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S-877 - 05/27/1997 - AGREEMENT - Ordinances ORDINANCE 97-AG-7.0C-EXI-S-877 AN ORDINANCE GRANTING A FRANCHISE FOR USE OF PUBLIC WAYS TO AT&T CORP. FOR TELECOMMIINICATIONS SERVICES WHEREAS, AT&T Corp. , a New York corporation ("AT&T") , has requested that the Village of Oak Brook grant a non-exclusive franchise to use certain public streets and rights-of-way located within the Village for the purpose of providing certain telecommunications services to customers located within the Village; and WHEREAS, the Village and AT&T have negotiated the terms and conditions of a proposed telecommunications franchise agreement; 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 approve and execute the grant of a franchise on the terms and conditions stated in the Franchise Agreement, a copy of which is attached hereto and marked as "Exhibit A"; NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF I THE VILLAGE OF OAK BROOK, DU PAGE AND COO{ COUNTIES, ILLINOIS as follows: Section 1: That the provisions of the preamble set forth are hereby adopted as though fully set forth herein. Section 2 : That given the size and credit history of AT&T, the Village finds that AT&T may self insure the insurance rev_uirements set forth in the j Franchise Agreement. Section 3: That a non-exclusive irrevocable franchise shall be, and is, t hereby granted to AT&T to provide telecommunications services pursuant to this ordinance subject to the Franchise Agreement approved herein. Section 4: That the Franchise Agreement attached to this ordinance as Exhibit A and made a part of this ordinance by this reference is hereby I approved in substantially the form attached. i I Section 5: That the Village President and Village Clerk are hereby authorized and directed to execute the Franchise Agreement with AT&T in substantially the form attached as Exhibit A upon receipt by the Village of (i) at least two copies thereof fully executed by AT&T together with all fees then due from AT&T; and (ii) written evidence, signed by Ameritech, that Ameritech has consented to the use of Ameritech facilities by AT&T for the initial installation of Telecommunications Facilities by AT&T under this franchise. Section 6: That the terms and conditions of the Franchise Agreement as set forth in Exhibit A are hereby adopted as an ordinance of the Village of Oak Brook as if fully set forth in this ordinance. Ordinance 97-AG-FOC-EXI-S-$77 Franchise Agreement with AT&T Telecommunications Services Page 2 Section 7: That this ordinance shall be in full force and effect from and after passage, approval and publication in the manner provided by law; provided, however, that this ordinance shall not become effective unless the conditions stated in Section S hereof have been satisfied on or before July 1, 1997. PASSED THIS 27th day of May, 1997. Ayes: Trustees Bartecki, Caleel, Kenny, McInerney, Savino and Shumate Nays: None Absent: None Abstain: None APPROVED THIS 27th day of May, 1997. �� _••;';'.' • .`::.:�;:•-'.� ; ;, village President ATTEST::•. 3lillage Clerk CAi4tved as to Form: i Village Attorney Published Date Paper I Not Published X`y �I NON-EXCLUSIVE USE OF PUBLIC WAYS FRANCHISE AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND AT & T CORP. MAY 27, 1997 i i Fran cniseAgreement.doc Page 1 05/28/97 5:21 PM TABLE OF CONTENTS SECTION1. RECITALS.......................................................................................................................................................1 SECTION 2. INTERPRETATION AND DEFINITIONS.....................................................................................................1 A. Interpretation................................................................................................................................................................1 B. Definitions.....................................................................................................................................................................2 SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE...........................................................................................4 A. Grant of Franchise........................................................................................................................................................4 B. Acceptance of Franchise............................................................................................................................................... C. License. Permits, and Approvals. ................................................................................................................................. D. Franchise Term. ........................................................................................................................................................... 1 E. Nonerclusivity of Grant. ............................................................................................................................................... SECTION 4. FRANCHISE FEE,TAXES AND OTHER PAYME NTS...............................................................................5 A. Compensation...............................................................................................................................................................5 B. Village Fiber(s)............. .....----.......................j C. Franchise Fee................................................................................................................................................................i D. Pre-Activation Fee.........................................................................................................................................................9 E. Village Taxes.................................................................................................................................................................9 F. Fixed Wireless Local Service......................................................................................................................................10 G. Proprietary Franchise Fee.........................................................................................................................................10 H. infrastructure Maintenance Fee.................................................................................................................................11 SECTION 6. LOCATION OF FACILITIES.......................................................................................................................11 .4. In General............................................................................................................................................ ...................... i I B. Priorities in the Location of Facil ities........................................................................................................................ 11 C. Relocating Facilities Underground. ........................................................................._...........-----------.......-----------.......... 12 D. Screening........................................................................................................................................... .......................13 SECTION 6. RESERVATIONS OF PUBLIC TAY RIGHTS AND CONSTRUCTION RESTRICTIONS.....................13 A. Title to Public Ways....................................................................................................................................................13 B. Non-exclusive Use............................................................................................................................. ........................ 13 C. Other Utilities..................................................................................................................................... .................... 13 D. Creation or Dedication of Public Way....................................................................................................................... 1 E. Improvements or Changes on Public Way.................................................................................................................. I� F. Vacation or Abandonment of a Public Way...................................................................................... ... ....................I j G. Temporary Removal or Relocation of the Franchisee's Facilities. ............................................................................ 16 SECTION 7. CONSTRUCTION OF THE FRANCHISEE'S TELECO:MMUNiCATIONS FACILITIES.........................16 A. Plans and Specifications.........................................................................................:................................................... 16 B. Permits........................................................................ ............................................................................................... IS C. Construction On and In Public Ways. ......................................... .................................................... ......................... IS D. f-Ycavation Work and Time Periods......................................... - .................................................... ........................ 19 E. Trimming Trees.......................................................................................................................................................... 19 F. Emergency Contact.....................................................................................................................................................20 G. General Construction St andard..................................................................................................................................20 H. As-Built"Plans. ........................................................................ ...............................................................................20 1. The Village Right of Inspection....................................................................................................................................20 J. E-911 Compatibility....................................................................................................................................................20 SECTIONS. SAFETY....................................................................................................................................---------.......----71 I. Standard of Care........................................ ........................................................................................ ...................21 B. Equipment Installation and rLlaintenance...................................................................................................................21 SECTION9. RESTORATION............................................................................................................................................21 A. Franchisee's Obligation..............................................................................................................................................21 B. Continuing Responsibil ity..................................................................................................................... ................. 72 SECTION 10. INSPECTION AND AUDITS.............................................................................................. ....................22 A. Records................................................................................................................................................. ..................22 B. I nquiries....................................... 22 C. Confidentiality......................................................... FranchiseAgreement.doc Pao-. 11 05/23/97 3:45 PSI SECTION11. SECURITY FUND.......................................................................................................................................23 A. Amount.........................................................................................................................................................................23 B. Purpose........................................................................................................................................................................23 C. Maintenance of Fund..................................................................................................................................................23 D. Replenishment. ...........................................................................................................................................................24 E. Withdrawal s................................................................................................................................................................2; F. Interest................................... ......24 ............................................................................................................................... G. Closing and Return of Security Fund.........................................................................................................................24 H. Rights Not Limited......................................................................................................................................................25 SECTION 12. LIABILITY, WAIVER, INDEMNIFICATION AND INSURANCE. ........................................................25 A. Liability.......................................................................................................................................................................25 B. IVaiver........................ ......23 C. Indemnification...........................................................................................................................................................26 D. Insurance............................... .................................................................................26 SECTION 13. ASSIGNMENTS,TRANSFERS AND SIMILAR ACTIONS.....................................................................27 A. Village Approval Required. ........................................................................................................................................27 B. Notice to Vill age. ........................................................................................................................................................2s SECTION14. RECEIVERSH IP.........................................................................................................:................................25 SECTION 15. FRANCHISE RENEWAL. ..........................................................................................................................29 A. Appl ication..................................................................................................................................................................29 B. Determination by Corporate Authorities....................................................................................................................29 C. Obligation to Cure as a Condition of Renewal...........................................................................................................29 SECTION 16: REVOCATION OR TERMI NATION.........................................................................................................30 A. Village Authority to Revoke........................................................................................................................................30 B. Notice and Opportunity to Cure..................................................................................................................................30 C. Hearing.......................................................................................................................................................................30 D. Standards for Revocation or Lesser Sanctions...........................................................................................................31 E. bfutual agreement to Terminate. ................................................................................................................................31 SECTION17. ENFORCEMENT.........................................................................................................................................31 SECTION IS. MOST FAVORED COMMUNITY.............................................................................................................32 A. Other Franchisee Agreements. ...................................................................................................................................32 B. Other Village Agreements...........................................................................................................................................32 C. A'fost Favored Vendee.................................................................................................................................................33 SECTION19. GENERAL...................................................................................................................................................33 J. No Extraneous Inducements. ......................................................................................................................................33 B. Authority to Execute....................................................................................................................................................3 C. Entire Agreement........................................................................................................................................................3 I' D. Binding Effect........................................... .......................................3; E. Amendments................................................................................................................................................... F. Governing Law. ..........................................................................................................................................................3-.' G. Compliance with Laws.............. ... ................3j H. Force Xfaj eure............................................................................................................................................................35 1. Severability. .................................................................................................................................................................>> J. Notices.........................................................................................................................................................................3 I FrancniseAureement.doc Page ill 05/23/97 3:—,15 PM NON-EXCLUSIVE USE OF PUBLIC WAYS FRANCHISE AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND AT & T CORP. This Agreement, effective as of fl1� }� l�p�, is by and between the Village of Oak Brook, an Illinois municipal corporation (the "Village") and AT & T Corp., a New York corporation, on behalf of itself, its successors, subsidiaries and affiliated entities (the "Franchisee"), hereinafter referred to as the "Agreement". IN CONSIDERATION of the recitals and the mutual covenants and agreements set forth herein, the parties hereto agree as follows: SECTION 1. RECITALS. A. The Franchisee is engaged in the business, among others, of providing Telecommunications Services, including the design, construction, installation, maintenance and operation of facilities used in the provision of such telecommunications services. B. At a regular meeting held on the day of /'1- / 199 , the Corporate Authorities adopted the Franchise Ordinance granting a revocable, non-exclusive Franchise to use the Public Ways of the Village, conditioned upon all terms and conditions herein, and upon the execution of this Agreement by the Franchisee and by the Village. C. The Corporate Authorities, after careful consideration, have concluded that granting a revocable, non-exclusive Franchise to the Franchisee to use the Public Ways pursuant to and in accordance with this Agreement would be in the best interests of the Village and its residents. The Corporate Authorities reserve all rights which have been or may hereafter be created by statute or by common law, specifically including the right to tax the services authorized under this Franchise. 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 tense, 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. Capitalized Words. Capitalized words and phrases used in this Agreement shall have the meanings ascribed to them in Section 2 of this Agreement or elsewhere in this Agreement. TranchiseAgreement.doc 05/23/97 3:45 P`4 Page 1 3. Conflicting Provisions. a.. In no event shall prior drafts of this Agreement be used, considered or relied upon in interpreting or construing any provision of this Agreement. b. The headings and captions contained in this Agreement are to facilitate reference only, and shall not in any way define, limit or describe the scope or intent of this Agreement, nor in any way affect the construction or interpretation of this Agreement. 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. "Access Line": The connecting cable, wire facility, or Equivalent Access Line owned, leased or used by the Franchisee, between a customer's premises and the Franchisee's serving central office that provides customer access to the dial network for placing and receiving calls. A connecting cable, wire facility, or Equivalent Access Line leased or used by Franchisee, which is not owned by Franchisee, shall be considered an "Access Line" only if the Village is not paid an Access Line Fee, or other similar compensation, by another entity. An "Equivalent Access Line" is a voice grade equivalent channel served by a connecting cable or«tire. 2. "Corporate Authorities": The President and Board of Trustees of the Village. 3. "Effective Date": The date this Agreement becomes effective, as set forth on page one of this Agreement. 4. "Facilities": The individual parts which together are utilized by the Franchisee to provide Telecommunications Services including, without limitation, all cables, fiber, conduits, access manholes, pedestals, boxes, equipment, optics, electronics, testing appliances, and any other current or future devices and appurtenances which the Franchisee may use in the provision of its Telecommunications Services. Facilities do not include OTN's. The parties hereto expressly intend and acknowledge that the Franchisee's Facilities will be the personal property of the Franchisee and not fixtures. i 5. "FCC". Federal Communications Commission - The Federal administrative agency, or lawfiil successor, authorized to regulate and oversee telecommunications carriers, services and I providers on a national level. 6. "Franchise": The non-exclusive and revocable right granted to the Franchisee by this Agreement, to use the Public Ways within the Village in connection with the provision by the Franchisee of its Telecommunications Services including the construction, installation, use, Franc hiseAgreement.doc 05/23/97 3:45 PA Page 2 maintenance, testing, inspection, operation, repair, replacement and removal of Facilities within or from such Public Ways, pursuant to and in accordance with this Agreement. 7. "Franchise Ordinance": 0l dtr�ai No oL—� f V adopted Yy the Corporate Authorities on the day of rl / , 199q , granting anon-exclusive, revocable Franchise to the Franchisee to use the Public Ways of the Village pursuant to and in accordance with this Agreement. 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 any property over, under, above or along which the Franchisee's Facilities shall be installed. 9. "ICC" Illinois Commerce Commission - The State administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the State of Illinois. 10. `'OTNs" Optical Terminal Node - A network element that performs the connection between optical and electrical. 11. "Permits": All approvals, consents, permits, licenses, and authorizations required to be obtained from the Village, to gain access to and to conduct operations within the Public Ways of the Vilinge in connection with the Franchisee's Telecommunications Services. 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. "Public Way(s)": Any public street, highway, lane, path, alley, sidewalk, boulevard, drive, utility easement or other such public right-of-way commonly used for utility purposes now or hereafter owned by the Village or in which the Village has the right to grant to the Franchisee the rights and interests granted in this Agreement. 14. "Telecommunications Services": The provision (either directly or as a carrier for others) of information by electronic or optical transport, or by such other medium as the Franchisee may elect to employ, in voice, data, graphic, video, or such other forms as the Franchisee may elect to provide, on intrastate, interstate, or international bases, including the design, construction, installation, maintenance and operation of the telecommunications facilities or systems used in such transport of information. "Telecommunications Services" shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. Sections Franc hiseAcyreement.doc 05/23/97 3:45 PM Page 3 521 et seq.) as now or hereafter amended or through an open video system as defined in the Rules of the Federal Communications Commission (47 CDF 76.1500 et seq.) as now or hereafter amended. 15. "Within the Village": Within the corporate boundaries of the Village. The Village agrees to notify the Franchisee of any ordinances annexing property to or disconnecting property from the Village and agrees to provide the Franchisee with an accurate map of the corporate boundaries of the Village showing,if available, street names and numbers. SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE. A. Grant of Franchise. The Village hereby grants to the Franchisee a Franchise to use the Public Ways Within the Village for the purposes of constructing, installing, using, maintaining, testing, inspecting, operating, repairing, replacing and removing Facilities in connection with the Franchisee's provision of Telecommunications Services. B. Acceptance of Franchise. The Franchisee hereby accepts the Franchise granted hereby and agrees to comply 'With this Agreement. C. License, Permits, and Approvals. Except as expressly provided herein, this Agreement shall not take the place of any franchise, license or permit v,-hich the Franchisee is, or may in the future be required to obtain from any Governmental Authority or other Person in order to: I. Construct, install, use, maintain, test, inspect, operate, repair, replace or remove its Facilities, 2. Access, possess or otherwise use any real property other than the Public Ways; or 3. Engage in, maintain, operate or carry on a business Within the Village. D. Franchise Term. The initial term of the Franchise shall begin on the effective date of this Agreement and shall expire on August 31, 2002, (the "Initial Term"), and may be renewed as provided in Section 15. The Initial Term and subsequent renewal terms may be revoked or terminated by the Village in accordance with Section 16 and may be terminated at any time by the written mutual agreement of i the parties. E. NoneaElusivity of Grant. Nothing contained in the Franchise 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 FrancniseAgreement.doc 05/23/97 3:45 PM Page 4 herein, to construct, install, maintain and operate telecommunications facilities in the Village. Notwithstanding the foregoing, any Franchise which may be granted by the Village subsequent to the effective date of this Agreement shall not in any way detract from the rights granted herein to the Franchisee. The Village shall use its best efforts to notify the Franchisee 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 the Franchisee of the existence of any additional telecommunications Franchises granted by the Village, and shall provide to the Franchisee the terms and conditions thereof. SECTION 4. FRANCHISE FEE, TAXES AND OTHER PAYMENTS. A. Compensation As compensation for the rights received in this Agreement, the Franchisee shall provide to the Village certain dedicated dark fibers in the manner set forth in Section 4.13. and shall pay to the Village an Access Line Fee at the rates set forth in Section 4.C. B. Village Fiber(s) - 1. Number. During the duration of this Agreement, the Franchisee shall provide to the Village, within the corporate boundaries of the Village, two (2) pairs of continuous fiber optic strands (`Village Fibers") along any Franchisee route (a) which substantially uses the Public Ways and (b) in which the Franchisee, on or after the effective date of this Agreement, installs Facilities. Nothing in this section shall be construed as requiring the Franchisee to select any route for the installation of Facilities such that Facilities are installed in Public Ways adjacent to any building or facility owned or operated by the Village or by any of the entities identified in Section 4.B.5. Village Fibers shall be dedicated for use by the Village and the technical parameters for Village Fibers shall be consistent with the standards of the Franchisee's network. 2. Maintenance of Village Fibers. The Franchisee shall undertake the routine maintenance of Village Fibers in the same manner and to the same standards as the Franchisee maintains the Franchisee's network, ordinary wear and tear excepted. The Village shall be solely responsible for the transmission of signals over the Village Fibers and for out of service disruptions caused by ��pigtail" or patch cord connections or transmitting equipment and for maintenance expenses related thereto. If Village Fibers are damaged or destroyed, the Franchisee shall repair or replace Village Fibers in the same period of time as the Franchisee would ordinarily take to repair or r°place the Franchisee's similarly situated facilities, provided that the costs of such repair or replacement shall be bome by the Village. Notwithstanding the foregoing, if damage to or destruction of Village Fiber FranchiseAgreement.doc 05/23/97 3:45 PLt Page 5 is caused, in whole or in part, by the negligence or willful misconduct of the Franchisee, then the Franchisee shall bear the cost of such repair or replacement to the extent that damage to or destruction of Village Fiber is caused by the Franchisee's negligence or willful misconduct. 3. Return of Village Fiber. If at any time during the Initial Term of this Agreement,the Village determines that any pair of Village Fibers is no longer necessary for the Village's use, then subject to the provisions of subparagraphs a. through d. of this Paragraph 3, the Village shall have the right to return Village Fibers to the Franchisee. a. The Village shall notify the Franchisee in writing of its intent to return Village Fibers, which must be returned in pairs. b. Following the delivery by the Village of written notice, Village Fibers to be returned shall be disconnected by the Franchisee, at the Village's cost, from any Village communications network. c. For the purposes of this Agreement, once Village Fibers have been disconnected pursuant to the notice provided for in subparagraph (a) of this Paragraph 3, Village Fibers shall be deemed to have been returned to the Franchisee. d. Once Villm eTibers have been returned to the Franchisee,the Village shall have the right to reclaim such Village Fibers, if said fibers are available. e. For the purposes of this Paragraph 3, `Redundant Dedicated Fiber" shall mean fiber optic strands provided to the Village by any Person Which are dedicated to the Village's use and which are installed in substantially the same Public Ways route Within the Village. If the Village returns any Redundant Dedicated Fiber, the pillage shall return such fiber in such manner that fibers to be returned are equally distributed among all providers of such Redundant Dedicated Fibers. If the number of Redundant Dedicated Fibers to be returned precludes said equal distribution, the Village shall return such fibers on a last to be provided, first to be returned basis. =4. Use of Village Fibers. The Village shall use the Village Fibers solely for governmental, intergovernmental or public purposes. The Village shall not have the right to dedicate, assign or lease any Village Fiber(s) to any third party except another Governmental Authority for a public purpose. 5. Connection to Village Fibers. The Franchisee shall permit the Village to cause connections to Village Fibers at splice points where the Franchisee's Facilities are located in any Public Way, directly adjacent to a buildiing� or facility owned or operated by the Village, the A-4-14, Park District, the Public Library, School District School District School District Township, and the Sanitary Fran chiseAgreement.doc 05/23/97 3:45 P`4 Pate 6 District. To the extent practicable, at the time the Village Director of Public Works submits comments to the Franchisee with respect to preliminary plans and specifications, as provided in Section 7.A.2., below, the Village shall identify to the Franchisee, in writing, the address location of each building or facility to be connected to Village Fibers. The splice points shall otherwise be determined by the Franchisee and shall be installed either by the Franchisee or by a contractor hired by the Franchisee. The cost of such splice points, if any, shall be borne by the Village. Such costs, when splice points are installed by the Franchisee, shall be based on usual and customary fees as set forth for any political subdivision within the State of Illinois for similar splice point connections to the Franchisee's facilities. The costs of all equipment and facilities, including installation, which the Village shall cause to be connected to Village Fibers shall be borne by the Village. 6. Purchase or Lease. In the event that the Village desires to purchase, lease or use any additional facilities or equipment which the Franchisee, in the ordinary course, provides to any other political subdivision within the State of Illinois, the Franchisee shall, subject to applicable law, offer such facilities or equipment to the Village under the same tariff or contract terms and conditions, whichever is applicable, under which the Franchisee provides such facilities or equipment to other political subdivisions within the State of Illinois. The Franchisee's obligation to provide facilities or equipment to the Village is otherwise dependent on the availability to the Franchises of excess capacity. The Franchisee is not obligated to terminate service or otherwise limit its service offerings to any customer to accommodate the Village 's request. C. Franchise Fee. 1. Access Line Fee. So long as the Franchisee exercises and enjoys the rights granted to it hereunder, the Franchisee shall pay to the Village for each Access Line that the Franchisee maintains or operates Telecommunications Services Within the Village thirty-eight cents (50.38) per Access Line per month. The Franchisee shall make said payments on a quarterly basis, based on the quarters of a calendar year, due on the last day of the calendar month next following the end of the calendar quarter in which such fee accrued. However, such payments shall not commence and shall not be due until: (1) such Access Lines are activated and (2) Franchisee is no longer required to pay I the Pre-Activation Fee described in Section 4(D) below. 2. Availability of Village Fibers. In the event that Franchisee has provided one pair of Village Fibers, Franchisee shall pay the Village thirty-four cents (S.34) per Access Line. In the event that Franchisee has provided the Village with two pairs of Village Fibers, the Franchisee shall pay the Village thirty-two cents (S.32) per Access Line. Franc nise Agree men t.doc 05/28/97 5:21 PM Page 7 M 3. Return of Village Fibers. Upon the return to the Franchisee of any Village Fibers. as set forth in Section 4.B.3. above,the Access Line Fee payment shall be as set forth in this Section 4.C.1. as follows: a. Village Returns One (1) Pair of Village Fibers. The Access Line Fee shall be increased from thirty-two cents (50.32) per Access Line per month to thirty-four (50.34)per Access Line per month, effective the first day of the third calendar month immediately following the date the Village delivers written notice to the Franchisee pursuant to this Agreement. b. Village Returns Second or Both Pair of Village Fibers. The Access Line Fee-shall be increased from thirty-two (50.32) or thirty-four (50.34) cents per Access Line per month to thirty- eight (50.38) cents per Access Line per month, effective the first day of the third calendar month immediately following the date the Village delivers written notice to the Franchisee pursuant to this Agreement. 4. Number of Access Lines. Subject to the Village's agreement not to disclose said information, the Franchisee agrees to provide annually, on or before the last day of each February, an accurate and complete report showing the number of Access Lines used, maintained,—or operated by the Franchisee to provide Telecommunications Services Within the Village during each month of the preceding calendar year. The Village agrees that the report shall be used solely for the purpose of verifying the number of Franchisee's Access Lines serving premises Within the Village. If such report shows any discrepancy or difference between the number of Access Lines maintained and operated by the Franchisee during the preceding calendar year and the number of Access Lines upon «which fees were paid for such year pursuant to Section 4.C. of this Agreement, an adjustment of the amount of such fees required to be paid shall be made in the next quarterly payment pursuant to Section 4.0 of this Agreement. Upon written request of the Village, the Franchisee shall verify the information in the report and, upon reasonable advance notice, the Franchisee shall permit the Village to inspect all records and other documents required for such verification. The Village agrees to notify Franchisee of any ordinances annexing property to or disconnecting property from the Village. 5. No Other Fees. The payments due hereunder shall be in lieu of any other permit, license, i approval, inspection or any other similar fees or charges including, but not limited to, all General business license fees customarily assessed by the Village for use of the Public Ways against businesses operating, in the Public Ways or operating in a similar business as that conducted by the Franchisee, excepting fees for FranchiseAareement.doc 05/23/97 3:45 P%1 Page 8 a. construction review for facilities governed by this Agreement and b. direct and indirect costs and expenses incurred by the Village in connection with the modification, amendment,renewal or transfer of the Franchise. 6. Acceptance by the Village. The acceptance by the Village of any payment pursuant to this Agreement shall not be construed as an accord by the Village that the amount of such payment is the correct amount due from the Franchisee, nor shall 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. 7. Setoff Rights. All payments due to the Village from the Franchisee pursuant to this Agreement shall be paid without a reduction for any amounts the Village owes to the Franchisee. Notwithstanding the foregoing, the Franchisee does not waive any rights or claims it may have by compliance herewith. 8. Fees Not a Tax. The fees set forth in Section 4 of this Agreement are deemed not to constitute a tax; however, nothing in this Agreement shall prevent the Franchisee from passing on as an expense to be charged against its customers the fees paid under this Agreement. D. Pre-Activation Fee. Franchisee shall pay to the Village a Pre-Activation Fee of S 167 per month, instead of and in lieu of the Access Line Fee. Franchisee shall make said payments on an annual basis, with the first payment (52,000) due on the date this Agreement is executed by both parties. Thereafter, the payment is due annually on that date. However, such payments shall cease and shall no longer be required under this Agreement when Franchisee establishes, through the process described in Section 4(C)(4) above, that the amount of the Pre-Activation Fee is equal to or less than the Access Line Fee (as defined in 4(C)(1) above) would have been for any month in the most recent calendar quarter in which the Pre-Activation Fee accrued. E. Village Taxes Upon notice from the Village, the Franchisee shall furnish to the Village Treasurer such information as lawfully may be required by the Village Treasurer to effect compliance by the Franchisee and the Franchisee's customers with the Village's Utility Tax or Telecommunications Utility Tax Ordinance (Chapter 13, Article I of the Village Code, as it may be amended) and any other ordinances of the Village which shall be in effect from time to time lawfully imposing a tax with respect to the Franchisee's provision of Telecommunications Services. The parties hereto expressly intend and acknowledge that the Franchisee's Facilities will be personal property of the Franc hiseAgreement.doc 05/23/97 3:45 Pt Page 9 Franchisee and not fixtures. The Franchisee also specifically acknowledges its duty to collect and remit to the Village the aforesaid Village Utility Tax or Telecommunications Utility Tax (now found at 65 ILC 5/8-11-2 and 5/8-11-17 respectively). Nothing in this Agreement shall prevent or preclude the Village from enacting, collecting and enforcing any valid taxes that may be applicable to the Franchisee. F. Fixed Wireless Local Service At such time that AT&T provides fixed wireless local service which bypasses the wireline network, and which service would otherwise be provided via an Access Line, AT&T will negotiate a compensation arrangement with the Village similar to that in Section 4.C, provided that the Village seeks similar compensation from other providers of similar wireless services, and to the extent required by applicable state and federal law. G. Proprietary Franchise Fee If the law as set forth in American Telephone and Telegraph v. Village of Arlington Heights, 145 I11. 2d 399, 620 N.E. 2d 1040 (1993) or any other applicable law is overruled, modified or otherwise changed to permit or authorize municipalities to condition use of the Public Ways on the payment of proprietary fees for use of the Public Ways ("Proprietary Franchise Fee"), or in the event state or federal legislation is adopted to permit or authorize municipalities to condition use of the Public Ways on the payment of such Proprietary Franchise Fee, the Franchisee and the Village agree as follows 1. The Village shall notify the Franchisee of the change in the law that permits or authorizes the Village to condition the use of the Public Ways on the payment of a Proprietary Franchise Fee. 2. The Franchisee shall assist the Village in developing a fee structure reflecting a Proprietary Franchise. 3. The parties may amend this Agreement to provide a Proprietary Franchise Fee provided such Fee is imposed by a lawful Village ordinance which is uniformly applied to all similarly situated users of the Public Ways. 4. Once a Proprietary Franchise Fee is imposed by amendment of this Agreement the Franchisee shall not object to said Proprietary Franchise Fee on the grounds that such Proprietary Franchise Fee is violative of the terms of this Agreement. Notwithstanding the foregoing, the Franchisee does not waive any other objections. i FranchiseAgreement.doc 05/23/97 3:45 PM Page 10 H. Infrastructure Maintenance Fee. In the event that legislation is enacted in the State of Illinois which provides for an infrastructure maintenance fee or similar fee ("Infrastructure Maintenance Fee") which is payable directly or indirectly to Illinois units of local government, and in the further event that Ameritech (formerly Illinois Bell) either voluntarily agrees, or is required to waive its payments to the Village pursuant to Section 6 of its existing Franchise Agreement with the Village in favor of the Infrastructure Maintenance Fee, the Village may, at any time, and in its sole option, notify Franchisee in writing that the Village elects to waive the payments provided in Section 4(C) in favor of the Infrastructure Maintenance Fee set forth in the legislation. Upon receipt of such notice, the Franchisee shall cease payments provided for in Section 4(C) and shall begin payment of the Infrastructure Maintenance Fee. In the event the Village exercises its option to waive the provisions of Section 4(C) and adopt the infrastructure maintenance fee, all other provisions of this Franchise Agreement shall remain in full force and effect. SECTION 5. LOCATION OF FACILITIES. A. In General. The Franchisee agrees to use its best efforts to install its facilities in or on existing facilities which are owned either by the Franchisee, another telecommunications or utility company or the Village, provided that said existing facilities (1) have sufficient space to accommodate the Franchisee's needs, (2) do not require substantial modification to accommodate the Franchisee's needs, (3) are in compliance with all applicable environmental laws, and (4) are provided to the Franchisee in a timely manner and on commercially reasonable terms. The Village agrees to assist the Franchisee whenever possible in facilitating negotiations for such co-location with said other entities to the extent practicable. In the event said existing facilities fail to satisfy the aforesaid conditions, the Village agrees to cooperate in identifying alternative locations within the Public Ways. B. Priorities in the Location of Facilities. With respect to the location of Facilities, the following principles, in the following order of priority, shall govern: 1. Sharing Existing Underground Utility Facilities. Whenever an existing utility conduit, duct, vault or other such exiting facility can physically accommodate the Franchisee's cable, -ire or other Facilities in accordance with all applicable laws and regulations, the Franchisee shall, where such Fran chi seAgreement.doc 05/23/97 3:45 PN1 Page 1 I existing utility facility is available to the Franchisee on commercially reasonable terms, the Franchisee shall use such existing utility facility and shall not construct or install any new, different or additional Facilities that are the same as or comparable to such existing utility facility. 2. Existing Underground Facilities. Wherever the existing electric or telephone utilities are underground at a particular location,the Franchisee's Facilities shall be located underground. 3. Sharing Existing Utility Poles. Wherever an existing utility pole can physically accommodate the Franchisee's Facilities in accordance with all applicable laws and regulations and is available to the Franchisee on Commercially reasonable terms, the Franchisee shall use such existing utility pole and shall not construct or install any new, different or additional Facilities that are the same as or comparable to such existing utility facility. 4. Inadequate Existing Facilities. In the event existing facilities are inadequate to accommodate the Franchisee's Facilities, the Franchisee, at its election, may choose to construct new Facilities. Whenever the Franchisee chooses to construct new Facilities, the Franchisee shall locate such Facilities underground, so long as all subsequent utilities and other entities who locate facilities in that area are required to locate their facilities underground. Whenever the Franchisee constructs new conduit, the new conduit shall include the maximum number of inner ducts, which the Franchisee shall, to the extent permitted by law and to the extent not otherwise required for the Franchisee's oWn foreseeable needs as reasonably determined by the Franchisee, make available for non- discriminatory access on commercially reasonable terms to other providers of Telecommunications Services franchised or licensed by the Village. In any dispute concerning the extent of the Franchisee's own foreseeable needs, the burden of proof to show that such needs are not as claimed by the Franchisee shall be on the Village or on such other provider of Telecommunications Services. The existence of any dispute under Section 5.13.4. shall not be deemed a breach of this Agreement by either the Franchisee or the Village. C. Relocating Facilities Underground. Whenever during the Franchise term, all existing overhead electric utilities, cable facilities or telecommunications facilities (`Overhead Facilities") at a given location are to be located or relocated underground, either in conjunction with the installation of new facilities or as a consequence of a determination by the Village that all existing Overhead Facilities be relocated underground, or a combination thereof, then the Franchisee shall relocate its Facilities at the I designated location underground without cost or expense to the Village. Said relocation shall take place within a reasonable period of time, which shall not be later than one year following notice from FrznchiseAgreement.doc 05/23/97 3:45 P`1 Page 12 the Village or the end of the then current term of this Agreement, whichever is sooner. The Village shall either coordinate the relocation, or may designate a licensee or franchisee to coordinate the relocation. The Franchisee shall cooperate in the relocation of its Facilities and, to the maximum extent practicable, the relocation shall be done concurrently so as to minimize the disruption and inconvenience to the public. D. Screening. Except for the use of existing poles or conduit, all new Facilities placed by the Franchisee on any Public Way, public property or private property shall be adequately screened as practicable or buried underground so as not to be visible from any Public Way and in accordance with all applicable codes. SECTION 6. RESERVATIONS OF PUBLIC WAY RIGHTS AND CONSTRUCTION RESTRICTIONS. A. Title to Public Ways. All rights granted herein to the Franchisee in the Public Ways are granted based on the information and belief of the Village that it has title to or an interest in such Public Ways and the right and power to grant the rights and interests granted to the Franchisee 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 the Franchisee the rights and interests granted in this Agreement. This Agreement shall be deemed to arant only such rights to use the Public Ways as the Village may have the right and power to grant by this Agreement. The Franchisee 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 the Franchisee's sole cost and expense. B. Nion-exclusive Use. The Franchisee's right to use and occupy the Public Ways shall not be exclusive. The Village hereby reserves the right to grant any right of use of such Public Ways to any person at any time during the period of the Franchise granted to the Franchisee and any renewal or extension thereof, provided that such Grant does not obstruct, impair or prevent the Franchisee's use of the Public Ways I and the operation of the Franchisee's Facilities. i C. Other-Utilities. f I The Village hereby retains the right to lay and permit to be laid, sewer, gas, water, and other pipelines, cables and conduits in the Public Way, to change any curb or sidewalk or the grade or FranchiseAgreement.doc 05/23/97 3:45 PM Page 13 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 the Franchisee's Facilities. If the Franchisee's Facilities shall unreasonably interfere with the construction or repair of any Public Way or with any public improvement therein, then within ninety (90) days after delivery by the Village of written notice, the Franchisee, without cost or expense to the Village, shall commence and diligently prosecute to completion, the relocation, removal or replacement of such Facilities. Such work shall be performed as reasonably directed by the Village. In the event the Facilities must be so relocated,the Village agrees to cooperate with the Franchisee in identifying alternative rights of way for the relocated Facilities. However, nothing in Section 6.C. shall be construed as requiring the Village to identify alternative rights-of-way. D. Creation or Dedication of Public Way. The Franchisee shall discontinue its use of the Public Way or of selected segments 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 or segment thereof was created or dedicated or is currently being used. The Franchisee acknowledges and accepts at its own risk that the Village may make use in the future of the Public Ways in which the Franchisee's Facilities are located in a manner inconsistent with the Franchisee's use of such Public Way for placement of its Facilities. In such an event, the Village agrees to cooperate with the Franchisee in identifying alternative rights of way for relocation of the Franchisee's Facilities such that service to the Franchisee's customers is not interrupted. Nothing in Section 6_1). shall prevent the Franchisee from making a claim for costs or damages against the Village by reason of such relocation, where and to the extent that funds are made available to the Village by third parties to compensate for relocation expenses. E. Improvements or Changes on Public Way. If the Village shall desire to make any improvements or changes on or to all or an), part of any Public Way, over, under or along which any part of the Franchisee's Facilities have been installed, then within ninety (90) days after delivery by the Village of written notice, the Franchisee, without cost or expense to the Village, shall commence and diligently prosecute to completion such alteration, change, relocation or removal of such Facilities as is necessary to accommodate the Village's planned improvements or changes. To the extent the Village requires any of the Franchisee's Facilities to be removed, the Village agrees to cooperate with the Franchisee in identifying alternative rights of way for the relocation of such Facilities such that service to the Franc niseAgreennent.doc 05/23/97 3:45 PM Page 1'-' Franchisee's customers is not interrupted. However, nothing in Section 6.E. shall be construed as requiring the Village to identify alternative rights-of-way. Where necessary to avoid interference with service to the Franchisee's customers, the Village shall provide the Franchisee with an additional one hundred and twenty (120) days to remove said Facilities. Nothing in Section 6.E. shall prevent the Franchisee from making a claim for costs or damages against the Village by reason of such relocation, where and to the extent that funds are made available to the Village by third parties to compensate for relocation expenses. If the Village, in the exercise of its reasonable judgment, deems it necessary to have the Franchisee move its Facilities, the Village Engineer shall certify, in writing, the reason(s) requiring such move and shall give the Franchisee fourteen (14) days from receipt of such certification to move its Facilities. In the event the Franchisee fails to move its Facilities in the allotted time period, the Village may do so and charge the Franchisee for any reasonable costs to the Village for movement of the Facilities. The Village shall have no liability for any damages as a result of such movement. However, in connection with such movement, the Village shall use reasonable efforts to avoid damage to the Facilities. If in the reasonable judgment of the Village it becomes necessary, because of fire, disaster or other emergency, to move or take action which results in damage to any of the Franchisee's Facilities, no charge shall be made by the Franchisee against the Village for restoration and repair. However, In the event of such disaster or emergency, the Village's Emergency Management Coordinator, or designee, shall make reasonable efforts to notify the Franchisee before moving or otherwise taking actions With respect to the Franchisee's Facilities. F. Vacation or Abandonment of a Public Way. In the event any Public Way or portion thereof used by the Franchisee shall be vacated by the Village, then, within one hundred and twenty (120) days after delivery by the Village of written notice, the Franchisee, without cost or expense to the Village, shall commence and diligently prosecute to completion the removal of its Facilities from such Public Way. In the event such Facilities shall be required to be removed, the Village Engineer agrees to cooperate with the Franchisee in identifying alternative rights-of-way for the relocation of the Franchisee's Facilities such that service to the Franchisee's customers is not interrupted; provided, however, that nothing in Section 6.F. shall be construed as requiring or obligating the Village to identify alternate rights-of- way. Notwithstanding the foregoing, nothing in Section 6.F. shall prevent the Franchisee from making a claim for costs or damages against the Village by reason of such vacation, where and to the extent that funds are made available to the Village by any third parties to compensate for relocation FranchiseAgreement.doc 05/23/97 3:45 PM Page 15 expenses; nor shall the Franchisee be precluded from negotiating with any third party who may acquire an ownership or other possessory interest in such Public Way for permission to continue locating Facilities in the Public Way vacated by the Village. G. Temporary Removal or Relocation of the Franchisee's Facilities. In the event it becomes necessary temporarily to remove or to relocate any Facilities in order to move any object, vehicle, building or other structure over the Public Ways, within sixty (60), days after delivery by the Village of written notice, the Franchisee shall temporarily remove or relocate such Facilities at the expense of the benefited party. The Village agrees to pay over to the Franchisee such monies, if any, it receives from the benefited party to pay for the costs and expenses incurred by the Franchisee in temporarily removing or relocating its Facilities; provided, that nothing in Section 6.G. shall be construed as obligating the Village to undertake collections of such monies on behalf of the Franchisee. SECTION 7., CONSTRUCTION OF THE FRANCHISEE'S TELECOMMUNICATIONS FACILITIES A. Plans and Specifications. 1. Preliminary Plans and Specifications. a. Submission. Prior to commencing construction in the Public Ways, the Franchisee shall submit to the Village Engineer, for his/her review and comment, six (6) complete sets of preliminary plans and specifications which shall include, without limitation: i. A map in sufficient detail indicating the proposed route for all Facilities to be placed, including drawings of the location in each Public Way where such Facilities are proposed to be placed underground and above ground. The Franchisee shall include on such map: (a) the existing utilities in such Public Ways as reflected in the Public Record or as set forth in "as builts" provided by other utility companies or public agencies and (b) all trees, structures, improvements and obstructions in such Public Ways. Such map-may also identify which trees, utility facilities, structures, other improvements and all other obstructions that are within the path of such installation that the Franchisee proposes to temporarily or permanently remove or relocate. Franc niseAgreement.doc 05/23/97 3:45 P.M Page 16 ii. A list, complete to the extent of the Franchisee's best efforts, of all permits required to be obtained from the Village. ill. 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. b. Review by the Village. Within thirty (30) days after submission by the Franchisee, the Village Engineer shall review the preliminary plans and specifications and submit any comments he/she may have to the Franchisee. 2. Final Plans and Specifications. a. Submission. The Franchisee shall submit to the Village Engineer for his/her review and approval, six (6) complete sets of the final plans and specifications. The final plans and specifications shall include a final version of all of the documents that are specified in Section TA.La. of this Agreement. The Village may require that the final plans and specifications are in a computer readable form acceptable to the Village. b. Review by the Village. If the Village Engineer is satisfied that the final plans and specifications are in order and reasonably reflect all of the revisions that the Village Engineer requested in connection with his/her review of the preliminary plans and specifications, the Village Engineer shall approve the final plans and specifications not later than fifteen (1 5) business days after his/her receipt thereof. In the event the final plans and specifications do not meet the reasonable requirements of the Village Engineer reflecting the Public interest in regulating use of the Public Ways, he/she shall notify the Franchisee, in writing, of the denial of the final plans and specifications and the specific reasons therefor. The Franchisee shall have the opportunity to explain its final plans and specifications and to re-submit revised final plans and specifications. No construction of the Franchisee's Facilities described in the final plans and specifications shall commence, and the Village shall not be required by this Agreement to issue any permits for such construction, unless and until the Village Engineer approves the final plans and specifications. Said approval by the Village Engineer shall not.be unreasonably withheld. c. Resolution of Engineering Disputes. The Village and the Franchisee agree to use their respective best efforts to resolve all engineering issues regarding the final plans and specifications to the mutual satisfaction of both parties; provided, however that under no circumstances shall the Franc hiseAareement.doc 05/23/97 3:45 PM Page 17 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. The Franchisee shall, before commencing construction of its Facilities as approved by the Village Engineer in the final plans and specifications, obtain all permits from any other Government Authorities, as may be necessary or required for such construction. The Franchisee shall use its best efforts to submit copies of its applications for 'such permits, with the exception of those permits to be issued by the Village, to the Village Engineer. Each permit application submitted by the Franchisee to the Village shall be sufficiently detailed to demonstrate to the Village that the Franchisee's Facilities will be constructed in accordance with Sections 6 and 7 of this Agreement and with all applicable codes, ordinances and regulations. Where Facilities are to be installed on existing utility poles, the permit application shall include a drawing showing the location of the existing utility poles. Where the Facilities are to be buried underground, the permit application shall include a drawing depicting the proposed depth of such burial. 2. Membership in Joint Utility Locating Information for Excavators. The Franchisee shall, before commencing construction, become a member of Joint Utility Locating Information for Excavators ("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. The Franchisee shall construct its Facilities in accordance with all permits issued and all applicable codes, rules and regulations of any Governmental Authority. The Franchisee shall, as diligently as practicable but in no event later than thirty (30) days after receipt of a violation notice by the Village, correct such violation; provided however, that if such violation cannot be corrected within said thirty (30) days, the Franchisee, during said thirty (30) days shall undertake substantial steps to correct such violation. Notwithstanding the foregoing, if the violation constitutes a potential threat to the public, the Franchisee shall correct the violation immediately. Failure to comply with Section 7.B.3. shall constitute a material breach of this Agreement. 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 unreasonable interference with the rights and convenience of the general public, including traffic flow. The Franchisee shall, at all times while performing work in the Public Ways: FranchiseAgreement.doc 05/23/97 3:45 P?,,1 Page 18 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. Protective Measures. The Franchisee shall use suitable personnel, barricades, flags, lights, flares or other protective devices at such times and places as are required by its traffic control plan and all applicable ordinances, codes, rules and regulations. The Franchisee shall also use such protective measures at such additional times and places as the Village, in its sole judgment and discretion determines are required for the safety of all members of the general public, in order to prevent injury to any person or vehicle by reason of any work being performed under this Agreement. D. Excavation Work and Time Periods. 1. Prior Notification. The Franchisee shall notify the Village Engineer at least three (3) business days prior to any excavation in the Public Way. The Franchisee shall provide notice to the owners of private property abutting the proposed excavation by posting or delivering a notice of such excavation, at least three (3) business days prior to any excavation in the Public Way, with a telephone number of a Franchisee representative whom the private property owner may contact for information regarding the excavation. Nothing herein shall be construed as preventing the Franchisee from making immediate repairs to any damage caused to any Facilities; provided that the Franchisee shall notify the Village Engineer as promptly as practicable before such repair work or if in an emergency, as soon thereafter as practicable and provided further that the Franchisee, in any event, shall notify J.U.L.I.E. before such repair work. 2. Excavation Plans. No excavation in the Public Way shall be conducted more than twenty- four (24) hours prior to the installation therein of any Facilities. 3. Excavation in Lawns and Parkways. All excavations in lawns or grassy parkways shall be immediately back-filled, tamped and restored with hydra seeding or sod as directed by the Village Engineer in accordance with the applicable provisions of this Agreement. E. Trimming Trees. The Franchisee shall be prohibited from cutting or trimming anv tree or shrub in or on the Public Way without the written consent of the Village, which consent shall not be unreasonably i withheld. ^If trees to be preserved are removed or damaged, such trees shall be replaced according to the following schedule: 1. Two (2) 2.5 inch trees, or equivalent, for each tree measuring 8-12 inches in caliper. Fran chiseAareement.doc 05/23/97 3:45 Pi✓i Page 19 2. Three (3) 2.5 inch trees, or equivalent,for each tree measuring 13-18 inches in caliper. 3. Four (4) 2.5 inch trees, or equivalent, for each tree measuring 19-24 inches in caliper. 4. Five (5) 2.5 inch trees, or equivalent, for each tree measuring 2�-30 inches in caliper. Where tree replacement on-site is impractical, the Village may allow planting of replacement trees at a suitable location off-site. F. Emergency Contact Before undertaking any construction, excavation,.restoration, or other work in the public ways that is governed by Sections 7 or 9, the Franchisee shall request the Village to provide the name and telephone number of a person to be contacted in the event of an emergency. G. General Construction Standard. All Work Performed on the Franchisee's Facilities shall be performed in a good and workmanlike manner using materials of good and durable quality. If at any time the Village or any other Governmental Authority determines, in the exercise of its reasonable discretion and judgment, that any part of the Franchisee's Facilities, including, without limitation, any means used to distribute signals over or within its Facilities, is harmful to the health or safety of any person, then the Franchisee shall, at its sole cost and expense, promptly correct such conditions to the satisfaction of such Governmental Authority. H. "As-Built" Plans. The Franchisee shall furnish to the Village two (2) complete sets of all "as-built" plans for the Franchisee's Facilities as originally constructed and, for all relocation and reconstruction work performed thereon. Such "as-built" plans shall be furnished within sixty (60) days after completion of such work and, upon request of the Village, shall be provided in a computer readable form approved by the Village. Notwithstanding the foregoing, the Franchisee shall not be required to provide "as-built" plans for maintenance and repair work performed not involving any removal or relocation of Facilities. 1. The Village Right of Inspection. The Village shall have the right to inspect the construction site to ensure compliance with this Agreement and all applicable codes, laws, ordinances, rules, regulations and permits. J. E-911 Compatibility ` The Franchisee.shall comply with all I.C.C. requirements pertaining to E-91 1. FranchiseAgreement.doc 05/23/97 3:45 P`1 Page 20 SECTION 8. SAFETY. A. Standard of Care. The Franchisee 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 the Franchisee. B. Equipment Installation and Maintenance. All installations of the Franchisee's Facilities shall be made so as not to impair the fire integrity of any building or structure. The Franchisee 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, 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 9. RESTORATION. A. Franchisee's Obligation. Upon completion of any construction work, the Franchisee shall, at its sole cost and expense, and in the manner approved by the Village in the reasonable exercise of its sole judgment and discretion, promptly repair the Public Way, and any private property or improvement thereon, disturbed by such construction work and restore the same to, as nearly as practicable, the condition existing immediately prior to the performance of such construction work. The restoration shall be completed promptly after the completion of such construction work. In the event that the Franchisee 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 1 1 of this Agreement, the reasonable costs and expenses that the Village incurs in reconstruction or repair. In the event that such Public Way, or private property or improvement thereon, cannot be so repaired, replaced or restored, the Franchisee shall pay the Village or the affected owner of the same, as the case. may be, direct damages afising therefrom. ` i FrancniseAgreement.doc 05/23/97 3:45 PM Page 21 B. Continuing Responsibility. The Franchisee's obligation for restoration with respect to (1) any restoration which fails or is otherwise insufficient or (2) any destruction or damage which is required to be restored but which is not immediately discovered, shall continue for a period of twelve (12) months after the completion of the construction work which gave rise to the restoration obligation. Said twelve (12) month period shall apply even if such period extends beyond the termination or expiration of this Agreement. The Village agrees that it will notify the Franchisee within a reasonable time after Village discovers such destruction or damage or such restoration failure or insufficiency. SECTION 10. INSPECTION AND AUDITS. A. Records. All of the Franchisee's books, records, maps and other documents directly pertaining to this Franchise shall be maintained and made available for inspection by the Village, its agents or employees upon its written request, at reasonable times and intervals for the purposes of enforcing or administering this Agreement. The Franchisee shall fully cooperate in assisting in this regard. B. Inquiries. The Village may, at any time, make reasonable written inquiries pertaining to the Franchise and the occupancy of the Public Ways. The Franchisee shall respond to such inquiries within ten (10) business days of the Franchisee's receipt of such inquiry. C. Confidentiality. If either party provides information to the other, either orally or in writing, and identifies such information as confidential information ("Confidential Information"), 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 to the extent allowed by law. The requirement herein to protect Confidential Information shall not be applicable to the extent any Confidential Information I. becomes publicly available other than through the recipient, 2. is required to be disclosed by a governmental or judicial order, i 3. is required to be disclosed by statute or other applicable law, 4. is independently developed by the receiving party or 5. becomes available to the receiving party without restriction from a third party ,vho acquired such Confidential Information without breach of any duty. Fran cniseAgreement.doc 05/23/97 3:45 PM Page 22 Each party agrees to have their officers, employees and agents bound by the confidentiality obligations set forth herein, which 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, the Franchisee shall establish a "Security Fund" by providing the Village with cash,.an irrevocable letter of credit in the form attached, in the total amount of Fifty Thousand and No/100 Dollars ($50,000.00),provided however, at a minimum, any financial security 1. shall provide that it will not be canceled without not less than 21 days prior notice to the Village and the Franchisee; and 2. shall not require the consent of the Franchisee prior to the collection by the Village of any amounts covered by the financial security. B. Purpose. The Security Fund shall serve as security for 1. the faithful performance by the Franchisee of all provisions which the Franchisee is obligated by this Agreement to perform; 2. any expenditure, damage or loss incurred by the Village occasioned by the Franchisee's failure to comply with any 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 the Franchisee of all liens and all damages, claims, costs or expenses that the Village may pay or incur by reason of any default by the Franchisee including, without limitation, any restoration work the Franchisee is required by this Agreement to perform that the Village must perform itself or have completed as a consequence solely of the Franchisee's failure to perform or complete, and all other payments due the Village from the Franchisee 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 9 of this Agreement. C. t/laintenance of Fund. The Security Fund shall be continuously maintained in accordance with Section 11. at the Franchisee's sole cost and expense. The Village agrees to provide the Franchisee with ten (10) days written notice of any such intentions to withdraw monies from said Security Fund in order to allow the Franchisee the opportunity to correct any defects within such ten (10) day period. Fran chi seAgreement.doc 05/23/97 3:45 PM Page 23 D. Replenishment. Within fourteen (14) days after receipt of written notice from the Village that any amount has been withdrawn from the Security Fund,the Franchisee shall restore the Security Fund to the amount specified in Section 1 I.A. of this Agreement within the ten (10) day period specified in Section 11.C. E. Withdrawals. If the Franchisee 1. fails to make any payment described in Section 11.A. setting forth the purposes for the Security Fund or any payment required to be made by the Franchisee by this Agreement; 2. fails to pay any liens relating to the Franchisee's Facilities that are due and unpaid; 3. fails to reimburse the Village for any damages, claims, costs or expenses which the Village has been compelled to pay or incur by reason of any default by the Franchisee; or 4. fails to comply with any provision of this Agreement that the Village determines can be remedied by an expenditure of an amount in the Security Fund, the Village, upon ten (10) days advance written notice clearly stating the reason for, and its intention to exercise withdrawal rights under Section 1 I.E., may withdraw such amount from the Security Fund, provided that the Franchisee has not reimbursed the Village for such amount within the ten (10) day notice period. F. Interest. Any and all interest accrued on the amount in the Security Fund may be withdrawn by the Franchisee, upon written notification of said withdrawal to the Village, provided that any such withdrawal does not reduce the Security Fund below the minimum balance under this Agreement. G. Closing and Return of Security Fund. Upon any termination of the Franchise, the Franchisee shall be entitled to the return of the Security Fund, or portion thereof as remains on deposit at such termination, after account is taken for all offsets necessary to compensate the Village for the failure by the Franchisee to comply with any provisions 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 reasonable 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 the Franchisee. Fran chiseAgreement.doc 05/23/97 3:45 PN1 Page 24 H. 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. Notwithstanding the foregoing, the Village shall not be entitled to a double monetary recovery with respect to any of its rights which may be infringed or otherwise violated. SECTION 12. LIABILITY, WAIVER, INDEMNIFICATION AND INSURANCE. A. Liability. 1. Except to the extent caused by the sole negligence or willful and wanton misconduct of the Village, its officers, employees, contractors or agents ("the Village Group"), the Village Group shall not be liable to the Franchisee for any claims for damage to, or loss of, all or any part of the Franchisee's Facilities arising out of any public work, public improvement, alteration of any municipal structure, change in the grade or line of any Public Way, the elimination, discontinuing or closing of any Public Way or other exercise by the Village of its lawful authority or the exercise of any right which the Village has pursuant to this Agreement. 2. The Franchisee recognizes the Village's right to exercise its police powers over the Public Ways in order to protect the public in case of fire, disaster or other emergency as reasonably determined by the Village. Notwithstanding the provisions in Section 12.A.1_, the Village shall not be liable to the Franchisee for any damage to the Franchisee's Facilities or other property, when such damage results from the exercise by the Village of its police powers in order to protect the public in case of fire, disaster or other emergency. When practicable, as determined by the Village, the Village agrees to consult with the Franchisee prior to the exercise by the Village of such police power, where said exercise may affect the Franchisee's Telecommunications Services or Facilities and to permit the Franchisee to take necessary actions to protect the public and Franchisee's Facilities or other property. B. Waiver. The Franchisee accepts the Franchise granted by this Agreement relying solely upon its own i investigation and understanding of the power and authority of the Village to grant said Franchise and, in consideration of the grant of said Franchise, except to the extent specifically provided for in this Agreement, the Franchisee waives and releases the Village from any and all claims for FranchiseAgreement.doc 05/23/97 3:45 Pit Page 25 reimbursement with respect to any fees or other payments the Franchisee is obligated by this Agreement to pay to the Village. C. Indemnification. Except to the extent caused by the sole negligence or willful and wanton misconduct of the Village Group, and except for obligations, if any, which the Village Group may otherwise have under any applicable state or federal environmental protection laws or regulations, the Franchisee shall defend, save, indemnify and hold harmless the Village Group, when acting in their oicial capacity, from and against any and all lawsuits, claims, demands, damages, liabilities, losses and expenses, including attorneys' and experts' fees, administrative expenses, and costs of suit or defense, arising out of, resulting from or alleged to arise out of result from the negligent careless or wrongful acts, omissions, failures to act or misconduct of the Franchisee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its Facilities, and in providing or offering Telecommunications Services over the Facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Agreement. D. Insurance. For the reasons described in the Franchise Ordinance, notwithstanding any other provision in this Agreement,the Franchisee shall have the right to self insure. I. General Liability. The Franchisee shall maintain throughout the term of the Franchise, general comprehensive liability insurance insuring the Franchisee and naming as additional insureds the Village, and its officers, boards, commissions, elected and appointed officials, agents and employees, in the minimum amounts of: a. Five Million Dollars (55,000,000) for bodily injury or death per person; b. Five Million Dollars (55,000,000) for property damage resulting from any one accident; and c. Five Million Dollars (55,000,000) for all other types of liability. 2. Automobile.' The Franchisee shall maintain in its own name automobile liability insurance with a limit of Three Million Dollars (53,000,000) for each person and Three Million Dollars (53,000,000) for each accident for property damage with respect to owned and non-owned automobiles for the operations of which the Franchisee is responsible. 3. Worker's Compensation. The Franchisee shall maintain Worker's compensation Insurance within the statutory limits and Employer's Liability Insurance with not less than One Million Dollars (S 1,000,000) coverage. Franc niseAgreement.doc 05/23/97 3:45 P;vt Page 26 4. Hazard. By reason of the Franchisee's right to use or work in the Public Ways, the Franchisee's insurance shall cover comprehensive form, premises-operations, explosions and collapse hazard, underground hazard and products completed hazard in the amount of Three Million Dollars (53,000,000). 5. Evidence of Insurance. On or prior to the effective date of this Agreement, the Franchisee shall furnish proof to the Village Manager of the Village that the insurance coverages specified in Section 12.D. have been obtained along with written evidence of payment of required premiums, in the form of a certificate of insurance. The Franchisee shall provide copies of insurance policies upon request of the Village. Certificates of insurance evidencing such insurance coverage shall contain the following endorsement "It is hereby understood and agreed that the insurance evidenced by this certificate may not be materially modified, canceled nor the intention not to renew be stated until not less than ninety (90) days after receipt by the Village, by registered mail, of a written notice addressed to the Village Manager of such intent to cancel or not to renew." 6. Maintenance of Insurance. The liability insurance required by Section 12.D. shall be maintained by the Franchisee throughout the term of the Franchise and such other period of time during which the Franchisee operates or is engaged in the removal of its Facilities. Within sixty (60) days after receipt by the Village of the cancellation notice specified in Section 12.D.5.. and in no event later than thirty (30) days prior to said cancellation, the Franchisee shall obtain and furnish to the Village replacement insurance with equivalent coverage evidenced by certificates of insurance in a form acceptable to the Village. 7. No Limit of Liability. The legal liability of the Franchisee to the Village and to any person for any of the matters that are the subject of the insurance or self-insurance required by Section 12.D., shall not be limited by said insurance nor by the recovery of any amounts thereunder, provided, however, that neither the Village nor any other person shall be entitled to double recover on account of any claim. SECTION 1.3. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS. A. Village Approval Required. Neither the Franchise nor any rights or obligations of the Franchisee pursuant to this Agreement shall be assigned, transferred, pledged, leased, sublet, hypothecated or mortgaged in any manner, in Fran chiseAgreement.doc 05/23/97 3:45 PM Pane 27 whole or in part, to any Person; nor shall title to the Franchisee's Facilities, either legal or equitable, or any right or interest therein, pass to or vest in any Person, either by act of the Franchisee, 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 be prescribed by said ordinance. 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, allow the Village to initiate termination of this Agreement pursuant to Section 16. 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. Notwithstanding the foregoing, the Franchisee shall have the right to pursue and obtain financing and to structure any financing transaction in any lawful fashion it chooses, and shall have the further right to assign its rights and obligations under this Agreement to an affiliate or subsidiary of the Franchisee, without the prior consent of the Village, provided that the Franchisee gives notice of such assignment to the Village. B. Notice to Village. The Franchisee shall promptly notify the Village of any proposed action requiring the consent of the Village pursuant to Section li.A. of this Agreement, by submitting to the Village, at least ninety (90) days prior to the proposed action, a petition requesting the approval of the Village. The petition shall fully describe the proposed action and 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. RECEIVERSHIP. The Franchisee shall immediately notify the Village in writing if: A. the Franchisee 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; B. the Franchisee 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; i C. the Franchisee 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 its telecommunications operations; Franchise Agreement.doc 05/23/97 3:45 PM Page 28 D. the Franchisee institutes dissolution or liquidation proceedings with respect to its business; or E. an order is entered approving an involuntary petition to reorganize the business of the Franchisee 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 its telecommunications Operations. SECTION 15. FRANCHISE RENEWAL. A. Application. The Franchisee may apply to renew the Franchise and this Agreement for additional terms following the expiration of the then-current term of the Franchise and this Agreement. The provisions of this Agreement shall be renegotiated upon written notice by either party to the other at any time after July 1, 2000. The renewal application shall include any information -which may be required by Village ordinance applicable to Telecommunications Services. Any new terms and conditions agreed to as a result of such negotiation shall be effective upon the expiration of this Agreement in accordance with the terms contained herein unless the parties agree otherwise. B. Determination by Corporate Authorities. The Corporate Authorities shall apply the following standards in their review of the Franchisee's renewal application: 1. The financial and technical ability of the applicant, 2. The legal authority of the applicant to engage in the activities governed by the Franchise, 3. The continuing capacity of the public ways to accommodate the applicant's existing facilities, 4. The applicant's compliance with the requirements of the Agreement, and 5. Applicable federal and state telecommunications laws, rules and policies, and local telecommunications laws not inconsistent With such federal and state lawns, rules and policies. The Corporate Authorities shall grant or deny the Franchisee's renewal application in whole or part within one hundred fifty (150) days after receiving a complete application. The decision shall be in writing and shall include the reasons for a non-renewal. C. Obligation to Cure as a Condition of Renewal f No franchise shall be renewed until any ongoing violations or defaults in the Franchisee's performance of the Agreement have been cured or a plan detailing the corrective action to be taken by the Franchisee has been approved by the Village. Franc hiseAgreement.doc 05/23/97 3:45 PM Page 29 SECTION 16. REVOCATION OR TERMINATION. A. Village Authority to Revoke. Subject to the provisions of Sections 16.A., 16.B. and 16.C. of this Agreement, the permission and authority granted herein by the Village to the Franchisee may be revoked or terminated by the Corporate Authorities for one or more of the following reasons: 1. Construction or operation Within the Village or in any Public Way in violation of the Franchise. 2. Construction or operation in a location or manner not authorized by the Franchise. 3. Assignment of the Franchise other than pursuant to Section 13 of this Agreement. 4. Sale, assignment or transfer of the Franchisee's Facilities or a substantial interest therein other than pursuant to Section 13 of this Agreement. 5. Misrepresentation by or on behalf of the Franchisee in any application filed with the Village. 6. Unauthorized abandonment of Facilities in the Public Way. 7. Failure to relocate or remove Facilities as required by this Agreement. 8. Failure to pay compensation, fees or costs when and as due pursuant to this Agreement. 9. Insolvency or bankruptcy of the Franchisee. 10. Violation of material provisions of this Agreement, or any other codes, ordinances, rule, regulations, or permits of the Village. B. Notice and Opportunity to Cure. In the event that the Village llllanager believes that grounds for revocation or termination of the Franchise exist, the Village Manager shall give the Franchisee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Franchisee a reasonable period of time, not exceeding thirty (30) days to furnish evidence: 1. That corrective action has been or is being actively and expeditiously pursued to remedy the violation or noncompliance. 2. That rebuts the alleged violation or noncompliance. 3. That it would be in the public interest to impose some penalty or sanction less than revocation. C. Hearing. In the event that the Franchisee fails to provide evidence reasonably satisfactory to the Village iVctnager as provided in Section 16.B. of this Agreement, the Village Ivanager shall refer the FranchiseAgreement.doc 05/23/97 3:45 PNI Page 30 apparent violation or noncompliance to the Corporate Authorities. The Corporate Authorities shall provide the Franchisee with notice and a reasonable opportunity to be heard regarding the matter. The Corporate Authorities may, in their discretion, designate a standing or special committee or subcommittee of the Corporate Authorities to provide the Franchisee with an opportunity to be heard and to report to the Corporate Authorities on the matter to be heard. D. Standards for Revocation or Lesser Sanctions. If, after the Franchisee has had a reasonable opportunity to be heard, the Corporate Authorities determine that the Franchisee has violated or failed to comply with one or more material provisions of this Agreement, the Corporate Authorities shall determine whether to revoke the Franchise and to terminate this Agreement, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 1. Whether the misconduct was egregious. 2. Whether substantial harm resulted. 3. Whether the violation was intentional. 4. Whether there is a history of prior violations of the same or other requirements. 5. Whether there is a history of overall compliance. 6. Whether the violation was voluntarily disclosed, admitted or cured. E. Mutual Agreement to Terminate. This Agreement may be terminated at any time by the written mutual agreement of the parties. SECTION 17. ENFORCEMENT. The parties may, in law or in equity, by suit, action, mandamus, or any other proceeding including, without limitation, specific performance, (collectively, "Suit") enforce or compel the performance of this Agreement; provided that prior to the filing of any such Suit, the pam• intending to file shall give written notice to the other party of the disputed items that would be raised in such Suit. Within five (5) days following the issuance of such notice, either party may request a meeting with the other party to discuss and attempt to negotiate an amicable resolution of the disputed items, which meeting shall be scheduled within five (5) days after the request to meet is issued, unless the parties agree to another date. No Suit shall be filed prior to the occurrence of any such requested meeting. Nothing in Section 17 shall require either party to compromise any dispute or prevent the Village from commencing proceedings to revoke or terminate the Franchise pursuant to Section 16. Franc hiseAgreement.doc 05/23/97 3:45 PM Page 31 r SECTION 13. MOST FAVORED COMMUNITY. A. Other Franchisee Agreements. 1. In General. If a. the Franchisee obtains a franchise, ordinance, permit or other authorization to install, operate or otherwise maintain telecommunications facilities within the public ways of DuPage County, or of any other municipality within DuPage County, Will County, Kane County, McHenry County, Lake County or Cook County . (except the City of Chicago) in which the Telecommunications Services provided by the Franchisee are comparable to the Telecommunications Services which the Franchisee provides within the Village under this Agreement (the "Authorization"); and b. the terms, conditions or provisions of such Authorization are different from those contained in this Agreement, then to the extent said different terms relate to compensation, the Franchisee shall inform the Village of such Authorization by written notice given not more than thirty (30) days after the date such Authorization becomes effective. 2. Notice. The Village may elect to adopt, on a prospective basis only, any term, condition or provision of the Authorization which differs from the terms and conditions of this Agreement, provided that the Village gives written notice of such election to the Franchisee as provided in Section 19.1, below. 3. Effect of Election. If the Village adopts terms, conditions or provisions pursuant to Section 1 S.A., then as of the first day of the month immediately following the date the Village delivers to the Franchisee written notice of its election, this Agreement shall be deemed to be mended to incorporate such terms, conditions or provisions as the Village elects to adopt; provided, however, that if such terms, conditions or provisions which the Village elects to adopt are conditioned on other associated terms in the Authorization, then the Village shall adopt such other associated terms. The term of this Agreement as so amended shall expire as set forth in Section 3.1). B. Other Village Agreements. 1. In General. If a. the Village grants to any entity a telecommunications franchise, ordinance, permit or other authorization to install, operate or otherwise maintain telecommunications facilities within the Public Ways to provide Telecommunications Services as defined by this Agreement (the "Village Authorization"); and Franc hiseAgreement.doc 05/23/97 3:45 PM Page 32 b. the terms, conditions or provisions of such Village Authorization are different iiom those contained in this Agreement, then to the extent said different terms relate to compensation or fees, the Village shall inform the Franchisee of such Village Authorization by written notice given not more than thirty (30) days after the date such Village Authorization becomes effective. 2. Notice. The Franchisee may elect to adopt, on a prospective basis only, any term, condition or provision of the Village Authorization which differs from the terms and conditions of this Agreement, provided that the Franchisee gives written notice of such election to Village as provided in Section 19.1. 3. Effect of Election. If the Franchisee adopts terms, conditions or provisions pursuant to Section 18.B., then as of the first day of the month immediately following the date the Franchisee delivers to the Village written notice of the Franchisee's election, this Agreement shall be deemed to be amended to incorporate such terms, conditions or provisions as the Franchisee elects to adopt; provided, however, that if such terms, conditions or provisions which the Franchisee elecis to adopt are conditioned on other associated terms on the Village Authorization,then the Franchisee shall also adopt such other associated terms. The term of this Agreement as so amended shall expire as set forth in Section 3.1). C. Ylost Favored Vendee. In the event that the Village during the term of this Agreement shall desire to contract for the purchase, lease or other use of any Telecommunications Services provided by the Franchisee, or any affiliate of the Franchisee, the Franchisee, subject to applicable law, regulations and tariffs, shall use its best efforts to treat the Village as a "most favored Vendee." In that regard, the Franchisee shall offer the Village contract terms and conditions, on similar or identical transactions, that are no less favorable than the most advantageous terms and conditions offered at the time of the Village's request to any of the Franchisee's customers which are municipalities comparable to the Village. SECTION 19. GENERAL. A. No Extraneous Inducements. The Franchisee and the Village acknowledge that they have not been induced to accept this I Franchise vy any promise, verbal or written, by or on behalf of each other or by any third person regarding any term or condition of this Agreement not expressed herein. The Franchisee shall further be deemed to warrant that no promise or inducement, oral or written, has been made by any Franc hiseAgreement.doc 05/23/97 3:45 PN1 Page 33 Village employee or official regarding receipt of the Franchise, other than as contained in this Agreement. B. Authority to Execute. The Franchisee hereby warrants and represents to the Village that: 1. The Franchisee has the right,power and authority to enter into this Agreement; 2. The individuals executing this Agreement on behalf of the Franchisee have the power and authority to bind the Franchisee to this Agreement; and 3. Neither the execution of this Agreement nor the performance of the obligations contemplated hereby will violate any court order to which the Franchisee is subject. C. Entire Agreement. This Agreement embodies the entire understanding of the parties hereto. D. 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 their respective successors and assigns. Nothing herein shall be deemed to permit a transfer of the Franchise by the Franchisee except as provided in Section 13 of this Agreement. E. Amendments. Except as otherwise provided in this Agreement, any amendments to this Agreement shall be in wvriting and shall be executed by fully authorized representatives of the Village and the Franchisee. F. Governing Law. 1. This Agreement and the rights of the parties hereunder shall be interpreted and enforced in accordance with the laws of the State of Illinois, where not preempted by federal law. 2. Venue shall be proper only in the county in which the Village hall is located. 3. The Franchisee acknowledges the legality of this Agreement, and that the law governing this Agreement may change. In the event that the law changes such that any of the terms of this Agreement are or become invalid or unenforceable, as determined by a court or by agreement of the parties, the parties agree to negotiate in good faith to develop alternative provisions in the Agreement, and amend this Agreement, so that the terms of this Agreement are valid but remain to the maximum extent possible consistent �«th the purposes and intentions of this Agreement, and restore the Village to the full power and authority permitted by law. FranchiseAgreement.doc 05/23/97 3:45 PNI Page 34 G. Compliance with Laws. The Franchisee shall, at all times, comply ,vith all applicable laws, codes, rules and regulations of any Governmental Authority, regardless of whether this Agreement references such law, code, rule or regulation. H. Force Majeure. Whenever either the Village or the Franchisee is required to do or perform any act or obligation pursuant to this Agreement, 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, fire, flood, storm, earthquake, tornado, unavoidable casualty or damage to personnel, materials or equipment, or any act of God; provided, however, that the time for performing such act or obligation shall be extended for only the actual amount of time said party was delayed by such causes beyond its control. An act or omission shall not be deemed to be "beyond the control of said party" if committed, omitted, or otherwise caused by said party or its employees, officers or agents or in the case of the Franchisee, by a subsidiary, affiliate or parent of the Franchisee or any corporation or other business entity that holds either directly or indirectly a controlling interest in the Franchisee. I. Severability. If any section, subsection, sentence, clause, phrase or other portion of this Agreement or its application is, for any reason, declared invalid in whole or in part by a court, agency, commission, legislative body, or other authority of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. J. Notices. All notices and other communications in connection with this Agreement shall be in «Titmg, and shall be deemed to be delivered or received by the addressee thereof, when delivered in person to addressee at the address set forth below, or, if sent via overnight mail, the following business day, or, if sent by certified or registered mail, return receipt requested,postage prepaid, five (5) business days after deposit with the United States Post Office. To be effective, all notices and communications shall be properly addressed to the parties, respectively, as follows: i i i Franc hiseAareement.doc 05/23/97 3:45 PM Page 35 For notices and communications to the Franchisee: Outside Plant District Manager 227 W. Monroe, 20`h Floor Chicago, Illinois 60606 Attention: John Fisk Invoices to the Franchisee shall be sent to "Accounts Pavable" at the following address: Contract Administrator 227 W. Monroe, 20`h Floor Chicago, Illinois 60606 Attention: Penny Jozwiak With a copy via regular mail to: Outside Plant District Manager 227 W. Monroe, 20`h Floor Chicago, Illinois 60606 Attention: John Fisk For notices and communications to the Village: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60521 Attention: Village illfanager With a copy via regular mail to: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60521 Attention: Village Attorney I For communications with the Village during an emergency: l Village Communications Center - 630-990-2350 Fran cniseAgreement.doc 05/28/97 5:32 PM Page 36 By notice complying with the foregoing requirements of Section 19.J, 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 notices of a change of address shall be effective until actually received. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. VILLAGE OF OAK BROOK, an Illinois Municipal Corporation, BYE � ,� ✓ l/ ' n ITS: Village President DATED: �� .2 7, /f f 7 r � Y `,A-I'TES _ C- ITS Y.illnae C-eerk AT & T CORP., a New York Corporation, BY: ITS: P D5�,aL DATED: G�` 30 l/ ATTES� 1/// ttu V ITS: FranchiseAgreement.doc 05/23/97 3:45 PNI Pale 37 Letter of Credit Date: Beneficiary: Village of Oak Brook,a municipal corporation 1200 Oak Brook Road Oak Brook,Illinois 60521 By the order of: AT&T Customer Connectivity 227 West Monroe Street Chicago,Illinois 60606 We hereby issue in your favor our irrevocable credit No: for the account of AT&T Customer Connectivity Outside Plant,227 W. Monroe Street, Chicago, I1. 60606 for an amount or amounts not to exceed in the aggregate US dolloars 50,000.00 (fifty thousand and no/100 US dollars) available by your drafts at sight on the First National Bank of Chicago, One First National Plaza, Chicago,Il_,USA effective , 1997 and expiring at our office on , 1998 (the expiry date). Funds under this credit are available against your draft(s) mentioning our credit number. The below-mentioned documents must be presented at sight on or before the expiry date on this instrument in accordance with the terms and conditions of this letter of credit. Beneficiary's signed statement purportedly signed by an authorized signer stating: 1. The Beneficiary is entitled to draw on the letter of credit pursuant to the non- exclusive use of public ways franchise agreement between AT&T and the Beneficiary effective ("the Agreement'; 2. The Beneficiary has provided AT&T ten days advance written notice of its reason for, and intention to draw on this letter of credit; and 3. AT&T has not complied with certain provisions of the Agreement,paid any amounts required to be paid under the Agreement, or reimbursed the Beneficiary for amounts due pursuant to the Agreement within the ten day notice period. It is 4 condition of this Letter of Credit that it shall be deemed automatically extended without amendment for one year from the expiry date hereof, or any automatically extended expiration date, unless at least thirty (30) days prior to any expiration date, we notify you by registered mail or other receipted means that we elect not to consider this Telecom\Letter of Creditdoc 05/02/97 6:37 PM 1 Letter of Credit renewed for any such additional period. In any event,this Letter of Credit will not extend beyond , 2002. We engage with you that drafts drawn under and in conformity with the terms of this credit will be duly honored at sight if presented on or before the expiry date. The original Letter of Credit must accompany the documents required under this credit. The credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 revision), International Chamber of Commerce- Publication 500. Please address all correspondence regarding this letter of credit to the attention of our Letter of Credit Unit, Trade Service Group, at 153 West 51" Street New York, New York, attention Josephine Camerota 212-373-1011 mentioning our reference number as it appears above. Telecom\Letter of Credit.doc 05/02/97 6:37 PM 2