HomeMy WebLinkAboutRes 02-97 01/07/1997 AF/
RESOLUTION NO. 2-97
A RESOLUTION AUTHORIZING THE EXECUTION OF
A FRANCHISE AGREEMENT BETWEEN THE
VILLAGE OF MOUNT PROSPECT AND
METROPOLITAN FIBER SYSTEMS
WHEREAS, the corporate authorities of the Village of Mount Prospect are desirous of
entering into a non-exclusive Franchise Agreement with Metropolitan Fiber Systems
(MFS); and
WHEREAS, the Franchise Agreement between the Village and Metropolitan Fiber
Systems will allow MFS to install fiber optic cable in certain locations with the Village
rights-of-way.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF
TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: That the Mayor is hereby authorized to sign and the Village Clerk
directed to attest his signature on the non-exclusive Franchise Agreement between the
Village and Metropolitan Fiber Systems, a copy of which Franchise Agreement is
attached hereto and hereby made a part hereof as Exhibit
SECTION TWO: That this Resolution shall be in full force and effect from and after
its passage and approval in the manner provided by law.
AYES: Clowes, Corcoran, Hoefert, Juracek, Wilks
NAYS: Hendri cks
ABSENT: None
PASSED and APPROVED this 7th day of January , i997.
ATTEST: Mayor
Carol A. Fiolds
Village Clerk
VILLAGE OF MOUNT PROSPECT &
METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC.
NON-EXCLUSIVE
TELECOMMUNICATIONS FRANCHISE AGREEMENT
Effective Date: January 22, 1997
VILLAGE OF MOUNT PROSPECT &
METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC.
NON-EXCLUSIVE
TELECOMMUNICATIONS FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION 1. PURPOSE AND INTENT: ........................................ - 1 -
SECTION 2. DEFINITIONS: ................................................. - 1 -
2.1 "Agreement" .................................................... - 1 -
2.2 "Corporate Authorities" ........................................... - 1 -
2 3 "Effective Date" 1
2 4 "Facilities" 1
2.5 "Final Pians and Specifications" ................................ .... -2-
2.6 " ' "
Franchise ..................................................... - 2 -
2.7 "Franchise Agreement" 2
2.8 "Franchise Area" ................................................ - 2 -
2.9 "Franchise Fee" ................................................. - 2 -
2.10 "GovernmentalAuthority" ......................................... - 2 -
2.11 "Index" ........................................................ - 2 -
2.12 "Permits" ....................................................... - 2 -
2.13 "Person" ....................................................... - 2 -
2.14 "Preliminary Plans and Specifications" .............................. - 2 -
2.15 "Public Ways": .................................................. - 2 -
2.16 "System" ....................................................... - 3-
2.17 "Telecommunications Ordinance" .................................. - 3 -
2.18 "Telecommunications Service" ..................................... - 3 -
2.19 "Telecommunications System" ..................................... - 3 -
2.20 "Village Engineer" ............................................... - 3 -
SECTION 3. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS: ......... - 3 -
3.1 Grant of Franchise ................................................. - 3 -
3.2 Not a Warranty of Title ............................................. - 3 -
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3.3 Control of Public Ways ............................................. - 3 -
3.4 Telecommunications Ordinance ...................................... - 4 -
3.5 Scope of Services .................................................. - 4 -
3.6 Other Permits, Fees and Taxes ....................................... - 4 -
3.7 Authority of Village ................................................ - 4 -
3.8 Acceptance of MFS ................................................ - 4 -
3.9 Recourse Against Village ............................................ - 4 -
SECTION 4. TERM OF FRANCHISE: ......................................... - 4 -
SECTION 5. FRANCHISE COMPENSATION, FEES AND COSTS: ............... - 4 -
5.1 Unascertainable Costs and Expenses ................................ - 5 -
5.2 Ascertainable Costs and Expenses .................................. - 5 -
5.3 Annual Franchise Fees ........................................... - 5 -
5.4 Annual License Fee .............................................. - 6 -
5.6 Other Payments and Compensation ................................ - 6 -
5.7 Construction Permit ............................................. - 6 -
5.8 Municipal Services ............................................... - 6 -
5.9 Acceptance of Payments .......................................... - 6 -
5.10 No Right of Setoff ................................................ - 6 -
SECTION 6. LOCATION OF FACILITIES: .................................... - 6 -
6.1 Collocation ....................................................... - 6 -
6.2 Re. lo. cation Underground ................
6.3 Imt,alUndergrounding...iiii....iiiii...~iill i iii i. . . ...iiiii.i~ii -7--7-
6.4 Non-Cable Facilities ................................................ - 7 -
SECTION 7. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM: ......... - 7 -
7.1 Entry on Property ................................................. - 7 -
7.2 Permit Plans ...................................................... - 7 -
7.3 Obligation to Obtain Permits ........................................ - 8 -
7.4 Lateral Connections ................................................ - 8 -
7.5 Membership in J.U.L.I.E ............................................. - 8 -
SECTION 8. CONSTRUCTION ON AND IN PUBLIC STREETS: ................. - 8 -
8.1 Minimal Interference ............................................... - 8 -
8.2 Barricades ........................................................ - 9 -
SECTION 9. EXCAVATION WORK AND TIME PERIODS: ...................... - 9 -
9.1 Prior Notification .................................................. - 9 -
9.2 Excavation Plans .................................................. - 9 -
9.3 Excavations in Lawns and Parkways ................................. - 9 -
SECTION 10. TRIMMING TREES PROHIBITED: .............................. - 9 -
SECTION 11. GENERAL CONSTRUCTION STANDARD: ....................... - 9 -
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SECTION 12. "AS-BUILT" PLANS: .......................................... - 10 -
SECTION 13. VILLAGE RIGHT OF INSPECTION: ............................ - 10 -
SECTION 14. RECORDS: ................................................... - 10 -
14.1 Books and Records ............................................... - 10 -
14.2 Inspection and Audits ............................................ - 10 -
14.3 Inquiries ....................................................... - 10 -
14.4 Confidentiality .................................................. - 10 -
SECTION 15. SECURITY FUND: ........................................... - 11 -
15.1 Amount ...................................................... - 11-
15.2 Purpose ...................................................... - 11 -
15.3 Reduction of Fund ............................................. - 11 -
15.4 Withdrawals .................................................. - 11 -
15.5 Replenishment ............. ................................... -12-
15.6 RestorationofFund'"..''''''"'.""'''''''''''".''''" ..... -12-
15.7 Interest ...................................................... - 12 -
15.8 Closing and Return of Security Fund ............................. - 12 -
15.9 Rights Not'Limited ............................................. - 12 -
SECTION 16. LIABILITY AND INDEMNIFICATION: ........................ - 12 -
16.1 MFS ......................................................... - 12 -
16.2 Village ....................................................... - 13 -
16.3 Emergency and Other Actions ................................... - 13 -
16.4 Indemnification and Notice ...................................... - 13 -
16.5 Defense Expense ............................................... - 14 -
SECTION 17. LIABILITY INSURANCE: ..................................... - 14 -
17.1 General Liability ............................................... - 14 -
17.2 Automobile .................................................... - 14 -
17.3 Workers Compensation .......................................... - 14 -
17.4 Hazard ........................................................ - 14 -
17.5 Evidence of Insurance Policies .................................... -14-
17.6 Maintenance of Insurance Policies ................................. - 14 -
17.7 Alteration of Minimum Limitations ................................ - 15 -
17.8 No Limit of Liability ............................................. - 15 -
SECTION 18. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS: ......... - 15 -
18.1 Village Approval Required ........................................ - 15 -
18.2 Change in Control ............................................... - 15 -
18.3 Notice to Village ................................................. - 16 -
18.4 Affiliate Transfer Permitted ....................................... - 16 -
SECTION 19. FORECLOSURE, CONDEMNATION AND RECEIVERSHIP: ....... - 16 -
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19.1 Foreclosure ...................................................... - 16 -
19.2 Condemnation ................................................... - 16 -
19.3 Receivership: Notification by MFS .................................. - 16 -
SECTION 20 SAFETY: ...................................................... - 17 -
20.1 Standard of Care ................................................. - 17 -
20.2 Equipment Installation and Maintenance ............................. - 17 -
SECTION 21. FRANCHISE RENEWAL: ..................................... ~ 17 -
SECTION 22. NO EXTRANEOUS INDUCEMENTS: ........................... - 17 -
SECTION 23. COMPLIANCE WITH LAW: ................................... - 17 -
SECTION 24. SUBSEQUENT ACTION BY GOVERNMENTAL AUTHORITIES:.. ~ 18 -
SECTION 25. NONENFORCEMENT BY VILLAGE: ........................... - 18 -
SECTION 26. FRANCHISE REVOCATION: .................................. - 18 -
26.1 Cause for Revocation ............................................. - 18 -
26.2 Notice .......................................................... - 18 -
26.3 Hearing ........................................................ - 19 -
SECTION 27. OTI-IER RIGHTS AND REMEDIES: ............................. - 19 -
SECTION 28. REMOVAL OF FACILITIES UPON TERMINATION: ............. - 19 -
SECTION 29. TIME IS OF THE ESSENCE OF THIS AGREEMENT: ............. o 19 -
SECTION 30. TIME FOR EMERGENCY NOTICE: ............................. - 19 -
SECTION 31. FORCE MAJEURE: ............................................ - 20 -
SECTION 32. MOST FAVORED COMMUNITY: ............................... - 20 -
SECTION 33. MOST FAVORED FRANCHISEE: ............................... - 20 -
SECTION 34. SEVERABILITY: .............................................. - 20 -
SECTION 35. GENERAL: ................................................... - 21 -
35.1 Governing Law .................................................. - 21 -
35.2 Notices ......................................................... - 21 -
35.3 Binding Effect ................................................... - 21 -
35.4 Authority to Execute ............................................. - 22 -
35.5 Amendments .................................................... - 22 -
NON-EXCLUSIVE
TELECOMMUNICATIONS FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (the "Agreement") is made and entered into as of the
effective date of January 22, 1997, (the "Effective Date") by and between the Village of Mount
Prospect, Cook County, Illinois, an Illinois home rule municipal corporation, (hereinafter referred to
as "Village"), and Chicago Fiber Optic Corporation d/b/a Metropolitan Fiber Systems of Chicago, Inc.,
an Illinois corporation (hereinafter referred to as "MFS" or "Franchisee");
1N CONSIDERATION of the mutual promises, terms, conditions and covenants set forth
herein, the parties agree as follows:
SECTION 1. PURPOSE AND INTENT:
1.1 MFS is engaged in the business of designing, selling, constructing, installing,
maintaining and operating a digital, fiber optic based telecommunications system.
1.2 MFS has submitted an application to the Village for a telecommunications franchise
pursuant to Article 4 of the Mount Prospect Telecommunications Ordinance to construct, operate and
maintain a telecommunications system within the Village as set forth in this Agreement.
1.3 The Village is authorized to grant one or more non-exclusive franchises to construct,
operate, and maintain a telecommunications system within the municipal boundaries of the Village.
1.4 After due and careful consideration of the application and supporting materials
presented by MFS, the corporate authorities of the Village have determined that MFS has the requisite
qualifications to install, construct, operate and maintain a telecommunications system within the
Village, and that it would be in the best interest of the Village and its residents to approve the
application and to grant a telecommunications franchise to MFS pursuant to the Mount Prospect
Telecommunications Ordinance and in accordance with this Agreement.
SECTION 2. DEFINITIONS: Whenever used in this Agreement, the following terms shall have
the following meaning unless a different meaning is required by the context:
2.1 "Agreement": This contract and any amendments, exhibits or appendices hereto.
2.2 "Corporate Authorities": The President and Board of Trustees of the Village.
2.3 "Effective Date": The date of this Agreement as set forth on the first page of this
Agreement, which date shall be used for reference and all other purposes.
2.4 "Facilities": The individual parts that together make the Telecommunications System
fully operational for the purposes set forth in this Agreement, including, without limitation, all cables,
conduits, access manholes, pedestals, boxes, equipment, devices and other appurtenances.
2.5 "Final Plans and Specifications": Those certain plans and specifications for the
Telecommunications System approved by the Village Engineer pursuant to Section 6 of this
Agreement.
2.6 "Franchise": The nonexclusive, revocable license granted to MFS by in this
Agreement to use cemin Public Ways within the Franchise Area for the purposes of constructing,
installing, using, maintaining, testing, inspecting, operating, repairing and removing the
Telecommunications System, pursuant to and in accordance with the Telecommunications Ordinance.
2.7 "FranchiseAgreernent": See "Agreement".
2.8 "Franchise Area": That certain geographic area of the Village that is within those
certain Public Ways shown as a "proposed route" or "future route" on the plan labeled MFS "Franchise
Area" -- Mount Prospect, Illinois, dated 1[~0 ,1992 consisting of one sheet, attached hereto
as Exhibit A and made a part of this Agreement by this reference, and including these areas adjacent
to said Public Ways which can be served by the System.
2.9 "Franchise Fee": The fee required to be paid pursuant to Section 5 of this Agreement
in consideration for the Franchise.
2.10 "GovernmentalAuthoriO~": The United States of America, the State of Illinois and
any political subdivision thereof, including, without limitation, the Village of Mount Prospect, and any
agency, department, commission, board, bureau or other instnnuentality of any of them that has
jurisdiction over MFS or the Telecommunications System, or any property over, under, above or along
which the Telecommunications System shall be installed.
2.11 "Index": The "Consumer Price Index-U.S. City Average; For Urban Wage Earners and
Clerical Workers, All Items 1982-84-100," prepared by the U.S. Department of Labor, Bureau of
Labor Statistics, or, if said index is not then being published, the successor or the most nearly
comparable successor index thereto.
2.12 "Permits": All approvals, consents, permits, licenses, easements and authorizations
required to be obtained from all Governmental Authorities and Persons, in connection with the
Telecommunications Systems, including those needed to obtain access to or use of any real property.
2.13 "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.
2.14 "Preliminary Plans and Specifications": Those certain plans and specifications for
the Telecommunications System submitted by MFS to the Village Engineer pursuant to Section 6 of
this Agreement.
2.15 "Public Ways": Those specific public ways, sweets, alleys and utility easements now
or hereafter owned by the Village, or in which the Village has a possessory interest, identified on
Exhibit A attached hereto and made a part of this Agreement as a proposed route or future route, to
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which MFS has been granted the franchise rights and interests set forth in this Agreement, including
those specific public ways, streets, alleys and utility easements that may hereafter be added to this
Franchise and Agreement by amendment, and any other public ways, streets, alleys and utility
easements that are not depicted on said Exhibit or such amendment, but which are necessary to cross
to make the System network operational.
2.16 "System": See "Telecommunications System."
2.17 "Telecommunications Ordinance": The Mount Prospect Telecommunications
Ordinance, as now or hereafter amended.
2.18 "Telecommunications Service": The provision or offering of telecommunications
service (either directly or as a carrier for others) to Persons by means of the Telecommunications
System, not including cable service, open video service (OVS) or other video programming, which
shall be subject to receipt of further authority t~om the appropriate Governmental Authority, including
the Corporate Authorities.
2.19 "Telecommunications System": The telecommunications network to be constructed
and installed by MFS pursuant to and in accordance with this Agreement and the Telecommunications
Ordinance, including, without limitation, all Facilities to be installed or used by MFS to make the
network fully operational for the purpose of offering, transmitting and receiving authorized
telecommunications services.
2.20 "Village Engineer" shall mean the Communications Administrator of the Village or
such other officer to whom the Village has delegated approving authority under the
Telecommunications Ordinance or this Agreement.
SECTION 3. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS:
3.1 Grant of Franchise: MFS is hereby granted, subject to the terms and conditions of
this Agreement, the non-exclusive right and franchise to use only those certain Public Ways for the
purpose of installing, constructing, operating, maintaining, repairing and removing a
Telecommunications System to provide telecommunications service to persons within the Franchise
Area.
3.2 Not a Warranty of Title: The Franchise issued to MFS is not a warranty of titie or
interest in any street, alley, easement, right-of-way or other place that may now or hereafter be
included as a Public Way within the meaning of this Agreement, and it does not provide MFS with any
interest in any particular location or position within any Public Ways other than as expressly provided
in this Agreement. The Franchise is intended to convey limited rights and interests only as to those
Public Ways in which the Village has an actual interest.
3.3 Control of Public Ways: Except as expressly provided herein, the grant of this
Franchise does not affect any powers, rights, or privileges the Village now has or may later acquire to
use, possess, work on, regulate the use of, grant licenses in, vacate, or otherwise control the Village's
Public Ways covered by the Franchise, such power being expressly reserved to the Village.
3.4 Telecommunications Ordinance: The provisions of the Telecommunications
Ordinance, as now or hereafter amended over the term of this Franchise, shall apply to this Agreement
as if fully set forth herein, and the express terms of the Telecommunications Ordinance will prevail
over conflicting or inconsistent provisions in this Franchise Agreement, unless the Agreement
expresses an explicit intent to waive or modify the applicability of a requirement of the
Telecommunications Ordinance. However, the express provisions of this Agreement constitute a valid
and enforceable contract between the parties, and neither party may take any unilateral action which
materially changes the material terms and conditions promised in this Agreement.
3.5 Scope of Services: This Franchise only applies to Telecommunications Service and
expressly excludes cable service and open video system (OVS) service, which can only be provided
over the System upon MFS's receipt of authority by the appropriate Governmental Authority, including
the Corporate Authorities.
3.6 Other Permits, Fees and Taxes: The Franchise granted to MFS and the franchise fee
paid hereunder, are not in lieu of any other required permit, authorization, fee, charge or tax unless
expressly stated herein.
3.7 Authority of Village: By granting this Franchise, the Village acknowledges and agrees
that it has the authority to issue this Franchise, that it did so pursuant to processes and procedures
consistent with applicable law, that it will not raise any claim to the contrary, and that it will strictly
comply with this Agreement.
3.8 Acceptance of MFS: By accepting this Franchise, MFS acknowledges and agrees that
the Village has the authority to issue and enforce this Franchise, that the Franchise was granted
pursuant to processes and procedures consistent with applicable law, that it will not raise any claim
to the contrary, and that it will strictly comply with this Agreement.
3.9 Recourse Against Village: MFS shall have no recourse against the Village for any
loss, expense or damage resulting from the terms and conditions of this Agreement, nor because of the
Village's enforcement of this Agreement. Notwithstanding the foregoing, MFS reserves all rights to
raise claims under current or future laws that MFS is not being treated in a competitively neutral and
non-discriminatory manner as required by applicable law.
SECTION 4. TERM OF FRANCHISE: Subject to the terms and conditions of this Agreement, the
Franchise hereby granted to MFS shall remain in effect for a period often (10) years from and after
the effective date of this Agreement, unless sooner extended by written amendment of the parties,
renewed or terminated.
SECTION 5. FRANCHISE COMPENSATION, FEES AND COSTS:
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5.1 Unascertainable Costs and Expenses. MFS shall pay to the Village on the Effective
Date the sum of Two Thousand Dollars ($2,000) which amount the parties agree is a fair estimate of
certain costs and expenses incurred by the Village in connection with the granting of the Franchise,
the precise amount of which are too difficult to ascertain. Paymem of this amount is accepted in lieu
of the application fee established in Section 6.602 of the Telecommunieatious Ordinance.
5.2 Ascertainable Costs and Expenses. MFS shall pay to the Village after the Effective
Date all ascertainable costs and expenses incurred by the Village in connection with the granting of
the Franchise including, without limitation, legal fees for the drafting and negotiation of this
Agreement in an amount not to exceed Seven Thousand Dollars ($7,000) without comest. The Village
shall deliver to MFS, as soon as reasonably possihie after the Effective Date of this Agreement, copies
of all applicable invoices. MFS shall reimburse the Village, within 30 days after receipt of applicable
invoices. This amount is accepted in satisfaction of all Village costs pursuant to Section 6.603 of the
Telecommunications Ordinance.
5.3 Annual Franchise Fees. In addition to all other fees and payments required under this
Agreemem, MFS shall pay an annual franchise fee to the Village that is the greater of Three Thousand
Dollars ($3,000.00), or the total sum determined by the linear footage of the Telecommunications
System installed or placed within the Village as of the Effective Date and each annual anniversary of
the Effective Date thereafter.
(a) Per linear foot of MFS Underground Facilities installed within new MFS ducts or
conduits located:
1. Within Public Ways of the Village: $1.50 lin. ft.
2. Within Railroad or Private R-O-W: $10.00 lin. ft.
of Public Way crossing
(b) Per linear foot of MFS Underground Facilities installed within existing ducts or
conduits located:
1. Within Public Ways of the Village: $ .75 lin. ft.
2. Within Railroad or Private R-O-W: $ 5.00 lin. ft.
of Public Way crossing
(c) Per linear foot of MFS Overhead Facilities located:
1. Within Public Ways of the Village: $1.00 lin. ft.
2. Within Railroad or Private R-O-W: $10.00 lin. ft.
of Public Way crossing
Any dispute concerning the linear footage of MFS facilities shall be determined by the Village
Manager if the Village Engineer and MFS cannot reach agreement. Ducts or conduits constructed by
MFS shall be considered as "new" MFS ducts or conduits during the year in which such ducts or
conduits are installed.
5.4 Annual License Fee. The annual license fee established in Section 6.607 of the
Telecommunications Ordinance may be set off against the Franchise Fee provided in Subsection 5.3.
5.5 Time of Franchise Fee Payment. The annual Franchise Fee shall be paid within thirty
(30) days of the Effective Date; provided, however, that the mount of the annual Franchise Fee is
subject to adjustment thirty (30) days after completion of initial construction of the
Telecommunications System based upon the linear footage of MFS facilities actually installed during
such initial construction. Thereafter, the annual Franchise Fee shall be paid not later than thirty (30)
days following each annual anniversary of the Effective Date.
5.6 Other Payments and Compensation. The payment of the fees and charges set forth
in this Section 5 shall not be deemed to be a tax, and are separate from and in addition to any and all
federal, state, local and municipal taxes, fees and charges as may be due.
5.7 Construction Permit. Prior to construction of any telecommunications facility, MFS
shall pay the construction permit fee provided by Section 6.606 of the Telecommunications Ordinance,
as now or hereafter amended. To the extent that MFS has been permitted to construct facilities in
advance of the Effective Date without payment of permit fees, it is agreed that such fees shall be
calculated and paid within 30 days of the Effective Date.
5.8 Municipal Services. In the event that the Village desires to purchase, lease or use any
Telecemmunieations Service, or any Facilities or equipment provided by MFS, MFS shall, subject to
applicable law, offer the same to the Village upon contract terms and conditions no less favorable
(including, without limitation, rate of compensation, warranties and payment) than the most
advantageous terms and conditions offered to any political subdivision within the State of Illinois.
5.9 Acceptance of Payments. 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
IvlFS pursuant to this Agreement, nor shall such acceptance of any payment be construed to be a
release or waiver of any claim the Village may have for further or additional sums due and payable
pursuant to this Agreement.
5.10 No Right of Setoff. Except as expressly provided herein, all payments due to the
Village from IVlFS pursuant to this Agreement shall be paid without counterclaim, setoff, deduction
or defense.
SECTION 6. LOCATION OF FACILITIES: The following principles, in the following order of
priority, shall govern the location of all MFS Facilities:
6.1 Collocation. Wherever 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 MFS and upon reasonable terms and conditions, MFS shall utilize such and shall not
construct or install any new, different or additional facilities.
6.2 Relocation Underground. Wherever the electric or telephone utilities within the
Public Ways are relocated underground at a particular location during the term of this Agreement, MFS
shall cause its Facilities to also be moved and relocated underground, as directed by the Village
Engineer, which shall not be later than the expiration of the Franchise term.
6.3 Initial Undergrounding. Wherever there is no surplus space on existing utility
facilities to physically accommodate MFS' cable, wire or other facilities, or wherever no such utility
facilities exist at the time of MFS construction of the Telecommunications System, IvlFS shall locate
its Facilities underground.
6.4 Non-Cable Facilities. Any non-cable facility which cannot be placed underground and
is placed on any Public Way, public property or private property shall be depicted on the construction
permit plans submitted to the Village and shall be constmctad and adequately screened so as not to be
visible from any Public Way, subject to all applicable codes. All underground burial and above ground
facilities, if any, shall be located as specified in the final construction permit plans approved by the
Village.
SECTION 7. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM:
7.1 Entry on Property. MFS shall not enter upon any Public Ways in the Village, nor
shall it permit or suffer any employee, agent, contractor or subcontractor of MFS to enter upon any
such property, for the purpose of constructing, installing, relocating or removing the
Telecommunications System, unless a grant of franchise authority from the Village and a construction
permit from the Village Engineer have first been obtained as provided in the Telecommunications
Ordinance.
7.2 Permit Plans. In addition to the permit application, plans, information, construction
detail, and permit fees required under the Telecommunications Ordinance, MFS shall submit the
following to the Village Engineer or his designee as a condition to the issuance of a construction
permit:
(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 aboveground; (ii) all existing utilities in such Public Ways; (iii)
all trees, structures, improvements and obstructions in such Public Ways; and (iv) the names
of owners of all properties, public or private, under, over or across which the cable lines are
proposed to be constructed and/or installed. Such map shall also identify which trees, utility
facilities, structures, other improvements and all other obstructions that MFS proposes to
temporarily or permanently remove or relocate.
(b) A complete list of all permits, approvals, certifications, licenses or other
authority required to be obtained from Governmental Authorities and from Persons.
(c) A written traffic control plan delineating the proposed construction schedule
and traffic impacts on Public Ways. The plan shall be proposed in accordance with the manual
on uniform traffic control devices published by the Illinois Department of Transportation.
(d) A drawing depicting the proposed depth of the Facilities to be buried, if any,
and its spatial relationship to other underground utilities or facilities in the area.
(e) Such other information as is reasonably required by the Village Engineer to
determine that the permit applications, plans, drawings and maps comply with applicable laws
and regulations.
7.3 Obligation to Obtain Permits. MFS shall, before commencing construction of any
kind in the Village, obtain all Permits as may be necessary or required for the use of any public or
private property in connection with, and for the construction of, the Telecommunications System.
MFS shall submit copies of all Permits received by it, with the exception of those issued by the
Village, to the Village Engineer prior to the commencement of construction. Each permit application
submitted 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 the
Telecommunications Ordinance and all other application codes and ordinances.
7.4 Lateral Connections. Whenever MFS elects to engage in construction or maintenance
of a lateral connection from its Telecommunications System within the Public Ways to an MFS
customer location which was not included within the Final Plans and Specifications, such permit
application and plans and specifications shall demonstrate that such lateral is consistent with the
overall concept of the final Plans and Specifications, presents no threat to the public health and safety,
and meets all other requlremems of this Agreement.
7.5 Membership in J.U.L.I.E.. MFS 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 this Agreement, remain a member of and comply with all regulations of J.U.L.I.E.
7.6 Construction in Accordance with Permits. MFS shall construct the
Telecommunications System in strict accordance with all Permits, with the Telecommunications
Ordinance, and with the applieahie codes, rules and regulations of all Governmental Authorities, and
the failure to comply therewith shall constitute a material breach of this Agreement. MFS shall, as
diligently as possible but in no event later than 30 days after receipt of a written violation notice,
correct such violation. However, any violation that constitutes, in the opinion of the Village Engineer,
a potantial threat of hahn to the public, shall be corrected immediately following notice to MFS of the
violation or threat, which shall be followed by written novice as soon thereafter as practicable.
SECTION 8. CONSTRUCTION ON AND IN PUBLIC STREETS:
8.1 Minimal Interference. All work performed on, in, under, across or along the Public
Ways shall be conducted so as to minimize any interference with existing utilities, or with the rights
and convenience of the general public, including traffic flow. MFS shall, at all times, employ
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reasonable care to avoid damage or interference with existing utilities, and while performing work: (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.
8.2 Barricades. MFS shall use suitable barricades, flags, lights, flares or other protective
devices at such times and places as are required by its traffic control plan, all applicable ordinances,
codes, rules and regulations and at such additional times and places as are required for the safety of
all members of the general public, so as to prevent injury to any person or damage to any vehicle by
reason of any work being performed, as determined by the Village in its sole judgment and discretion.
SECTION 9. EXCAVATION WORK AND TIME PERIODS:
9.1 Prior Notification. MFS shall notify the owners of all private property abutting the
proposed excavation at least seventy-two (72) hours prior to any excavation which comes within ten
(10) feet of any existing Village utilities or in any Public Street. MFS shall notify the Village Engineer
no less than ten (10) working days prior to such work. Nothing herein shall be construed as preventing
MFS from making immediate repairs to any damage caused to any Facilities; provided that MFS shall
notify the Village Engineer as promptly as possible before such repair work or, if an emergency, as
soon ~hereafter as possible. MFS shall, if required, notify J.U.L.I.E. before such repair work.
9.2 Excavation Plans. Unless otherwise approved by the Village Engineer, no excavation
on any Public Way or private property shall be conducted more than twenty-four (24) hours prior to
the installation therein of any Facilities.
9.3 Excavations in Lawns and Parkways. All excavations in lawns or grassy parkways
within any Public Way or within any other public streets, ways, alleys, easements or places shall be
immediately backfilled and tamped. If such excavations are performed between May 1st and October
1 st, they shall be restored with sod within fourteen (14) days of completion of such excavation, and
if performed between October 1st and May Ist, they shall be restored with sod no later than May lSth;
provided, however, the thne for restoring with sod shall be extended as may be reasonably necessary
under the circums~nces, in the opinion of the Village Engineer, in the event adverse weather
conditions prevent completion of such restoration within the time periods provided herein.
SECTION 10. TRIMMING TREES PROHIBITED: MFS shall not cut or trim any tree,
shrub or other vegetation, in or on any Public Way, or within any other public streets, ways, alleys,
easements, or places prior to receiving the written approval of the City Engineer. MFS may cut or trim
trees on private property as necessary, provided that MFS first obtains written permission of the
affected property owner. All cutting or trimming of trees, shrubs or other vegetation trimming shall
be in accordance with standard local arboricultural practices to the minimum extent necessary. All
trimming debris shall be removed from the work area on a dally basis.
SECTION 11. GENERAL CONSTRUCTION STANDARD: All work performed on the
Telecemmunleations 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 MFS shall, at its
sole cost and expense, promptly correct all such conditions to the reasonable satisfaction of such
Governmental Authority.
SECTION 12. "AS-BUILT" PLANS: MFS shall furnish the Village with two (2) complete
sets of all "as-built" plans for the Telecommunications System as originally constructed, and for all
reconstruction, repair, relocation and other work performed thereon, within sixty (60) days after
completion of any such work. Within six (6) months after written notice from the Village to MFS that
the Village has adopted a GIS system and format, MFS shall also furnish to the Village one (1) digital
copy of the "as-built" plans in the specified format for inclusion in the Village's GIS system, and shall
thereafter also furnish one (1) digital copy of the "as-built" plans within sixty (60) days after
completion of the work.
SECTION 13. VILLAGE RIGHT OF INSPECTION: The Village shall have the right to
inspect all construction to ensure compliance with this Agreement, the Telecommunications
Ordinance, and all applicable codes, laws, ordinances, ruies, regulations and Permits.
SECTION 14. RECORDS:
14.1 Books and Records. MFS shall ma'mtain, at all times during the term of this
Agreement: (i) complete, accurate and current books and records showing the business conducted by
MFS in the Village; (ii) complete, accurate and current maps of the Telecommunications System; (iii)
such other books and records as the Village may require MFS to keep as provided in the
Telecommunications Ordinance.
14.2 Inspection and Audits, All of such books and records, and originals of all maps and
other documents pertaining to this Agreement shall be maintained in and/or made available for
inspection by the Village, its agents or employees, at the MFS office located in Oakbrook Terrace,
Illinois, or at some other convenient and mutually agreeable location, at reasonable times and intc~rvals.
Subject to the confidentiality restrictions set forth below, the Village shall have the right to make or
obta'm copies, at its expense, of all documents, maps or records (except customer lists) pertaining to
this Agreement and MFS shall fully cooperate in assisting the Village in this regard.
14.3 Inquiries. The Village may, at any time, make inquiries pertaining to the Franchise
and the operation of the Telecommunications System. MFS shall make all reasonable efforts to
respond to such inquiries within five (5) business days of such inquiry.
14.4 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
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information, except that neither party shall be required to hold confidential any information (i) which
is or becomes publicly available other than through the recipient; (ii) which is required to be disclosed
by a governmental or judicial order (notice of which shall be provided to the original disclosing party
prior to such required disclosure), (iii) which is required to be disclosed by statute, (iv) which is
independently developed by the receiving party, or (v) 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. In addition, upon termination of this Agreement, the
receiving party of any written confidential information shall, on written request of the disclosing party,
promptly remm to the disclosing party any and all copies of such confidential information in the
possession or control of the receiving party or destroy such confidential information and provide
certification of such destruction to the disclosing party.
SECTION 15. SECURITY FUND:
15.1 Amount. On or before the Effective Date, MFS shall establish a "Security Fund" by
depositing with the Village, or a financial institution approved by the Village, the total amount of
$50,000.00, 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, bond or other
instrument shall: (1) provide that it shall not be canceled without the prior written consent of the
Village; and (2) not require the consent of MFS, but will require notice to MFS prior to the collection
by the Village of any amounts covered by said bond or other instrument. The Security Fund shall be
maintained at MFS' sole cost and expense.
15.2 Purpose. The Security Fund shall serve as security for (1) the faithful performance by
MFS of all provisions of this Agreement and of the Telecommunications Ordinance; (2) any
expenditure, damage or loss incurred by the Village occasioned, directly or indirectly, by MFS' 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 MFS 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 MFS including, without limitation, any restoration work that
the Village must perform itself or have completed as a consequence of MFS failure to so perform or
complete; and, (4) all other payments due the Village from MFS pursuant to this Agreement. The
withdrawal of amounts from the Security Fund shall constitute a credit against the amount of the
applicable liability of MFS to the Village, but only to the extent of said withdrawal. ·
15.3 Reduction of Fund: Upon the Village's written certification of completion of
construction of the System, which shall not be unreasonably delayed, the letter of credit may be
reduced to $15,000.00. One year after the completion of construction, provided that on such date there
are no claims of any type that have been asserted or are likely to be asserted against MFS or the Village
arising out of any acts or omissions of MFS relating to the Franchise, the letter of credit may be further
reduced to $5,000, or the letter of credit may be withdrawn upon substitution of a bond in the amount
of $5,000 issued by a corporate surety in a form and substance acceptable to the Village Attorney.
15.4 Withdrawals. Ifafirer prior written notice and an oppommity to cure MFS: (1) fails to
make any timely payment required to be made by MFS hereunder; (2) fails to timely pay any taxes or
liens relating to the Telecommunications System that are due and unpaid; (3) fails to timely 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 MFS; or (4) fails to comply with any provision of the
Telecommunications Ordinance or this Agreement that the Village determines can be remedied by an
expenditure of an amount in the Security Fund; then, after three (3) days' written notice to MFS from
the Village of its intention to exemise its rights under this Subsection if not paid by MFS, and the
failure of MFS to pay the monies due, the Village may withdraw the amount from the Security Fund,
15.5 Replenishment. Within 14 days after receipt of notice from the Village that any amount
has been withdrawn from the Security Fund, MFS shall restore the Security Fund to the amount
specified in this Section.
15.6 Restoration of Fund. In the event that MFS shall fail or neglect to pay any damage,
claim, cost, expense, tax or other payment when due, or otherwise fail to comply with any provisions
of the Telecommunications Ordinance or this Agreement, the performance of which is to be secured
by the Security Fund, MFS shall, after receipt of thirty (30) days' written notice and failure to cure,
provide a $50,000 Security Fund in strict accordance with the requirements of the Telecommunications
Ordinance.
15.7 Interest. All interest accrued on the amount in the Security Fund, if any, may be
withdrawn by MFS, upon written notification of said withdrawal to the Village, provided such
withdrawal does not reduce the Security Fund below the minimum required under this Agreement.
15.8 Closing and Return of Security Fund. Upon any termination of the Franchise, other
than a revocation, MFS shall be entitled to the return of the Security Fund, or such portion as remains
on deposit at termination and after account is taken for all offsets necessary to compensate the Village
for the failure by MFS to comply with any provision of this Agreement. In the event of any revocation
of the Franchise, the Security Fund, and any accrued interest, 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
MFS.
15.9 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 ora right with respect to said Security Fund shall affect any
other right the Village may have.
SECTION 16. LIABILITY AND INDEMNIFICATION:
16.1 MFS. MFS shall be responsible for any damage or loss to any real or personal property
of the Village or of any person, and for any injury to or death of any individual person, or any officer,
employee or agent of the Village, arising out of or in connection with MFS' negligence or misconduct
in the construction; installation, use, operation, maintenance, repair and/or removal of the
Telecommunications System, or its failure to act in connection therewith.
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16.2 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 MFS' negligence or misconduct in the construction,
operation, maintenance, repair or removal of the System, provided such loss or damage is not
proximately caused by the gross negligence or intentional misconduct of the Village.
16.3 Emergency and Other Actions.
(a) The Village may, at any time, in case of fire, disaster or other emergency, as
determined by the Village, cut or move any Facilities, in which event the Village shall not be
liable therefor to MFS. The Village shall use reasonable efforts, as practical under the
circumstances, to contact MFS prior to any such cutting or movement of its wires and to give
MFS the opportunity to perform such work itself. In the event that it is not practical to notify
MFS prior to any such cutting or movement, the Village shall notify MFS by calling MFS'
Network Operations Control Center ("NOCC") at 1-800-MFS-CITY, as soon as practical after
the Village has knowledge of such cutting or movement.
(b) The Village shall not be liable to MFS for any damage to or loss of all or any
part of the Telecommunications System, or otherwise, as a result of or in connection with the
protection, breaking through, movement, removal, alteration or relocation of any part of the
Telecommunications System by or on behalf of MFS or the Village in connection with any
emergency, public work, public improvement, alteration of any municipal structure, any
change in the grade or line of any Public Way, orthe vacation, elimination, discontinuation or
closing of any Public Way. The Village shall use reasonable efforts to contact MFS to give
MFS prior to any such cutting or movement of its wires and be given the opportunity to
perform such work itself.
(c) The Village, its officers, employees and agents shall not be liable to MFS or
any affiliate of MFS for any special, incidental, consequential, punitive or other damages as
a result of the lawful exercise of any right of the Village pursuant to this Agreement including,
without limitation, the right of the Village to terminate the Franchise and to take any action
subsequent termination.
16.4 Indemnification and Notice. MFS shall, and does hereby agree 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") directly or indirectly
arising out of, resulting from, or alleged to arise out of or result from, MFS' negligence, including,
without limitation, its failure to act, or misconduct in the construction, operation, maintenance, repair
or removal of the Telecommunications System, or the distribution of any service over the
Telecommunications System, whether such acts or omissions' are those of MFS or its officers,
employees, agents or contractors and whether or not any such act or omission is authorized, allowed
or prohibited by this Agreement. The Village agrees to give MFS prompt notice of any such Claims
which MFS may defend with Counsel of its own choosing. No such claim shall be settled without the
consent of MFS.
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16.5 Defense Expense. MFS shall, and does hereby agree to, pay all expenses incurred by
the Village in defending itself with regard to any and all of the Claims. These expenses shall include
all out-of-pocket expenses, such as attorneys' and expert's, fees, and shall also include the reasonable
value of any services rendered by any employee of the Village.
SECTION 17. LIABILITY INSURANCE:
17.1 General Liability. MFS shall maintain, throughout the term of the Franchise, general
public comprehensive liability insurance insuring both MFS and the Village, and the Village's officers,
boards, commissions, elected and appointed officials, agents and employees, in the minimum amounts
of:
(a) Five Million Dollars ($5,000,000.00) for bodily injury or death to each Person;
(b) Five Million Dollars ($5,000,000.00) for property damage resulting from any
one accident; and
(c) Five Million Dollars ($5,000,000.00) for all other types of liability.
17.2 Automobile. MFS shall maintain in its own name automobile liability insurance with
a limit of Three Million Dollars ($3,000,000.00) for each person and Three Million Dollars
($3,000,000.00) for each accident for property damage with respect to owned and non-owned
automobiles for the operations of which MFS is responsible.
17.3 Workers Compensation. MFS shall also maintain Worker's Compensation Insurance
within the statutory limits and Employer's Liability Insurance with not less than one Hundred
Thousand Dollars ($100,000.00) coverage.
17.4 Hazard. By reason of MFS' right to use or work in the Public Ways, MFS' 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
($3,000,000.00), or whatever limits are permitted by the State of Illinois for bodily injury and property
damage combined.
17.5 Evidence of Insurance Policies. On or prior to the Effective Date, MFS 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 and copies
of the policies of insurance when requested.
17.6 Maintenance of Insurance Policies. The liability insurance policies required by this
Section shall be maintained by MFS throughout the term of the Franchise and such other period of time
during which MFS 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 cancelled nor the
intention not to renew be stated until 30 days after receipt by the Village of Mount
Prospect, by registered mail, of a written notice addressed to the Village Manager of
such intent to cancel or not to renew for reasons other than non-payment or 10 days
after receipt for the reason of non-payment.
Within 10 days after Village receipt of said cancellation or non-renewal notice, and in no event later
than 5 days prior to said cancellation, MFS shall obtain and furnish to the Village replacement
insurance policies in a form acceptable to the Village Attorney. MFS will use its best efforts to obtain
replacement insurance policies and provide proof thereof to Village prior to the cancellation date.
17.7 Alteration of Minimum Limitations. The Village may, following the Effective Date
and, by written notice to MFS require MFS to increase the minimum limitations of the insurance policy
or policies required in this Section by a percentage not to exceed the percentage increase in the Index
as of the Effective Date.
17.8 No Limit of Liability. The legal liability of MFS to the Village and any person for any
of the matters that are the subject of the insurance policies required by this Section, shall not be limited
by said insurance policies or by the recovery of any amounts under policies.
SECTION 18. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS:
18.1 Village Approval Required. Neither the Franchise, nor any rights or obligations of
MFS pursuant to this Agreement, nor any of MFS' interest in the Telecommunications System shall
be assigned, transferred, leased or sublet 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 in any property or assets
relating to the Franchise or the Telecommunications System, pass to or vest in any Person, nor shall
any substantial change in control of MFS occur, either by act of MFS, 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 an ordinance duly adopted and then only on such reasonable conditions
as may therein be proscribed. Notwithstanding anything to the contrary contained herein, consent of
the Village is not required prior to any lease or sublease of System capacity to Persons for the purpose
of reselling or otherwise providing Telecommunications Service over the System ("Resellers"),
provided that MFS ftrst gives written notice to the Village of such lease or sublease, identifying such
Resellers and the services that will be provided over the System.
18.2 Change in Control. Notwithstanding Section 6.724 of the Telecommunications
Ordinance, MFS shall only be required to obtain prior Village consent for a substantial change in
control which, for purposes of this Agreement, shall mean a divestiture by MFS Telecom, Inc. or MFS
Communications Company, Inc. that, in one or more transactions, singularly or collectively, transfer
more than fifty percent (50%) of MFS stock. Any such action completed without such prior consent
of the Village shall be a violation of this Agreement and shall, at the option of the Village, which
option may be exercised in the Village's sole judgment and discretion, and without further notice or
procedure, render the Franchise void and entitle the Village to pursue all remedies available to it. The
grant or waiver of any one or more of said consents shall not render unnecessary any subsequent
consent or consents, nor shall the grant of any said consent constitute a waiver of any other rights of
the Village.
18.3 Notice to Village. MFS shall promptly notify the Village of any proposed action
requiring the consent of the Village pursuant to Subsection 18.1 or 18.2 of this Agreement by
submitt'mg to the Village, at least sixty (60) 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.
18.4 Affiliate Transfer Permitted. Notwithstanding any provision to the contrary in the
Telecommunications Ordinance, MFS may assign the Franchise, and its rights and obligations
hereunder, to a parent, affiliate or subsidiary company of MFS, upon notice to, and without the
necessity of obtaining the prior consent of, the Village. Any assignment made pursuant to this
Subsection 18.4 shall not become effective unless and until the proposed assignee shall have executed
a document, in form and substance acceptable to the Village Attorney in its reasonable discretion,
whereby the proposed assignee assumes all of the obligations, liabilities and responsibilities of MFS
pursuant to and in accordance with this Agreement, including those accruing prior to the date of the
assignment. Upon receipt and acceptance by the Village of that document and a copy of the assignment
to the Assignee, the assignor thereof shall be released from all liability under this Agreement.
SECTION 19. FORECLOSURE, CONDEMNATION AND RECEIVERSHIP:
19.1 Foreclosure. Upon the scheduled occurrence of any foreclosure or other judicial sale
of all or any part of the Telecommunications System, or the termination of any lease or mortgage
covering all or any material part of the Telecommunications System, MFS shall immediately notify
the Village. This notification shall be treated as a notification ora proposed change in control of MFS,
and the provisions of Section 18 of this Agreement shall apply.
19.2 Condemnation. In the event that the Telecommunications System, or any material part
thereof, is taken, appropriated, or condemned pursuant to law, and the effect of such taking is to
materially frustrate or impede the ability of MFS to carry out its obligations pursuant to, and the
purposes of, this Agreement, then the Village may revoke or MFS may surrender the Franchise, subject
to the removal of the Telecommunications System by MFS or its Successor.
19.3 Receivership: Notification by MFS. MFS shall immediately notify the Village, in
writing, if: (1) MFS 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; (2) MFS 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; (3) MFS 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 located within the Village, including all or
any part of the Telecommunications System; (4) MFS institutes dissolution or liquidation proceedings
with respect to its business; (5) an order is entered approving an involuntary petition to reorganize the
business of MFS 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 located within the Village including, without
limitation, all or any part of the Telecommunications System; or, (6) a writ or warrant of attachment,
execution, distraint, levy, possession, or any similar process shall be issued by any court against all or
any part of the property of MFS including, without limitation, all or any part of the
Telecommunications System.
SECTION 20 SAFETY:
20.1 Standard of Care. MFS 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 MFS.
20.2 Equipment Installation and Maintenance. All installations in the Telecommunications
System shall be made so as not to impair the fire integrity of any building or structure. MFS shall
install and mainta'm 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 and private property within the Village, wherever
situated or located, shall at all times be kept and maintained in a safe and suitable condition and in
good order and repair.
SECTION 21. FRANCltlSE RENEWAL: MFS shall have the right to request renewal of
the Franchise and this Agreement for an additional term of not mom than ten (10) years following the
expiration of the term provided in this Agreement, as provided in the Telecommunications Ordinance.
SECTION 22. NO EXTRANEOUS INDUCEMENTS: MFS acknowledges that it has not
been induced to accept this Franchise by any promise, verbal or written, by or on behalf of the Village
or by any third person regarding any term or condition of this Agreement not expressed herein. MFS
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 23. COMPLIANCE WITIt LAW: MFS and the Village shall, at all times,
comply with applicable laws, codes, rules and regulations of all Governmental Authorities, regardless
of whether such law, code, rule or regulation is expressly referenced in this Agreement. MFS shall,
at all times, comply with all applicable laws, ordinances, resolutions, codes, roles 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 from
time to time, including the Telecommunications Ordinance of the Village.
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SECTION 24. SUBSEQUENT ACTION BY GOVERNMENTAL AUTHORITIES: If
any subsequent law, ordinance, rule, code, regulation, controlling judicial review or decision shall
require or permit MFS to perform any act or shall prohibit MFS from performing any act such that
MFS may be in conflict with the terms of this Agreement, then as soon as possible following
knowledge thereof, MFS shall so notify the Village. If the Village or MFS determines that a material
provision of this Agreement is affected by such changed or new law, ordinance or regulation, the
Village and MFS shall enter into good faith negotiations to modify this Agreement to conform with
such changed requirements.
SECTION 25. NONENFORCEMENT BY VILLAGE: MFS shall not be excused from
complying with any of the terms and conditions of this Agreement by any failure of the Village, upon
any one or more occasions, to insist upon MFS' performance of, or to seek MFS' compliance with, any
one or more of said terms or conditions.
SECTION 26. FRANCHISE REVOCATION:
26.1 Cause for Revocation. Subject to prior notice and hearing as provided herein, this
Agreement and the Franchise granted by the Village to MFS may be revoked by the corporate
authorities for the following reasons:
(a) MFS falls to comply with the conditions of occupancy of the Public Ways set
forth herein or in the ordinances of the Village; or
(b) MFS substantially violates other material terms of this Agreement; or
(c) MFS practices fraud and deceit upon the Village or its customers; or
(d) MFS falls to provide or pay any material portion of the compensation or fees
owed the Village pursuant to this Agreement when due; or
(e) The acts, omissions or events specified in the Telecommunications Ordinance
as grounds for revocation.
26.2 Notice. In the event that the Village Manager believes that grounds for revocation exist,
the Village Manager shall notify MFS in writing, setting forth the nature and general facts of such non-
compliance. If, within thirty (30) days following receipt by MFS of such written notification, MFS
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 excused by force majeure, the matter shall be referred to corporate authorities. Upon
good cause, the thirty (30) days correction period may be extended for such reasonable time as the
parties shall mutually determine is necessary to complete such cure. Such good cause must be detailed
in writing to the City Manager within five (5) days prior to the lapse of the thirty (30) day correction
period.
:1_8 -
26.3 Hearing. The corporate authorities shall not revoke the Franckise until it has given prior
written notice to MFS that it proposes to take such action and the grounds therefor and until MFS has
had a reasonable opportunity to be heard before the Village Board.
SECTION 27. OTHER RIGHTS AND REMEDIES: Neither party shall be in default under
this Agreement or in breach of any provision hereof unless and until the other party shall have given
such party written notice of such default and the defaulting party shall have failed to cure the default
within thirty (30) days after receipt of such notice if it is a non-monetary default or within seven (7)
days after receipt of such notice if it is a monetary default. Where the parties mutually agree in writing
that a non-monetary default cannot reasonably be cured within such thirty (30) day period, and if the
defaulting party has proceeded promptly to cure the same and prosecute such cure with due diligence,
the time for curing such non-monetary default shall be extended for such period of time as the panics
mutually agree in writing is necessary under the circumstances to complete such cure. Upon default
by either party, the non-defaulting party shall have the right to pursue any and all remedies available
at law or equity.
SECTION28. REMOVAL OF FACILITIES UPON TERMINATION: Upon the
expiration or termination of the Franchise, MFS shall have the option, as provided herein, to either
abandon the Facilities or to remove the Facilities. If MFS elects to remove the Facilities, in whole or
in part, it shall be done without expense to the Village, within such time as the Village may reasonably
require, without unnecessary opening the pavement of the right-of-way, and with restoration of ail
affected property to a condition reasonably satisfactory to the Village. MFS shall give the Village 60
days notice if it desires to abandon said facilities, in whole or in part. In the event MFS gives notice
to abandon the facilities, the Village, after sixty (60) days prior written notice to MFS, shall be allowed
to take over said Facilities as property of the Village without compensation to MFS. If the Facilities
pose a public health or safety hazard, nuisance or threat, in the sole discretion of the Village, MFS shall
not have the option to abandon the Facilities and shall be obligated to remove the Facilities, or those
portions directed by the Village.
SECTION 29. TIME IS OF THE ESSENCE OF THIS AGREEMENT: Whenever this
Agreement sets forth any time for any act to be performed by either party, said time shall be deemed
to be of the essence.
SECTION 30. TIME FOR EMERGENCY NOTICE: In the event of an emergency
involving life, health, safety or property, as determined by the Village in its sole judgment and
discretion, the Village may reduce or eliminate the notice requirements set forth in this Agreement, and
any such reduction or elimination shall be deemed to be reasonable under the cimumstances; provided,
however, that the Village shall notify MFS as soon thereafter as practical, in accordance with Section
34.2 or by calling MFS' NOCC at 1-800- MFS-CITY.
- 3.9
SECTION 31. FORCE MAJEURE: Whenever a period of time is provided for in this
Agreement for either the Village or MFS 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 MFS' control" if committed, omitted, or caused by MFS,
MFS' employees, officers or agents or a subsidiary, affiliate or parent of MFS or by any corporation
or other business entity that holds a controlling interest in MFS, whether held directly or indirectly.
SECTION 32. MOST FAVORED COMMUNITY: In the event MFS, or any parent,
subsidiary or related entity of MFS, accepts a franchise, license, ordinance, permit or other
authorization after the Effective Date to provide teleeommuuicatinns services from any other Illinois
municipality that is located within I00 miles of the Village and that has a population of less than
500,000 residents to install, maintain and operate a telecommunications system within public ways,
streets and easements of such municipality ("public rights-of-way"), containing terms, conditions or
provisions for the payment of a franchise fee or other compensation for use of public rights-of-way that
would be more favorable to the Village than the franchise fee and compensation terms, conditions or
provisions contained in Section 5 of this Agreement, MFS shall inform the Village of that fact and
provide (subject to applicable confidentiality restrictions) a copy of such franchise, license, ordinance,
permit or other authorization to the Village. Within ninety (90) days of delivery of such notice, the
Village may, by providing written notice to MFS, adopt such more favorable franchise fee and
compensation terms, conditions or provisions, whereupon the parties agree that this Agreement shall
be deemed amended to incorporate such more favorable terms, conditions or provisions. In such event,
all other unaffected provisions shall remain in full force and effect.
SECTION 33. MOST FAVORED FRANCHISEE: In the event the Village grants a
franchise, license, ordinance, permit or other authorization after the Effective Date to any Person to
install, maintain and operate a telecommunications system within the Public Ways of the Village,
conta'ming terms, conditions or provisions for the payment of a franchise fee or other compensation
for use of the Public Ways of the Village that are more favorable to such Person than the franchise fee
and compensation terms, conditions or provisions contained in Section 5 of this Agreement, the
Village shall inform MFS of that fact and provide (subject to applicable confidentiality restrictions)
a copy of such franchise, license, ordinance, permit or other authorization to MFS. Within ninety (90)
days of delivery of such notice, MFS may, by providing written notice to the Village, adopt such more
favorable franchise fee and compensation terms, conditions or provisions, whereupon the parties agree
that this Agreement shall be deemed amended to incorporate such more favorable terms, conditions
or provisions. In such event, all other unaffected provisions shall remain in full force and effect.
SECTION 34. SEVERABILITY: If any section, subsection, sentence, clause, phrase, or
other portion of this Agreement, or its application to any Person, is, for any reason, declared invalid,
in whole or in part, by any court, agency, commission, legislative body, or other authority of competent
jurisdiction, said decision shall not affect the validity of the remaining portions hereof.
- 20
SECTION 35. GENERAL:
35.1 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.
35.2 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, properly
addressed to the parties, respectively, as follows:
For notices and communications to MFS:
Chicago Fiber Optic Corporation d/b/a
Metropolitan Fiber Systems of Chicago, Inc.
c/o MFS Communications Company, Inc.
1808 Miracle Hills Drive
Omaha, Nebraska 68154
Attn: General Counsel/Shared Services
For notices and communications to the Village:
Village of Mount Prospect
100 S. Emerson Street
Mount Prospect, Illinois
Attention: Village Manager
With a copy via regular mail to:
Everette M. Hill, Jr.
Amstein & Lehr
120 S. Riverside Plaza
Suite 1200
Chicago, Illinois 60606
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.
35.3 Binding Effect. Each of the terms, conditions and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto, and the respective successors and
21 -
ssigns. Nothing herein shall be deemed to permit a transfer of the Franchise by MFS except as
provided in this Agreement.
35.4 Authority to Execute. MFS 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 MFS have the power
and authority to bind MFS to this Agreement; and (3) neither the execution of this Agreement nor the
performance of the obligations contemplated hereby will (i) result in a breach or default under any
agreement to which it is a party or (ii) violate any restriction, court order or agreement to which it is
subject.
35.5 Amendments. This Agreement may be amended by the same procedure as required
by Illinois statutes for its original execution and approval, which procedure shall include a writing
agreed to by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date f~rst
above written.
VILLAGF..4DF MOUNT PROS~?T
By:
ATTEST: /
Village Clerk
CHICAGO FIBER OPTIC CORPORATION
d/b/a METROPOLITAN FIBER SYSTEMS
OF CHICAGO, l~qC.
Name: ~;~.e~Cc~ d. ~,~mctcr~
c,3;-h~ 3 Title:
ATTEST:
Name: -~r~cb~c~ ~.
F:q~iCAMTPROSPEWIFS final.wpd
22 -
FRANCHISE BOND Bond No. 20 S ].00956165 BCM
Chicago Fiber Optic Corp. d/b/a
Metropolitan Fiber Systems of Chicago, Inc.
KNOW ALL MEN BY THESE PRESENTS, That we, , as Principal, and Aetna Casualt~.&~uretv ~
~ag o~
Company of America, a ~or. Doratj,~)n of th?dState of Connecbcut, as Surety, are held and firmly bound unt(~,_,.~t ~r~_ spect
as Obligee, in the sum o~i~[~_~'.-.n.~?~_R_R_ Dollars, ($ 50,000.- .... ) lawful money of the United States of
America, to be paid unto said Obligee, its successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, The above bound Principal has entered into a written agreement, dated .~.,,=,-y ?_2. 19qTwith the
Obligee which grants a Franchise to the Principal . (Area) . Principal has agreed to faithfully perform and
observe and fulfill all terms and conditions of said Franchise agreement referred to above and said agreement is
hereby made a part of this bond with like fome and effect as if herein set forth in length.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the above named Principal, its
successors or assigns, does and shall well and truly observe, perform and fulfill its obligation as set forth in the
above mentioned Franchise agreement, for which a bond must be posted, then the above obligation to be void;
otherwise to remain in full force and effect.
The bond is subject, however, to the following express conditions:
FIRST: That in the event of a default on the part of the Principal, its successors Or assigns, a written statement of
such default with full details thereof shall be given to Surety promptly, and in any event, within thirty (30) days after
the Obligee shall learn of such default, such notice to be delivered to Surety at its Home Office in Hartford,
Connecticut by registered mail.
SECOND: That no claim, suit or action under this bond by reason of any such default shall be brought against
Surety unless asserted or commenced within (12) twelve months after the effective date of any termination or
cancellation of this bond.
THIRD: That this bond may be terminated or cancelled by Surety by Th~r~:¥ .. (30) days prior notice in
writing to PrinCipal and to Obligee, such notice to be given by certified mail. Such termination or cancellation shall
not affect any liability incurred or accrued under this bond prior to the effective date of such termination or
cancellation. The liability of the Surety shall be limited to the amount set forth above and is not cumulative.
FOURTH: That no right of action shall accrue under this bond to or for the use of any person other than the
Obligee, and its successors and assigns.
IN WITNESS WHEREOF, The above bound Principal and the above bound Surety have hereunto set their hands
and seals on the 20~h dayof~,19 c~7 p.
Chicago Fiber Optic Corp. d/b/a
Metropolitan Fiber Systems of Chicago, Inc.
Terrence J. Fer s President
AETNA CASUALTY &'SURETY COMPANY OF AMERICA
Catherine Bruneteau, Attorney-in-fact
AETNP CASUALTY & SURETY COMPANY OF AMERICA
Hartford, Connecticut6
POWER OF A'I-I'ORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT
KNOW ALL MEN BY THESE PRESENTS, THAT AETNA CASUALTY & SURE'I~ COMPANY OF AMERICA. a corporation duly organized under the laws
Catcher'S. ne 8~'unel:eau oz' An~chony Agui].a~' * *
of 0 rna h a', N E , its true and lawful Attorney(el-In-Fact, with full power and aulhority hereby conferred
and to bind AE'I~IA CASUAlTY & SURETY COMPANY OF AMERICA. thereby es fully end to the sam· extent as if t he same were signed by the duly
authorized offl~:erl of AETNA CASUAI-TY & SURETY COMPANY OF AMERICA. and ag ~h· acts of ·aid Attomey($)*in-Fect. pursuant to the authority
January '.~g 97.
d=al)mu). CERTIFICATE OF INSURANCE
1/22/97
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
JSL & CO. OF ATLANTA HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR
P.O. Box 80707/2920 Br andywi ne ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
At I anta, GA 30366-0707 COMPANIES AFFORDING COVERAGE
770-458-9292 A CIGNA Insurance Companies
MFS Communications Company & B U.S. Fire Insurance Company
its Subsidiaries COMPANY
11808 Miracle Hills Dr. C Maine Employers Mutual
Omaha, NE 68154 COMPANY
I D
COVERAGES
LT; DAT~ (MM/DD/YY DATE (Mk~DDfyy) LIMITS
GENER~.LIMLITY GENERAL AGGREGATE $ 2,000 ,000
A '~' COUME~:IAL~E~n~LLU~UT¥ HDOG17389932 7/01/96 7/01/97 PRODUC~S*COMP/OPAGG $ 2,000.000
:::::~i~i I CLAIMS MN)E~-~ OCCUR PERSONAL ~. ADV INJURY $ I ,000,000
-- OW~R'S~,CONTRACTOR'S FReT EACH OCCURRENCE $ 1 ,000,000
-- FIRE DAMAGE (Any one fire $ 100,000
MEO EXP (Any one person) $ 26 , 000
A __~' ANY AU~O 18AH01880421 7/01/96 7/01/97 1.000,000
EXD~LIABILITY EACH OCCURRENCE $ 26,000,000
B X~UI4~ELLA FORM 533039613-1 7/01/96 7/01/97 Aaa~a~T[ $ 50,000,000'
! OTHER THAN UuE~qELLA FORM $
WLRC42065158 7/01/96 7/01/97 EACH ACCIDENT $ 1 ,000,000
A PARTkERS/E)CECUTiVETFE P~C~lEl~/ [] m~- WLRC42065171 MINNESOT 7/01/96 7/01/97 DISEASE'~5OLIC¥ LIMIT
I
DEFrCER$ ARE:{ I EXCL DIDEADE-EACHEMPLOYEE $ 1,000.000
A Workers Comp CCSC4206516A MA,MT,OR 7/01/96 7/01/97 $1,000,000 Each Acc
C Workers Comp 1810026670 MAINE 6/03/96 6/03/97 $1,000,000 Disease
$1~000,000 Ea. Empl
Village of Mount Prospect, IL, its officers, boards, commissions, elected and
appointed officials agents and employees are named as Additional Insured as
re,peet§ the Tele~ommunication~ Franchise Aqreement dated 1/22/97.
~S~ ~i~,~!~ ~., .~.~.~:~.~.~,.~.~....~.. ~.~ ..~.~.... ~ .....~.~ .~:~[~ ............................................................................................................. ~..