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HomeMy WebLinkAboutRESOLUTION - 60-97 - 11/11/1997 - AMEND TELECOMM. FRANCHISE AGRMT RESOLUTION NO. 60-97 A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE CLERK TO EXECUTE AN AMENDMENT TO NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT (ORD. NO. 2303A) BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND CHICAGO FIBER OPTIC CORPORATION, d/b/a METROPOLITAN FIBER 4YSTEMS OF CHICAGO INC NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DUPage, State of Illinois as follows: Section 1: That the Village President be and is hereby authorized to sign the attached documents marked: AMENDMENT TO NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT 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: That this Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES: 6 NAYS: 0 ABSENT: 0 PASSED this 11th day of November 1997. APPROVED this 11th day of November 1997. Craig B. Johnson Village President ATTEST: Patricia S. Smith Village Clerk AMENDMENT TO NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE AGREEMENT This Amendment is made this 11th day of November, 1997, 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"). The parties hereby agree to amend the Agreement for Nonexclusive Telecommunications Franchise Agreement, dated June 8, 1993 (the "Agreement"), pursuant to Sections 17 and 23(F) of the Agreement, in order to add and modify certain terms and provisions as follows: 1. Sections 2.B.18 and 3.A. of the Agreement are hereby deleted in their entirety. Section 3.A. of the Agreement is replaced by the following language: A. Grant of Franchise. The Village hereby grants to Metropolitan the Franchise to use the Public Ways within the Village for the purposes of constructing, installing, using, maintaining, testing, inspecting, operating, repairing and removing the Telecommunications System. Metropolitan shall be authorized to provide all telecommunications services authorized by law, subject to this Agreement. This license does not authorize Metropolitan to operate or provide in the Village, 'cable services", or 'cable television services", as defined by the Communications Act of 1934, as amended, the Cable Communications Policy Act of 1984 (47 U.S.C.A., S 521), or as recognized by the Federal Communications Commission or Illinois law. 2. Pursuant to Section 17 of the Agreement, the following paragraph is added to the Agreement as Section 26: Section 26. ADHERENCE TO LOCAL ORDINANCE. Metropolitan hereby agrees to comply with the Municipal Telecommunications Infrastructure Maintenance Fee Act, Ordinance Number 2597, approved by the Village President and Board of Trustees on October 14, 1997, which imposes a non- discriminatory maintenance fee of 1% on all telecommunications providers within the Village. 3. In accordance with the above-mentioned Municipal Telecommunications Infrastructure Maintenance Fee Act, Section 4.C. of the Agreement is hereby deleted in its entirety and replaced with the following paragraph: 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 subsection 4.A. and 4.13. of this Agreement, Metropolitan shall pay to the Village an annual Franchise Fee in the amount of the total of 1% of all Gross Charges charged by Metropolitan to service addresses within the Village for telecommunications originating or received in the Village. 4. In accordance with the above-mentioned Municipal Telecommunications Infrastructure Maintenance Fee Act, Section 2.13.10. of the Agreement is hereby deleted in its entirety and replaced with the following paragraph: 10. "Gross Charges": means the amount to a telecommunications retailer for the act or privilege of originating or receiving telecommunications within the Village, and for all services rendered in connection therewith, valued in money whether paid in money or otherwise, including case, credits, services, and property of every kind or nature, and shall be determined without any deduction on account of the cost of such telecommunications, the cost of the materials used, labor or service costs, or any other expense whatsoever. In case credit is extended, the amount thereof shall be included only as and when paid. "Gross Charges" for private line service shall include charges imposed at each channel point within the Village, and charges for that portion of the interstate inter-office channel provided within the Village. However, "Gross Charges" shall not include: a. any amounts added to a purchaser's bill because of a charge made under: (I) the fee imposed by this Section, (ii) additional charges added to a purchaser's bill under Section 9-221 or 9-222 or the Public Utilities Act, (iii) amounts collected under Section 8-11-17 of the Illinois Municipal Code, (iv) the tax imposed by the Telecommunications Excise Tax Act, (v) 911 surcharges, or (vi) the tax imposed by Section 4251 of the Internal Revenue Code; b. charges for a sent collect telecommunication received outside the Village. c. charges for leased time on equipment or charges for the storage of data or information or subsequent retrieval or the processing of data or information intended to change its form or content. Such equipment includes, but is not limited to, the use of calculators, computers, data processing equipment, tabulating equipment, or accounting equipment and also includes the usage of computers under a time-sharing agreement; d. charges for customer equipment, including such equipment that is leased or rented by the customer form any source, wherein such charges are disaggregeted and separately identified from other charges; e. charges to business enterprises certified under Section 9-222.1 of the Public Utilities Act to the extent of such exemption and during the period of time specified by the Village; f. charges for telecommunications and all services and equipment provided in connection therewith between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, and only to the extent that the charge between the parent corporation and wholly owned subsidiaries or between wholly owned subsidiaries represent expense allocation between the corporations and not the generation of profit other than a regulatory required profit for the corporation rendering such services; g. bad debts ("bad debt" means any portion of a debt that is related to a sale at retail for which gross charges are not otherwise deductible or excludable that has become worthless or uncollectible, as determined under applicable federal income tax standard; if the portion of the debt deemed to be bad is subsequently paid, the retailer shall report and pay the tax on that portion during the reporting period in which the payment is made); h. charges paid by inserting coins in coin-operated telecommunications devices; or i. charges for telecommunications and all services and equipment provided to the Village. 1. The following language shall be added as Section 6.C.3 to the Agreement: 3. Construction Requirements. Metropolitan shall construct the Telecommunications System according to the following requirements, unless specifically authorized by the Director of Engineering & Community Development: a. directional boring,where feasible by Metropolitan's sole judgment; b. undergrounding of lines; c. use of existing conduit over new conduit, where available and pursuant to reasonable terms and conditions; and d. pre-cast concrete manholes and cast iron covers in lieu of fiberglass. Except as modified by the foregoing paragraphs, the Agreement shall remain in full force and effect and each party hereby ratifies and confirms the Agreement as amended and modified herein. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their duly authorized representatives as of the date written above. VILLAGE OF ELK GROVE VILLAGE By: Craig B. Johnson Name: Craig B. Johnson Title: Village President CHICAGO FIBER OPTIC CORPORATION D/B/A METROPOLITAN FIBER SYSTEMS OF CHICAGO, INC. By: Name: Title: 139365 4