HomeMy WebLinkAboutRESOLUTION - 40-87 - 7/14/1987 - AGRMT/WESTERN UNION TELEGRAPH CORESOLUTION NO. 40-87
AN AGREEMENT GRANTING THE WESTERN UNION TELEGRAPH COMPANY,
ITS LESSEES, SUCCESSORS, AND ASSIGNS CERTAIN RIGHTS IN THE
VILLAGE OF ELK GROVE VILLAGE. ILLINOIS
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:
Section 1: That the Village President be and is hereby authorized
to sign the attached documents marked:
An agreement granting the Western Union Telegraph Company,
its lessees, successors, and assigns certain rights in the
Village of Elk Grove Village, Illinois.
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.
PASSED this
APPROVED this
ATTEST:
Patricia S. Smith
Village Clerk
14th day of
14th day of
July
Charles J. Zettek
Village President
E
1987.
An Agreement Granting The Western Union Telegraph Company, Its Lessees,
Successors, and Assigns Certain Rights in the
Village of Elk Grove Village, Illinois
Be It Resolved by the President and Board of Trustees
of the Village of Elk Grove Village , Illinois as follows:
Section 1. Basic Grant; Term.
That The Western Union Telegraph Company, its lessees, successors, and
assigns, are hereby granted the right to acquire, construct, reconstruct,
operate, maintain, inspect, protect, repair, replace, retain, and use in and
through the Village of Elk Grove Village , Illinois, a
Telecommunication System (not including Cable Television or local exchange
telephone service now existing) and such extensions thereof and additions
thereto as shall hereafter be made, and to acquire, construct, maintain,
inspect, protect, repair, replace, retain and use such Telecommunications
Equipment for such system in, under, upon, along and across each and all of
the Public Property of Elk Grove Village , Illinois, subject to the
regulatory powers of the Village of Elk Grove Village Illinois and
subject to the conditions and regulations hereinafter set forth.
The term of this Franchise shall be for a period of ten (10) years beginning
Julq 14 19 87, and extending to Julg 14 , 19 97 , and
thereafter, in ten (10) year terms with the terms hereof to be reviewed and
renegotiated beginning six (6) months prior to the end of a ten (10) year
term. This Franchise may be terminated by sixty (60) days prior written
notice by the Village of Elk Grove Village , Illinois to the
Company, only upon default by the company of the provisions contained
herein.
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During said sixty (60) day period the Company shall with due diligence cure
said default and, provided the Company is responding in due diligence to cure
said default, this Franchise shall remain valid.
Section 2. Definitions.
(a) "Company" shall mean The Western Union Telegraph Company.
(b) "Exchange" shall mean a geographical area for the administration of
telecommunications services, established and described by the tariff of a
telecommunications carrier providing local exchange telecommunications service,
and consisting of one or more contiguous central offices, together with
associated facilities used in providing such local exchange telecommunications
service.
(c) "Facilities" shall mean Telecommunications Equipment or Telecommunication
System.
(d) "Local Exchange Telecommunications Service" shall mean telecommunications
service between points within an exchange, as defined in subsection (b) of this
Section, or the provision of telecommunications service for the origination or
termination of switched telecommunications services; provided that a company
providing local exchange telecommunications service solicits
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and accepts all customers within the local exchange, for local rather than long
distance calls and regularly holds itself out and advertises itself to be a
local exchange telecommunications service.
(e) "Long Distance Telecommunications Service" shall mean telecommunications
service between points in an exchange and points outside an exchange as defined
in subsection (b) of this Section, or the provision of telecommunications
service or termination of switched telecommunications services; provided that
the company providing the long distance telecommunications service solicits and
accepts all customers within the exchange for the transmission of long
distance calls only and regularly holds itself out as and advertises itself to
be a long distance telecommunications service only.
(f) "Municipality" means the village of Elk Grove villa
Illinois.
(g) "Public Property" or "Property" shall mean public rights of way and any
improvements thereon and therein including but not limited to paved streets,
alleys, sidewalks, grass, vegetation, trees, street lights, traffic signals,
water mains, sewers and facilities within the corporate limits of the Village
of Elk Grove Village as presently constituted or hereafter expanded by
annexation or acquisition.
(h) "Telecommunications Equipment" shall mean all equipment owned, leased or
subleased by the Company and shall include but not be limited to poles, wires,
fiber optic cables, underground conduits, ducts, manholes and other stuctures
or appurtenances in connection with the telecommunication service owned,
operated or maintained by the Company.
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(i) "Telecommunications Service" shall mean the provision or offering for
rent, sale or lease, or in exchange for other value received, of the
transmittal of information, by means of electromagnetic, including light,
transmission with or without benefit of any closed transmission medium,
including all instrumentalities, facilities, apparatus, and services
(including the collection, storage, forwarding, switching, and delivery of
such information) used to provide such transmission.
"Telecommunications Service" does not include, however:
(1) the rent, sale, or lease, or exchange for other value received, of
customer premises equipment;
(2) telephone or telecommunications answering services, paging
services, and physical pickup and delivery incidental to the provision
of information transmitted through electromagnetic, including light,
transmission;
(3) community antenna television service which is operated to perform
for hire the service of receiving and distributing video and audio
program signals by wire, cable or other means to members of the public
who subscribe to such service, to the extent that such service is
utilized solely for the one-way distribution of such entertainment
services with no more than incidental subscriber interaction required
for the selection of such entertainment service.
(4) Microwave radio transmission.
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(j) "Telecommunication System" shall mean a system consisting of cables,
wires, conduits, manholes, drains, pole lines, poles, splicing boxes and
other facilities and appurtances necessary to the successful operation of
said communications systema together with appropriate surface location
markers as shown in approved plans."
Section 3. Permits. Construction and Costs.
(a) Permits. The Company shall obtain all permits required by the codes and
ordinances of the Municipality prior to commencement of construction, repair
or excavation or within one business day of the commencement of emergency
construction, repair or excavation. The Company shall not be charged the fee
required by the Municipality's codes and ordinances; provided, however, that
if the Company fails to obtain the required permit within the time required,
it shall pay two times the required fee. The Company shall pay the fee
within ten (10) working days of written notification by the Municipality.
(b) Construction.
(1) General. All Telecommunication Equipment, laid in, under, upon, over,
along, or across streets, alleys, avenues or other Public Property shall be
laid in a workmanlike manner. All Telecommunication Equipment, shall be so
located, relocated and installed so as to not injure any drains, sewers,
catch basins, pavement, other public improvements, equipment of other
utilities, or property of another, but should any drain, sewer, catch basin,
pavement, other public improvement, equipment of another utility, or property
of another, be injured by such location, relocation or installation, the
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Company shall, at its own expense, forthwith repair or cause repair to the
Public Property or other property damaged. The Company shall be subject to all
reasonable regulations which may now or hereafter be prescribed by general
ordinance of the Municipality with respect to the use of the Public Property.
(2) Grade. Prior to installing any Telecommunication Equipment, in, under,
over, along, across, or upon Public Property, the Company shall obtain the
approval of the grade from the Municipality which approval shall not be
unreasonably withheld and shall install the Telecommunication Equipment to the
grade as approved. If the Company fails to lay the Telecommunication Equipment
to the approved grade, the Company shall, if necessary, move the
Telecommunication Equipment and Company shall pay the entire cost of such
relocation.
(3) Interference with traffic. The Company shall conduct its construction,
reconstruction, repair, relocation, or maintenance work in such a manner that
such work will cause as little interference as possible with the pedestrian and
vehicular traffic.
(4) Underground Construction.
(A) The above ground cables and wires of the Company existing on the date
of the acceptance of this Franchise may remain above ground; provided,
however, that the Municipality may require burial of the existing cables
or wires; if:
(i) the poles of another utility in which the Company's Facilites
are located buries its cables or wires; or
(ii) the Municipality develops a policy requiring that all the
utilities within a specified area of the Municipality must bury its
wires and written notification of such is given to the Company that
it must relocate or bury its Facilities in the aforementioned
specified area.
In no event shall the Company be required to bury its cables or wires
prior to the expiration of one year from the date of the term commencement
date of this Franchise as provided in Section 1.
(B) The Municipality may require that the Company use underground
construction for any new construction. The Municipality may require the
burial of above -ground cables or wires constructed after the date of the
acceptance of this Franchise if:
(i) the poles of another utility in which the Company's Facilities
are located buries its cables or wires; or
(ii) the Municipality develops a policy requiring that all cables
and wires within a specified area of the Municipality buries its
cables or wires and written notification of such is given to the
Company that it must relocate or bury its Facilities in the
aforementioned specified area.
In no event shall the Company be required to bury its cables or wires
prior to the expiration of a year from the date of construction, and in no
event shall the Company, if its Facilities are attached to poles owned by
others, be required to bury its cables or wires until the owners of said
poles first commence to do likewise.
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(C) In the event the Company disagrees with the policy of the
Municipality or feels that the order to bury is in violation of the
provisions that it need not bury within one year of the acceptance of the
Franchise or construction, it may request a hearing by giving written
notice to the Municipality. The Municipality's City Manager or someone in
like authority shall hold a hearing, that may be attended by the Company,
and shall make a written finding to the corporate authorities of the
Municipality. The corporate authorities shall review the written finding
and make a determination as to whether the Company must bury its wires or
cables. Written notification of such determination shall be given to the
Company.
(D) In the event the Company is required to relocate its Facilities
underground, the Company must remove its poles and any other unnecessary
appurtenances and Facilities.
Section 4. Maintenance.
(a) General. The Company, after doing any construction, repair or excavation,
shall restore the surface of the ground to as good a condition as before said
ground w$s disturbed by it. All Public Property disturbed by the Company shall
be restored by it to as good a condition as before said Public Property thereon
was disturbed by it. In the event that any Public Property shall become
uneven, unsettled or otherwise require repair because of the disturbance by the
Company, on or before two years from the date that the restoration of the
Public Property occurred after construction, repair or excavation, the
Municipality shall give written notice of such condition; provided, however,
that verbal notice shall suffice in the event of an emergency. The Company
shall, within five (5) days of receipt of notice from the Municipality and
entirely at its own cost, cause such Public Property to be repaired or
restored to a condition as good as before said Public Property was disturbed
by the Company or commence the repair or restoration within five (5) days if
such repair or restoration cannot be completed within five (5) days. The
Company shall keep all structures and equipment which it shall construct in
the Municipality's Public Property in reasonably safe condition at all
times.
(b) Failure
to Comply;
Remedy.
If
the Company fails to comply with the
provisions of
subsection
(a) of
this
Section, the Municipality may:
(1) repair or restore, or cause to be repaired or restored, the Public
Property or improvement to a condition as good as the Property was in
prior to the disturbance by the Company and to draw the cost of said
repair or restoration from the sources set out in Section 14; and/or
(2) charge the Company Twenty -Five Dollars ($25.00) per day if the
condition continues unremedied after receipt of written notice by the
Company until the date that the Company or the Municipality repairs or
restores the Public Property.
The Company shall pay the Municipality such costs and fines within thirty
(30) days after billing.
i=
Section 5. Site Safet
The Company shall maintain such barriers and danger signals during construction,
relocation, repair, or renewal work performed on Public Property or adjacent
thereto as will reasonably avoid damage to life, limb and property and as called
for in the State of Illinois Uniform Manual of Traffic Control Devices, or the
Illinois Department of Transportation Traffic Control Plans for Construction and
Maintenance Projects as determined most appropriate by the Municipality, or as
otherwise required by the Municipality.
Section 6. Relocation.
If the Municipality shall require the relocation or the lowering or raising of
the grade of any Telecommunication Equipment, the Company shall commence to do so
upon thirty (30) days written notice by the Municipality. The Company shall have
ten (10) working days to respond after the expiration of the thirty (30) day
notice period. The Company shall pay the entire cosc of the relocation or the
lowering or raising of the grade of such Telecommunication Equipment. The
Municipality shall provide reasonable assistance to the Company in determining
alternative locations for the Telecommunication Equipment that the Municipality
requires to be relocated, which assistance shall be limited to consultation with
the Company.
Section 7. Work by Others, Construction by Abutting Owners
Alteration to Conform with Public Imorovements
(a) The Municipality reserves the right to lay, and permit to be laid, sewer,
gas, water, and other pipe lines or cables and conduits, and to do and permit to
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be done, any underground and overhead installation or improvement that may be
deemed necessary or proper by the corporate authorities of the Municipality in,
across, along, over or under any Public Property occupied by the Company, and to
change any curb or sidewalk or the grade of any street; provided, however,
nothing herein shall relieve any other person or corporation from liability for
damage to the Telecommunication Equipment of the Company.
(b) In the event that the governing body of the Municipality authorizes abutting
landowners to occupy space under the surface of any Public Property, such grant
to an abutting landowner shall be subject to the rights herein granted to the
Company.
Section 8. Unified Computerized Utilitv Mapping Svstem.
If the Municipality currently has, or should hereafter institute, a unified
computerized utility mapping system, the Company shall participate in providing
all necessary information. All data contained in the system shall be made
available to the Company upon request by it for said data.
Section 9. JULIE Participation.
To the extent the Company is within the JULIE service area, the Company shall,
either directly or through another company from which it leases or subleases
Telecommunication Equipment or facilities, become a member of JULIE or its
successors.
Section 10. Plans and Coordination.
(a) Construction, Excavation and Expansion Plans. On or before December 31 and
June 30 of each year, the Company shall provide the Municipality with a schedule
of all planned construction and excavation work, excepting emergency work, and
planned expansion of the Telecommunication System within the Municipality or
within unincorporated areas within one and one-half (1 1/2) miles of the
Municipality's corporate limits for the next six (6) months, which schedule shall
be used by the Municipality only for the purpose of planning and organizing
growth and development of the Municipality.
The Company shall, at the written request of the Municipality reschedule any such
work to coordinate with any work to be done by the Municipality or shall reroute
its construction work to a route acceptable to the Municipality. The Company's
schedule shall be forwarded by it to the Municipality.
Notwithstanding the foregoing, the Company shall not be denied a permit solely
for failure to include proposed construction within the required semi-annual
plan.
(b) Coordinating Infrastructure Rehabilitation. The Municipality shall provide
to the Company preliminary plans for rehabilitation, repair or reconstruction of
Public Property work on or before January 1, and shall confirm plans on or before
May 1 of each year. The Company shall advance any work on its Telecommunication
System planned for the three year, period following such work so that it will be
performed prior to any such work on Public Property.
Further, the Company shall adjust to grade all appurtenances related to their
Telecommunication System in the street at the time the street rehabilitation,
repair or reconstrcution occurs.
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(c) As Built Plans. The Company shall furnish to the Municipality a copy of all
plans for all construction, reconstruction, repair, relocation or other work on or in
the Telecommunication System as built by the Company. The Company need not provide as
built plans for normal maintenance work or emergency repairs except where said work or
repair results in permanent relocation. In that event the Company shall have thirty
(30) days to provide the Municipality with revised plans.
Section 11. Maps, Records, Reports and Documents
(a) Original Records. The Company shall provide the Municipality an updated copy of
the Company's Facilities located in the Municipality's Public Property at the same
time the Company provides its construction schedule as required under Section 10.
All original maps, records and documents pertaining to this Franchise shall be
ma'_ntained and made available for inspection at the Company's regional Outside Plant
Manager's office in Chicago, Illinois, during reasonable business hours for the
benefit of the municipality or its officers, agents or employees.
(b) Maintenance of Records. The Company shall keep complete and accurate maps and
records on its operations under and in connection with this Franchise. The
Municipality may require the keeping of additional records or maps which are
reasonably necessary for purposes of identifying, accounting for, and reporting,
changes in the Telecommunication System for purposes of Section 15 of this Franchise.
The Company shall keep its maps and records in such a way that separate and specific
identification of cables, fiber optic cables or other types of Telecommunication
Equipment that constitute the Company's Telecommunication System are available by
facility type within the Franchise area.
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(c) Additional Records. The Municipality shall have the power to require
that the Company report to the Municipality such information relating to the
Company as the Municipality may consider useful in the identifying,
accounting for, and reporting of Telecommunication System changes for the
purposes of Section 15 of this Franchise. The Municipality shall have the
right to establish forms for all reports, determine the time for reports and
the frequency with which any reports are to be made, and require that any
reports be made under oath. The requests for additional records shall be
reasonable.
(d) Examination and Audit of Records. The Municipality shall have the
right, at reasonable times and for reasonable purposes, to examine, audit,
review, and or obtain copies of the documents, maps, plans and other records
of the Company pertaining to this Franchise. The Company shall fully
cooperate in making available its records and otherwise assisting in these
activities.
(e) Inquiries. The Municipality may, at any time, make inquiries pertaining
to this Franchise relating to the Company's operation of a Telecommunications
Service within the Municipality. The Company shall respond to such inquiries
within five (5) working days of an inquiry.
(f) Annual Report. Annually, on or before the 14th day of July of each
year during the term of this Franchise, the Company shall file with the
Municipality a corrected list of Facilities, and an up-to-date map of the
Telecommunication System, showing all Facilities newly installed, extended or
removed during the previous calendar year, as well as those currently in
use.
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(g) Filings. Copies of all petitions, applications, communications and reports
subaitted by the Company to the Federal Communications Commission, the Illinois
Commerce Commission or any other regulatory agency, with respect to any matters
affecting the Facilities located within the Municipality's Public Property and/or
with respect to compensation due under this Franchise, shall be provided to the
Municipality, or its designee, when such documents are filed with the agency.
Section 12. Rules and Regulations.
After reasonable notice and hearing, the corporate authorities of the
Municipality may establish such rules and regulations as may be in the public
interest regarding the construction and operation of the Company's
Telecommunication System within the Municipality.
Section 13. Franchise Violations.
(a) Under evidence being received by the Municipality that violations of this
Franchise are occurring, or have occurred, the Municipality shall at once cause
an investigation to be made. If the Municipality finds that such a violation
exists or has occurred, the Municipality shall take appropriate steps to secure
compliance with the terms of this Franchise.
(b) The Municipality shall notify the Company in writing that violations have
occurred. The corporate authorities of the Municipality may impose those fines
or other sanctions allowed by this Franchise after notice and hearing. Any
orders issued by the corporate authorities of the Municipality shall be complied
within five (5) working days of the date of the order.
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Section 14. Liability and Indemnification.
(a) The Company shall, at its own expense, defend all suits and any
subrogated actions that may be brought against the Municipality on account of
or in connection with the alleged violation by the Company of any of the
obligations hereby imposed upon or assumed by it, or by reason of or in
connection with any damage to life, limb or property as a result of the
existence, construction, repair, inspection or disrepair of any
Telecommunication Equipment under its ownership or control, or from the
construction, repair, inspection or disrepair of Public Property in
connection with any Telecommunication Equipment under its ownership or
control. The Company shall save and keep harmless the Municipality from any
and all injury, damages, claim, demand, suit, judgments, costs and expenses
of every kind, that may arise by reason thereof; and whether such acts or
omissions are those of the Company, whether or not any such act or omission
is authorized, allowed or prohibited by this Franchise, provided that timely
notice in writing shall be given to said Company of any claim or suit against
the Municipality which, by the terms hereof, the said Company shall be
obligated to defend; and provided, further, that the Municipality shall
furnish to the Company all information in its possession relating to said
claim or suit, and cooperate with said Company in the defense of said claim
or suit. The Municipality may, if it so desires, assist in defending any
such claim or suit and the Company shall not be required to reimburse the
Municipality for expenses incurred by it in case of the election to so
assist. If, however, the Company refuses to defend the Municipality when it
is so obligated, the Company shall bear any costs incurred by the
Municipality in such defense.
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(b) Except as specifically set forth in subsection (a) above, the Company
shall pay and by its acceptance of this Franchise shall be deemed to have
specifically agreed that it will pay all reasonable expenses incurred by the
Municipality in defending itself with regard to all claims mentioned in
subsection (a) above. These expenses shall include all out-of-pocket
expenses, such as attorneys' fees, and shall also include the reasonable
value to any services rendered by any employee of the Municipality.
(c) The Company shall maintain at its own expense, and by its acceptance of
this Franchise shall be deemed to have specifically agreed that it will
maintain throughout the term of this Franchise, general comprehensive
liability insurance insuring the Municipality and the Company with regard to
any claims mentioned in subsection (a) above in the minimum amounts of:
(1) Five Million Dollars ($5,000,000) for bodily injury or death to any
one person, within the limit, however, of ten million dollars
($10,000,000) for bodily injury or death resulting from any one
accident;
(2) Two Million Dollars ($2,000,000) for property damage, resulting
from one accident.
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(3) Two Million Dollars ($2>0
00,000) for automobile liability resulting
from any one occurrence•
struction> adequate coverage to meet
f con Act'
any Perio d os gtruetural Work
(4) During Illinois
liability under the
tutory 1'mits and
Insurance within es hundted Thousand
(5) WorkeTs Come
ensation f not less than One
EmF1°vers Liability Insurance o
Dollars ($100,000)•
shall be 4laced with
ae required by this Sectionn the state of Illinois by
of insuran mite insurance Policy
policies
int in throughout the
All P re qualified to
c..Paoies which a e and which of %IV0 as
of Insurance 1 site category for
the Illinois Director ,&'%
a Financia ...Vides
of A and policy which F
rat 'A
po insurance P Dollars shall
tezm a Geperal t ComFanY d ($250,000)
the A.M. 5e at Thousan
of Two Hundred fifty
daterm'ried by
a deductible 14 uirements of Chis section
excess
to meet the se4
and by its acceFtance o
be accepted
in at its o rt expense, d that it will
mainta agree
The ComFanY shall to have erfDrmance,
sFeci¢ically
(d) faithful P
yranchi$e, shall be e' a deemed
the term of this franchis
Chis
maintain throughout
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license and franchise bond or penal bond running to the Municipality with at
least one good and sufficient surety or a letter of credit or a cash escrow
to be approved by the Municipality in an amount equal to the greater of
$2,500.00 or one (1) dollar ($1.00) per linear foot of cable occupying the
Municipality's Public Property which sum shall be a penal amount and which
shall be conditioned that the Company shall well and truly observe, fulfill,
and perform each term and condition of this Franchise and that in case of any
breach of condition of the bond the amount thereof shall be recoverable from
the principal and sureties or issues thereof by the Municipality for all
fines, damages and costs, whether direct or indirect, resulting from the
failure of the Company to well and faithfully observe and perform any
provision of this Franchise. Such fines, damages and costs shall be deemed
to include, as a minimum and without limitation any expenses as may be
incurred by the Municipality as a result of the Company's failure to comply
with the obligations imposed by this Franchise including, but not limited to,
attorneys' fees and costs if any action or proceeding, the cost of enforcing
provisions of this Franchise, the cost of refranchising, and the cost of
removal or abandonment of any property, or other costs which may be in
default, which costs shall be conclusively presumed to amount to a sum equal
to at least the penal sum of such bond, and fines in an amount to be
determined by the Municipality, after notice and hearing for failure to
comply with provisions of this Franchise as described in Sections 1 and 13 of
this Franchise. The Municipality shall have no obligation to devote the
proceeds of such bond to the completion, connection, operation or removal of
the Company's Telecommunication System, all of which shall
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remain the obligation of the Company. The Municipality's right to recover
under the bond shall be in addition to any other rights retained by the
Municipality under this Franchise and other applicable law. The Municipality
shall inform the Company and its surety or sureties of the imposition of the
costa and fines in writing. Said costs and fines shall be paid by the surety
within five (5) working days of the receipt of the notice. Any withdraw of
funds from either the bond, letter of credit or cash escrow under the
provisions of this subsection shall be restored to the required amount of the
greater of $2,500.00 or one (1) dollar ($1.00) per linear foot of cable
occupying the Municipality's Public Property by the Company within fourteen
(14) working days after written notice by the Municipality that it has
utilized the protections afforded to it under the provisions of this
subsection.
(e) In addition to the requirements of subsection (d) above, the Company
shall maintain at its own expense, and by its acceptance of this Franchise be
deemed to have agreed that it will maintain on deposit with the Municipality
throughout the term of this Franchise a cash deposit in the amount of Five
Thousand Dollars ($5,000.00). The cash deposit shall be made directly to the
Municipality. The cash deposit shall be conditioned in the same manner as
the bond hereinabove required and may be drawn on by the Municipality to
compensate itself for restoring Public Property when the Company fails to
comply with its obligation to so restore Public Property, and has failed to
respond within seven (7) days of prior written notice of such failure to
comply with its obligations to so restore Public Property. Upon response to
said written notice the Company shall have seven (7) working days to cure the
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restoration requirement(s) of the Municipality. Such cash deposit shall be
restored to its full amount by the Company within fourteen (14) working days
after written notice by the Municipality that it has drawn upon the cash
deposit by depositing with the Municipality the amount draw by the
Municipality. The rights reserved to the Municipality with respect to the
cash deposit, are in addition to all other rights of the Municipality,
whether reserved by this Franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to such cash deposit shall
affect any other right the Municipality may have.
(f) The Company shall maintain at its ow expense, and by its acceptance of
this Franchise, shall be deemed to have specifically agreed that it will
maintain throughout the construction of any Facilities on or in the Public
Property of the Municipality a construction bond with at least one good and
sufficient surety or a letter of credit or a cash escrow to be approved by
the Municipality in the estimated amount of construction of the Facilities
located on or in the Public Property of the Municipality and which shall be
conditioned that the Company shall well and truly observe, fulfill, and
perform each condition of this Franchise during the construction of
Facilities on or in the Public Property of the Municipality and that the
Company shall perform and complete said construction on or in the Public
Property to the satisfaction of the Municipality, and that in the event of
any breach of this Franchise or the failure to perform or complete the
construction on or in the Public Property to the satisfaction of the
Municipality the amount thereof shall be recoverable from the principals or
sureties thereof or may be draw from the letter of credit or cash escrow for
all fines, damages or costs whether direct or indirect, resulting from the
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failure of the Company to well and faithfully observe or perform any provisions
of this Franchise or complete the construction of Facilities on or in the Public
Property of the Municipality. Such fines, damages and costs shall be deemed to
include at a minimum and without limitation any expenses as may be incurred by
the Municipality as a result of the Company's failure to comply with the
obligations imposed by this Franchise or failure to perform or complete the
construction of Facilities on or in the Public Property of the Municipality to
the satisfaction of the Municipality, including but not limited to, attorney's
fees, the cost of construction or completion of construction, restoration of
property, the removal of Facilities, or other costs which may be in default,
which costs shall be conclusively presumed to amount to a sum equal to at least
the amount of such bond, letter of credit or cash escrow, and fines in an amount
to be determined by the Municipality.
The fines shall be imposed only after notice and hearing for failure to comply
with the provisions of this Franchise or to perform or complete construction of
Facilities on or in the Public Property of the Municipality to the satisfaction
of the Municipality. The Company shall have the same notice provisions and time
to cure protections as stated under Sections 1 and 13 of this Franchise. The
Municipality shall have no obligation to devote the proceeds of the bond, letter
of credit or cash escrow to the completion, connection, operation or removal of
the Company's Telecommunication System, all of which shall remain the obligation
of the Company.
The Municipality's right to recover under the bond letter of credit or cash
escrow shall be in addition to any other rights retained by the Municipality
under this Franchise and other applicable law. The Municipality shall inform
the Company and its surety, holder of the letter of credit or escrowee of the
imposition of costs and fines in writing. Said costs and fines shall be paid
within five (5) working days of receipt of the notice.
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The bond, letter of credit or cash escrow shall be released by the Municipality
by written notice to the Municipality upon completion of construction of the
Facilities to the satisfaction of the Municipality.
(g) All insurance policies, bonds, escrows and letters of credit required by
this Section shall contain a provision requiring at least thirty'(30) days
written notice to both the Municipality and the Company of any cancellation,
termination, or other expiration and shall provide that no such cancellation,
termination or expiration shall be effective prior to such notice. Every such
policy, bond, escrow and letter of credit must have the approval of the
Municipality. Copies of all bonds, escrows or letters of credit, along with
written evidence ofpaymentby the Company of required premiums or fees shall be
filed and maintained with the Municipal Clerk. Should the Municipality desire a
copy of any insurance policies required by this Franchise the Company shall,
within ten (10) working days of receipt of a written request from the
Municipality, furnish the Municipality a copy of any requested insurance policy
required by this Franchise, provided said insurance policy is in the Company's
possession or attainable from the Company's insurance carrier(s).
(h) If the Company proposes to secure a new escrow, bond or letter of credit
instead of renewing an existing escrow, bond or letter of credit, the Company at
least thirty (30) days prior to the expiration date of any existing escrow, bond
or letter of credit, shall submit to the Municipal Attorney and Clerk of the
Municipality a copy of the proposed new escrow, bond or letter of credit, and
such proposed new escrow, bond or letter of credit shall become effective only
upon the expiration date of such expiring escrow, bond or letter of credit if the
Municipal Attorney and Clerk of the Municipality have approved the terms and
coverage of the said proposed new escrow, bond or letter of credit. The Company
shall comply with all applicable provisions of this Section as to any such new
escrow, bond or letter of credit.
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Section 15. Franchise Fee.
(a) The Company, where it owns its own conduits or poles, shall pay the
Municipality an annual fee of $2.50 per cable per linear foot of Public
Property occupied within the Municipality. The fee shall be paid semi-annually
on or before December 31 and June 30 based on the footage of operating cable
shown on plans and maps submitted as required under Section 10 of this
Franchise.
(b) The Company, where it leases conduits or poles owned or maintained by others
shall pay the Municipality an annual fee of $0.75 per cable per linear
foot of Public Property occupied within the Municipality. The fee shall be paid
semi-annually on or before December 31 and June 30 based on the footage of
operating cable shown on plans and maps .submitted as required under Section 10 of
this Franchise.
(c) The Company, where it utilizes Public Property pursuant to this Franchise,
shall, in addition to items (a) and (b) above, pay the Municipality a semi-annual
administrative fee of $2,000.00 which amount shall be paid semi-anually on or
before December 31 and June 30 of each year.
Section 16. Breach.
Ia case Company shall fail or neglect to comply with any or all of the provisions
of this Franchise (unless by valid order of a court of competent jurisdiction
said Company is otherwise directed or unless the compliance by Company with such
provision is prohibited or adjudged unlawful by a valid order of a court of
competent jurisdiction), the Municipality reserves the right to repeal this
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Franchise or rescind this contract, and forfeit the rights hereby created or
sought to be created, provided that no such repeal recision or forfeiture shall
exist or be claimed because of failure or neglect, until written notice of such
failure or neglect so claimed shall have been given to Company, and a reasonable
opportunity afforded it to comply with the provisions hereof or to prove that
such compliance already exists. Repeated violation of this Franchise may be
cause for repeal or recission of this Franchise. Further, the cancellation
provisions of Section 1 shall not apply to this Section.
Section 17. Removal of Telecommunications Equipment.
The Company shall cease operations within the Municipality immediately upon
recission, repeal or cancellation of this Franchise. Within thirty (30) working_
days of a recission, repeal or cancellation of this Franchise, the Company shall
remove all Telecommunications Equipment owned, leased or otherwise controlled by
it and shall return all Public Property to as good a condition as prior to its
removal. In the event the Company feels that thirty (30) days is insufficient
time to remove its Telecommunications Equipment it may request an extension of
thirty (30) days in writing and shall cite sufficient reasons for the extension.
The Municipality shall grant the extension upon showing of sufficient reasons for
the extension. The Company may request additional extensions but the
Municipality may refuse extensions past ninety (90) days whether or not the
Company has sufficient reasons for the continued extensions.
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Section 18. Severability.
In the event that a court of competent jurisdiction shall adjudge any
provision or provisions hereof invalid or illegal, or direct a change by the
Company in any matter or thing herein contained, such invalidity or
illegality or change shall in no way affect the remaining provisions of this
ordinance or their validity or legality, and this Franchise in all other
respects shall continue in full force and effect, as if said provision or
provisions had not been so adjudged invalid or illegal or such change
directed, or shall, at the Municipality's option, cause a termination of the
Franchise.
Section 19. Prior Franchises Repealed.
All grants, franchises, agreements, franchises -in -fact, rights, licenses, and
privileges heretofore made or granted by the Municipality by ordinance or
otherwise to the Company and all rights of the Company thereunder made by the
Municipality to others from which the Company may have purchased any part of
its Telecommunications Equipment, are hereby revoked and repealed, it being
the intention that this ordinance shall contain all grants, franchises,
agreements, rights, licenses, and privileges of the Company with respect to
its Facilities on or in Public Property in the Municipality and all
obligations of the Company in connection therewith.
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Section 20. Successors.
(a) Whenever the word "Company" or the words "Grantee" or "Franchisee" are used
in this Franchise, they shall be construed to mean The Western Union Telegraph
Company, its lessees, successors and assigns, and this Ordinance shall be
binding upon and inure to the benefit of the Company, its lessees, successors
and assigns, where such assignment is made pursuant to subsection (b) of this
Section.
(b) This Franchise shall not be assignable without the express consent of the
corporate authorities of the Municipality; such consent to be evidenced by an
ordinance that fully recites the terms and conditions, if any, upon which such
consent is given. Any such consent shall not be unreasonably withheld upon
demonstration that the proposed assignee has equal or better ability to operate
and maintain the Telecommunication System.
Section 21. Notification of Contractual Arrangements.
(a) The Company shall notify the Municipality within five (5) working days in
writing when it enters into a contractual relationship whereby the Company
sells or leases its Telecommunications Equipment located in the Municipality's
Public Property to another person or entity.
(b) From the date of execution of this Franchise, the Company shall notify the
Municipality within five (5) working days in writing when it enters into a
contractual relationship or agreement to dedicate part or all of the
Telecommunication System located in the Municipality's Public Property to
another telecommunication carrier or provider of Telecommunications Service.
The Company shall be obligated to disclose the name of who that telecommunica-
tion carrier or Telecommunications Service provider is.
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(c) Any agreement or contractual relationship between the Company and another
telecommunication carrier or provider of Telecommunications Service to
dedicate part or all of the Telecommunication System located in the
Municipality's Public Property made prior to the execution of this Franchise
shall have certain grandfathered rights and privileges in that said
agreements or contractual relationships, that have non disclosure provisions
in them that do not permit the Company to identify to the Municipality the
name of the telecommunication carrier or provider of Telecommunications
Service, shall not require notification to the Municipality as set forth in
subsection (b) above.
The Municipality shall have the right to request in writing the name of said
telecommunication carrier or provider of Telecommunications Service and the
Company, upon receipt of this request, shall have the obligation to make
written request to the telecommunication carrier or provider of
Telecommunications Service for permission to disclose its name to the
Municipality. The telecommunication carrier or Telecommunications Service
provider as herein described shall have the right to deny permission to the
Company and if such refusal is made the Company shall seek to obtain written
notification of refusal from the telecommunication carrier or provider of
Telecommunications Service and, without indentifying the name of the
telecommunication carrier or Telecommunications Service provider, the Company
shall supply to the Municipality all such supporting documentation that will
verify the fact that refusal had been received by the Company.
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Section 22. Vacation of Public Property.
So long as the Company exercises the rights granted to it hereunder and so long
as the Municipality shall receive the considerations therefore as recited in this
Franchise, the Municipality will not, by ordinance or otherwise, vacate any
Public Property in which the Company has its Telecommunications Equipment
installed without reserving the following rights: the Company, its successors
and assigns, are granted the right to construct, reconstruct, add to, remove,
operate and maintain a Telecommunication System consisting of Telecommunications
Equipment as the Company may from time to time require together with the right to
access to the same in aforesaid described vacated Public Property all to be
provided in sufficient width to provide access and accessibility to the Company's
Telecommunications Equipment.
Section 23. Delivery of Notices.
Any notices required or permitted hereunder shall be in writing and shall be
delivered via certified mail, return receipt requested, addressed to the parties
as follows unless otherwise indicated in the future:
If to the Municipality: C. A. Willis, Village Manager
901 Wellington Ave.
Elk Grove Village
Illinois 60007
If to the Company: western Union Telegraph Company
One Lake Street, Upper Saddle River, N. J. 07458 ATTN: R. P. Brogi
provided, however, that in the case of an emergency, notices may be given
verbally to the above named.
Notice shall be deemed given on date of mailing.
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Section 24. Effective Date.
This Franchise shall be in full force and effect upon receipt, by the
Municipal Clerk, of the Company's written and unconditional acceptance of all
the provisions of this Franchise executed by its proper officers thereunto
duly authorized, under the corporate seal of said Company, and attested to by
its Secretary or Assistant Secretary. Upon acceptance of this Franchise the
ten (10) year term commencement date as approved and provided for under
Section 1 shall be established by inserting the appropriate dates in Section
1 of this document.
Section 25. Certified Copy.
That the Municipal Clerk is directed to send a certified copy to
Mr. R. P. Brogi, Western Union Telegraph Company,
One Lake Street
Upper Saddle River, N. J. 07458.
RESOLUTION No. 40-87
PASSED: July 14, 1987
APPROVED AS TO FORM:
George B. Knickerbocker
Village Attorney
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APPROVED: (harTac .T_ 7.pt-tek
President
ATTEST: Patricia S. Smith
Village Clerk