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S-548 - 12/11/1984 - AGREEMENT - Ordinances ORDINANCE NO. S-548 AN ORDINANCE AMENDING ORDINANCES S-21112, S-58 AND S-130 AND GRANTING TO THE ILLINOIS BELL TELEPHONE COMPANY, ITS LESSEES, SUCCESSORS AND ASSIGNS, CERTAIN RIGHTS IN THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS WHEREAS, the Village of Oak Brook is heretofore granted a franchise to Illinois Bell Telephone Company to conduct its business in the Village of Oak Brook pursuant to Ordinance S-21 1/2 as further amended by Ordinance S-58 and S- 130; and WHEREAS, the Village of Oak Brook desires to further amend said Ordinance as previously amended and set forth the entire terms of said Ordinance as amended herein; 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 ILLINOIS BELL TELEPHONE COMPANY, its lessees, successors and assigns (hereinafter referred to as the "Company") are hereby granted the right to construct, erect, renew, maintain and operate in, upon, along, across, under and over the streets, alleys and public ways of said Village of.Oak Brook (hereinafter for the convenience called the Municipality) , lines of poles, anchors, wires, cables, conduits, vaults, laterals and other fixtures and equipment and to use the same for the transmission of sounds and signals by means of electricity, and especially for the conduct of a general telephone business. Section 2: The location and height above or the depth below the public thoroughfares of the existing lines of poles, anchors, wires, cables, conduits, vaults, laterals and other fixtures and equipment of said Company within the Municipality are hereby approved, and the same shall be maintained and operated under and subject to the provisions of this Ordinance. Any change in or extension of any of said poles, anchors, wires, cables, conduits, vaults, laterals or other fixtures and equipment (herein referred to as "structures") , or the construction of any additional structures, in, upon, along, across, under or over the streets, alleys and public ways of the Municipality shall be made under the direction of the Village Manager of the Municipality, or such officer as may be designated from time to time by the governing body of the Municipality for that purpose, who shall, if the proposed change, extension or contruction conforms to the provisions hereof, issue written permits therefore. The height above public thoroughfares of all aerial wires and cables hereafter constructed shall conform to the requirements of the Illinois Commerce Commission or other regulatory body having jurisdiction thereof. All structures hereafter installed shall be so placed, and all work in connection with such installation shall be so performed as not to interfere unreasonably with ordinary travel on the highways of the Municipality or with any municipal water or sewer pipes then in place, and in case of bringing to grade or change of grade, or change of width of any street or alley, said Company, provided it is notified thereof in writing at least thirty (30) days prior to the commencement thereof, shall change its structures so as to conform thereto, except where such change of grade or the width of any street or alley is made in connection with the rearrangement, separation or alteration of railroad crossings or is incident to any such rearrangement, separation or alteration. The tops of all vaults constructed by said Company within the Municipality shall present an even surface with the pavement at the point where laid, and, subject to the exception contained in the last preceding sentence, shall be lowered or raised by said Company to conform to the top of paving or improvement as required by the governing body of the Municipality wherever the grade of the street or alley in which any such vault is located may be at any time hereafter lowered or raised. Section 3: Said Company, after doing any excavating, shall leave the surface of the ground in a neatly graded condition. All sidewalks, parkways or pavements disturbed by said Company shall be restored by it to as good condition as before said sidewalk, parkway or pavement was disturbed by it, and in the event that any such sidewalk, parkway or pavement shall become uneven, unsettled, or otherwise requires repairing, because of such disturbance by the Company, they. said Company, as soon as climatic conditions will permit, shall, promptly, upon Ordinance No. S-548 Amending Ordinances S-21 1 2, S-58 and S-130 Page 2 receipt of notice from the Municipality so to do, cause such sidewalk, parkway or pavement to be repaired or restored to as good condition as before said sidewalk, parkway or pavement was disturbed by said Company. Said Company shall keep all structures which it shall construct by virtue of this Ordinance, in a reasonably safe condition at all times, and shall maintain such barriers and dang-er signals during the construction, repair or renewal work performed hereunder as will reasonably avoid damage to life, limb and property. Section 4: The said Company shall, at its own expense, defend all suits that may be brought against the Municipality on account of or in connection with the violation by the Company of any of the obligations hereby imposed upon or assumed by it, or by reason of or in connection with any damage to life, limb or property as a result of any of the structures constructed by it under or by virtue of this Ordinance, and shall save and keep harmless the Municipality from any and all damages, judgements, costs and expenses of every kind, that may arise by reason thereof; provided that notice in writing shall be immediately given to said Company of any claim or suit against the Municipality which, by the terms hereof, the said Company shall be obligated to defend, or against which the Company has hereby agreed to save and keep harmless the Municipality and provided further that the Municipality shall furnish to said Company all information in its possession relating to said claim or suit, and cooperate with said Company in the defense of said claim or suit. The governing body of the Municipality may, if it so desires, assist in defending any such claim or suit, but solely under the direction of the Company or its attorneys, and the Company shall not be required to reimburse the Municipality for expenses incurred by it in case of the election so to assist. Section 5: In consideration of the foregoing grant, while said Company is using any pole or poles erected or maintained hereunder, it will permit the Municipality to use of sufficient space for carrying the Municipality's police and fire alarm signal wires by means of one crossarm to be placed, in accordance with the Company's specifications, by the Municipality at its expense, at the top of the space available for the use of the Company on any of said poles, it being understood that the poles upon which space is permitted the Municipality shall be considered, for the purpose of this agreement, as personal property; provided that such wires shall be so placed and maintained by the Municipality that the use of the same will not interfere with the operation and maintenance of the Company's equipment or its use of said poles, and provided further that a thirty (30) inch climbing space shall be maintained between the pole pins on poles jointly used with another public utility. All such police and fire alarm signal wires shall be attached and maintained under the direction and supervision of said Company's authorized representatives, and only upon the following conditions: No such police and fire alarm signal wires shall be attached to any of said poles of said Company if such wires shall carry a voltage of more than four hundred (400) volts, nor if the transmitted power exceeds one hundred fifty (150) watts, nor if, in any part of the circuit of such wire, it is supported upon a pole on which there is any wire carrying a constant potential alternating current exceeding five thousand (5,000) volts between conductors, or twenty-five hundred (2,500) volts normally to ground, or a constant potential direct current exceeding seven hundred fifty (750) volts to ground, or a constant current series are or incandescent light circuit, carrying in excess of seven and five-tenths (7.5) amperes. In case any such police and fire alarm signal wire in any part of its circuit is supported upon a pole on which there is any wire used for the supply of electrical energy for lighting, heating or power purposes, carrying a constant potential alternating current of five thousand (5,000) volts or less between conductors, or twenty-five hundred (2,500) volts or less normally to ground, or a direct current circuit of seven hundred fifty (750) volts or less to ground, or a constant current series arc or incandescent light circuit carrying seven and five-tenths (7.5) amperes or less, then such police or fire alarm signal wire shall be attached to such pole at a point not less than four (4) feet below such wire used for the supply of electrical energy. The Municipality shall, at its own expense, defend all claims, demands or suits on account of any injury to life, limb or property that may result by reason of or in connection with the presence, use, maintenance, erection or removal of the Municipality's police and fire alarm signal wires and their appurtenances pursuant hereto, and hereby agrees to save and keep harmless said Company from any and all damages, judgments, costs and expenses of any kind which may arise by reason thereof. Ordinance No. S-548 Amending Ordinances S-21. 1/2, S-58 and S-130 Page 3 Section _6: So long as the Company exercises and enjoys the rights granted to it hereunder, it shall pay to the Municipality for each Access Line that the Company maintains and operates within the Municipality: $0.256 per Access Line per month for the calendar year 1984, retroactive to January 1, 1984; $0.288 per Access Line per month for the calendar year 1985; and $0.320 per Access Line per month for the calendar year 1986 (hereinafter "Access Line Value"); provided, however, that the amount paid in such years shall not be less than the payment that the Municipality is entitled to or has received under a prior Interim Agreement dated December 30, 1983 for the period commencing January 1, 1984, nor in any event shall the payments be less than the amounts the Municipality received either in cash or value of services rendered for the calendar year 1983. The Company shall make said payments on a monthly basis, due the last day of the succeeding calendar month. "Access Line" as used in this Section shall mean "the connecting facility between a customer' s premises and the Company's serving central office that provides customer access to the dial network for placing and receiving calls." "Within the Municipality" means within the corporate boundaries of the city, village or incorporated town named in this Ordinance as recorded with the appropriate county recorder and as provided to the Company. Municipality agrees to notify the Company of any ordinances annexing to or disconnecting from such corporate boundaries and agrees to provide the Company an accurate map of such changes showing, if available, street name and number detail. The Access Line Values specified in this Section are based upon aggregate franchise payments by the Company to all Illinois municipalities (except Chicago) within the Company's operating area (hereinafter "Illinois Municipalities") of $8.0 million for the calendar year 1984, $9 million for the calendar year 1985 and $10 million for the calendar year 1986 (hereinafter "Agreed Franchise Payments"). If the Company's actual annual franchise payments to all Illinois Municipalities, whether paid or accrued, differ from said Agreed Franchise Payments, such difference in amount shall be adjusted in January of the succeeding year. Such difference in amount shall be divided by the number of the Company's Access Lines within all Illinois Municipalities in such month and then either added to or deducted from the Access Line Value for said month of January. Thereafter, the Access Line value specified in the first paragraph of this Section shall be used for each succeeding month in such calendar year. Company shall, within forty-five (45) days of the effective date of this Ordinance, make an appropriate adjustment between payments to which Municipality is entitled under this Ordinance and payment that Municipality is entitled to or has received under a prior Interim Agreement dated December 30, 1983 for the period commencing January 1, 1984. Company agrees to provide annually, within a reasonable time from Municipality's request, the names, addresses and number of Access Lines for each of its customers within the Municipality, subject to Municipality's agreement not to disclose said information, which Municipality agrees shall be used solely for the purposes of verifying the number of Company' s Access Lines within the Municipality. Company further agrees to substantiate, upon request the contents of such report and all records and other documents required for such verification shall, upon reasonable advance notice, be subject to inspection by the Municipality. The Company, without charge and when directed by the chief executive officer of the Municipality, shall move within the same premises the customer premises wire associated with each Access Line provided to the Municipality by the Company, provided that not more than one such change of location in any one year per Access Line shall be made by the Company without expense to the Municipality. "Customer premises wire" is defined as any wire beginning on the customer' s side of the network interface or equivalent and ending at the registration jack or connecting block, exclusive of wiring associated with key or PBX systems and their serving terminals or main distribution frames. The provisions of this Section shall be renegotiated upon 30 days' written notice from one party to the other at anytime on or after June 30, 1986. Ordinance No. S-548 Amending Ordinances S-211/2, 5-58 and 5-130 Page 4 Section 7: The Company after five (5) days' written notice from the governing body of the Municipality to do so, shall remove or raise or lower its structures temporarily to permit the moving of a building or any other object along a highway, provided the benefited party or parties shall agree to pay the Company an amount equal to the actual cost of effecting such temporary changes in- its structures; and provided further that, pending the determination of such actual cost, the benefited party or parties shall have deposited with the Company an amount equal to the cost as estimated by the Company. Should any amount of such deposit remain unexpended, after deducting the actual cost involved, said amount shall be returned to the party making the deposit. Section 8 In case said Company shall fail or neglect to comply with any or all of the provisions of this Ordinance (unless by order of the Illinois Commerce Commission or of any other body, board, commission or court of competent jurisdiction, said Company is otherwise directed, or unless the compliance by said Company with such provision is prohibited or- adjudged unlawful by an order of the Illinois Commerce Commission or by an order of any other body, board, commission or court of competent jurisdiction) , the Municipality reserves the right to repeal this Ordinance or rescind this contract, and forfeit the rights hereby created or sought to be created, provided that no such repeal, rescission or forfeiture shall exist or be claimed because of such failure or neglect, until written notice of such failure or neglect so claims shall have been given to said Company, and a reasonable opportunity afforded it to comply with the provisions hereof or to prove that such compliance already exists. In the event that said Illinois Commerce Commission or any other body, board, commission or court of competent jurisdiction shall adjudge any provision or provisions hereof invalid or illegal, or direct a change by the Company in any matter or thing herein contained, such invalidity or illegality or change shall in no way affect the remaining provisions of this Ordinance, or their vaildity or legality, and this Ordinance in all other respects shall continue in full force and effect, as if said provision or provisions had not been so adjudged invalid or illegal or such change directed. Section 9: All grants, franchises, rights, licenses and privileges heretofore made or granted by the Municipality by ordinance or otherwise to said Company and all rights of said Company under grants, franchises, rights, licenses and privileges made by the Municipality to others from which said Company may have purchased any part of its poles, lines, equipment or plant, are hereby revoked and repealed, it being the intention that this Ordinance shall contain all grants, franchises, rights, licenses and privileges of said Company, and all obligations of said Company in connection therewith. Section 10: Whenever the word "Company" or the words "Illinois Bell Telephone Company are used in this Ordinance, they shall be construed to mean the Illinois Bell Telephone Company, its lessees, successors and assigns, and this Ordinance shall be binding upon and inure to the benefit of the said Company, its lessees, successors and assigns. Section 11: So long as the Company exercises the rights granted to it hereunder and so long as the Municipality shall receive the considerations therefore as recited in Sections 5 and 6 hereof, the Municipality will not, by ordinance or otherwise, vacate any street, alley or public way in which the Company has its structures installed without reserving the easement rights of the Company in and to the street or alley to be vacated. Section 12: This Ordinance shall be in full force upon receipt, by the Clerk of the Municipality, of the Company's written and unconditional acceptance of all of the provisions of this Ordinance executed by its proper officers thereunto duly authorized, under the corporate seal of said Company, and attested by its Secretary or Assistant Secretary. PASSED THIS 11th day of December 1984. Ayes: Trustees Imrie, Listecki, Maher, Philip, Rush and Watson Nays: None Absent: None Ordinance No. S-548 Amending Ordinances S-21 1/2, S-58 and S-130 Page 5 APPROVED THIS 11th day of December 1984. i Village 'President- ATTEST: Village Clerk a _ Approved as to Form: Vill ge Attorney Published Date Paper Not Published XX