergency, as soon thereafter as possible, and in any event shall notify
J.U.L.I.E. before such repair work.
2. Excavation Plans, No excavation on any public way or private property shall
be conducted more than twenty-four(24)hours prior to the installation therein of any facilities.
3. Excavations in Lawns and Parkways. All excavations in lawns or grassy
parkways shall be immediately backfilled,tamped and restored with sod in accordance with the
applicable provisions of this Agreement.
E. Trimming Trees Prohibited, Metropolitan shall be prohibited from cutting or
trimming any tree, shrub or other vegetation,in or on any public way. Metropolitan may cut
or trim trees on private property as necessary; provided, however, Metropolitan shall first
obtain the permission of the affected property owner. All such trimming shall be in accordance
with standard local arborcultural practices,and no trimming shall occur until the wires,cables
or other facilities have first been attached to the poles in order to ensure trimming to the
minimum extent necessary. All trimming debris shall be removed from the work area on a daily
basis.
F. General Construction Standard. All work performed on the
Telecommunications System shall be performed in a good and workmanlike manner using
materials of good and durable quality. If at any time it is determined by the Village or any
other Governmental Authority, in its sole discretion and judgment, that any part of the
14
Telecommunications System,including,without limitation,any means used to distribute signals
over or within the Telecommunications System,is harmful to the health or safety of any person,
then Metropolitan shall,at its sole cost and expense,promptly correct all such conditions to the
satisfaction of such governmental authority.
G. "As-Built" Plans, Metropolitan shall furnish to the Village two complete
sets of all "as-built" plans for the Telecommunications Systems as originally constructed and
for all reconstruction,repair,relocation and other work performed thereon within 60 days after
completion of such work. Notwithstanding the foregoing, Metropolitan shall not be required
to provide "as-built" plans for routine maintenance work performed.
H. Village Right of Inspection, The Village shall have the right to inspect all
construction to ensure compliance with this Agreement,the Ordinance,and all applicable codes,
laws, ordinances, rules, regulations and permits.
SECTION 8. RESERVATIONS OF PUBLIC WAY RIGHTS
AND CONSTRUCTION RESTRICTIONS
A. Title to Public Ways, All rights granted herein to Metropolitan in the public
ways are granted based on the information and belief of the Village that it has title or an interest
in such public ways and the right and power to grant the rights and interests granted to
Metropolitan in this Agreement. The Village does not represent or warrant that it has title to
or any interest in the Public Ways or the right to grant to Metropolitan the rights and interests
granted in this Agreement. This Agreement shall be deemed to grant only such rights to use the
public ways as the Village may have the right and power to grant in this Agreement.
Metropolitan has the right to conduct or obtain a title search of the public ways to ascertain the
status of the Village's rights and interest in the same, which shall be at Metropolitan's sole cost
and expense.
15
B. Nonexclusive Use. Metropolitan's right to use and occupy the public ways shall
not be exclusive. The Village hereby reserves the right to grant any right or use of such public ,
ways to any person at any time during the period of the franchise and any renewal or extension
thereof,provided that such grant does not obstruct,injure or prevent the use and operation of
the Telecommunications System or any facilities.
C. Other Utilities. The Village hereby retains the right to lay and permit to be laid,
sewer,gas,water and other pipelines,cables and conduits in any public way;to change any curb
or sidewalk or the grade or dimension of any street; and to do and to permit to be done any
other work as the Village shall deem necessary or proper in its sole judgment and discretion.
All such work shall be done,insofar as practicable,in such manner as not to obstruct,injure or
prevent the free use and operation of facilities. If any such facilities shall interfere with the
construction or repair of any public way or public improvement therein, Metropolitan shall,
at its sole cost and expense, commence and diligently prosecute to completion,the relocation,
removal or replacement of such facilities,within 90 days after the delivery of such written notice
by the Village. Such work shall be performed as reasonably directed by the Village. In the
event the facilities must be so relocated,the Village Engineer shall cooperate with Metropolitan
in identifying alternative rights of way for the relocated facilities.
D. Creation or Dedication of Public Way. Metropolitan shall discontinue any use
of the public way, if the Village reasonably determines that such use is inconsistent with the
public health or safety or with the purposes for which such public way was created or dedicated
or is currently being used. Metropolitan acknowledges and accepts at its own risk that the
Village may make use in the future of the public ways in which Metropolitan's
telecommunication system is located in a manner inconsistent with Metropolitan's use of such
public right-of-way for its placement of its telecommunication system.
E. Improvements or Changes on Public Way. If the Village shall desire to make
any improvements or changes on or to all or any part of any public way, over, under or along
which any part of the Telecommunications System has been installed,then Metropolitan shall,
16
at its sole expense after 90 days written notice from the Village,proceed to alter,change,vacate
or remove as directed by the Village from the public way any part of the Telecommunications
System necessary to accommodate the Village's planned improvements or changes. In the event
such facilities shall be required to be removed, the Village Engineer shall cooperate with
Metropolitan in identifying alternative rights-of-way for the relocation of Metropolitan facilities
and provide Metropolitan with additional time up to 120 days total to remove said facility,
provided,however,that nothing in this subsection shall be construed as requiring or obligating
the Village to identify alternative rights-of-way.
In the event an emergency should arise wherein the Village of Oak Brook deems it
necessary to have Metropolitan move its facilities,the Village Engineer shall certify,in writing,
the basis of the emergency and shall give Metropolitan 14 days to move its facilities. In the
event Metropolitan fails to move its facilities,the Village may do and charge Metropolitan for
any costs to the Village for movement of the facilities. The Village shall have no liability for any
damages as a result of such movement. Wherever, in case of fire or other disaster, it becomes
necessary in the judgment of the Village to remove or damage any of Metropolitan's facilities,
no charge shall be made by Metropolitan against the Village for restoration and repair.
F. Vacation or Abandonment of a Public Way, In the event any public way or
portion thereof used by Metropolitan shall be vacated by the Village, then, upon request and
notice from the Village, Metropolitan shall, at its sole cost and expense, remove its facilities
therefrom within 120 days of the date of such notice. In the event such facilities shall be
required to be removed, the Village Engineer shall cooperate with Metropolitan in identifying
alternative rights-of-way for the relocation of Metropolitan authority facilities; provided,
however,that nothing in this subsection shall be construed as requiring or obligating the Village
to identify alternative rights-of-way.
G. Temporary Removal or Relocation of the Telecommunications System. In the
17
event it is necessary to temporarily remove or relocate any facilities in order to move any object,
vehicle, building or other structure over the public ways, Metropolitan shall, upon 60 days
written notice from the Village and at its sole cost and expense,temporarily remove or relocate
such facilities.
SECTION 9. RESTORATION
A. Metropolitan's Obligation, Upon completion of any construction work,
Metropolitan shall, at its sole cost and expense, and in the manner approved by the Village or
the affected property owner in their sole judgment and discretion,as the case may be,promptly
repair the public way,private property, or improvement and restore the same to, as nearly as
practicable,the condition existing prior to the performance of the work. Such restoration shall
be completed within 21 calendar days after the date of commencement of such work. In the
event that Metropolitan fails to commence or complete the restoration work in the manner and
within the time periods prescribed herein, the Village may, but shall have no obligation to,
perform such work and recover from the Security Fund established pursuant to Section 10 of
this Agreement any costs and expenses the Village incurs. In the event that such public way,
private property or improvement cannot be so repaired,replaced or restored,Metropolitan shall
pay the Village or the affected owner of the same, as the case may be,just compensation.
B. Continuing Responsibility, Where any such destruction,damage or disturbance
is not immediately discovered, or where any such restoration effort fails or is otherwise
inadequate or insufficient, Metropolitan's obligation for restoration shall survive the
termination or expiration of this Agreement.
C. Failure, Neglect or Refusal to Repair, In the event of any failure, neglect or
refusal by Metropolitan,after 10 days written notice from the Village,to repair or provide just
compensation for such destruction,damage or disturbance as provided in Subsections 8.A.and
8.B. of this Agreement, the Village may, but shall be under no obligation to, do such work, or
18
cause it to be done, and the actual cost thereof as found and declared by the Village, shall be
paid by Metropolitan within 30 days after demand therefor. If Metropolitan fails to so
reimburse the Village, the Village may collect the amount due from the Security Fund
established pursuant to this Agreement or if the Security Fund is insufficient to satisfy the
amount due, the Village may pursue its remedies by court action or otherwise.
SECTION 10. CONFIDENTIALITY / FINANCIAL DATA
A. Annual Reports. Metropolitan shall, annually, within 90 days following the
close of its fiscal year, submit to the Village a written statement, approved by an officer of
Metropolitan, of Metropolitan's gross revenues for the year just concluded. Such statement
shall be supplemented by an audit prepared by an independent certified public accountant in
accordance with generally accepted accounting principles, as well as such additional financial
statements and records as may be required by the Village,within six months following the close
of Metropolitan's fiscal year. Unless required by applicable law, the Village shall keep all
financial statements and records of Metropolitan confidential.
B. Books and Records. Metropolitan shall maintain,at all times during the term
of the Franchise, (i) complete, accurate and properly totaled books and records showing the
business conducted by Metropolitan in the Village in sufficient detail to show all gross revenue;
and (ii) complete, accurate and up to date maps of the Telecommunications System. The
Village may require Metropolitan to keep additional records and maps which it determines are
reasonably necessary.
C. Inspection and Audits. All of such books and records and originals of all maps
and other documents pertaining to this franchise shall be maintained in and made available for
inspection by the Village,its agents or employees,at Metropolitan's office located in Oak Brook
Terrace, Illinois, at reasonable times and intervals. The Village shall have the right to obtain
copies of all documents,maps or records pertaining to the franchise. Metropolitan shall fully
19
cooperate in assisting in this regard. In the event the independent audit ordered by the Village
properly determines that Metropolitan's franchise compensation paid to the Village was
underpaid in the prior compensation year by more than 5%, Grantee shall bear the cost of the
Village's audit.
D. Inquiries. The Village may, at any time, make inquiries pertaining to the
franchise and the operation of the Telecommunications System. Metropolitan shall respond
to such inquiries within five business days of such inquiry.
E. If either party provides confidential information to the other in writing and
identified as such,the receiving party shall protect the confidential information from disclosure
to third parties with the same degree of care afforded its own confidential and proprietary
information, except that neither party shall be required to hold confidential any information
which becomes publicly available other than through the recipient, which is required to be
disclosed by a governmental or judicial order,which is required to be disclosed by statute,which
is independently developed by the receiving party or which becomes available to the receiving
party without restriction from a third party. These obligations shall survive expiration or
termination of this Agreement for a period of two (2)years.
SECTION 11. SECURITY FUND
A. Amount. On or before the Effective Date,Metropolitan shall establish a"Security
Fund"by depositing with the Village or a financial institution approved by the Village,the total
amount of 550,000 in the form of an unconditional letter of credit,or other instrument,in form
and substance acceptable to the Village Attorney. At a minimum,the letter of credit or other
instrument shall(1)provide that it shall not be canceled without the prior written consent of the
Village;and (2) not require the consent of Metropolitan prior to the collection by the Village
of any amounts covered by said letter of credit or other instrument. Upon the Village
certification of completion of construction of the Telecommunications System, the letter of
20
credit may be reduced by 50%and may be further reduced to$5,000 one year after the date of
such certificate; provided that on such reduction dates there are no claims of any type
outstanding at such time asserted against Metropolitan or the Village,arising out of any acts
or omissions of Metropolitan relating to the franchise. The Security Fund shall be maintained
at Metropolitan's sole cost and expense.
B. Purpose. The Security Fund shall serve as security for (1) the faithful
performance by Metropolitan of all provisions of this Agreement;(2)any expenditure,damage
or loss incurred by the Village occasioned by Metropolitan's failure to comply with all codes,
ordinances, rules, regulations orders, permits, the final plans and specifications and other
directives of the Village issued pursuant to this Agreement; (3) the payment by Metropolitan
of all liens and taxes and all damages, claims, costs or expenses that the Village has paid or
incurred by reason of any act or default of Metropolitan including, without limitation, any
restoration work that the Village must perform itself or have completed as a consequence of
Metropolitan's failure to so perform or complete,and all other payments due the Village from
Metropolitan pursuant to this Agreement;(4)any costs,expenses, fees or other payments due
under Section 4 of this Agreement and (5) any expenses incurred by the Village pursuant to
Section 8 of this Agreement.
C. Replenishment. Within fourteen(14)days after receipt of written notice from
the Village that any amount has been withdrawn from the Security Fund, Metropolitan shall
restore the Security Fund to the amount specified in Subsection 11.A. of this Agreement.
D. Withdrawals. If Metropolitan (1) fails to make any payment required to be
made by Metropolitan Systems hereunder; or(2)fails to pay, any taxes or liens relating to the
Telecommunications System that are due and unpaid; or (3) fails to pay to the Village any
damages, claims, costs or expenses which the Village has been compelled to pay or incur by
reason of any act or default of Metropolitan;or(4) fails to comply with any provision of this
21
Agreement that the Village determines can be remedied by an expenditure of an amount in the
Security Fund;then,after three days advance written notice from the Village of its intention to
exercise its rights under this subsection if not paid by Metropolitan and the failure of
Metropolitan to pay the monies due, the Village may withdraw the amount thereof from the
Security Fund.
E. Interest. Any and all interest accrued on the amount in the Security Fund may
be withdrawn by Metropolitan, upon written notification of said withdrawal to the Village,
provided that any such withdrawal does not reduce the Security Fund below the minimum
balance required under this Agreement.
F. Closing and Return of Security Fund. Upon any termination of the Franchise,
other than a revocation, Metropolitan shall be entitled to the return of the Security Fund, or
portion thereof as remains on deposit at such termination, and after account is taken for all
offsets necessary to compensate the Village for the failure by Metropolitan to comply with any
provision of this Agreement. In the event of any revocation of the franchise,the Security Fund,
and any and all accrued interest therein,shall become the property of the Village to the extent
necessary to cover any costs, loss or damage incurred by the Village as a result of said
revocation,provided that any amounts in excess of said costs,loss or damage shall be refunded
to Metropolitan.
G. Rights Not Limited, The rights reserved to the Village with respect to the
Security Fund are in addition to all other rights of the Village, whether reserved by this
agreement or authorized by law, and no action, proceeding or exercise of a right with respect
to said Security Fund shall affect any other right the Village may have.
S CTION 12. LIABILITY. INDEMNIFICATION AND INSURANCE
A. Liability.
1. Metropolitan, Metropolitan shall be responsible for any damage or loss to any
22
real or personal property of the Village or of any person,and for any injury to or death of any
individual person, or any officer, employee or agent of the Village, arising out of or in
connection with Metropolitan's negligence or misconduct in the construction,installation,use,
operation,maintenance,repair and/or removal of the Telecommunications System or its failure
to act in connection therewith.
2. Village, The Village, its officers,employees and agents shall not be liable for
any loss or damage to any real or personal property of any person,or for any injury to or death
of any individual person, arising out of or in connection with Metropolitan's negligence or
misconduct in the construction,operation,maintenance, repair or removal, of other action or
event with respect to, the Telecommunications System unless said loss or damage arises from
the gross negligence or willful misconduct of the Village,its agents,employees or contractors.
3. Emergency and Other Actions.
(a) The Village may at any time in case of fire,disaster or other emergency
as determined by the Village,cut or move any facilities,in which event the Village shall not be
liable therefor to Metropolitan. When practical, as determined by the Village, Metropolitan
shall be consulted prior to any such cutting or movement of its wires and be given the
opportunity to perform such work itself.
(b) Unless directly caused by the gross negligence,malicious or intentional
acts,or willful misconduct of the Village,its agents,employees or contractors, the Village shall
not be liable to Metropolitan for any damage to or loss of all or any part of the
Telecommunications System, or otherwise, as a result of or in connection with the protection,
breaking through, movement, removal, alteration or relocation of any part of the
Telecommunications System by or on behalf of Metropolitan or the Village in connection with
any emergency, public work, public improvement, alteration of any municipal structure, any
change in the grade or line of any public way, or the elimination,discontinuation and closing
23
•
of any public way, as provided herein. When practical, as determined by the Village,
Metropolitan shall be consulted prior to any such cutting or movement of its wires and be given
the opportunity to perform such work itself.
(c) The Village, its officers, employees and agents shall not be liable to
Metropolitan or any affiliate of Metropolitan for any special,incidental consequential,punitive
or other damages as a result of the exercise of any right of the Village pursuant to this
Agreement,including,without limitation,the right of the Village to terminate the franchise and
to take any action subsequent thereto.
B. Indemnification
1. Hold Harmless. Metropolitan shall,and does hereby agree to,save,indemnify
and hold the Village its corporate authorities,elected and appointed officials, officers, boards,
commissions, legal counsel, employees and agents harmless from any injury, claim, demand,
suit, judgment, execution, liability, debt, damages or penalty (the "Claims") arising out of
resulting from,or alleged to arise out of or result from,Metropolitan's negligence,including its
failure to act,or misconduct in the construction,operation,maintenance repair or removal of
the Telecommunications System or the distribution of any service over the Telecommunications
System whether such acts or omissions is authorized,allowed or prohibited by this Agreement.
2. Defense Expense. Metropolitan shall, and does hereby agree to, pay all
expenses incurred by the Village in defending itself with regard to any and all of the claims
mentioned in Subsection 12.B.1 of this Agreement. These expenses shall include all out-of-
pocket expenses,such as attorneys'and experts'fees,and shall also include the reasonable value
of any services rendered by any employee of the Village.
C. Release and Waiver of Claims. Metropolitan shall have no recourse against the
Village for any loss, expense or damage resulting from the terms and conditions of this
Agreement nor because of the Village's enforcement thereof. Metropolitan shall be deemed to
24
expressly agree that it accepts the franchise relying solely upon its own investigation and
understanding of the power and authority of the Village to grant said franchise and that, in
partial consideration of the grant of said franchise,Metropolitan waives and releases the Village
from and of all claims of damages of any kind whatsoever, either known or unknown,existing
or future,which it may have in connection with any matter specified in this Agreement,unless
such damage is directly caused by the gross negligence or willful misconduct of the Village,its
agents, employees or contractors.
D. Insurance.
1.General Liability, Metropolitan shall maintain,throughout the term of the
Franchise,general public comprehensive liability insurance insuring both Metropolitan and the
Village, and its officers, boards, commissions, elected and appointed officials, agents and
employees, in the minimum amounts of:
(a) Two Million Dollars ($2.000,000) for bodily injury or death to each
Person;
(b) Two Million Dollars($2,000.000) for property damage resulting
from any one accident;and
(c) One Million Dollars ($1,000,000) for all other types of liability.
2. Automobile, Metropolitan shall maintain in its own name automobile
liability insurance with a limit of Three Million Dollars($3,000,000)for each person and Three
Million Dollars($3,000,000)for each accident for property damage with respect to owned and
non-owned automobiles for the operations of which Metropolitan is responsible.
3. Workman's Compensation. Metropolitan shall also maintain
Workman's Compensation Insurance within the statutory limits and Employer's Liability
Insurance with not less than One Million Dollars ($1,000,000)coverage.
4. Hazard. By reason of Metropolitan's right to use or work in the public
25
4 V .
ways, Metropolitan's insurance shall cover comprehensive form, premises-operations,
explosions and collapse hazard, underground hazard and products completed hazard in the
minimum amount of Three Million Dollars ($3,000,000), or whatever limits are permitted by
the State of Illinois for bodily injury and property damage combined.
5. Evidence of Insurance Policies. On or prior to the effective date,
Metropolitan shall furnish proof to the Village Manager that the foregoing insurance policies
have been obtained,along with written evidence of payment of required premiums,in the form
of a certificate of insurance.
6. Maintenance of Insurance Policies. The liability insurance policies
required by this section shall be maintained by Metropolitan throughout the term of the
franchise and such other period of time during which Metropolitan operates or is engaged in
the removal of the Telecommunications System as subject to Village inspection and approval.
Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the
intention not to renew be stated until 90 days after receipt by the Village of Oak
Brook,by registered mail,of a written notice addressed to the Village Manager
of such intent to cancel or not to renew."
Within sixty(60)days after receipt by the Village of said notice,and in no event later than thirty
(30) days prior to said cancellation, Metropolitan shall obtain and furnish to the Village
replacement insurance policies in a form acceptable to the Village Attorney.
7. Alteration of Minimum Limitations. The Village may, following the
effective date, increase the minimum limitation(s) of the insurance policy or policies required
in this section by a percentage not to exceed the percentage increase in the Consumer Price
Index as of the effective date.
8. No Limit of Liability. The legal liability of Metropolitan to the Village
and any person for any of the matters that are the subject of the insurance policies required by
26
this Section 11,shall not be limited by said insurance policies or by the recovery of any amounts
thereunder.
SECTION 13. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS
A. Village Approval Required, Neither the franchise nor any rights or obligations
of Metropolitan pursuant to this Agreement or the Ordinance nor any of Metropolitan's
interest in the Telecommunications System shall be assigned, transferred, pledged, leased,
sublet, hypothecated or mortgaged in any manner, in whole or in part, to any personal, nor
shall title thereto,either legal or equitable, or any right or interest therein, or any property or
assets relating to the franchise or the Telecommunications System,pass to or vest in any person,
nor shall any substantial change in control of Metropolitan occur, either by act of
Metropolitan,by operation of law or otherwise,without the prior consent of the Village,which
consent shall not be unreasonably withheld or delayed,as expressed by ordinance duly adopted
and then only on such reasonable conditions as may therein be prescribed. Nothing herein shall
prevent Metropolitan from assigning its rights and obligations to an affiliate or subsidiary of
Metropolitan upon notice to the Village. Any such action completed without such prior
consent of the Village shall be a violation of this Agreement and shall, at the option of the
Village, which option may be exercised in the Village's sole judgment and discretion and
without further notice or procedure,render the franchise void and entitle the Village to pursue
all remedies available to it. The grant or waiver of any one or more of said consents shall not
render unnecessary any subsequent consent or consents,nor shall the grant of any said consent
constitute a waiver of any other rights of the Village.
B. Notice to Village. Metropolitan shall promptly notify the Village of any
proposed action requiring the consent of the Village pursuant to Subsection 12.A of this
Agreement,by submitting to the Village at least 90 days prior to the proposed action a petition
requesting the approval of the Village. The petition shall fully describe the proposed action and
27
•
shall be accompanied by a justification for the action and such additional supporting
information as the Village may require in order to review and evaluate said action.
SECTION 14. FORECLOSURE, CONDEMNATION AND
RECEIVERSHIP
A. Foreclosure. Upon the scheduled occurrence of any foreclosure or other
judicial sale of all or any part of the Telecommunications System, or the termination of any
lease or mortgage covering all or any material part of the Telecommunications System,
Metropolitan shall immediately notify the Village of said occurrence. Said notification shall be
treated as a notification of a proposed change in control of Metropolitan, and the provisions
of Section 13 of this Agreement shall apply.
B. Condemnation, In the event that the Telecommunications System or any
material part thereof is taken, appropriated, or condemned pursuant to law and the effect of
such taking is to materially frustrate or impede the ability of Metropolitan to carry out its
obligations pursuant to, and the purposes of,this Agreement, then the Village may revoke the
Franchise in accordance with the applicable provisions of this Agreement.
C. Receivership,
1. Notification by Metropolitan, Metropolitan shall immediately notify
the Village,in writing,if: (a)Metropolitan files a voluntary petition in bankruptcy,a voluntary
petition to reorganize its business,or a voluntary petition to effect a plan or other arrangement
with creditors; or (b) Metropolitan files an answer admitting the jurisdiction of the court and
the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as
amended from time to time;or(c) Metropolitan is adjudicated bankrupt,makes an assignment
for the benefit of creditors,applies for or consents to the appointment of any receiver or trustee
of all or any part of its property, including all or any part of the Telecommunications System;
or(d)Metropolitan institutes dissolution or liquidation proceedings with respect to its business;
28
or (e) an order is entered approving an involuntary petition to reorganize the business of
Metropolitan or to effect a plan or other arrangement with creditors or appointing a receiver
or trustee for the franchisee of all or a part of its property, including all or any part of the
Telecommunications System;or(1)a writ or warrant of attachment,execution,distraint, levy,
possession or any similar process shall be issued by any court against all or any part of the
property of Metropolitan,including all or any part of the Telecommunications System.
SECTION 15. SAFETY
A. Standard of Care. Metropolitan shall at all times utilize the standard of care
attendant to the risks involved and shall install and maintain in use commonly accepted
methods and devices for preventing failures and accidents which are likely to cause damage,
injury or nuisance to the public or to employees of Metropolitan.
B. Equipment Installation and Maintenance, All installations in the
Telecommunications System shall be made so as not to impair the fire integrity of any building
or structure. Metropolitan shall install and maintain its facilities in accordance with the
requirements of all applicable codes, and in such manner that they will not interfere with any
installations of the Village or any public utility. All facilities in,over,under and upon the public
ways,private property within the Village,wherever situated or located,shall at all times be kept
and maintained in a safe and suitable condition and in good order and repair.
SECTION 16. FRANCHISE RENEWAL
Metropolitan shall have the right to renew the Franchise and this Agreement for an
additional term of 10 years following the expiration of the term provided for in Section 3 of this
Agreement,provided,however that Metropolitan must provide express written unconditional
notice of its election to exercise this right 180 days prior to the expiration of the term provided
for in Subsection 3.D of this Agreement;and provided further that(a)at the time of the election
to exercise such right to renew, Metropolitan is not in default hereunder,(b)the President and
29
Board of Trustees,in its sole discretion,find that it is in the best interests of the Village and its
residents to renew the franchise and this Agreement, and (c) the parties agree on the
compensation due the Village.
SECTION 17. NO EXTRANEOUS INDUCEMENTS
Metropolitan acknowledges that it has not been induced to accept this Franchise by any
promise,verbal or written,by or on behalf of the Village or by any third person regarding any
term or condition of this Agreement not expressed herein. Metropolitan shall further be
deemed to warrant that no promise or inducement, oral or written, has been made to any
Village employee or official regarding receipt of the franchise, other than as contained in this
Agreement.
SECTION 18. COMPLIANCE WITH LAW
Metropolitan shall, at all times, comply with laws, codes, rules and regulations of all
governmental authorities, regardless of whether such law,code, rule or regulation is expressly
referenced in this Agreement. Metropolitan shall,at all times,comply with all applicable laws,
ordinances, resolutions, codes rules and regulations of the Village, and all applicable
memoranda and other directives of the Village, as such laws, ordinances, resolutions, codes,
rules,regulations,memoranda and directives may be modified or amended;provided that such
modification or amendment does not impair, conflict with or diminish the rights granted
Metropolitan under the Ordinance or this Agreement.
SECTION 19. REVOCATION OR TERMINATION OF PRIVILEGES
A. Subject to the provisions of Sections 19(B) and 19(C) of this Agreement, the
permission and authority granted by the Village to Metropolitan to use the public ways set forth
in Exhibit A for its Telecommunication System pursuant to the ordinance may be revoked by
the Village Board(upon referral from the Village President or on its own motion)whenever any
of the following occur:
30
1. Metropolitan fails to comply with the conditions of occupancy of the public
ways set forth herein or in the Code of Ordinances of the Village of Oak Brook;
or
2. Metropolitan substantially violates other material terms of this Agreement;or
3. Metropolitan practices fraud and deceit upon the Village or its customers; or
4. Metropolitan fails to provide or pay any material portion of the compensation
or fees owed the Village pursuant to this Agreement when due; or
5. Metropolitan fails to furnish an audit when due or fails to cooperate with the
reasonable requests by Village officials for information or for inspection;or
6. Metropolitan becomes insolvent, or unable or unwilling to pay its uncontested
debts, or is adjudged bankrupt or seeks relief under the bankruptcy laws.
B. In the event that the Village Manager believes that grounds for revocation exist or
have existed,the Village Manager shall notify Metropolitan in writing,setting forth the nature
and facts of such noncompliance. If,within thirty(30)days following such written notification,
Metropolitan has not furnished reasonably satisfactory evidence that corrective action has been
taken or is being actively and expeditiously pursued,or that the alleged violations did not occur,
or that the alleged violations were beyond Metropolitan's control pursuant to Section 23 hereof,
the Village Manager shall thereupon refer the matter to the President and Board of Trustees.
Upon good cause, the thirty(30) day correction period shall be extended for such reasonable
time as the Village Manager shall determine. Such good cause must be detailed in writing to
the Village Manager within five (5) days prior to the lapse of the thirty (30) day correction
period.
C. The Village Board shall not repeal the ordinance until it has given notice to
Metropolitan that it proposes to take such action and the grounds therefor. Further,the Village
Board shall not repeal the ordinance and the rights granted herein until Metropolitan has had
31
a reasonable opportunity to be heard before the Village Board.
SECTION 20. RIGHTS AND REMEDIES
In the event of a material breach of this Agreement by Metropolitan,as determined in
the sole judgment and discretion of the Village,the Village may terminate the franchise and the
rights granted to Metropolitan hereunder. In the event of a breach or an alleged breach of this
Agreement by either party,either party may, by suit, action,mandamus or other proceeding,
in law or in equity, enforce or compel the performance of this Agreement. In the event of a
judicial proceeding by any party to this Agreement against the other party,the prevailing party
shall be entitled to reimbursement from the unsuccessful party of all costs and expenses,
including reasonable attorneys'fees, incurred in connection with such judicial proceeding.
SECTION 21. DEFAULT
Neither party shall be in default under this Agreement or in breach of any provisions
thereof unless and until it has been given written notice of such default by the other party and
shall have failed to cure such default within a reasonable period of time after receipt of such
notice,except for default in any payment by Metropolitan in which case Metropolitan shall cure
such default in payment within ten(10)days after written notice by the Village. Where a default
other than for payment cannot reasonably be cured within a thirty (30) day period, if the
defaulting party shall proceed promptly to cure the same and prosecute such curing with due
diligence, the time for curing such default shall be extended for such period of time as may be
necessary to complete such cure. Upon the failure to cure any such default within thirty(30)
days after notice thereof of within thirty (30) days plus the extension for curing with due
diligence as set forth above, the party giving notice of the default may thereupon terminate by
providing written notice to the defaulting party. Upon default by either party, the non-
defaulting party shall have the right to pursue any or all remedies available at law or equity.
SECTION 22. TIME ESSENCE OF AGREEMENT.
32
Whenever this Agreement sets forth any time for any act to be performed by either
party, said time shall be deemed to be of the essence.
SECTION 23. TIME FOR NOTICE
In the event of an emergency involving life or property,as determined by the Village in
its sole judgment and discretion, the Village may reduce or eliminate the notice requirements
set forth in this Agreement, and any such reduction or elimination shall be deemed to be
reasonable under the circumstances.
SECTION 24. FORCE MAJEURE
Whenever a period of time is provided for in this Agreement for either the Village or
Metropolitan to do or perform any act or obligation,neither party shall be liable for any delays
or inability to perform due to causes beyond the control of said party such as war, riot,
insurrection,rebellion,strike,lockout unavoidable casualty or damage to personnel,materials
or equipment, fire, flood, storm, earthquake, tornado or any act of God; provided, however,
that said time period shall be extended for only the actual amount of time said party is so
delayed. An act or omission shall not be deemed to be "beyond Metropolitan's control" if
committed, omitted or caused by Metropolitan, Metropolitan's employees, officers or agents
or a subsidiary, affiliate or parent of Metropolitan or by any corporation or other business
entity that holds a controlling interest in Metropolitan,whether held directly or indirectly.
SECTION 25. MOST FAVORED COMMUNITY
A. The amount of the fee set forth in Section 4(c)(1) shall increase to the highest rate
that Metropolitan is paying any other municipality which has a population less than 500,000
located wholly or partially within the State of Illinois anytime during the period of this
Agreement for the right to install, operate and maintain a Telecommunication system. For
purposes of this section, fees paid by any affiliate, subsidiary, partnership, or wholly-owned
corporation related to Metropolitan shall be deemed payable to Metropolitan so as to trigger
33
an increase in the amount paid to the Village. Any successor, lessee,or assignee shall be bound
by all fee increases and by the provisions of this section.
B. A change in the amount of the franchise fee shall go into effect on the date of
approval by any other municipality as outlined above of said fee with Metropolitan. To
facilitate implementation of this section,Metropolitan shall,within 15 days after their passage,
send to the Village a certified copy of all ordinances or resolutions granting to Metropolitan as
hereinabove defined,a franchise or license with the State of Illinois granting the right to install,
operate and maintain a Telecommunication System in a municipality with a population of
500,000 or less.
C. During the term of this Agreement, Metropolitan shall always treat the Village as
a"most favored vendee". In the event that the Village shall desire to contract for the purchase,
lease or other use of any telecommunications services, facilities or equipment provided by
Metropolitan, or any affiliate of Metropolitan, Metropolitan shall, subject to applicable law,
offer the Village contract terms and conditions no less favorable(including,but not limited to,
rate of compensation warranties and payment) than the most advantageous terms and
conditions offered any of Metropolitan's customers on similar or identical transactions.
SECTION 26.. SEVERABILITY
If any section,subsection,sentence,clause,phrase, or other portion of this Agreement
or its application to any person is, for any reason, declared invalid in whole or in part by any
court, agency,commission,legislative body,or other authority of competent jurisdiction,said
decision shall not affect the validity of the remaining portions hereof.
SECTION 27. GENERAL
A. Governing Law. This Agreement and the rights of the parties hereunder shall be
interpreted and enforced in accordance with the laws of the State of Illinois.
B. Notices. All notices and other communications in connection with this
34
Agreement shall be in writing, and shall be deemed delivered to the addressee thereof when
delivered in person at the address set forth below, or three business days after deposit in any
main or branch United States Post Office,and shall be certified or registered mail,return receipt
requested, postage prepaid, property addressed to the parties, respectively, as follows:
For notices and communications to Metropolitan:
MFS Telecom, Inc.
One Tower Lane - Suite 1600
Oakbrook Terrace, Illinois 60181
Attention: General Counsel
Invoices to Metropolitan shall be sent to "Accounts Payable" at the above address.
For notices and communications to the Village:
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60521
Attention: Village Manager
With a copy via regular mail to:
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60521
Attention: Village Attorney
By notice complying with the foregoing requirements of this section, each party shall
have the right to change the address or addressee or both for all future notices and
communications to such party, but no notice of a change of address shall be effective until
actually received.
C. Binding Effect. Each of the terms,conditions and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto, and the respective
successors and assigns. Nothing herein shall be deemed to permit a transfer of the Franchise
by Metropolitan except as provided in Section 12 of this Agreement.
35
, . ,
D. Authority to Execute. Metropolitan hereby warrants and represents to the
Village that: (1)it has the right,power and authority to enter into this Agreement and to accept
to the Franchiser granted to it in this Agreement;(2)the individuals executing this Agreement
on behalf of Metropolitan have the power and authority to bind Metropolitan to this
Agreement; and (3) neither the execution of this Agreement nor the performance of the
obligations contemplated hereby will(i)result in a breach or default under any agreement to
which it is a party or(ii)violate any restriction,court order or agreement to which it is subject.
E. Amendments, This Agreement may be amended by the same procedure as
required by Illinois Statutes for its original execution and approval.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VILLAGE OF Oak Brook,
a municipal corporation
By: d 0
Village President-
ATTEST:
llage Clerk
CHICAGO FIBER OPTIC CORPORATION,
d/b/a METROPOLITAN FIBER SYSTEMS, INC.
h IL I
�'
By: t
m FscG
Title,*Vise �ReS�b�Jt
ATTEST:
Secretary
36
.r cu