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HomeMy WebLinkAboutORDINANCE - 2303A - 6/8/1993 - AGREEMENT, METROPOLITAN FIBER SYSTEMSORDINANCE NO. 2303A AN ORDINANCE AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE AN AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND METROPOLITAN FIBER SYSTEMS (MFS) NOW, THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and Du Page, State of Illinois as follows: Section 1: That the Village President be and is hereby authorized to sign the attached documents marked: NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT BY AND BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC. a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is authorized to attest said documents upon the signature of the Village President. Section 2: This Ordinance shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 PASSED this 8th day of ABSENT: 0 June . 1993. APPROVED this 8th day of June , 1993. Dennis J. Gallitano Village President ATTEST: Patricia S. Smith Village Clerk NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT BY AND BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC. DATED: JUNE 8 , 1993 5186.8 EXECUTION COPY NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT THIS AGREEMENT is dated this 8th day of June, 1993, and is by and between the VILLAGE OF ELK GROVE VILLAGE, an Illinois home rule municipal corporation (the "Village") and CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC. an Illinois corporation ("Metropolitan"). IN CONSIDERATION of the recitals and the mutual covenants and agreements set forth herein and pursuant to the Village's home rule powers, the parties hereto agree as follows: SECTION 1. RECITALS A. Metropolitan is engaged in the business of designing, selling, constructing, installing, maintaining and operating a digital, fiber optic based Alternative Access telecommunications system for special access and private line service. B. At its regular meeting held on the 8th day of June , 1993, the President and Board of Trustees adopted Ordinance No. 2303 awarding a nonexclusive, revocable telecommunications franchise to Metropolitan conditioned upon the execution of this Agreement by Metropolitan and the Village of all terms and conditions of such franchise agreement. C. The Corporate Authorities, after due and careful consideration, have concluded that granting a nonexclusive telecommunications franchise to Metropolitan pursuant to and in accordance with this Agreement would be in the best interests of the Village and its residents. SECTION 2. INTERPRETATION AND DEFINITIONS A. Interpretation 1. Word Use. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" or "will" are always mandatory and not merely directory, and the word "may" is permissive. 2. Conflicting Provisions. a. In the event of an express conflict or ambiguity between a provision in this Agreement and a provision in the Ordinance (as hereinafter defined), the provision in the Ordinance shall control. 5186.9 EXECUTION COPY 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. "Agreement": This Nonexclusive Telecommunications Franchise Agreement, as the same may hereafter be modified or amended. 2. "Alternative Access": The provision of dedicated, high capacity, digital lines between two points on a predominantly fiber optic network. 3. "Corporate Authorities": The President and Board of Trustees of the Village. 4. "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. 5. "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. 6. "Final Plans and Specifications": Those certain plans and specifications for the Telecommunications System approved by the Director of Engineering and Community Development pursuant to Section 6.A. of this Agreement. 7. "Franchise": The nonexclusive, revocable license granted to Metropolitan in this Agreement, to use certain 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 this Agreement. 8. "Franchise Fee": The fee required to be paid pursuant to Section 4 of this Agreement in consideration for the Franchise. 5186.9 2 EXECUTION COPY 9. "Governmental AuthoritV": 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. 10. "Gross Revenue": All of the revenue, as determined in accordance with generally accepted accounting principles, that is derived from or in conjunction with the operation of the Telecommunications System in the Village, including without limitation, all revenue received for the provision of Service, installation, reconnection, sale of Products and the imputed value of bartered Service and the value of all goods and services received by Metropolitan in exchange for the Service; provided, however, that no billings or revenue shall be imputed related to the Services provided to the Village pursuant to Section 4.0 of this Agreement. 11. "Ordinance": Ordinance No. 2303 adopted by the Corporate Authorities on the 8th day of June , 1993, enabling the Village to grant a nonexclusive, revocable telecommunications franchise. 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 System, including those needed to obtain access to or use of any real property. 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. 14. "Preliminary Plans and Specifications": Those certain plans and specifications for the Telecommunications System submitted by Metropolitan to the Director of Engineering and Community Development pursuant to Section 6.A. of this Agreement. 15. "Products": All equipment, instruments, parts, accessories and other goods offered by Metropolitan in connection with or otherwise relating to the Service. 16. "Public Way": A public street, highway, lane, path, alley, sidewalk, boulevard, drive, utility easement or other public rights-of-way now or hereafter owned by the Village or in which the Village has the right to grant to 5186.9 3 EXECUTION COPY Metropolitan the rights and interests granted in this Agreement. 17. "Service": The provision or offering of Special Access Services (either directly or as a carrier for others) to Persons by means of the Telecommunications System. 18. "Special Access Services": Any dedicated, private -line, non -switched, point-to-point or point -to -multi -point, voice, data or video transmission services that connect customers to the point of presence of a local exchange carrier, long distance interexchange carrier or customer premises, or connect a point of presence of another local exchange carrier, interexchange carrier or customer premises to the point of presence of another local exchange carrier, interexchange carrier or customer premises. 19. "Telecommunications System": The telecommunications network to be constructed and installed by Metropolitan pursuant to and in accordance with this Agreement, including, without limitation, all cables, conduits, access manholes, pedestals, boxes, equipment, devices and appurtenances to be used by Metropolitan to make the network fully operational, for the purposes of transmitting receiving and distributing telecommunications and other information, Service, voice, data, video and signals and other forms of communications. 20. "Working Day": A day other than Saturday, Sunday or a holiday, on which Metropolitan is open for business. SECTION 3. GRANT AND ACCEPTANCE OF FRANCHISE A. Grant of Franchise. The Village hereby grants to Metropolitan the Franchise to use only those certain Public Ways within the Village being detailed on Exhibit A attached hereto and incorporated herein by this reference, for the purposes of constructing, installing, using, maintaining, testing, inspecting, operating, repairing and removing the Telecommunications System; provided, however, that this Franchise Agreement shall only authorize Metropolitan to offer or provide Special Access Services. B. Acceptance of Franchise. Metropolitan hereby accepts the Franchise and agrees to strictly comply with this Agreement and/ the Ordinance. C. Licenses, Permits and Approvals. This Agreement shall not take the place of any license, permit or approval that is, or may in the future, be required to be secured by Metropolitan from any Governmental Authority or Person in order to: 5186.9 4 EXECUTION COPY 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. Except as otherwise provided in Section 14 of this Agreement, the term of the Franchise shall begin on the Effective Date and shall expire 10 years from the Effective Date, and shall be renewed annually for up to two (2) one (1) year periods thereafter, unless either party provides the other with written notice of an intent not to renew the Franchise within ninety (90) days of the expiration of the current Franchise term. The term may also be terminated by mutual agreement of the parties. 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. SECTION 4. COSTS, EXPENSES, FRANCHISE FEE AND OTHER PAYMENTS A. Unascertainable Costs and Expenses. Metropolitan shall pay to the Village on the Effective Date the sum of One Thousand Two Hundred and No/100 Dollars ($1,200.00), which amount the parties agree is a fair estimate of certain costs and expenses incurred by the Village in connection with the granting of the Franchise, the precise amount of which are too difficult to ascertain. B. Engineering Review Fee. Metropolitan shall pay to the Village, immediately upon presentation of a written demand or demands therefor, all engineering fees in an amount equal to two and one-half (2�%) percent of the cost of any proposed construction on the Public Ways of the Village, as such cost is reasonably determined and documented by the Director of Engineering and Community Development, as compensation to the Village for the review and processing of any and all plans for any construction of the Telecommunications System including, without limitation, the review and processing of the Preliminary Plans and Specifications and the Final Plans and Specifications. C. Franchise Fee. 1. Amount of Fee. In addition to all other fees and payments required pursuant to this Agreement, including, without limitation, the fees and payments paid by Metropolitan pursuant to Subsections 4.A. and 4.B. of this Agreement, Metropolitan shall pay to the Village an annual Franchise Fee in the amount that is the greater of 5186.9 5 EXECUTION COPY (a) $1,000 or (b) the total of (i) three percent of the Gross Revenue derived from all Services originating and terminating enduser to enduser within the Village and (ii) three percent of a prorated portion of the Gross Revenue derived from Services that either (x) originate but do not terminate, or (y) terminate but do not originate, within the Village. The proration shall be calculated by dividing Metropolitan's total end-to-end linear mileage on the Public Ways that is located within the Village on May 1 of each year, into Metropolitan's total linear mileage of its telecommunications network constructed in the greater Chicago metropolitan area. D. Municipal Services. In the event that any portion of the Telecommunications System is placed in any Public Way located adjacent to property on which a municipal building is located and used for municipal purposes, Metropolitan shall provide, upon written request by the Village, at no cost to the Village, and as additional compensation to the Village for the Franchise, the following services: 1. Splice Points. Metropolitan shall bring a single termination point into any such building, which Metropolitan shall terminate with connectors within the building at or near the building entrance point. The Director of Engineering and Community Development shall designate, in timely fashion, the buildings to be so served and shall arrange for access for Metropolitan. The maximum number of splice points to be provided to the Village by Metropolitan is ten (l0). The Village shall be responsible for building and maintaining its System from outside the splice points to its buildings. 2. Purchase or Lease. In the event that the Village desires to purchase, lease or use any additional telecommunications Service or any Facilities or equipment provided by Metropolitan, Metropolitan shall, subject to applicable law, offer the same to the Village upon contract terms and conditions reasonably agreed to by the Village and Metropolitan. Metropolitan's obligation to provide Service to the Village is dependent on availability of excess capacity. Metropolitan is not obligated to terminate Service to any customer to accommodate the Village's request. 3. Acceptance by the Village. The acceptance by the Village of any payment shall not be construed as an accord by the Village that the amount of such payment is the correct amount due from Metropolitan pursuant to this Agreement, nor shall such acceptance of any payment be construed to be a release or waiver of any claim the Village may have for further or additional sums due and payable pursuant to this Agreement. 5186.9 6 EXECUTION COPY 4. No Right of Setoff. All payments due to the Village from Metropolitan pursuant to this Agreement shall be paid without counterclaim, setoff, deduction or defense. In the event Metropolitan does set off or deduct any amount from any such payment or otherwise reduces the amount due based on a counterclaim or defense, the Village shall have the right to, without any liability to Metropolitan, its customers or any third persons, pursue any and all remedies available to it at law or in equity, including without limitation, revocation of the Franchise. SECTION 5. LOCATION OF FACILITIES The following principles, in the following order of priority, shall govern the location of all Facilities: A. Wherever the electric or telephone utilities are underground at a particular location, Metropolitan's Facilities must be located underground. B. Wherever the existing utility facilities cannot physically accommodate Metropolitan's cable, wire or other Facilities, or wherever no such utility facilities exist at the time of Metropolitan's construction of the Telecommunications System, Metropolitan shall locate its Facilities underground. C. Except as provided above, all Facilities placed on any Public Way, public property or private property shall be adequately screened or buried underground so as not to be visible from any Public Way and in accordance with all applicable codes. All underground burial shall be located approximately 2.5 feet below the surface, unless otherwise agreed to by the Village. D. Notwithstanding any of the foregoing, Metropolitan shall be permitted to locate any or all of its Facilities underground. 5186.9 SECTION 6. CONSTRUCTION OF TELECOMMUNICATIONS SYSTEM A. Plans and Specifications. 1. Submission of Preliminary Plans and Specifications. Metropolitan shall, within forty-five (45) days after the Effective Date, submit to the Director of Engineering and Community Development, for his review and comment, six complete sets of the Preliminary Plans and specifications which shall include, without limitation: (a) A map in sufficient detail indicating (i) the proposed route for all cable lines, including detailed drawings of the location in each Public Way where such cables are proposed to be placed underground and above ground; (ii) all existing 7 EXECUTION COPY utilities in such Public Ways; (iii) all trees,, structures, improvements and obstructions in such Public Ways and (iv) the names of owners of all properties, public or private, under,. over or across that the cable lines are proposed to be constructed and/or installed. Such map shall also identify which trees, utility facilities, structures, other improvements and all other obstructions that Metropolitan proposes to temporarily or permanently remove or relocate. (b) A complete list of all Permits required to be obtained from Governmental Authorities and from Persons. (c) A written traffic control plan ("Traffic Control Plan") delineating the proposed construction schedule and traffic impacts on Public Ways. The plan shall be proposed in accordance with the manual on uniform traffic control devices published by the Illinois Department of Transportation. 2. Review by the Village. The Director of Engineering and Community Development shall review, within forty-five (45) days, the Preliminary Plans and Specifications. After his review, the Director of Engineering and Community Development shall submit any reasonable comments he may have to Metropolitan. 3. Submission of Final Plans and Specifications. Metropolitan shall, within thirty (30) days of the date Metropolitan receives the Director of Engineering and Community Development's comments to the Preliminary Plans and Specifications, submit to the Director of Engineering and Community Development, for his review and approval, six (6) 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 6.1. of this Agreement as composing the Preliminary Plans and Specifications. If the Director of Engineering and Community Development is reasonably satisfied that the Final Plans and Specifications are in order and reflect all of the revisions that the Director of Engineering and Community Development requested in connection with his review of the Preliminary Plans and Specifications, then the Director of Engineering and Community Development shall approve the Final Plans and Specifications not later than fifteen (15) days after his receipt thereof. In the event the Final Plans and Specifications do not meet the reasonable requirements of the Director of Engineering and Community Development, he shall notify Metropolitan, in writing, of the denial of the Plans and Specifications. No construction on the Public Ways of 5185.9 8 EXECUTION COPY 0 any kind shall commence, and the Village shall not be required to issue any Permits for any construction, unless and until the Director of Engineering and Community Development approves the Final Plans and Specifications. 4. Resolution of Engineering Disputes. The Village and Metropolitan agree to use their respective best efforts to resolve all engineering issues regarding the 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. Permits 1. obligation to Obtain Permits. Metropolitan shall, before commencing construction of any kind in the Village, obtain all Permits, as may be necessary or required by law, or otherwise reasonably requested in writing by the Village, for the use of property in connection with, and for the construction of, the Telecommunications System. Metropolitan shall submit copies of all Permits received by it, with the exception of those issued by the Village, to the Director of Engineering and Community Development prior to the commencement of construction. Each permit application submitted by Metropolitan to the Village shall contain detailed drawings sufficiently detailed to demonstrate to the Village that the Telecommunications System will be constructed in accordance with all applicable codes and ordinances. Where cable is to be installed on existing utility poles, the permit application shall include a drawing showing the existing utility poles. Where cable is to be buried underground, the permit application shall include a drawing depicting the proposed depth of such burial. 2. Membership in J.U.L.I.E. Metropolitan shall, before commencing construction, become a member of J.U.L.I.E. and shall at all times during the term of the Franchise, comply with all regulations of J.U.L.I.E. 3. Construction in Accordance with Permits. Metropolitan shall construct the Telecommunications System in strict accordance with all applicable codes, rules and regulations of all Governmental Authorities, and the failure to materially comply with the Final Plans and Specifications shall constitute a material breach of this Agreement. Metropolitan shall, as diligently as possible, but in no event later than thirty (30) days after delivery of a violation notice by the Village, commence corrective actions. Notwithstanding the foregoing, if the violation constitutes a potential 5185.9 % EXECUTION COPY threat to the public, Metropolitan shall commence corrective actions within two (2) days after delivery of a violation notice. C. Construction On and In Public Ways 1. Minimal Interference. All work performed on, in, under, across or along the Public Ways shall be conducted so as to minimize any interference with the rights and convenience of the general public, including traffic flow. Metropolitan shall, at all times while performing work in the Public Ways, (a) employ reasonable care to protect the health and safety of the public; and (b) operate in accordance with the traffic control plan as approved by the Director of Engineering and Community Development. 2. Barricades. Metropolitan shall use suitable barricades, flags, lights, flares or other protective devices at such times and places as are required by its Traffic Control Plan, all applicable ordinances, codes, rules and regulations and at such additional times and places as are required for the safety of all members of the general public, so as to prevent injury to any Person or vehicle by reason of any work being performed, as reasonably determined by the Village in its sole judgment and discretion. D. Excavation Work and Time Periods 1. Prior Notification. Metropolitan shall prepare excavation plans and submit the same to the Director of Engineering and Community Development no less than ten (10) working days prior to the start of any excavation work. Metropolitan shall notify the Director of Engineering and Community Development and the owner of all private property abutting the proposed excavation at least seventy-two (72) hours prior to any such excavation in any Public Way. Nothing herein shall be construed as preventing Metropolitan from making immediate repairs to any damage caused to any Facilities; provided that Metropolitan shall notify the Director of Engineering and Community Development as promptly as possible before such repair work, or if in an emergency, as soon thereafter as possible, and in any event shall notify J.U.L.I.E. before such repair work. 2. Excavation Plans. No excavation on any Public Way or private property shall be conducted more than forty- eight (48) 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 5186.9 10 EXECUTION COPY backfilled, tamped and restored with sod in accordance with the applicable provisions of this Agreement. E. Trimming Trees Prohibited. Metropolitan shall be prohibited from cutting or trimming any tree, shrub or other vegetation, in or on any Public Way. Metropolitan may cut or trim trees on private property as necessary; provided, however, Metropolitan shall first obtain the permission of the affected property owner. All such trimming shall be in accordance with standard local agricultural practices, and no trimming shall occur until the wires, cables or other .Facilities have first been attached to the poles in order to ensure trimming to the minimum extent necessary. All trimming debris shall be removed from the work area on a daily basis. F. General Construction Standard. All work performed on the Telecommunications System shall be performed in a good and workmanlike manner using materials of good and durable quality. If at any time it is determined by the Village or any other Governmental Authority, in its sole discretion and judgement, 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 Metropolitan shall, at its sole cost and expense, promptly correct all such conditions to the satisfaction of such Governmental Authority. G. "As -Built" Plans. Metropolitan shall furnish to the Village two (2) 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 sixty (60) days after completion of such work.. Notwithstanding the foregoing, Metropolitan shall not be required to provide "as -built" plans for routine maintenance work performed. H. Village Right of Inspection. The Village shall have the right to inspect all construction to ensure compliance with this Agreement, the Ordinance, and all applicable codes, laws, ordinances, rules, regulations and Permits. SECTION 7. RESERVATIONS OF PUBLIC WAY RIGHTS AND CONSTRUCTION RESTRICTIONS A. Title to Public Ways. All rights granted herein to Metropolitan in the Public Ways are granted based on the information and belief of the Village that it has title or an interest in such Public ways and the right and power to grant the rights and interests granted to Metropolitan in this Agreement. The Village represents and warrants, to the best of its knowledge, that it has title to or an interest in the Public Ways, and possesses the right to grant to Metropolitan the rights and interests granted in this Agreement. This Agreement shall be deemed to grant only such rights to use the Public Ways as the Village may have the right and power to grant in this Agreement. 5186.9 11 EXECUTION COPY Metropolitan has the right to conduct or obtain a title search of the Public Ways to ascertain the status of the Village's rights and interest in the same, which shall be at Metropolitan's sole cost and expense. B. Nonexclusive Use. Metropolitan's right to use and occupy the Public Ways shall not be exclusive. The Village hereby reserves the right to grant any right or use of such Public Ways to any Person at any time during the period of the Franchise and any renewal or extension thereof, provided that such grant does not obstruct, injure or prevent the use and operation of the Telecommunications System or any Facilities. C. Other Utilities. The Village hereby retains the right to lay and permit to be laid, sewer, gas, water and other pipelines, cables and conduits in any Public Way to change any curb or sidewalk or the grade or dimension of any street; and to do and to permit to be done any other work as the Village shall deem necessary or proper in its sole judgment and discretion. All such work shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of Facilities. If any such Facilities shall interfere with the construction or repair of any Public Way or public improvement therein, Metropolitan shall, at its sole cost and expense, commence and diligently prosecute to completion, the relocation, removal or replacement of such Facilities, within ninety (90) days, or such reasonable time period necessary taking into account the magnitude of such work, whichever is longer, after the delivery of such written notice by the Village. Such work shall be performed as be reasonably directed by the Village. In the event the Facilities must be so relocated, the Village's Director of Engineering and Community Development shall cooperate with Metropolitan in identifying alternative rights of way for the relocated Facilities. D. Creation or Dedication of Public Way. Metropolitan shall discontinue any use of the Public Way, if the Village reasonably determines that such use is inconsistent with the public health or safety or with the purposes for which such Public Way was created or dedicated or is currently being used. E. Improvements or Changes on Public Way. If the Village shall desire to make any improvements or changes on or to all or any part of any Public Way, over, under or along which any part of the Telecommunications System has been installed, then Metropolitan shall, at its sole expense, after ninety (90) days written notice from the Village, or such reasonable time period necessary taking into account the magnitude of such work, whichever is longer, 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 Director of Engineering and Community Development shall cooperate with Metropolitan in identifying alternative rights-of-way for the relocation of the Facilities and provide Metropolitan with such additional time necessary, to remove said 5186.9 12 EXECUTION COPY Facility; provided, however, that nothing in this subsection shall be construed as requiring or obligating the Village to identify alternative rights-of-way. In the event an emergency should arise wherein the Village deems it necessary to have Metropolitan move any Facilities, the Director of Engineering and Community Development shall certify, in writing, the basis of the emergency and shall give Metropolitan fourteen (14) days to move its improvements. In the event Metropolitan fails to move its improvements, the Village may do so, and charge Metropolitan for all reasonable costs to the Village for movement of the Facilities. The Village shall have no liability for any damages as a result of such movement, other than those resulting from any gross negligence or wilful conduct of the Village or its employees or agents. F. Vacation or Abandonment of a Public Way. In the event any Public Way or portion thereof used by Metropolitan shall be vacated by the Village, then, upon request and notice from the Village, Metropolitan shall, at its sole cost and expense, remove its Facilities therefrom within one hundred -twenty (120) days, or such reasonable time period necessary taking into account the magnitude of such work, whichever is longer, of the date of such notice. In the event such Facilities shall be required to be removed, the Director of Engineering and Community Development shall cooperate with Metropolitan in identifying alternative rights-of-way for the relocation of the Facilities; provided, however, that nothing in this subsection shall be construed as requiring or obligating the Village to identify alternative rights-of-way. G. Temporary Removal of the Telecommunications System. In the event it is necessary to temporarily remove any Facilities in order to move any object, vehicle, building or other structure over the Public Ways, Metropolitan shall, upon sixty (60) days written notice from the Village, or such reasonable time period necessary taking into account the magnitude of such work, whichever is longer, and at its sole cost and expense, temporarily remove such Facilities. Except that in case of emergency, Metropolitan shall temporarily remove such Facilities upon fourteen (14) days written notice from the Village. SECTION S. RESTORATION A. Metropolitan's obligation. Upon completion of any construction work, Metropolitan shall, at its sole cost and expense, and in the manner reasonably approved by the Village or the affected property owner, in their sole judgment and discretion, as the case may be, promptly repair, the Public Way, private property, or improvement and restore the same to, as nearly as practicable, the condition existing prior to the performance of the work. Such restoration shall be completed within ten (10) Working Days after the date of completion of such work, to the extent the weather permits. In the event that Metropolitan fails to commence 5186.9 13 EXECUTION COPY 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 charge Metropolitan for all reasonable costs incurred by the Village in connection therewith. In the event that such Public Way, private property or improvement cannot be so repaired, replaced or restored, Metropolitan shall cause the Village or the affected owner of the same, as the case may be, to be justly compensated. B. Continuing Responsibility. Where any such destruction, damage or disturbance is not immediately discovered, or where any such restoration effort fails or is otherwise inadequate or insufficient, Metropolitan's obligation for restoration shall survive the termination or expiration of this Agreement. C. Failure. Neglect or Refusal to Repair. In the event of any failure, neglect or refusal by Metropolitan, after ten (10) days written notice from the Village, to repair or provide just compensation for such destruction, damage or disturbance as provided in Subsections 8.A. and S.B. of this Agreement, the Village may, but shall be under no obligation to, do such work, or cause it to be done, and the actual cost thereof as found and declared by the Village, shall be paid by Metropolitan within thirty (30) days after demand therefor. If Metropolitan fails to so reimburse the Village, the Village may collect the amount due from the Letter of Credit, by court action or otherwise. SECTION 9. CONFIDENTIALITY / FINANCIAL DATA A. Annual Reports. Metropolitan shall, annually, within ninety (90) days following the close of its fiscal year, submit to the Village a written statement, approved by an officer of Metropolitan, of Metropolitan's Gross Revenues for the year just concluded. Such statement shall be supplemented by an audit prepared by an independent certified public accountant in accordance with generally accepted accounting principles, as well as such additional financial statements and records as may be reasonably required by the Village, within six (6) months following the close of Metropolitan's fiscal year. Unless required by applicable law to the contrary, the Village shall keep all financial statements and records of Metropolitan confidential. B. Books and Records. Metropolitan shall maintain, at all times during the term of the Franchise, (i) complete, accurate and properly totaled books and records of showing the business conducted by Metropolitan in the Village in sufficient detail to show all Gross Revenue; and (ii) complete, accurate and up to date maps of the Telecommunications system. The Village may require Metropolitan to keep additional records and maps which it determines are reasonably necessary. C. Inspection and Audits. All of such books and records and originals of all maps and other documents pertaining to the Franchise or this Agreement shall be maintained in and made 5186.9 14 EXECUTION COPY available for inspection by the Village, its agents or employees, at Metropolitan's office located in Oakbrook Terrace, Illinois, at reasonable times and intervals. The Village shall have the right to obtain copies of all documents, maps or records pertaining to the Franchise and shall reimburse Metropolitan for the reasonable cost of such copies. Metropolitan shall fully cooperate in assisting in this regard. D. Inquiries. The Village may, at any reasonable time, make inquiries pertaining to the Franchise and the operation of the Telecommunications System. Metropolitan shall respond to such inquiries within five (5) working days of such inquiry. E. Confidential Information. 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 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 period of two (2) years. SECTION 10. LIABILITY. INDEMNIFICATION, INSURANCE, AND LETTER OF CREDIT A. Liability. 1. Metropolitan. Metropolitan 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 Metropolitan's negligence or misconduct in the construction, installation, use, operation, maintenance, repair and/or removal of the Telecommunications System or its failure to act in connection therewith when, in the reasonable judgment of the Village, Metropolitan should have taken certain action. 2. Village. The Village, its officers, employees and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any individual Person, arising out of or in connection with Metropolitan's negligence or misconduct in the construction, operation, maintenance, repair or removal, or other action or event with respect to, the Telecommunications System, unless said loss or damage arises from the gross negligence or willful 5186.9 15 EXECUTION COPY 0 misconduct of the Village, its agents, employees,, officers or contractors. 3. Emergency and Other Actions. a. The Village may, at any time, in case of fire, disaster or other emergency, as reasonably determined by the Village, cut or move any Facilities, in which event the Village shall not be liable therefor to Metropolitan. When practical, as reasonably determined by the Village, Metropolitan shall be consulted prior to any such cutting or movement of its Facilities and be given the opportunity to perform such work itself. b. Unless directly caused by the gross negligence or willful misconduct of the Village, its officers, employees, agents, or contractors, the Village shall not be liable to Metropolitan for any damage to or loss of all or any part of the Telecommunications System, or otherwise, as a result of or in connection with the protection, breaking through, movement, removal, alteration or relocation of any part of the Telecommunications System by or on behalf of Metropolitan or the Village, in connection with any emergency, public work, public improvement, alteration of any municipal structure, any change in the grade or line of any Public Way, or the elimination, discontinuation and closing of any Public Way, as provided herein. When practical, as reasonably determined by the Village, Metropolitan shall be consulted prior to any such cutting or movement of its Facilities and be given the opportunity to perform such work itself. (c) Unless directly caused by the gross negligence or willful misconduct of the Village, its officers, employees, agents, or contractors, the Village, its officers, employees, agents and contractors shall not be liable to Metropolitan or any affiliate of Metropolitan for any special, incidental consequential, punitive or other damages as a result of the exercise of any right of the Village pursuant to this Agreement, including, without limitation, the right of the Village to terminate the Franchise and to take any action subsequent thereto. Indemnification 1. Hold Harmless. Metropolitan shall, and does hereby agree to, save, indemnify and hold the Village its Corporate Authorities, elected and appointed officials, officers, boards, commissions, legal counsel, employees 5186.9 16 EXECUTION COPY and agents harmless from any injury, claim, demand, suit,. judgment, execution, liability, debt, damages or penalty (the "Claims") arising out of resulting from, or alleged to arise out of or result from, Metropolitan's negligence, including its failure to act, or misconduct in the construction, operation, maintenance repair or removal of the Telecommunications System, or the distribution of any Service over the Telecommunications System, whether such acts or omissions are authorized, allowed or prohibited by this Agreement. 2. Defense Expense. Metropolitan shall, and does hereby agree to, pay all reasonable expenses incurred by the Village in defending itself with regard to any and all of the claims mentioned in Subsection 11.B.1 of this Agreement. These expenses shall include all out-of-pocket expenses, such as attorneys' and experts' fees, and shall also include the reasonable value of any services rendered by any employee of the Village. C. Insurance. 1. General Liability. Metropolitan shall maintain, throughout the term of the Franchise, general public comprehensive liability insurance insuring both Metropolitan and the Village, and their respective officers, boards, commissions, elected and appointed officials, agents and employees, in the minimum amounts of: (a) One Million Dollars ($1,000,000.00 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. 2. Automobile. Metropolitan 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 Metropolitan is responsible. 3. Workman's Compensation. Metropolitan shall maintain Workman's Compensation Insurance within the statutory limits and Employer's Liability insurance with not less than One Hundred Thousand Dollars ($100,000.00) coverage. 4. Hazard. By reason of Metropolitan's right to use or work in the Public Ways, Metropolitan's insurance shall 5186.9 17 EXECUTION COPY 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. 5. Evidence of Insurance Policies. On or prior to the Effective Date, Metropolitan shall furnish proof to the Village Manager that the foregoing insurance policies have been obtained, along with written evidence of payment of required premiums, in the form of a certificate of insurance. 6. Maintenance of Insurance Policies. The liability insurance policies required by this section shall be maintained by Metropolitan throughout the term of the Franchise and such other period of time during which Metropolitan operates or is engaged in the removal of the Telecommunications System. 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 ninety (90) days after receipt by the Village of Elk Grove Village, Illinois, by registered mail, of a written notice addressed to the Village Manager of such intent to cancel or not to renew." Within sixty (60) days after receipt by the Village of said notice, and in no event later than thirty (30) days prior to said cancellation, Metropolitan shall obtain and furnish to the Village replacement insurance policies in a form acceptable to the Village Attorney. 7. No Limit of Liability. The legal liability of Metropolitan to the Village and any Person for any of the matters that are the subject of the insurance policies required by this Section 10, shall not be limited by said insurance policies or by the recovery of any amounts thereunder. D. Letter of Credit. 1. Amount. On or before the Effective Date, Metropolitan shall furnish 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 ("Letter of Credit"). At a minimum, the Letter of Credit shall (1) provide that it shall not be cancelled without the prior written consent of the Village; and (2) not require the consent of Metropolitan prior to the collection by the Village of any amounts covered by said 5186.9 18 EXECUTION COPY Letter of Credit. Upon the Village certification of, completion of construction of the Telecommunications Systems, the Letter of Credit shall be reduced to 50 percent of said amount and shall be further reduced to 10 percent of said amount one year after the date of such certificate; provided that on such reduction dates, there are no claims of any type outstanding at such time asserted against Metropolitan or the Village, arising out of any acts or omissions of Metropolitan relating to the Franchise. The Letter of Credit shall be maintained at Metropolitan's sole cost and expense. 2. Purpose. The Letter of Credit shall serve as security for (1) the faithful performance by Metropolitan of all provisions of this Agreement; (2) any expenditure, damage or loss incurred by the Village occasioned by Metropolitan's failure to comply with all codes, ordinances, rules, regulations orders, Permits, the Final Plans and Specifications and other directives of the Village issued pursuant to this Agreement; (3) the payment by Metropolitan of all liens and taxes and all damages, claims, costs or expenses that the Village has paid or incurred by reason of any act or default of Metropolitan including, without limitation, any restoration work that the Village must perform itself or have completed as a consequence of Metropolitan's failure to so perform or complete, and all other payments due the Village from Metropolitan pursuant to this Agreement; (4) any costs, expenses, fees or other payments due under Section 4 of this Agreement and (5) any expenses incurred by the Village pursuant to Section 8 of this Agreement. The withdrawal of amounts from the Letter of Credit shall constitute a credit against the amount of the applicable liability of Metropolitan to the Village but only to the extent of said withdrawal. 3. Replenishment. Within fourteen (14) days after receipt of written notice from the Village that the Letter of Credit has been drawn upon, Metropolitan shall restore the Letter of Credit to the amount then specified in Subsection 1 of this Section. 4. Withdrawals. If Metropolitan (1) fails to make any payment required to be made by Metropolitan hereunder; (2) fails to pay, any taxes or liens relating to the Telecommunications System that are due and unpaid; (3) fails to pay to the Village any damages, claims, costs or expenses which the Village has been compelled to pay or incur by reason of any act or default of Metropolitan; or (4) fails to comply with any provision of this Agreement that the Village determines can be remedied by an expenditure of an amount in the Letter of Credit; then, after three days advance written notice from the Village of its intention to exercise its rights under this subsection if not paid by Metropolitan and the failure of 5186.9 19 EXECUTION COPY Metropolitan to pay the monies due, the Village may draw upon the Letter of Credit in such amount. 5. Return of Letter of Credit. Upon any termination of the Franchise, other than a revocation, Metropolitan shall be entitled to the return of the Letter of Credit, or portion thereof as remains at such termination, and after account is taken for all offsets necessary to compensate the Village for the failure by Metropolitan to comply with any provision of this Agreement. In the event of any revocation of the franchise, the Letter of Credit, shall become the property of the Village to the extent necessary to cover any costs, loss or damage incurred by the Village as a result of said revocation, provided that any amounts in excess of said costs, loss or damage shall be refunded to Metropolitan. SECTION 11. ASSIGNMENTS, TRANSFERS AND SIMILAR ACTIONS A. Village Approval Required. Neither the Franchise nor any rights or obligations of Metropolitan pursuant to this Agreement or the Ordinance nor any of Metropolitan's interest in the Telecommunications System shall be assigned, transferred, pledged, leased, sublet, hypothecated or mortgaged in any manner, in whole or in part, to any 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, nor shall any substantial change in control of Metropolitan occur, either by act of Metropolitan, by operation of law or otherwise, without the prior consent of the Village, which consent shall not be unreasonably withheld or delayed, as expressed by ordinance duly adopted and then only on such reasonable conditions as may therein be prescribed. Nothing herein shall prevent Metropolitan from assigning its rights and obligations to an affiliate or subsidiary of Metropolitan upon notice to the Village. Any action requiring the Village's prior consent completed without such prior consent, shall be a violation of this Agreement and shall, at the option of the Village, which option may be exercised in the Village's sole judgment and discretion and without further notice or procedure, render the Franchise void and entitle the Village to pursue all remedies available to it. The grant or waiver of any one or more of said consents shall not render unnecessary any subsequent consent or consents, nor shall the grant of any said consent constitute a waiver of any other rights of the Village. B. Notice to Village. Metropolitan shall promptly notify the Village of any proposed action requiring the consent of the Village pursuant to Subsection i1.A of this Agreement, by submitting to the Village at least thirty (30) 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 5186.9 20 EXECUTION COPY supporting information as the Village may reasonably require in order to review and evaluate said action. SECTION 12. FORECLOSURE, CONDEMNATION AND RECEIVERSHIP A. Foreclosure. Upon the scheduled occurrence of any foreclosure or other judicial sale of all or any part of the Telecommunications System, or the termination of any lease or mortgage covering all or any material part of the Telecommunications System, Metropolitan shall notify the Village of said occurrence within ten (10) days of Metropolitan becoming aware of such action. Said notification shall be treated as a notification of a proposed change in control of Metropolitan, and the provisions of Section 11 of this Agreement shall apply. B. Condemnation. In the event that the Telecommunications System, or any material part thereof, is taken, appropriated, or condemned pursuant to law and the effect of such taking is to materially frustrate or impede the ability of Metropolitan to carry out its obligations pursuant to, and the purposes of, this Agreement, then the Village may revoke the Franchise in accordance with the applicable provisions of this Agreement. C. Receivership. 1. Notification by Metropolitan. Metropolitan shall immediately notify the Village, in writing, if: (a) Metropolitan files a voluntary petition in bankruptcy, a voluntary petition to reorganize its business, or a voluntary petition to effect a plan or other arrangement with creditors; (b) Metropolitan files an answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as amended from time to time; (c) Metropolitan is adjudicated bankrupt, makes an assignment for the benefit of creditors, applies for or consents to the appointment of any receiver or trustee of all or any part of its property, including all or any part of the Telecommunications System; (d) Metropolitan institutes dissolution or liquidation proceedings with respect to its business; (e) an order is entered approving an involuntary petition to reorganize the business of Metropolitan or to effect a plan or other arrangement with creditors or appointing a receiver or trustee for Metropolitan of all or a part of its property, including all or any part of the Telecommunications System; or (f) a writ or warrant of attachment, execution, distraint, levy, possession or any similar process shall be issued by any court against all or any part of the property of Metropolitan, including all or any part of the Telecommunications System. 5186.9 21 EXECUTION COPY SECTION 13. SAFETY A. Standard of Care. Metropolitan shall at all times utilize the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury or nuisance to the public or to employees of Metropolitan. B. Ecruivment Installation and Maintenance. All installations in the Telecommunications System shall be made so as not to impair the fire integrity of any building or structure. Metropolitan shall install and maintain its Facilities in accordance with the requirements of all applicable codes, and in such manner that they will not interfere with any installations of the Village or any public utility. All Facilities in, over, under and upon the Public Ways, private property or 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 14. FRANCHISE RENEWAL Metropolitan shall have the right to renew the Franchise and this Agreement for an additional term of 10 years following the expiration of the term provided for in Section 3 of this Agreement; provided, however that Metropolitan must provide express written unconditional notice of its election to exercise this right ninety (90) days prior to the expiration of the term provided for in Subsection 3.D of this Agreement; and provided further that at the time of the election to exercise such right to renew, Metropolitan is not in default hereunder. In the event Metropolitan fails to notify the Village of its intent to renew, and neither party provides notice to the other not to renew the Franchise, the Agreement shall automatically renew for up to two (2) one (1) year periods, annually. SECTION 15. NO EXTRANEOUS INDUCEMENTS Metropolitan acknowledges that it has not been induced to accept this Franchise by any promise, verbal or written, by or on behalf of the Village or by any third Person regarding any term or condition of this Agreement not expressed herein. Metropolitan shall further be deemed to warrant that no promise or inducement, oral or written, has been made to any Village employee or official regarding receipt of the Franchise, other than as contained in this Agreement. SECTION 16. COMPLIANCE WITH LAW Metropolitan shall, at all times, comply with laws, codes, rules and regulations of all Governmental Authorities, applicable 5185.9 22 EXECUTION COPY to it or its business, regardless of whether such law, code, rule or regulation is expressly referenced in this Agreement. Metropolitan shall, at all times, comply with all applicable laws, ordinances, resolutions, codes rules and regulations of the Village, and all applicable memoranda and other directives of the Village, applicable to it or its business, as such laws, ordinances, resolutions, codes, rules, regulations, memoranda and directives may be modified or amended; provided that such modification or amendment does not impair, conflict with or diminish the rights granted Metropolitan under the Ordinance or this Agreement. SECTION 17. SUBSEQUENT ACTION BY GOVERNMENTAL AUTHORITIES If any subsequent law, ordinance, rule, code, regulation, controlling judicial review or decision shall require or permit Metropolitan or the Village to perform any act or shall prohibit Metropolitan or the Village from performing any act such that Metropolitan may be in conflict with the terms of this Agreement, then as soon as possible following knowledge thereof, Metropolitan shall so notify the Village. If the Village determines, in its sole judgment and discretion, that a material provision of this Agreement is affected by such changed or new law, ordinance or regulation, the Village and Metropolitan shall enter into good faith negotiations to modify this Agreement to conform with such changed requirements. In the event the Village or Metropolitan fails to enter into good faith negotiations, both parties maintain their full legal rights and remedies. SECTION 18. NONENFORCEMENT BY VILLAGE Metropolitan shall not be excused from complying with any of the terms and conditions of this Agreement by any failure of the Village, on any one or more occasions, to insist upon Metropolitan's performance of, or to seek Metropolitan's compliance with, any one or more of said terms or conditions. SECTION 19. RIGHTS AND REMEDIES In the event of a material breach of this Agreement by Metropolitan or the Village, as reasonably determined in the sole judgment and discretion of the injured party, the injured party may terminate the Franchise. In the event of a breach or an alleged breach of this Agreement by either party, either party may, by suit, action, mandamus or other proceeding, in law or in equity, enforce or compel the performance of this Agreement. In the event of a judicial proceeding by any party to this Agreement against the other party, the other party, the prevailing party shall be entitled to reimbursement from the unsuccessful party of all costs and expenses, including reasonable attorneys' fees, incurred in connection with such judicial proceeding. 5186.9 23 EXECUTION COPY SECTION 20. DEFAULT Neither party shall be in default under this Agreement or in breach of any provisions hereof, unless and until it has been given written notice of such default by the other party, and shall have failed to cure such default within a reasonable period of time after receipt of such notice, except for default in any payment by Metropolitan, in which case Metropolitan shall cure such default in payment within ten (10) days after written notice by the Village. Where a default other than for payment cannot reasonably be cured within a thirty (30) day period, if the defaulting party shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such default shall be extended for such period of time as may be necessary to complete such cure. Upon the failure to cure any such default within thirty (30) days after notice thereof, or within the extension for curing with due diligence as set forth above, the party giving notice of the default may thereupon terminate by providing written notice to the defaulting party. Upon default by either party, the non -defaulting party shall have the right to pursue any or all remedies available at law or equity. SECTION 21. TIME ESSENCE OF 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 22. TIME FOR NOTICE In the event of an emergency involving life or property, as reasonably determined by the Village, in its sole judgment and discretion, the Village may reduce or eliminate the notice requirements set forth in this Agreement. SECTION 23. FORCE MAJEURE Whenever a period of time is provided for in this Agreement for either the Village or Metropolitan to do or perform any act or obligation, neither party shall be liable for any delays or inability to perform due to causes beyond the control of said party such as war, riot, insurrection, rebellion, strike, lockout unavoidable casualty or damage to personnel, materials or equipment, fire, flood, storm, earthquake, tornado or any act of God; provided, however, that said time period shall be extended for only the actual amount of time said party is so delayed. An act or omission shall not be deemed to be "beyond the control of a party" if committed, omitted or caused by such party, or its employees, officers, agents or affiliates, or by any corporation or other business entity that holds a controlling interest in said party, whether held directly or indirectly. 5186.9 24 EXECUTION COPY SECTION 24. SEVERABILITY If any section, subsection, sentence, clause, phrase, or other portion of this Agreement, or its application to any Person, is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. SECTION 25. GENERAL A. Governing Law. This Agreement and the rights of the parties hereunder shall be interpreted and enforced in accordance with the laws of the State of Illinois. B. Notices. All notices and other communications in connection with this Agreement shall be in writing, and shall be deemed delivered to the addressee thereof two (2) days after deposit at a main or branch United States Post Office, and shall be certified or registered mail, return receipt requested, postage prepaid, property addressed to the parties, respectively, as follows: For notices and communications to Metropolitan: MFS Telecom, Inc. One Tower Lane - Suite 1600 Oakbrook Terrace, Illinois 60187 Attn: General Counsel Invoices to Metropolitan shall be sent to "Accounts Payable" at the above address. For notices and communications to the Village: Village Manager Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, Illinois 60007-3499 With a copy via regular mail to: Village Clerk Village of Elk Grove Village 901 Wellington Avenue Elk Grove Village, Illinois 60007-3499 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. 5186.9 25 EXECUTION COPY C. Binding Effect. Each of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and the respective successors and assigns. Nothing herein shall be deemed to permit a transfer of the Franchise by Metropolitan except as provided in Section 11 of this Agreement. D. Authority of Metropolitan to Execute. Metropolitan hereby warrants and represents to the Village that: (1) it has the right, power and authority to enter into this Agreement and to accept the Franchise granted to it in this Agreement; (2) the individuals executing this Agreement on behalf of Metropolitan have the power and authority to bind Metropolitan to this Agreement; and (3) neither the execution of this Agreement nor the performance of the obligations contemplated hereby will (i) result in a breach or default under any agreement to which it is a party or (ii) violate any restriction, court order or agreement to which it is subject. E. Authority of Village to Execute. The Village hereby warrants and represents to Metropolitan that: (1) it has the right, power and authority to enter into this Agreement and to grant the Franchise granted by it in this Agreement; (2) the individuals executing this Agreement on behalf of the Village have the power and authority to bind the Village 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. F. Amendments. This Agreement may be amended by the same procedure as are required by Illinois Statutes for its original execution and approval. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. ATTEST: VILLAGE OF ELK GROVE VILLAGE By: Patricia S. Smith By: Dennis J. Gallitano Name: Patricia S. Smith Name: Dennis J. Galiltano Title: Village Clerk Title: Village President ATTEST: By: Name: Title: CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC. By: _ Name• Title. 5186.9 26 EXECUTION COPY