S-807 - 05/23/1995 - AGREEMENT - Ordinances ORDINANCE 95-AG-EXI-S-807
ORDINANCE GRANTING THE FRANCHISE TO
MCI METRO ACCESS TRANSMISSION SERVICES, INC.
TO OPERATE AND MAINTAIN A
DIGITAL FIBER OPTIC TELECOMMUNICATION SYSTEM
WHEREAS, the Village of Oak Brook has been requested to grant a non-
exclusive franchise to MCI Metro Access Transmission Services, Inc.
(hereinafter referred to as "MCI Metro"; and
WHEREAS, MCI Metro has requested the permission of the Village of Oak
Brook to construct and maintain a digital fiber optic telecommunication system
within the Village of Oak Brook; and
WHEREAS, The President and Board of Trustees have determined that it
would be in the best interests of the citizens of the Village of Oak Brook to
execute a Non-Exclusive Telecommunications Franchise Agreement with MCI Metro,
attached hereto and marked as "Exhibit A"..
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: That the provisions of the preamble hereinabove set forth are
hereby adopted as though fully set forth herein.
Section 2: That the attached Exhibit A be and hereby is adopted as a
Franchise Agreement by and between the Village of Oak Brook and MCI Metro.
Section 3: That the Village President and Village Clerk be and hereby
are authorized to execute Exhibit A.
Section 4: That the terms and conditions of the Franchise Agreement as
contained in Exhibit A are hereby adopted as an Ordinance of the Village of
Oak Brook as if fully set forth in this Ordinance.
Section 5: That this Ordinance shall be in full force and effect from
and after its passage and approval in the manner provided by law.
PASSED THIS 23rd day of May, 1995.
Ayes: Trustees Bartecki, Kenny, McInerney, Payovich, Savino and Shumate
Nays: None
Absent: None
Abstain: None
Ordinance 95-AG-EXI-S-$07
Granting The Franchise To MCI
Metro Access Transmission
Services, Inc. To Operate And
Maintain A Digital Fiber Optic
Telecommunication System
Page 2
APPROVED THIS 23rd day of May, 1995.
Vi lage President
ATTEST:
Village Clerk
Approved as to Form:
Village Attorney
Published
Date Paper
Not Published XX
mci.ord
i
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NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT
BY AND BETWEEN
THE VILLAGE OF OAK BROOK
AND
MCI METRO ACCESS TRANSMISSION SERVICES, INC.
DATED: May a3;X1995
EXHIBIT A
NONEXCLUSIVE TELECOMMNICATIONS FRANCHISE AGREEMENT
SECTION I. RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. INTERPRETATION AND DEFINITIONS . . . . . . . . . . . . . . . . . . . 2
A. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE_ . . . . . . . . . . . . . . . 5
A. Grant of Franchise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Acceptance of Franchise. 5
C. License, Permits and Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Franchise Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
E. Nonexclusivity of Grant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. COSTS, EXPENSES, FRANCHISE FEE AND OTHER PAYMENTS . . 6
A. Municipal Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Franchise Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Acceptance by the Village. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. No Right of Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
E. Fees Not a Tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5. FUTURE VILLAGE TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6. LOCATION OF FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Existing Underground . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Existing Poles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Inadequate Existing Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. Underground Placement. . . . . . . . . . . . . 13
SECTION 7. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM . . . . . . . 13
A. Plans and Specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Construction On and In Public Ways. . . . . . . . . . . . . . . . . . . . . . . 16
D. Excavation Work and Time Periods. . . . . . . . . . . . . 17
E. Care of Trees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
F. General Construction Standard. . . . . . . . . . . . . . . . . . . . . . . . . . 18
G. "As-Built" Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
H. Village Right of Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 8. RESERVATIONS OF PUBLIC WAY RIGHTS AND CONSTRUCTION
RESTRICTIONS . . . . . . . . 19
A. Title to Public Ways. . 19
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A;
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B. Nonexclusive Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Other Utilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. Creation or Dedication of Public Way. . . . . . . . . . . . . . . . . . . . . . . 20
E. Improvements or Changes on Public Way. . . . . . . . . . . . . . . . . . . . 21
F. Vacation or Abandonment of a Public Way. . . . . . . . . . . . . . . . . . . 22
G. Temporary Removal or Relocation of the Telecommunications System. . . 22
SECTION 9. RESTORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Franchisee's Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Continuing Responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10. INSPECTION AND AUDITS. . . . . . . . . . . . . . . . . . . . . . . 24
A. Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. Inquiries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. . Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11. SECURITY FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C. Replenishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D. Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
E. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
F. Closing and Return of Security Fund. 27
G. Rights Not Limited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 12. LIABILITY, INDEMNIFICATION AND INSURANCE . . . . . . . . . . 27
A. Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
C. Release and Waiver of Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
D. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 13. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS . . . . . . . . 32
A. Village Approval Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
B. Notice to Village. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 14. RECEIVERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 15. SAFETY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A. Standard of Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
B. Equipment Installation and Maintenance. 34
SECTION 16. FRANCHISE RENEWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 17. NO EXTRANEOUS INDUCEMENTS . . . . . . . . . . . . . . . . . . . . . 35
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SECTION 18. COMPLIANCE WITH LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 19. REVOCATION, TERMINATION OR DEFAULT . . . . . . . . . . . . . . 35
A. Village Authority to Revoke. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 .
C. Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 20. FORCE MAjEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 21. MOST FAVORED COMMUNITY . . . . . . . . . . . . . . . . . . . . . . . 38
A. Other Franchisee Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
B. Other Village Agreements. . . . . . 38
C. Most Favored Vendee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 22. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 23. GENERAL . . . . . . . . . 39
A. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
C. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
D. Authority to Execute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
E. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
F. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT
BY AND BETWEEN
THE VILLAGE OF OAK BROOK
AND
MCI METRO ACCESS TRANSMISSION SERVICES, INC.
THIS AGREEMENT is dated 1995 and is by and between the
VILLAGE OF OAK BROOK, an Illinois municipal corporation (the "Village") and MCI Metro
Access Transmission Services, Inc. ("Franchisee").
IN CONSIDERATION of the recitals and the mutual covenants and agreements set forth
herein, the parties hereto agree as follows:
SECTION 1. RECITALS
Franchisee is engaged in the business of designing, constructing, installing, maintaining
and operating a digital, fiber optic system for the provision of telecommunications services.
At its regular meeting held on the day of 1995, the
Village President and Village Board of Trustees adopted Ordinance No.
awarding a nonexclusive, revocable telecommunications franchise to Franchisee conditioned upon
the execution of this Agreement by Franchisee and the Village of all terms and conditions of
such franchise agreement.
The corporate authorities, after due and careful consideration, have concluded that
granting a nonexclusive telecommunications franchise to Franchisee pursuant to and in
accordance with this Agreement would be in the best interests of the Village and its residents.
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SECTION 2. INTERPRETATION AND DEFINITIONS
A. Interpretation
1. Word Use. When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular number and
words in the singular number include the plural number. The words "shall" or "will"
are always mandatory and not merely directory, and the word "may" is permissive.
2. Conflicting Provisions.
a. In the event of an express conflict or ambiguity between a provision in this
Agreement and a provision in the Ordinance (as hereinafter defined), the
provision in the Ordinance shall control.
b. In no event shall prior drafts of this Agreement or Ordinance be used,
considered or relied upon in interpreting or construing any provision of this
Agreement.
C. The headings and captions contained in this Agreement are to facilitate
reference only, and shall not in any way affect the construction or interpretation
hereof.
B. Definitions.
Whenever used in this Agreement, the following terms shall have the following meanings
unless a different meaning is required by the context:
1. "Corporate Authorities": The Village President and Village Board of Trustees
of the Village.
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2. "Effective Date": The date of this Agreement as set forth on the first page of
this Agreement, which date shall be used for reference purposes and all other purposes.
3. "Facilities": The individual parts that together make the Telecommunications
System fully operational for the purposes set forth herein, including, without limitation,
all cables, conduits, access manholes, pedestals, boxes, equipment, devices and other
appurtenances in the public way.
4. "Franchise": The nonexclusive, revocable license granted to Franchisee in this
Agreement, to use the Public Ways within the Village for the purposes of constructing,
installing, using, maintaining, testing, inspecting, operating, repairing and removing the
Telecommunications System pursuant to and in accordance with this Agreement.
5. "Governmental Authority": The United States of America, the State of Illinois
and any political subdivision thereof including, without limitation, the Village and any
agency, department, commission, board, bureau or other instrumentality of any of them
that has jurisdiction over the Telecommunications System or any property over, under,
above or along which the Telecommunications System shall be installed.
6. "Ordinance": Ordinance No. adopted by the Corporate Authorities
on the day of 1995, enabling the Village to grant a
nonexclusive, revocable telecommunications franchise to Franchisee.
7. "Permits": All approvals, consents, permits, licenses, and authorizations
required to be obtained from the Village, in connection with the Telecommunications
Systems, including those needed to obtain access to or use of the Public Ways within the
Village.
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8. "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.
9. "Public Ways": A public street, highway, lane, path, alley, sidewalk, boulevard,
drive, utility easement or other public rights-of-way now or hereafter owned by the
Village or in which the Village has the right to grant to Franchisee the rights and
interests granted in this Agreement.
10. "Telecommunications Service": The provision or offering of telecommunications
service (either directly or as a carrier for others) by Franchisee by means of the
Telecommunications System, provided that such service shall not include cable service
or a cable system as defined by the Cable Communications Policy Act of 1984, as now
or hereafter amended (47 U.S.C. Sections 521 et seq.).
11. "Telecommunications System": The telecommunications system consisting
primarily of fiber optic cables, to be constructed and installed by Franchisee pursuant to
and in accordance with this Agreement, including, without limitation, all cables,
conduits, access manholes, pedestals, boxes, equipment, devices and appurtenances to
be used by Franchisee to make the system fully operational, for the purposes of
transmitting, receiving and distributing telecommunications and other information,
including, without limitation, voice, data, signals and other forms of communications,
provided that said Telecommunications System shall not provide cable service or a cable
system as defined by the Cable Communications Policy Act of 1984, as now or hereafter
amended (47 U.S.C. Sections 521 et seq.).
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SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE
A. Grant of Franchise.
The Village hereby grants to Franchisee the franchise to use the Public Ways within the
Village for the purposes of constructing, installing, using, maintaining, testing, inspecting,
operating, repairing and removing the Telecommunications System.
B. Acceptance of Franchise.
Franchisee hereby accepts the franchise and agrees to comply with this Agreement and
the Ordinance.
C. License, Permits and Approvals.
This Agreement shall not take the place of any license, permit or approval that is, or may
in the future be required to be, secured by Franchisee from any governmental authority or
person in order to:
1. Install, use, maintain, test, inspect, operate, repair or remove the
Telecommunications System;
2. Access, possess or otherwise use any real property; or
3. Engage in, maintain, operate or carry on a business within the Village.
D. Franchise Term.
The term of the franchise shall begin on the effective date of this Agreement and shall
expire 15 years from the effective date, and may be renewed as provided in Section 16. The
term may be terminated earlier by mutual agreement or in the event of default.
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E. Nonexclusivity of Grant.
Nothing contained in the Ordinance or in this Agreement shall prohibit the Village from
granting to any other person or governmental authority a franchise similar to the one granted
herein.to construct, install, maintain and operate a telecommunications system in the Village.
The Village shall use its best efforts to notify 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
use its best efforts to provide notice to Franchisee of any additional telecommunication franchises
granted by the Village.
SEC77ON 4. COSTS, EXPENSES, FRANCHISE FEE AND OTHER PAYMENTS
A. Municipal Services.
1. Village Fibers. Franchisee shall reserve, and shall provide, as additional
consideration to the Village, four continuous fiber optic strands dedicated for the use by
the Village ("Village Fibers") along any route substantially using the Public Ways where
Franchisee's Telecommunications System is installed from and after the date of this
Agreement. The technical parameters for the Village Fibers shall be consistent with
standards of the remainder of Franchisee's network.
2. Maintenance of Village Fibers. Franchisee shall maintain in the same manner as
the rest of Franchisee's network and to industry standards the Village Fibers in their
original condition, 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 the Village Fibers are damaged by casualty,
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Franchisee shall use reasonable efforts to promptly repair or replace them within twenty-
four hours of such damage. In the event that the Village determines any or all of the
Village Fibers are no longer necessary for the Village's use, it shall notify Franchisee
of its intent to abandon the use of such facilities, or portions thereof, and they shall be
disconnected from any Village communications network and returned to Franchisee.
3. Use of Village Fibers. It is intended that the Village shall use such facilities
solely for governmental, intergovernmental or public purposes only and the Village shall
not have the right to dedicate, assign or lease such fibers, or portions thereof, to any
third party (except another governmental entity for a public purpose) during the term of
Franchisee's privilege hereunder (including any renewals) without written permission of
Franchisee.
4. Connection to Village Fibers. The Village shall be permitted by the Franchisee to
cause connections to the Village Fibers at splice points where the Telecommunications
System is placed in any Public Way directly adjacent to which a building or facility is
owned or operated by the Village of Oak Brook, the Oak Brook Park District, and
School District 53. The splice point shall be installed either by the Franchisee or by a
contractor hired by the Franchisee. The cost of such a splice point, if any, shall be
borne by the Village of Oak Brook or other public agency and 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 Telecommunications System.
5. Purchase or Lease. In the event that the Village desires to purchase, lease or use
any additional telecommunications service or any facilities or equipment provided by
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Franchisee, Franchisee shall, subject to applicable law, regulations and tariffs, offer the
same to the Village upon contract terms and conditions offered by Franchisee to any
political subdivision within the State of Illinois. Franchisee's obligation to provide
service to the Village is dependent on availability of excess capacity. Franchisee is not
obligated to terminate service or otherwise limit its service offerings to any customer to
accommodate the Village's request.
B. Franchise Fee.
1. No Proprietary Fee. The parties acknowledge that the right and authority of the
Village to impose and collect a franchise fee has been defined by the Illinois Supreme
Court in the case of American Telephone and Telegraph v. Village of Arlington Heights,
156 M.2d 399, 620 N.E.2d 1040 (1993). Based upon this ruling, this Agreement has
been negotiated and does not include a franchise fee or other payment to compensate the
Village for use of its public rights of way. Rather, the only fees imposed are those
which the parties acknowledge are reasonably related to legitimate expenses of the
Village in negotiating, entering into and administering this Agreement, and such fees
have been reduced in consideration of the municipal services provided by Franchisee
pursuant to Section 4.A. In the event American Telephone and Telegraph v. Village of
Arlington Heights, is overruled or modified to authorize municipalities to condition use
of the Public Ways on the payment of such 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, Franchisee agrees
that it will assist the Village in developing, and will not object to the enactment of, a fee
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structure imposed by a lawful ordinance of general application imposing proprietary fees
for use of the Public Ways, so long as such ordinance is uniformly applied to all
similarly situated users of the Public Ways, excepting only franchise agreements in effect
at the time of such change in the law.
2. Access Line Fee. So long as Franchisee exercises and enjoys the rights granted
to it hereunder, it shall pay to the Village for each Access Line that Franchisee maintains
and operates to serve premises within the Village: $0.32 per Access Line per month.
Franchisee shall make said payments on an annual basis, if the annual total of said
payments is less than $12,000.00; on a quarterly basis, if the annual total of said
payments is between $12,000.00 and$24,000.00; on a monthly basis, if the annual total
of said payments is greater than $24,000.00. "Access Line" as used in this Section shall
mean "the connecting facility between a customer's premise and Franchisee's serving
central office that provides customer access to the dial network for placing and receiving
calls". "Within the Village" means within the corporate boundaries of the Village. The
Village agrees to notify Franchisee of any ordinances annexing to or disconnecting from
such corporate boundaries and agrees to provide to Franchisee an accurate map of such
changes showing, if available, street name and number detail. Upon the return to the
Franchisee of Village Fibers, as set forth in Section 4.A.2 or portion thereof, the
Franchisee shall modify the Access Fee payment schedule as set forth in this Section
4.B.2 as follows:
Village abandons 1 pair of Village Fibers -- Franchisee modifies Access
Fee Schedule from 32 cents per Access Line per month to 34 cents per
Access Line per month, effective sixty days following notification by the
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i
Village to the Franchisee, pursuant to Section 23.B of this Agreement, of
said abandonment of the first pair of Village Fibers.
Village abandons second and final pair of Village Fibers -- Franchisee
modifies Access Fee Schedule from 34 cents per Access Line per month
to 38 cents per Access Line per month, effective sixty days following
notification by the Village to the Franchisee, pursuant to Section 23.B of
this Agreement, of said abandonment of the second and final pair of
Village Fibers.
3. Number of Access Lines. Franchisee agrees to provide annually, within a
reasonable time from the Village's request, the number of its Access Lines serving
premises within the Village, subject to the Village's agreement not to disclose said
information, which the Village agrees shall be used solely for the purposes of verifying
the number of Franchisee's Access Lines serving premises within the Village.
Franchisee further agrees to substantiate, upon written request, the contents of such
report and all records and other documents required for such verification shall, upon
reasonable advance notice, be subject to inspection by the Village.
4. No Other Fees. The payments due hereunder shall be in lieu of any permit,
license, inspection or other similar fees or charges customarily assessed by the Village
to businesses operating in the public way or operating in a similar-business as that
conducted by Franchisee including, but not limited to, all general business license fees.
C. Acceptance by the Village.
The acceptance by the Village of any payment shall not be construed as an accord by the
Village that the amount of such payment is the correct amount due from Franchisee pursuant to
this Agreement, nor shall such acceptance of any payment be construed to be a release or waiver
TFd1883 10
of any claim the Village may have for further or additional sums due and payable pursuant to
this Agreement.
D. No Right of Setoff.
All payments due to the Village from Franchisee pursuant to this Agreement shall be paid
without a reduction for counterclaim, setoff, deduction or defense. Notwithstanding the
foregoing, Franchisee does not waive any rights or claims it may have by compliance herewith.
In the event Franchisee does set off or deduct any amount from any such payment or otherwise
reduces the amount due based on a counterclaim or defense, the Village shall have the right to,
without any liability to Franchisee, its customers or any third persons, pursue any and all
remedies available to it at law or in equity, including without limitation, revocation of the
franchise in accordance with the terms of this Agreement.
E. Fees Not a Tax.
Payment by Franchisee to the Village of the fees set forth in Section 4 of this Agreement
are to offset the reasonable costs and expenses incurred by the Village in entering into and
administering this Agreement. Such payments shall be separate from and additional to any and
all federal, state, local and municipal taxes, as may be due, which are separate and distinct
obligations of Franchisee. Nothing in this Agreement shall prevent Franchisee from collecting
the fees under this Agreement from its Customers as a separately stated item on each Customer's
bill.
TFG1883 11
SECTION S. FUTURE VILLAGE TAXES
Upon notice from the Village, Franchisee shall furnish to the Village Treasurer such
information as lawfully may be required by the Village Treasurer to effect compliance by
Franchisee and Franchisee's customers with the Village of Oak Brook Utility Tax Ordinance
(Chapter 13, Article I of the Code of Ordinances of the Village of Oak Brook), as may be
amended from time to time, and any other lawful ordinances of the Village of Oak Brook which
shall be in effect from time to time regulating, taxing or otherwise concerning Franchisee's
operation of a Telecommunication System pursuant to the Agreement. The parties hereto
expressly intend and acknowledge that Franchisee's fiber optic cables and telecommunication
lines will be personal property of Franchisee and not fixtures. Franchisee also specifically
acknowledges its duty to collect and remit to the Village such lawful taxes as may now or
hereafter be imposed and acknowledges its duty and obligation to comply with the ordinances
of the Village, including any ordinances that require payment or collection of another Village
tax or the obtaining of any Village licenses.
SECTION 6. LOCATION OF FACILI77ES
The following principles, in the following order of priority, shall govern the location of
all facilities:
A. Existing Underground
Wherever the electric or telephone utilities are underground at a particular location,
Franchisee's facilities must be located underground.
TFG1993 12
B. Existing Poles
Wherever an existing utility pole can physically accommodate, without substantial
modification or expense to Franchisee, the facilities, or whenever an existing utility conduit,
duct, vault or other existing utility facility can physically accommodate, any cable, wire or other
facility, without substantial modification or expense to Franchisee, Franchisee may utilize such
rather than construct or install any new, different or additional facilities.
C. Inadequate Existing Facilities.
Franchisee may use existing poles and conduit for the location of its Telecommunications
System. Wherever the existing poles and conduit are inadequate for Franchisee's needs or there
are no existing poles or conduit and Franchisee chooses to construct new facilities, Franchisee
shall locate such facilities underground so long as all other utilities are required to locate their
facilities underground.
D. Underground Placement.
All underground burial shall be located approximately 2.5 feet below the surface, and at
least 5 feet from existing water mains, unless otherwise agreed to by the Village.
SECTION 7. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM
A. Plans and Specifications.
1. Submission of Preliminary Plans and Specifications. Prior to commencing
construction in the Public Ways, Franchisee shall submit to the Village Engineer, for his
review and comment, six complete sets of preliminary plans and specifications which
shall include, without limitation:
TFG1883 13
(a) A map in sufficient detail indicating (i) the proposed route for all cable
lines, including detailed drawings of the location in each Public Way where such
cables are proposed to be placed underground and above ground; (ii) all existing
utilities in such Public Ways; and (iii) all trees, structures, improvements and
obstructions in such Public Ways. Such map shall also identify which trees,
utility facilities, structures, other improvements and all other obstructions that
Franchisee proposes to temporarily or permanently remove or relocate.
(b) A complete list of all permits required to be obtained from the Village.
(c) A written traffic control plan delineating the proposed construction
schedule and traffic impacts on Public Ways. The plan shall be proposed in
accordance with the manual on uniform traffic control devices published by the
Illinois Department of Transportation.
2. Review by the Village. Within 30 days, the Village Engineer shall review the
preliminary plans and specifications and submit any comments he may have to
Franchisee.
3. Submission of Final Plans and Specifications. Franchisee shall submit to the
Village Engineer for his review and approval, six complete sets of the final plans and
specifications. The final plans and specifications shall consist of final, complete and
revised versions of each of the documents that are specified in Subsections 7.A.1. of this
Agreement as composing the preliminary plans and specifications. 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
TFGias3 14
review of the pre liminary plans and specifications, then the Village Engineer shall
approve the final plans and specifications not later than fifteen (15) days after his receipt
thereof. In the event the plans and specifications do not meet the reasonable
requirements of the Village Engineer, reflecting the public interest in regulating use of
the Public Ways, he shall notify Franchisee, in writing, of the denial of the plans and
specifications and the specific reasons therefore. No construction of the
Telecommunications System 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.
4. Resolution of Engineering Disputes. The Village and 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 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. Franchisee shall, before commencing construction
of the Telecommunications System as approved by the Village Engineer in the final
plans and specifications, obtain all permits from the Village, as may be necessary or
required for such construction. Franchisee shall submit copies of its applications to other
governmental entities for all permits required for such construction, with the exception
of those issued by the Village, to the Village Engineer prior to the commencement of
TFG 1883 15
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v
construction. Each permit application submitted by Franchisee to the Village shall
contain plans and specifications sufficiently detailed to demonstrate to the Village that the
Telecommunications System will be constructed in accordance with all applicable codes
and ordinances and shall meet the requirements of paragraph 6. Where cable is to be
installed on existing utility poles, the permit application shall include a drawing showing
the location of the existing utility poles. Where cable is to be buried underground, the
permit application shall.include a drawing depicting the proposed location and depth of
such burial.
2. Membership in J.U.L.I.E. Franchisee shall, before commencing construction,
become a member of J.U.L.I.E. and shall, at all times during the term of the franchise,
remain a member of J.U.L.I.E. and comply with all regulations of J.U.L.I.E.
3. Construction in Accordance with Permits. Franchisee shall construct the
Telecommunications System in accordance with all permits issued and all applicable
codes, rules and regulations of all governmental authorities, and the failure to
substantially Comply with the permit documents shall constitute a material breach of this
Agreement. Franchisee shall, as diligently as practicable but in no event later than 30
days after delivery of.a violation notice by the Village, correct such violation.
Notwithstanding the foregoing, if the violation constitutes a potential threat to the public,
Franchisee shall correct the violation immediately.
C. Construction On and In Public Ways.
1. Minimal Interference. All work performed on, in, under, across or along the
Public Ways shall be conducted so as to minimize any unreasonable interference with the
TFG1883 16
rights and convenience of the general public, including traffic flow. Franchisee shall,
at all times while performing work in the Public Ways, (a) employ reasonable care to
protect the health and safety of the public; and (b) operate in accordance with the traffic
control plan as approved by the Village Engineer.
2. Barricades. Franchisee shall use suitable barricades, flags, lights, flares or other
protective devices at such times and places as are required by its traffic control plan, all
applicable ordinances, codes, rules and regulations and at such additional times and
places, as determined by the Village in its sole judgment and discretion, as are required
for the safety of all members of the general public, so as to prevent injury to any person
or vehicle by reason of any work being performed under this Agreement.
D. Excavation Work and Time Periods.
1. Prior Notification. Franchisee shall notify the Village Engineer at least 24 hours
prior to any excavation in the Public Way. Franchisee shall provide notice to the owners
of private property abutting the proposed excavation by posting a notice of such
excavation, at least 24 hours 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
Franchisee from making immediate repairs to any damage caused to any facilities;
provided that 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 in
any event shall notify J.U.L.I.E.. before such repair work.
TFG 1883 17
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. Excavations in Lawns and Parkways. All excavations in lawns or grassy
parkways shall be immediately back-filled, tamped and restored with sod in accordance
with the applicable provisions of this Agreement.
E. Care of Trees.
Franchisee shall be prohibited from cutting or trimming any tree, shrub or other
vegetation, in or on the Public Way. Open trenching within the dripline of trees on public
property is prohibited.
F. General Construction Standard.
All work performed on the Telecommunications System shall be performed in a good and
workmanlike manner using materials of good and durable quality. If at any time it is determined
by the Village or any other Governmental Authority, in its sole discretion and judgment, that
any part of the Telecommunications System, including, without limitation, any means used to
distribute signals over or within the Telecommunications System, is harmful to the health or
safety of any person, then Franchisee shall, at its sole cost and expense, promptly correct all
such conditions to the satisfaction of such governmental authority.
G. "As-Built" Plans.
Franchisee shall furnish to the Village two complete sets of all "as-built" plans for the
Telecommunications Systems as originally constructed and for all reconstruction, repair,
relocation and other work performed thereon within 60 days after completion of such work.
TFG1883 18
Notwithstanding the foregoing, Franchisee shall not be required to provide "as-built" plans for
routine maintenance work performed.
H. Village Right of Inspection.
The Village shall have the right to inspect the construction site to ensure compliance with
this Agreement, the Ordinance, and all applicable codes, laws, ordinances, rules, regulations and
permits.
SECTION 8. RESERVATIONS OF PUBLIC WAY RIGHTS AND CONSTRUCTION
RESTRICTIONS
A. Title to Public Ways.
All rights granted herein to Franchisee in the Public Ways are granted based on the
information and belief of the Village that it has title or an interest in such Public Ways and the
right and power to grant the rights and interests granted to 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 Franchisee the rights and interests granted in this Agreement. This Agreement
shall be deemed to grant only such rights to use the Public Ways as the Village may have the
right and power to grant in this Agreement. 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 Franchisee's sole cost and expense.
B. Nonexclusive Use.
Franchisee's right to use and occupy the Public Ways shall not be exclusive. The Village
hereby reserves the right to grant any right or use of such Public Ways to any person at any time
during.the period of the franchise and any renewal or extension thereof, provided that such grant
TFG1883 19
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does not obstruct, injure or prevent the use and operation of the Telecommunications System or
any facilities.
C. Other Utilities.
The Village hereby retains the right to lay and permit to be laid, sewer, gas, water and
other pipelines, cables and conduits in the Public Way; to change any curb or sidewalk or the
grade or dimension of any street; and to do and to permit to be done any other work.as the
Village shall deem necessary or proper in its sole judgment and discretion. All such work shall
be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use
and operation of Franchisee's facilities. If Franchisee's facilities shall unreasonably interfere
with the construction or repair of any public way or public improvement therein, Franchisee
shall, at its sole cost and expense, commence and diligently prosecute to completion, the
relocation, removal or replacement of such facilities, within 90 days after the delivery of such
written notice by the Village. Such work shall be performed as reasonably directed by the
Village. In the event the facilities must be so relocated, the Village Engineer shall cooperate
with Franchisee in identifying alternative rights of way for the relocated facilities.
D. Creation or Dedication of Public Way.
Franchisee shall discontinue its use of the Public Way, if the Village reasonably
determines that such use is inconsistent with the public health or safety or with the purposes for
which such Public Way was created or dedicated or is currently being used. Franchisee
acknowledges and accepts at its own risk that the Village may make use in the future of the
Public Ways in which Franchisee's Telecommunication System is located in a manner
inconsistent with Franchisee's use of such Public Way for its placement of its telecommunication
TFG 1883 20
system. The Village agrees to cooperate with Franchisee in identifying alternate rights of'way
for relocation of Franchisee's Telecommunications System such that service to Franchisee's
customers is not interrupted.
E. Improvements or Changes on Public Way.
If the Village shall desire to make any improvements or changes on or to all or any part
of any Public Way, over, under or along which any part of the Telecommunications System has
been installed, then Franchisee.shall, without expense to the Village, after receipt of 90 days
written notice from the Village, proceed to alter, change, vacate or remove as directed by the
Village from the Public Way any part of the Telecommunications System necessary to
accommodate the Village's planned improvements or changes. In the event such facilities shall
be required to be removed, the Village Engineer shall cooperate with Franchisee in identifying
alternative rights-of-way for the relocation of Franchisee's facilities such that service to
Franchisee's customers is not interrupted, and provide Franchisee with additional time up to 120
days total to remove said facility, provided, however, that nothing in this subsection shall be
construed as requiring or obligating the Village to identify alternative rights-of-way. Nothing
in this section shall prevent 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 Franchisee for relocation expenses.
In the event an emergency should arise wherein the Village of Oak Brook deems it
necessary to have Franchisee move its facilities, the Village Engineer shall certify, in writing,
the basis of the emergency and shall give Franchisee 14 days from receipt of such certification
to move its facilities. In the event Franchisee fails to move its facilities, the Village may do and
TF01883 21
l
charge Franchisee for any costs to the Village for movement of the facilities. The Village shall
have no liability for any damages as a result of such movement. Wherever, in case of fire or
other disaster, it becomes necessary in the judgment of the Village to remove or take action
which results in damage to any of Franchisee's facilities, no charge shall be made by Franchisee
against the Village for restoration and repair.
F. Vacation or Abandonment of a Public Way.
In the event any public way or portion thereof used by Franchisee shall be vacated by
the Village, then, upon request and notice from the Village, Franchisee shall, without cost or
expense to the Village, remove its facilities therefrom within 120 days of the date of such notice.
In the event such facilities shall be required to be removed, the Village Engineer shall cooperate
with Franchisee in identifying alternative rights-of-way for the relocation of Franchisee's
facilities such that service to Franchisee's customers is not interrupted; provided, however, that
nothing in this subsection shall be construed as requiring or obligating the Village to identify
alternative rights-of-way. Nothing in this section shall prevent 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 third parties to compensate Franchisee for relocation
expenses.
G. Temporary Removal or Relocation of the Telecommunications System.
In the event it is necessary to temporarily remove or relocate any facilities in order to
move any object, vehicle, building or other structure over the Public Ways, Franchisee shall,
upon 60 days written notice from the Village, temporarily remove or relocate such facilities at
the expense of the benefitted party.
TFG1883 22
SECTION 9. RESTORATION
A. Franchisee's Obligation.
Upon completion of any construction work, Franchisee shall, at its sole cost and expense,
and in the manner approved by the Village in its sole judgment and discretion, as the case may
be, 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 within a reasonable period of time after the completion of such construction work.
In the event that 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 11 of this
Agreement the costs and expenses the Village incurs in restoration. In the event that such Public
Way, or private property or improvement thereon, cannot be so repaired, replaced or restored,
Franchisee shall pay the Village or the affected owner of the same, as the case may be, damages
arising therefrom.
B. Continuing Responsibility.
Where any such destruction, damage or disturbance is not immediately discovered, or
where any such restoration effort fails or is otherwise inadequate or insufficient, Franchisee's
obligation for restoration shall survive the termination or expiration of this Agreement for a
period of twelve months.
TFG 1883 23
SECTION 10. INSPECTION AND AUDITS.
A. Records.
All books, records, maps and other documents pertaining to this franchise, not including
proprietary information not otherwise lawfully available to the Village, shall be maintained and
made available for inspection by the Village, its agents or employees upon its written request,
at reasonable tunes and intervals. Franchisee shall fully cooperate in assisting in this regard.
B. Inquiries.
The Village may, at any time, make written inquiries pertaining to the franchise and the
occupancy of the Public Ways. Franchisee shall respond to such inquiries within ten business
days of its receipt of such inquiry.
C. - Confidentiality.
If either party provides confidential information to the other in writing and identified as
such, the receiving party shall protect the confidential information from disclosure to third
parties with the same degree of care afforded its own confidential and proprietary information,
except that neither party shall be required to hold confidential any information which becomes
publicly available other than through the recipient, which is required to be disclosed by a
governmental or judicial order, which is required to be disclosed by statute, which is
independently developed by the receiving party or which becomes available to the receiving
party without restriction from a third party. These obligations shall survive expiration or
termination of this Agreement for a period of two (2) years.
TFa 1883 24
SEC77ON 11. SECURRY FUND
A. Amount.
On or before the Effective Date, Franchisee shall establish a "Security Fund" by
depositing with the Village or a financial institution approved by the Village, the total amount
of $50,000 in the form of an unconditional letter of credit, surety bond or other instrument, in
form and substance acceptable to the Village Attorney. At a minimum, the letter of credit,
surety bond or other instrument shall (1) provide that it shall not be canceled without prior
notice to the Village and Franchisee; and (2) not require the consent of Franchisee prior to the
collection by the Village of any amounts covered by said letter of credit, surety bond or other
instrument. The Security Fund shall be continuously maintained in accordance with this section
at Franchisee's sole cost and expense.
B. Purpose.
The Security Fund shall serve as security for (1) the faithful performance by Franchisee
of all provisions of this Agreement; (2) any expenditure, damage or loss incurred by the Village
occasioned by Franchisee's failure to comply with all codes, ordinances, rules, regulations
orders, permits, the final plans and specifications and other directives of the Village issued
pursuant to this Agreement; (3) the payment by Franchisee of all liens and taxes and all
damages, claims, costs or expenses that the Village has paid or incurred by reason of any act
or default of Franchisee including, without limitation, any restoration work that the Village must
perform itself or have completed as a consequence of Franchisee's failure to so perform or
complete, and all other payments due the Village from Franchisee pursuant to this Agreement;
TFG1883 25
(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. Replenishment.
Within fourteen(14) days after receipt of written notice from the Village that any amount
has been withdrawn from the Security Fund, Franchisee shall restore the Security Fund to the
amount specified in Subsection 11(A) of this Agreement.
D. Withdrawals.
If Franchisee (1) fails to make any payment required to be made by Franchisee
hereunder; or (2) fails to pay, any taxes or liens relating to the Telecommunications System that
are due and unpaid; or (3) fails to pay to the Village any damages, claims, costs or expenses
which the Village has been compelled to pay or incur by reason of any act or default of
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; then, after
ten days' advance written notice from the Village clearly stating the reason for withdrawal and
its intention to exercise its rights under this subsection if not paid by Franchisee and the failure
of Franchisee to pay the monies due, the Village may withdraw the amount thereof from the
Security Fund.
E. Interest.
Any and all interest accrued on the amount in the Security Fund may be withdrawn by
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 required under this
Agreement.
TF01883 26
F. Closing and Return of Security Fund.
Upon any termination of the Franchise, other than a revocation, Franchisee shall be
entitled to the return of the Security Fund, or portion thereof as remains on deposit at such
termination, and after account is taken for all offsets necessary to compensate the Village for the
failure by Franchisee to comply with any provision of this Agreement. In the event of any
revocation of the franchise, the Security Fund, and any and all accrued interest therein, shall
become the property of the Village to the extent necessary to cover any costs, loss or damage
incurred by the Village as a result of said revocation, provided that any amounts in excess of
said costs, loss or damage shall be refunded to Franchisee.
G. Rights Not Limited.
The rights reserved to the Village with respect to the Security Fund are in addition to all
other rights of the Village, whether reserved by this Agreement or authorized by law, and no
action, proceeding or exercise of a right with respect to said Security Fund shall affect any other
right the Village may have.
SEC77ON 12. LIABILITY, INDEMNIFICATION AND INSURANCE
A. Liability.
1. Franchisee. Franchisee shall indemnify and defend the Village against any
claims arising from or in connection with Franchisee's occupancy of the Public Ways.
2. Village. The Village, its officers, employees and agents shall not be liable for
any loss or damage to any real or personal property of any person, or for any injury to
or death of any individual person, arising out of or in connection with Franchisee's
negligence in the construction, operation, maintenance, repair or removal, of other action
TFG1883 27
or event with respect to, the Telecommunications System unless said loss or damage
arises from the gross negligence or willful misconduct of the Village, its agents,
employees or contractors. Unless caused by the gross negligence, malicious or
intentional acts, or willful misconduct of the Village, its agents, employees or
contractors, the Village shall not be liable to Franchisee for any damage to or loss of all
or any part of the Telecommunications System, or otherwise, as a result of any public
work, public improvement, alteration of any municipal structure, any change in the grade
or line of any public way, or the elimination, discontinuation and closing of any public
way, as provided herein.
3. Emergency Actions.
(a) 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, in which event the Village
shall not be liable therefor to Franchisee. When practical, as determined by the
Village, Franchisee shall be consulted prior to the Village's exercise of its police
powers where such exercise may affect Franchisee's Telecommunications System,
and Franchisee shall be given the opportunity to take necessary actions itself to
protect the public.
(b) The Village, its officers, employees and agents shall not be liable to
Franchisee or any affiliate of Franchisee for any special, incidental, consequential
or other damages as a result of the lawful exercise of any right of the Village
TFG1883 28
1
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pursuant to this Agreement, including, without limitation, the right of the Village
to terminate the franchise and to take any action subsequent thereto.
B. Indemnification.
1. Hold Harmless. Franchisee shall, and does hereby agree to, have the right and
obligation to defend, save, indemnify and hold the_Village, its corporate authorities,
elected and appointed officials, officers, boards, commissions, legal counsel, employees
and agents harmless from any injury, claim, demand, suit,judgment, execution, liability,
debt, damages or penalty (the "Claims") arising out of resulting from, or alleged to arise
out of or result from, Franchisee's negligence, including its failure to actin the
construction, operation, maintenance, repair or removal of the Telecommunications
System or the distribution of any service over the Telecommunications System.
C. Release and Waiver of Claims.
Franchisee shall be deemed to expressly agree that it accepts the franchise relying solely
upon its own investigation and understanding of the power and authority of the Village to grant
said franchise and that, in partial consideration of the grant of said franchise, Franchisee waives
and releases the Village from and of all claims of damages to Franchisee's facilities of any kind
whatsoever arising from the Village's exercise of its lawful authority, either known or unknown,
existing or future, which it may have in connection with any matter specified in this Agreement,
unless such damage is directly caused by the gross negligence or willful misconduct of the
Village, its agents, employees or contractors.
TFG1883 29
D. Insurance.
1. General Liability. Franchisee shall maintain, throughout the term of the
Franchise, general comprehensive liability insurance insuring both Franchisee and the
Village, and its officers, boards, commissions, elected and appointed officials, agents and
employees, in the minimum amounts of:
(a) Two Million Dollars ($2,000,000) for bodily injury or death to each
Person;
(b) Two Million Dollars ($2,000,000)for property damage resulting from any
one accident; and
(c) One Million Dollars ($1,000,000) for all other types of liability.
2. Automobile. Franchisee shall maintain in its own name automobile liability
insurance with a limit of Three Million Dollars ($3,000,000) for each person and Three
Million Dollars ($3,000,000) for each accident for property damage with respect to
owned and non-owned automobiles for the operations of which Franchisee is responsible.
3. Worker's compensation. Franchisee shall also maintain Worker's compensation
Insurance within the statutory limits and Employer's Liability Insurance with not less
than One Million Dollars ($1,000,000) coverage.
4. Hazard. By reason of Franchisee's right to use or work in the Public Ways,
Franchisee's insurance shall cover comprehensive form, premises-operations, explosions
and collapse hazard, underground hazard and products completed hazard in the minimum
amount of Three Million Dollars ($3,000,000), or whatever limits are permitted by the
State of Illinois for bodily injury and property damage combined.
TFG1883 30
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5. Evidence of Insurance Policies. On or prior to the effective date, Franchisee
shall furnish proof to the Village Manager that the foregoing insurance policies have been
obtained, along with written evidence of payment of required premiums, in the form of
a certificate of insurance.
6. Maintenance of Insurance Policies. The liability insurance policies required by
this section shall be maintained by Franchisee throughout the term of the franchise and
such other period of time during which Franchisee operates or is engaged in the removal
of the Telecommunications System as subject to Village inspection and approval. Each
such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be
canceled .nor the intention not to renew be stated until 90 days
after receipt by the Village of Oak Brook, by registered mail, of
a written notice addressed to the Village Manager of such intent to
cancel or not to renew."
Within sixty (60) days after receipt by the Village of said notice, and in no event later
than thirty (30) days prior to said cancellation, Franchisee shall obtain and furnish to the
Village replacement insurance policies in a form acceptable to the Village Attorney.
7. Alteration of Minimum Limitations. The Village may, following the effective
date, increase the minimum limitation(s) of the insurance policy or policies required in
this section by a percentage not to exceed the percentage increase in the Consumer Price
Index as of the effective date.
8. No Limit of Liability. The legal liability of Franchisee to the Village and any
person for any of the matters that are the subject of the insurance policies required by
this Section 12, shall not be limited by said insurance policies or by the recovery of any
TFGlas3 31
amounts thereunder provided, however, that neither the Village nor any other person
shall be entitled to double recovery on account of any claim.
SECTION 13. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS
A. Village Approval Required.
Neither the franchise nor any rights or obligations of Franchisee pursuant to this
Agreement or the Ordinance nor any of Franchisee's interest in the Telecommunications System
.shall be assigned, transferred, pledged, leased, sublet, hypothecated or mortgaged in any
manner, in whole or in part, to any person, nor shall title thereto, either legal or equitable, or
any right or interest therein, or any property or assets relating to the franchise or the
Telecommunications System, pass to or vest in any person, either by act of 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 therein be prescribed. 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 19. 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. Nothing herein shall prevent Franchisee from assigning its rights and
obligations to an affiliate or subsidiary of Franchisee, provided Franchisee gives notice of such
assignment to the Village. Notwithstanding the above, nothing herein shall be construed so as
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to prohibit or limit Franchisee's ability to pursue and obtain financing and to structure any
financing transaction in any lawful fashion it chooses.
B. Notice to Village.
Franchisee shall promptly notify the Village of any proposed action requiring the consent
of the Village pursuant to Subsection 13(A) of this Agreement, by submitting to the Village at
least 90 days prior to the proposed action a petition requesting the approval of the Village. The
petition shall fully describe the proposed action and,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
Franchisee shall immediately notify the Village, in writing, if: (a) 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; or (b) 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; or(c) 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 the Telecommunications System; or (d) 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 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 the Telecommunications System.
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f
SECTION 1 S. SAFETY
A. Standard of Care.
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 Franchisee.
B. Equipment Installation and Maintenance.
All installations in the Telecommunications System shall be made so as not to impair the
fire integrity of any building or stricture. 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 16. FRANCHISE RENEWAL
Franchisee shall have the right to renew the Franchise and this Agreement for an
additional term of 10 years following the expiration of the term provided for in Section 3 of this
Agreement, provided, however that Franchisee must provide express written notice of its
election to exercise this right at least 180 days prior to the expiration of the term provided for
in Subsection 3(D) of this Agreement; and provided further that (a) at the time of the election
to exercise such right to renew, Franchisee is not in default hereunder, (b) the Corporate
Authorities, in their sole discretion, find that it is in the best interests of the Village and its
TFG 1883 34
r
residents to renew the franchise and this Agreement, and (c) the parties agree on any revised
terms of this Agreement.
SECTION 17. NO EXTRANEOUS INDUCEMENTS
Franchisee and the Village acknowledge that they have not been induced to accept this
Franchise by 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. Franchisee shall
further be deemed to warrant that no promise or inducement, oral or written, has been made to
any Village employee or official regarding receipt of the franchise, other than as contained in
this Agreement.
SECTION 18. COMPLIANCE WITH LAW
Franchisee shall, at all times, comply with laws, codes, rules and regulations of all
governmental authorities, regardless of whether such law, code, rule or regulation is expressly
referenced in this Agreement. Franchisee shall, at all times, comply with all applicable laws,
ordinances, resolutions, codes rules and regulations of the Village, and all applicable memoranda
and other directives of the Village, as such laws, ordinances, resolutions, codes, rules,
regulations, memoranda and directives may be modified or amended; provided that such
modification or amendment does not impair, conflict with or diminish the rights granted
Franchisee under the Ordinance or this Agreement.
SECTION 19. REVOCATION, TERMINATION OR DEFAULT
A. Village Authority to Revoke.
Subject to the provisions of Sections 19(B) and 19(C) of this Agreement, the permission
and authority granted by the Village to Franchisee to use the Public Ways for its
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Telecommunication System pursuant to the ordinance may be revoked or terminated by the
Village Board (upon referral from the Village President or on its own motion) whenever any of
the following occur:
1. Franchisee fails to comply with the conditions of occupancy of the Public Ways
set forth herein or in the Code of Ordinances of the Village of Oak Brook; or
2. Franchisee substantially violates other material terms of this Agreement; or
3. Franchisee practices fraud and deceit upon the Village or its customers; or
4. Franchisee fails to provide or pay any material portion of the compensation or
fees owed the Village pursuant to this Agreement when due; or
5. Franchisee fails to cooperate with the reasonable requests by Village officials for
information or for inspection; or
6. Franchisee becomes insolvent, or unable or unwilling to pay its uncontested debts,
or is adjudged bankrupt or seeks-relief under the bankruptcy laws; or
7. Franchisee is in material breach of or default under this Agreement.
B. Notice.
In the event that the Village Manager believes that grounds for revocation or termination
exist or have existed, the Village Manager shall notify Franchisee in writing, setting forth the
nature and facts of such noncompliance. If, within thirty (30) days following such written
notification, Franchisee has not furnished reasonably satisfactory evidence that corrective action
has been taken or is being actively and expeditiously pursued, or that the alleged violations did
not occur, or that the alleged violations were beyond Franchisee's control pursuant to Section
24 hereof, the Village Manager shall thereupon refer the matter to the Corporate Authorities.
TFG1883 36
Upon good cause, the thirty (30) day correction period shall be extended for such reasonable
time as the Village Manager shall determine. Such good cause must be detailed in writing to
the Village Manager within five (5) days prior to the lapse of the thirty (30) day correction
period.
C. Hearing.
The Corporate Authorities shall not terminate, revoke or repeal the Ordinance or this
Agreement until after it has given notice to Franchisee that it proposes to take such action and
the-grounds therefor, and until Franchisee has had a reasonable opportunity to be heard before
the Corporate Authorities.
SECTION 20. FORCE MAJEURE
Whenever a period of time is provided for in this Agreement for either the Village or
Franchisee to do or perform any act or obligation, neither party shall be liable for any delays
or inability to perform due to causes beyond the control of said party such as war, riot,
insurrection, rebellion, strike, lockout, unavoidable casualty or damage to personnel, materials
or equipment, fire, flood, storm, earthquake, tornado or any act of God; provided, however, that
said time period shall be extended for only the actual amount of time said party is so delayed.
An act or omission shall not be deemed to be "beyond Franchisee's control" if committed,
omitted or caused by Franchisee, Franchisee's employees, officers or agents or a subsidiary,
affiliate or parent of Franchisee or by any corporation or other business entity that holds a
controlling interest in Franchisee, whether held directly or indirectly.
TFG 1883 37
SECTION 21. MOST FAVORED COMMUNITY
A. Other Franchisee Agreements.
In the event Franchisee accepts from Du Page County or from any Illinois municipality
within Du Page County, Lake County or Cook County (except Chicago), a telecommunications
franchise, ordinance, permit or other authorization to install, operate or otherwise maintain a
telecommunications system within the Public Ways, which contains regulatory terms, conditions
or provisions for comparable use of the Public Ways different from those contained in this
Agreement, including but not limited to the provision by Franchisee of services to such
municipality or county at no cost, or, in the event that American Telephone and Telegraph v.
Village of Arlin on Heights is overruled or modified to permit or authorize municipalities to
condition use of the Public Ways on the.payment of proprietary franchise fees or similar
provision to provide compensation for use of the Public Ways, the Village may adopt such
provisions of such other municipality, and the parties agree that this Agreement shall be deemed
thereby amended to incorporate such provision. In such event, the term of the new ordinance
will expire as set forth in Sections 3(D) and 16.
B. Other Village Agreements.
In the event the Village offers to any entity a telecommunications franchise, ordinance,
permit or other authorization to install, operate or otherwise maintain a telecommunications
system within the Public Ways, containing terms, conditions or provisions different from those
contained in this Agreement, including but not limited to the receipt by the Village of a franchise
fee or similar provision to provide compensation for use of the Public Ways, Franchisee may
adopt such provisions of such other franchise, ordinance, permit or other authorization, and the
TFG1883 38
parties agree that this Agreement shall be deemed thereby amended to incorporate such
provision. In such event, the term of the new ordinance will expire as set forth in Sections 3(D)
and 16.
C. Most Favored Vendee.
During the term of this Agreement, Franchisee shall always treat the Village as a "most
favored vendee". In the event that the Village shall desire to contract for the purchase, lease
or other use of any Telecommunications Services, provided by Franchisee, or any affiliate of
Franchisee, Franchisee shall, subject to applicable law, regulations and tariffs, offer the Village
contract terms and conditions no less favorable (including, but not limited to, rate of
compensation, warranties and payment) than the most advantageous terms and conditions offered
at the time of the Village's request to any of Franchisee's customers in the Village on similar
or identical transactions.
SEC77ON 22. 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 any court, agency,
commission, legislative body, or other authority of competent jurisdiction, said decision shall
not affect the validity of the remaining portions hereof.
SECTION 23. GENERAL
A. Governing Law.
This Agreement and the rights of the parties hereunder shall be interpreted and enforced
in accordance with the laws of the State of Illinois.
TFG 1883 39
B. Notices.
All notices and other communications in connection with this Agreement shall be in
writing, and shall be deemed delivered to the addressee thereof when delivered in person at the
address set forth below, or three business days after deposit in any main or branch United States
Post Office, and shall be certified or registered mail, return receipt requested, postage prepaid,
property addressed to the parties, respectively, as follows:
For notices and communications to Franchisee:
MCI Metro Access Transmission Services, Inc.
Attn: President
2250 Lakeside Boulevard
Richardson, Texas 75082
and
MCI Telecommunications Corporation
Office of the General Counsel
2400 North Glenville Drive
Richardson, Texas 75082
Invoices to Franchisee shall be sent to "Accounts Payable" at the above Lakeside
Boulevard address.
For notices and communications to the Village:
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60521
Attention: Village-Manager
With a copy via regular mail to:
TFG1893 40
t
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60521
Attention: Village Attorney
By notice complying with the foregoing requirements of this section, each party shall
have the right to change the address or addressee or both for all future notices and
communications to such party, but no notice of a change of address shall be effective until
actually received.
C. Bindzng Effect.
Each of the terms, conditions and provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and the respective successors and assigns.
Nothing herein shall be deemed to permit a transfer of the Franchise by Franchisee except as
provided in Section 13 of this Agreement.
D. Authority to Execute.
Franchisee hereby warrants and represents to the Village that: (1) it has the right, power
and authority to enter into this Agreement and to accept the Franchise granted to it in this
Agreement; (2) the individuals executing this Agreement on behalf of Franchisee have the power
and authority to bind Franchisee to this Agreement; and (3) neither the execution of this
Agreement nor the performance of the obligations contemplated hereby will (i) result in a breach
or default under any agreement to which it is a parry or (ii) violate any restriction, court order
or agreement to which it is subject.
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E. Amendments.
This Agreement may be amended by the same procedure as required by Illinois Statutes
for its original execution and approval.
F. Entire Agreement.
This Agreement embodies the entire understanding of the parties hereto and integrates
any and all negotiations, discussions and prior agreements of the parties with respect to the
subject matter of this Agreement.
TFcisss 42
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
VILLAGE OF OAK BROOK, MCI METRO ACCESS
a municipal corporation TRANSMISSION SERVICES, INC.,
a Delaware corporation,
By:�
"Village President Title:
ATTEST: ATTEST:
Village Clerk Secretary
771 RICHARD STROM
ASSISTANT SECRETARY
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