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Ordinance 2018-16 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO.2018-16 AN ORDINANCE APPROVING A CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE UNITED CITY OF YORKVILLE AND CMN-RUS,INC. (METRONET) Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 13"'day of March,2018 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on September 12,2018. ORDINANCE No. 2018-A AN ORDINANCE APPROVING A CABLE TELEVISION FRANCHISE AGREEMENT BETWEEN THE UNITED CITY OF YORKVILLE AND CMN-RUS, INC. (METRONET) WHEREAS, the United City of Yorkville (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, CMN-RUS, Inc. ("Metronet") has requested to enter into a new cable franchise agreement with the City in compliance with the provisions of Section 621 of the Cable Communications Policy Act(47 U.S.C. 521 et seq.) and Section 11-42-11 of the Illinois Municipal Code(65 ILCS 5/11-42-11); and, WHEREAS,notice of a public hearing for the approval of a new cable television franchise was published and a hearing held on February 27, 2018 regarding the need for an additional cable television franchise,the capacity of the City's right-of-way in providing new cable television services, the potential disruption to users of the City's right-of-way and the long term economic impact of an additional cable television system in the City; and, WHEREAS,the Mayor and City Council have determined that the granting of an additional franchise agreement with Metronet is in compliance with the Cable Act, the Illinois Municipal Code and the City ordinances and is in the best interest of the health, welfare and safety of the residents of the City. NOW THEREFORE,BE IT ORDAINED,by the Mayor and City Council of the United City of Yorkville, Kendall County, State of Illinois, as follows: Ordinance No.2018-1 Page 2 SECTION 1: That the foregoing recitals are true and correct and are hereby made a part of this Section as though fully set forth. SECTION 2: That the Cable Television Franchise Agreement by and between the United City of Yorkville, Illinois and CMN-RUS, Inc., attached hereto and made a part hereof by reference as Exhibit A, between CMN-RUS, Inc. and the City is hereby approved and the City Administrator is hereby authorized to execute said Franchise Agreement on behalf of the City. SECTION 3: the Southwest Fox Valley Cable and Telecommunications Consortium is hereby named the designee of the City and delegated concurrent authority with respect to the operation of Public, Educational and Government Access Programming and related activities and the performance of duties related thereto under the terms of the Franchise Agreement. SECTION 4: The operation by CMN-RUS, Inc. of its cable system pursuant to the Franchise Agreement remains subject to all terms and conditions of applicable codes and ordinances of the City including but not limited to building codes and regulations concerning the construction and design of the cable system. SECTION 5: That this ordinance shall be in full force and effect from and after its passage and approval according to law. Passed by the City Council of th United City of Yorkville, Kendall County, Illinois, this day of 2018. City Clerk Ordinance No.201841 Page 3 CARLO COLOSIMO A KEN KOCH JACKIE MILSCHEWSKI ARDEN JOE PLOCHER CHRIS FUNKHOUSER JOEL FRIEDERS SEAVER TARULIS ALEX HERNANDEZ Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois,this It day of SF—PrEtR6EP,2018. Mayor Ordinance No.2018-1(0 Page 4 CABLE TELEVISION FRANCHISE AGREEMENT BY AND BETWEEN The CITY OF YORKVILLE CMN-RUS,Inc. This Franchise Agreement (hereinafter, the "Agreement" or "Franchise Agreement") is made between the City of Yorkville, Illinois (hereinafter, the "City") and CMN-RUS, Inc., (hereinafter, "Grantee")this 13th day of March, 2018 (the"Effective Date"). The City,having determined that the financial, legal, and technical abilities of the Grantee are reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Franchise Agreement with the Grantee for the construction, operation and maintenance of a Cable System on the terms and conditions set forth herein. This Agreement is entered into by and between the parties under the authority of the Cable Act, and the Illinois Municipal Code, as amended from time to time,provided that any provisions of the Illinois Municipal Code that are inconsistent with the Cable Act shall be deemed to be preempted and superseded. SECTION 1: Definition of Terms For the purpose of this Franchise Agreement, capitalized terms, phrases, words, and abbreviations shall have the meanings ascribed to them in the Cable Act,unless otherwise defined herein. "Cable Act" or "Act" means the Cable Communications Policy Act of 1984, as amended by the Cable Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996,47 U.S.C. §§ 521 et seq., as the same may be amended from time to time. "Cable Operator"has the meaning set forth in 47 U.S.C. § 522 of the Cable Act and means any Person or group of Persons who provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System; or who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. "Cable Service" or "Service" has the meaning set forth in 47 U.S.C. § 522 of the Cable Act and means the one-way transmission to Subscribers of Video Programming or Other Programming Service and Subscriber interaction, if any,which is required for the selection or use of such Video Programming or Other Programming Service. 1 "Cable System" or "System" has the meaning set forth in 47 U.S.C. § 522 of the Cable Act, and means Grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, that is designed to provide Cable Service which includes Video Programming and which is provided to multiple Subscribers within the Franchise Area, but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii)a facility that serves Subscribers without using any public right-of-way, (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such a facility shall be considered a Cable System (other than for purposes of section 621(c) of the Cable Act) to the extent such facility is used in the transmission of Video Programming directly to Subscribers,unless the extent of such use is solely to provide Interactive On-Demand Services; (iv) an open video system that complies with section 653 of the Cable Act; or(v) any facilities of any electric utility used solely for operating its electric utility systems. "Channel"or"Cable Channel"means a portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel as a television channel is defined by the Federal Communications Commission by regulation. "City" means the United City of Yorkville, Illinois or the lawful successor, transferee, designee, or assignee thereof. "Customer" or "Subscriber" means a Person who lawfully receives and pays for Cable Service with the Grantee's express permission. "FCC"means the Federal Communications Commission or successor governmental entity thereto. "Franchise"means the initial authorization,or renewal thereof, issued by the City,whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, ordinance or otherwise, which authorizes the construction or operation of the Cable System. "Franchise Agreement" or"Agreement" shall mean this Agreement and any amendments or modifications hereto. "Franchise Area" means the present legal boundaries of the City as of the Effective Date, and shall also include any additions thereto,by annexation or other legal means as provided in this Agreement and excludes any areas disconnected therefrom. "Grantee" shall mean CMN-RUS, Inc. "Gross Revenue" means the Cable Service revenue received by the Grantee from the operation of the Cable System in the Franchise Area to provide Cable Services, calculated in accordance with generally accepted accounting principles. Cable Service revenue includes 2 monthly Basic Cable Service,cable programming service regardless of Service Tier,premium and pay-per-view video fees, advertising and home shopping revenue, installation fees and equipment rental fees. Gross revenues shall also include such other revenue sources from Cable Service delivered over the Cable System as may now exist or hereafter develop, provided that such revenues,fees,receipts,or charges may be lawfully included in the gross revenue base for purposes of computing the City's permissible franchise fee under the Cable Act, as amended from time to time. Gross Revenue shall not include refundable deposits, bad debt, investment income, programming launch support payments,third party advertising sales commissions and agency fees, nor any taxes, fees or assessments imposed or assessed by any governmental authority. Gross Revenues shall include amounts collected from Subscribers for Franchise Fees pursuant to City of Dallas, Texas v. F.C.C., 118 F.3d 393 (5th Cir. 1997), and amounts collected from non-Subscriber revenues in accordance with the Court of Appeals decision resolving the case commonly known as the "Pasadena Decision," City of Pasadena, California et. al., Petitions for Declaratory Ruling on Franchise Fee Pass Through Issues, CSR 5282-R, Memorandum Opinion and Order, 16 FCC Rcd. 18192 (2001), and In re: Texas Coalition of Cities for Utility Issues v. F.C.C., 324 F.3d 802 (5th Cir. 2003). "Initial Franchise Service Area" means that portion of the Franchise Area set forth in Exhibit A. "Other Programming Service" means information that a Cable Operator makes available to all Subscribers generally. "Person" means any natural person or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for profit, but shall not mean the City. "Public Educational and Governmental (PEG)Access Channel" shall mean a video Channel designated for non-commercial use by the City or its designee,the public and educational institutions. "Public Educational and Government (PEG) Access Programming" shall mean noncommercial programming produced by, for, or made available to any City residents or organizations, schools and government entities and the use of designated facilities, equipment and/or Channels of the Cable System in accordance with 47 U.S.C. §531 and this Agreement. PEG channels shall be used only for non-commercial purposes. Acknowledgement of underwriters and sponsors for the purpose of funding public, educational, and government access related activities is allowed. "Public Way" shall mean the surface of, and the space above and below, any street, alley, other land or waterway, dedicated or commonly used for pedestrian or vehicular traffic or other similar purposes, including, but not limited to, public utility easements and other easements dedicated for compatible uses, now or hereafter held by the City in the Franchise Area, to the 3 extent that the City has the right and authority to authorize, regulate, or permit the location of facilities other than those of the City. Public Way shall not include any real or personal City property that is not specifically described in this definition and shall not include City buildings, fixtures, and other structures and improvements, regardless of whether they are situated in the Public Way. "Qualified Household" shall mean any single family residential home where a resident has agreed in writing to Grantee's standard terms and conditions of service including, if applicable, any reasonable deposit requirements and standard installation fees, as a condition of requesting Cable Service from Grantee. "Right of Way Ordinance" shall mean Title 7, Chapter 8 of the Yorkville City Code, as amended from time to time. "Standard Installation" means those installations to Subscribers that are located up to one hundred twenty-five(125) feet from the existing distribution system(Cable System). "Southwest Fox Valley Cable and Telecommunications Consortium" or "Consortium" is the designee of the City with respect to the operation of Public, Educational and Government Access Programming and related activities and the performance of duties described in that certain Intergovernmental Agreement by and between the members of said Consortium, as amended from time to time. "Video Programming" or "Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. SECTION 2: Grant of Authority 2.1. Pursuant to Section 621(a) of the Cable Act, 47 U.S.C. § 541 (a), and 65 ILCS 5/11-42-11(a) of the Illinois Municipal Code, and Ordinance No. 2018-16, the City hereby grants to the Grantee a nonexclusive Franchise authorizing the Grantee to construct and operate a Cable System in the Public Ways within the Franchise Area, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in any Public Way such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Cable System, and to provide such services over the Cable System as may be lawfully allowed. 2.2. Term of Franchise. The term of the Franchise granted hereunder shall be ten (10) years from the Effective Date, unless the Franchise is renewed or is lawfully terminated in accordance with the terms of this Franchise Agreement and/or applicable law. From and after the Effective Date of this Franchise Agreement, the Parties acknowledge that this Franchise Agreement is intended to be the sole and exclusive Franchise Agreement between the Parties pertaining to the Grantee's Franchise for the provision of Cable Service. 2.3. Renewal. Any renewal of this Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, and any applicable State law which may exist at the time of renewal and which is not superseded by the Cable Act. 4 2.4. Police Powers. Nothing in this Franchise Agreement shall be construed as an abrogation by the City of any of its police powers to adopt and enforce generally applicable ordinances deemed necessary for the health, safety, and welfare of the public, and the Grantee shall comply with all generally applicable laws and ordinances enacted by the City pursuant to such police power. 2.5. Reservation of Authority. Nothing in this Franchise Agreement shall (A) abrogate the right of the City to perform any public works or public improvements of any description, (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the City, or(C)be construed as a waiver or release of the rights of the Cityin and to the Public Ways. 2.6. Competitive Equity. 2.6.1. In the event the City grants an additional Franchise to use and occupy any Public Way for the purposes of operating a Cable System, the additional Franchise shall only be granted in accordance with the Illinois Level Playing Field Statute, 65 ILCS 5/11-42-11. 2.6.2. In the event an application for a new cable television franchise or other similar authorization is filed with the City proposing to serve the Franchise Area, in whole or in part, the City shall to the extent permitted by law promptly notify the Grantee, or require the Grantee to be notified, and include a copy of such application. 2.6.3. Provided that appropriate vehicle safety markings have been deployed, Grantee's vehicles shall be exempt from parking restrictions of the City while used in the course of installation, repair and maintenance work on the Cable System. The foregoing shall not apply to handicapped parking spaces and designated fire lanes. Notwithstanding the foregoing, Grantee's vehicles will be parked in a manner which does not jeopardize public safety, and does not apply to fire lanes or designated handicapped spaces. SECTION 3: Construction and Maintenance of the Cable System 3.1. Except as may be otherwise provided in this Franchise Agreement, Grantee shall comply with all generally applicable provisions of the Right of Way Ordinance, Title 7, Chapter 8, entitled"Construction of Utility Facilities in Rights of Way,"of the Yorkville City Code as may be amended from time to time. Grantee will complete construction of the Cable System in the Initial Franchise Service Area no later than three (3) years from the date it commences with physical construction of the Cable System in the Public Way. 3.2. Aerial and Underground Construction. At the time of Cable System construction, if all of the transmission and distribution facilities of all of the respective public or municipal utilities in any area of the Franchise Area are underground, the Grantee shall place its Cable Systems' transmission and distribution facilities underground, provided that such underground locations are actually capable of accommodating the Grantee's cable and other equipment without technical degradation of the Cable System's signal quality. In any region(s) of the Franchise Area 5 where the transmission or distribution facilities of the respective public or municipal utilities are both aerial and underground, the Grantee shall have the discretion to construct, operate, and maintain all of its transmission and distribution facilities or any part thereof, the same either aerially or underground as the respective public or municipal utility. Nothing in this Section shall be construed to require the Grantee to construct, operate, or maintain underground any ground- mounted appurtenances such as customer taps, line extenders, system passive devices, amplifiers, power supplies, pedestals, or other related equipment. 3.3. Undergrounding and Beautification Projects. 3.3.1. In the event the City requires users of the Public Way who operate aerial facilities to relocate such aerial facilities underground, Grantee shall participate in the planning for relocation of its aerial facilities, if any, contemporaneously with such users. Grantee shall be reimbursed its relocation costs from public or private funds allocated for the project to the same extent as such funds are made available to other users of the Public Way, if any,provided that any utility's exercise of authority granted under its tariff to charge consumers for the said utility's cost of the project that are not reimbursed by the City shall not be considered to be public or private funds. 3.3.2. The Grantee shall not be required to relocate its facilities unless it has been afforded at least sixty(60) days' notice of the necessity to relocate its facilities. Within forty-five (45)days of receiving notice from the City,the Grantee shall provide a written estimate of the cost associated with the work necessary to relocate its facilities. In instances where a third party is seeking the relocation of the Grantee's facilities or where the Grantee is entitled to reimbursement pursuant to the preceding Section,the Grantee shall not be required to perform the relocation work until it has received payment for the relocation work or in the case of City requests there is money obligated for such purposes.. 3.3.3 Restoration of Private Property. The Grantee shall remove all excess material and restore all turf and terrain and other property within ten(10) business days after any parcel of private property adjacent to the Public Way is disturbed,damaged or destroyed due to construction or maintenance by the Grantee, all to the satisfaction of the City engineer. Such cleanup and repair may be required to consist of backfilling,regrading,reseeding,resodding,or any other requirement to restore the private property to a condition substantially equivalent to that which existed prior to the commencement of the project. The time period provided in this section shall be extended a reasonable term by the City engineer for good cause, as determined in his/her reasonable discretion. SECTION 4: Service Obligations 4.1. Initial Service Obligations. As of the Effective Date of this Agreement, Grantee's Cable System has been designed to provide,and,upon completion of construction,will be capable of providing,Cable Service to residential Customers throughout the Initial Franchise Service Area. After completion of Construction, the Grantee shall continue to make Cable Service available in 6 the Initial Service Area throughout the term of this Agreement and Grantee shall extend its Cable System and provide service consistent with the provisions of this Franchise Agreement. 4.2. General Service Obligation. The Grantee shall make Cable Service available beyond the Initial Franchise Service Area to every new or existing residential home within the Franchise Area where a minimum of fifteen (15) Qualified Households have requested Cable Service within 1200 feet of the Grantee's distribution cable (e.g., a Standard Installation). 4.2.1. The Grantee may elect to provide Cable Service to areas not meeting the above density and distance standards. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop or line extension in excess of a Standard Installation. Any such additional charge shall be computed on a time plus materials basis on that portion of installation that exceeds a Standard Installation plus a reasonable rate of return. 4.3. Programming. The Grantee agrees to provide cable programming services in the following broad categories: Children General Entertainment Family Oriented Ethnic/Minority Sports Weather Educational Arts, Culture and Performing Arts News & Information Pursuant and subject to federal law, all Video Programming decisions, excluding PEG Access Programming, are at the sole discretion of the Grantee. 4.4. Technical Standards. The Grantee shall comply with all applicable technical standards of the FCC as published in 47 C.F.R.,Part 76, Subpart K,as amended from time to time. The Grantee shall cooperate with the City in conducting inspections related to these standards upon reasonable prior written request from the City based on a significant number of Subscriber complaints. 4.5. Annexations and New/Planned Developments. In cases of annexation the City shall provide the Grantee written notice of such annexation. In cases of new construction, planned developments or property development where undergrounding or extension of the Cable System is required, the City shall provide or cause the developer or property owner to provide notice of the same. Such notices shall be provided at the time of notice to all utilities or other like occupants of the City's Public Way. If advance notice of such annexation, new construction, planned development or property development is not provided, the Grantee shall be allowed an adequate time to prepare,plan and provide a detailed report as to the timeframe for it to construct its facilities and provide the services required under this Franchise Agreement. 4.6. Service to School Buildings and Governmental Facilities. 4.6.1. The City and the Grantee acknowledge the provisions of 220 ILCS 5/22- 501(f), whereby Grantee shall provide upon request complimentary Basic Cable Service and a free Standard Installation at one outlet to all eligible buildings as defined in said state statute. 7 Eligible buildings shall not include buildings leased to non-governmental third parties or buildings such as storage facilities at which government employees are not regularly stationed. 4.6.2. Long Drops. The Grantee may impose an additional charge in excess of its regular installation charge for any service installation requiring a drop or line extension in excess of a Standard Installation. Any such additional charge shall be computed on a time plus materials basis to be calculated on that portion of the installation that exceeds a Standard Installation. 4.7. Emergency Alerts. At all times during the term of this Franchise Agreement, the Grantee shall provide and maintain an "Emergency Alert System" ("EAS") consistent with applicable Federal law and regulation — including 47 C.F.R., Part 11 and the "State of Illinois Emergency Alert System State Plan" — as may be amended from time to time. Should the City become qualified and authorized to activate the EAS,the Grantee shall provide instructions on the access and use of the EAS by the City to the City on an annual basis. To extent required by law, the City agrees to indemnify and hold the Grantee harmless from any damages or penalties arising out of the negligence of the City, its employees or agents in using such system. 4.8. Customer Service Obligations. The City and Grantee acknowledge that the customer service standards and customer privacy protections are set forth in the Cable and Video Customer Protection Law,220 ILCS 5/22-501 et seq., and enforcement provisions are included in Title 7, Chapter 10 of the Yorkville City Code. Enforcement of such requirements and standards and the penalties for non-compliance with such standards shall be consistent with the Cable and Video Customer Protection Law,220 ILCS 5/22-501 et seq and Title 7,Chapter 10 of the Yorkville City Code. SECTION 5: Oversight and Regulation by City 5.1. Franchise Fees. The Grantee shall pay to the City a Franchise Fee in an amount equal to five percent (5%) of annual Gross Revenues received from the operation of the Cable System to provide Cable Service in the Franchise Area; provided,however, that Grantee shall not be compelled to pay any higher percentage of fees than any other video service provider, under state authorization or otherwise, providing service in the Franchise Area. The payment of Franchise Fees shall be made on a quarterly basis and shall be due forty-five (45) days after the close of each calendar quarter. If mailed,the Franchise Fee shall be considered paid on the date it is postmarked. Each Franchise Fee payment shall be accompanied by a report prepared by a representative of the Grantee showing the basis for the computation of the franchise fees paid during that period. Any undisputed Franchise Fee payment which remains unpaid in whole or in part, after the date specified herein shall be delinquent. For any delinquent Franchise Fee payments,Grantee shall make such payments including interest at the prime lending rate as quoted by JP Morgan Chase & Company or its successor, computed from time due until paid. Any undisputed overpayments made by the Grantee to the City shall be credited upon discovery of such overpayment until such time when the full value of such credit has been applied to the Franchise Fee liability otherwise accruing under this Section. 8 5.1.1. The Parties acknowledge that, at present, the Cable Act limits the City to collection of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In the event that a change in the Cable Act would allow the City to increase the Franchise Fee above five percent(5%), the City shall hold a public hearing and determine if the City should collect the additional amount. Following the determination, the City shall notify the Grantee of its intent to collect the increased Franchise Fee and Grantee shall have a reasonable time (not to be less than ninety(90)days from receipt of notice from the City)to effectuate any changes necessary to begin the collection of such increased Franchise Fee or notify the Grantee of its intent to not collect the increased fee. In the event that the City increases said Franchise Fee, the Grantee shall notify its Subscribers of the City's decision to increase said fee prior to the implementation of the collection of said fee from Subscribers as required by law. 5.1.2. In the event a change in state or federal law requires the City to reduce the franchise fee percentage that may be collected, the parties agree the Grantee shall reduce the percentage of franchise fees collected to the lower of. i) the maximum permissible franchise fee percentage; or ii) the lowest franchise fee percentage paid by any other Cable Operator granted a Cable Franchise by the City pursuant to the Cable Act, and Section 11-42-11 of the Illinois Municipal Code; provided that: (a) such amendment is in compliance with the change in state or federal law; (b) the City approves the amendment by ordinance; and (c) the City notifies Grantee at least ninety (90) days prior to the effective date of such an amendment. 5.1.3. Taxes Not Included. The Grantee acknowledges and agrees that the term "Franchise Fee" does not include any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and Cable Operators on their services but not including a tax,fee, or assessment which is unduly discriminatory against Cable Operators or Cable Subscribers). 5.2. Franchise Fees Subject to Audit. The City and Grantee acknowledge that the audit standards are set forth in the Illinois Municipal Code at 65 ILCS 5/11-42-11.05 (Municipal Franchise Fee Review; Requests For Information). Any audit shall be conducted in accordance with generally applicable auditing standards. The City and Grantee agree that the audit procedures set forth in the Local Government Taxpayer's Bill of Rights Act shall be applicable to any audit of PEG Capital payments as provided for in Section 8.8.7 of this Franchise Agreement. 5.3. Proprietary Information. Notwithstanding anything to the contrary set forth in this Agreement, the Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature,with the exception of the information directly related to an audit of Franchise Fees as set forth in Section 5.2. The City agrees to treat any information disclosed by the Grantee as confidential and only to disclose it to those employees,representatives, and agents of the City that have a need to know in order to enforce this Franchise Agreement and who agree to maintain the confidentiality of all such information. For purposes of this Section, the terms "proprietary or confidential" include, but are not limited to, information relating to the Cable System design, customer lists, marketing plans, financial information unrelated to the calculation of Franchise Fees or rates pursuant to FCC rules,or other information that is reasonably determined by the Grantee to be competitively sensitive. Grantee may make proprietary or confidential information available for inspection but not copying or removal by the Franchise Authority's representative. Grantee shall cooperate in responding to any request made upon the City 9 under the Illinois Freedom of Information Act,5 ILCS 140/1 et seq., to the extent a request includes public records in the custody or control of Grantee and are not considered proprietary or confidential in nature. In the event that the/ City has in its possession and receives a request under the Illinois Freedom of Information Act(5 ILCS 140/1 et seq.),or similar law for the disclosure of information the Grantee has designated as confidential,trade secret or proprietary,the City shall notify Grantee of such request and cooperate with Grantee in opposing such request. Grantee shall indemnify and defend the City from and against any claims arising from the City's opposition to disclosure of any information Grantee designates as proprietary or confidential. Compliance by the City with an opinion or directive from the Illinois Public Access Counselor or the Illinois Attorney General under the Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., or with a decision or order of a court with jurisdiction over the City, shall not be a violation of this Section. SECTION 6: Transfer of Cable System or Franchise or Control of Grantee 6.1. Neither the Grantee nor any other Person may transfer the Cable System or the Franchise without the prior written consent of the City, as provided for in Section 617 of the Cable Act, 47 U.S.C. §537, and 47 C.F.R. §76.502, or their respective successor in state or Federal law. 6.2. No transfer of control of the Grantee, defined as an acquisition of fifty-one percent (51%) or greater ownership interest in Grantee, shall take place without the prior written consent of the City. 6.3. No consent shall be required, however, for (i) a transfer in trust, by mortgage, hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise or in the Cable System in order to secure indebtedness, or (ii) a transfer to an entity directly or indirectly owned or controlled by Metronet Holdings, LLC. 6.4. The Grantee, and any proposed transferee under this Section 6, shall submit a written application to the City containing or accompanied by such information as is required in accordance with applicable law and FCC regulations, specifically including a completed Form 394 or its successor, and in compliance with the processes established for transfers under FCC rules and regulations, including Section 617 of the Cable Act, 47 U.S.C. §537 and 47 CRR 76.502. Within thirty (30) days after receiving a request for consent, the City shall, in accordance with FCC rules and regulations, notify the Grantee in writing of the additional information, if any, it requires to determine the legal, financial and technical qualifications of the transferee or new controlling party. If the City has not taken final action on the Grantee's request for consent within one hundred twenty (120) days after receiving such request, consent shall be deemed granted. As a condition to granting of any consent, the City may require the transferee to agree in writing to assume the obligations of the Grantee under this Franchise Agreement. 6.5. Any transfer of control resulting from or after the appointment of a receiver or receivers or trustee or trustees, however denominated, designated to take over and conduct the business of the grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of a one hundred twenty (120) day period, shall be treated as a transfer of control pursuant to 47 U.S.C. §537 and require the City's consent thereto in the manner described in Section 6 above. 10 SECTION 7: Insurance and Indemnity 7.1. Insurance. Throughout the term of this Franchise Agreement,the Grantee shall, at its own cost and expense, maintain such insurance and provide the City certificates of insurance in accordance with Title 7, Chapter 8 of the Yorkville City Code. 7.2. Indemnification. The Grantee shall indemnify, defend and hold harmless the City, its officers, employees, and agents (the "Indemnitees") from and against any injuries, claims, demands,judgments,damages,losses and expenses,including reasonable attorney's fees and costs of suit or defense (the "Indemnification Events"), arising from the Grantee's construction and operation of its Cable System within the City. The Grantee's obligation with respect to the Indemnitees shall apply to Indemnification Events which may occur during the term of this Agreement,provided that the claim or action is initiated within the applicable statute of limitations, notwithstanding that the claim may be made or action filed subsequent to the termination or expiration of this Agreement. The City shall give the Grantee timely written notice of its obligation to indemnify and defend the City after the City's receipt of a claim or action pursuant to this Section. For purposes of this Section,the word"timely"shall mean within a time period that does not cause prejudice to the respective positions of the Grantee and/or the City. If the City elects in its own discretion to employ additional counsel, the costs for such additional counsel for the City shall be the responsibility of the City. 7.2.1. The Grantee shall not indemnify the City for any liabilities, damages, costs or expense resulting from any conduct for which the City, its officers, employees and agents may be liable under the laws of the State of Illinois. 7.2.2. Nothing herein shall be construed to limit the Grantee's duty to indemnify the City by reference to the limits of insurance coverage described in this Agreement. SECTION 8: Public,Educational and Governmental (PEG)Access 8.1. PEG Capacity. The Grantee shall provide capacity for the City's noncommercial Public, Educational and Governmental Access Programming through Grantee's Cable System consistent with the requirements set forth herein. The City's PEG Access Programming shall be provided consistent with Section 611 of the Cable Act, 47 U.S.C. §531, as amended from time to time. As of the Effective Date of this Agreement, the City utilizes three (3) PEG Channels, which for purposes of reference only are utilized, respectively, for (1) Government Access, (2) Public Access, and (3) Educational Access, including programming produced by and/or for Waubonsee Community College.Unless otherwise agreed to by the City and the Grantee to the extent required by applicable law, the PEG Access Channel shall be carried on the Grantee's Basic Service tier. 8.2. Rules and Procedures for Use of PEG Access Channels. The City shall be responsible for establishing and enforcing rules for the non-commercial use of PEG Access Channel and to promote the use and viewership of the PEG Access Channel in accordance with 47 u.s.c. § 531(d). 11 8.3. PEG Access Channel Signal Quality.Provided the PEG Access Channel signal feed is delivered by the City to the designated signal input point without material degradation,the PEG Access Channel delivery system from the designated signal input point shall meet the same FCC technical standards as the remainder of the Cable System set forth in this Agreement. 8.4 PEG Capital Support. At its sole discretion and as provided for herein, the City, may designate PEG access capital projects to be funded by an external charge (the "PEG Capital Fee") to be passed on to each Subscriber pursuant to Section 622(c) of the Cable Act (47 U.S.C. §542(g)(2)(c)). The PEG Capital Fee shall be collected and paid only for capital costs that are considered lawful under the Cable Act, as amended and as implemented by the Federal Communications Commission. 8.4.1 The City shall impose any PEG Capital Fee by an ordinance.The PEG Capital Fee shall be specified in the ordinance in the form of a per customer per month charge of up to but not more than fifty-three cents ($0.53) to be passed on to each Basic Service Subscriber pursuant to Section 622(c))of the Cable Act(47 U.S.C. §542(c)). The ordinance shall also specify the total amount of the PEG Capital Fee to be collected; include a detailed and itemized description of the intended utilization of the PEG Capital Fee for PEG Access Channel facilities and/or equipment (a "PEG Capital Plan"); and acknowledge a commitment to the provision of sufficient budgetary funding and resources to support PEG Access Programming operations and effective utilization of the PEG Access Channel facilities and equipment set forth in the PEG Capital Plan. The City, or its designee, may spend the PEG Capital Fee on items not identified in the PEG Capital Plan so long as such expenses are: (i) only capital costs that are considered lawful under the Cable Act, as amended, and as implemented by the Federal Communications Commission; and(ii) identified in the reporting requirements detailed under Section 8.8.6. 8.4.2. Consistent with paragraph 8.8.2 of this Section,the City or designee may on an annual basis, amend the monthly amount of the PEG Capital Fee to be collected, subject to the maximum rate described in the Ordinance. The Grantee shall implement any amendment to the monthly amount of the PEG Capital Fee within ninety (90) days from receipt of written notice from the City or its designee. 8.4.3. The Grantee shall collect the PEG Capital Fee and shall make the PEG Capital payments from such sums collected at the same time and in the same manner as Franchise Fee payments, provided the City may assign the right to receive the PEG Capital Fee payments to its designee. Said PEG Capital Fee shall be imposed within one hundred twenty days (120) of the City's, written notification to the Grantee of its having adopted the ordinance (or amendment thereto) described in this section. In the event the City or its designee desires to terminate the collection of the PEG Capital Fee, the Grantee shall remove the PEG Capital Fee from its Subscribers' monthly billing statements within ninety(90) days of the receipt of a written request from the City or its designee; provided that all PEG Capital Fees that have been collected by the Grantee shall be remitted to the City, or its designee, as provided for herein. Once terminated, collection of a PEG Capital Fee shall only be reinstated in accordance with the procedures detailed in Section 8.8.2 of this Franchise Agreement. 12 8.4.4. Consistent with the PEG Capital Plan description of the intended utilization of the PEG Capital Fee, the City, or its designee, shall be permitted to hold all or a portion of the PEG Capital Fee from year to year as a designated fund to permit the City,or its designee,to make capital expenditures. If the City, or its designee, chooses to borrow from itself or a financial institution, revenue for large PEG capital purchases or capital expenditures, the City, or its designee, shall be permitted to make periodic repayments using the PEG Capital Fee. 8.4.5. No more frequently than on an annual basis, commencing with the implementation of the PEG Capital Fee,the City,or its designee,will provide the Grantee a listing of the items purchased and expenditures made from the proceeds of the PEG Capital Fee during the previous 12 month period, solely for the purpose of ensuring the PEG Capital Fee is used for capital costs that are considered lawful under the Cable Act, as amended and as implemented by the Federal Communications Commission. The first such listing shall be provided to the Grantee within thirty (30) days following the first anniversary of the implementation of the PEG Capital Fee, and subsequent listing shall be provided annually thereafter. The City and Grantee agree and acknowledge that the City may commingle its PEG Capital Fees with the fees received by other communities which are members of the SFVCTC, or its successor, and the listing of items purchased and expenditures made may be aggregated and is not required to be broken down by the City from which the revenue is received.The Grantee's sole remedy for the City's failure to deliver the list shall be to obtain specific performance. 8.4.6. The City and Grantee acknowledge that the utilization of the PEG Capital Fee shall be subject to audit by the Grantee using procedures consistent with the audit standards set forth in the Illinois Municipal Code at 65 ILCS 5/11-42-11.05 (Municipal Franchise Fee Review; Requests For Information),provided the rights and responsibilities of the parties shall be reversed from that described in that statute. Any audit shall be conducted in accordance with generally applicable auditing standards. Any undisputed expenditures made by the City for purposes other than PEG Capital shall be credited upon discovery of such overpayment until such time when the full value of such expenditures (including time value pursuant to Section 622(b) of the Cable Act [47 U.S.C. Section 542(b)]) has been applied to the PEG Capital Fee liability. The City and Grantee agree and acknowledge that the City may commingle its PEG Capital Fees with the fees received by other communities which are members of the SFVCTC, or its successor, and the City may assign its responsibility'to respond to an audit to the Agency, or its successor. 8.4.7. Unless otherwise agreed to by the Grantee, any PEG Capital Fees remaining at the end of the agreement in the possession of the City and/or its designee that have not been expended for PEG Capital, shall be credited against PEG Capital Fees required in the subsequent franchise agreement, provided in the event there are no PEG Capital Fees required under the subsequent franchise agreement, such monies shall continue to be obligated only for PEG Capital expenditures. 13 8.4.8.For any payments owed by Grantee in accordance with this Section 8.3 which are not made on or before the due dates, Grantee shall make such payments including interest at an annual rate of the prime lending rate as quoted by JPMorgan Chase & Co., or its successor, whichever is higher, computed from time due until paid. Any undisputed overpayments made by the Grantee to the City shall be credited upon discovery of such overpayment until such time when the full value of such credit has been applied to the Franchise Fee liability otherwise accruing under this section. 8.4.9. Grantee and City agree that the capital obligations set forth in this Section are not "Franchise Fees" within the meaning of 47 U.S.C. § 542. 8.5 Rules and Procedures for Use of PEG Access Channels. The City shall be responsible for establishing and enforcing rules for the non-commercial use the Public, Educational and Governmental Access Channel and to promote the use and viewership of the Channel. 8.6 Allocation and Use of the PEG Channel. The PEG Channel is, and shall be, operated by the City and the City may at any time allocate or reallocate the usage of the PEG Channel among and between different non-commercial uses and Users. The City shall adopt rules and procedures under which Grantee may use the PEG Channel for the provision of Video Programming if the PEG Channel is not being used for its respective purposes pursuant to Section 61 1(d)of the Cable Act, 47 U.S.C. §531. 8.7. Editorial Control. Grantee or its Affiliates shall not incur any criminal or civil liability pursuant to the federal, state or local laws or libel, slander,obscenity, incitement,invasion of privacy,false or misleading advertising,or other similar laws for any City programs on the PEG channel. Grantee shall not exercise any editorial control over any use of the PEG Channel except to the extent permitted in 47 U.S.C. §531(e). Grantee acknowledges that the City cooperates with the Southwest Fox Valley Cable and Telecommunications Consortium for the production and programming of the PEG Channel, and agrees to hold each member of the Consortium separately responsible for the editorial content of the programs produced by or for each member. If it is unclear or if an individual member of the Consortium does not take responsibility for particular content the Consortium as a whole will be held responsible. 8.8. Grantee Use of Unused Time. Because the City and Grantee agree that a blank or underutilized PEG Channel is not in the public interest, in the event the City, or its designee, does not completely program a Channel, Grantee may utilize the Channel for its own purposes subject to the terms and conditions described in this section. Grantee shall give the City, and its designee, notice that any PEG Channel contains unused time, as defined below. If within sixty (60) days of receiving such notice from Grantee the City,or its designee,neither(i)objects to Grantee's finding in writing, or (ii) causes or permits the elimination of the unused time, Grantee may program unused time on the PEG Channel subject to reclamation from the City upon no less than sixty(60) days and no more than ninety (90) days' notice. Except as otherwise provided herein, the programming of the PEG Channel with text messaging or playback of previously aired programming shall not constitute unused time. A programming schedule that has not been updated for a period of ninety(90) days shall be considered unused time. Unused time shall be considered to be a period of time, in excess of six (6) consecutive hours, where no PEG programming of any kind can be viewed on a PEG Channel. Unused time shall not include periods of time where 14 programming cannot be viewed that are caused by technical difficulties, transition of broadcast media, signal testing,replacement or repair of equipment, or installation or relocation of facilities. 8.8. PEG HD Programming. 8.8.1 Annual Meeting to Discuss PEG High-Definition Programming. In recognition of the City's interest in the future distribution of the PEG Channels in high-definition (HD), Grantee will meet with the City and/ or its PEG programming designee on an annual basis to discuss: i. The status of each party's respective preparedness to produce and cablecast the PEG Access Programming in HD,taking into consideration the amount of PEG programming being produced in HD versus standard definition(SD). ii. The proportion of channels cablecast in SD versus HD. iii. The percentage of HD subscription penetration across Grantee's subscriber base in the member communities of the Consortium. 8.8.2 PEG Channel Migration from SD to HD. On or after the fifth anniversary date of this Agreement, the parties shall migrate PEG Access Programming from SD to HD, but only if all of the following conditions have been met and notice has been given in writing: i. The Consortium is capable of producing and transmitting PEG programming in HD. For purposes of this Agreement, an HD signal refers to a television signal delivering picture resolution of 720p or 1080i. For the first PEG Channel transitioned to HD, the Channel must include a minimum of five (5) hours per day, seven(7) days per-week of HD PEG programming. Prior to the transition of each additional PEG Channel, the Consortium must accumulate a library containing a minimum of one hundred(100)hours of locally produced,original HD content, per channel. ii. Forty-Two percent (42%) of channels comprising the Basic Service Tier are cablecast in HD. For the purpose of calculating this condition, any networks which are simulcast in HD and SD shall be counted as only one channel. iii. The percentage of HD subscription penetration across the Grantee's subscriber base in the Consortium's member communities is equivalent to eighty percent (80%). 8.8.3. If all of the conditions above have been met, Grantee will be provided up to six (6)months to transition the PEG programming on the eligible PEG Channel to HD. 8.8.4. In no instance, shall the PEG Channels be cablecast in both SD and HD. 15 8.8.5 In the event the metrics haven't been met by the fifth anniversary of this agreement and upon request,the party which has control over the metric measured by the foregoing conditions shall give the other party notice within thirty (30 days) as to whether it has reached attainment or completion of such condition. For example, the Consortium shall give notice to the Grantee for criteria(i) and the Grantee shall give notice to the City and the Consortium for criteria (ii) and(iii)upon request. 8.9 City Operation and Control of PEG Channels. The Grantee does not relinquish its ownership of a Channel by designating it for PEG use. However,the PEG Channels are, and shall be, operated by the City or its designee, and the City, or its designee, may at any time allocate or reallocate the usage of the PEG Channels among and between different non-commercial uses. The City, or its designee, shall be responsible for establishing, and thereafter enforcing, rules for the noncommercial use of the PEG Access Channels. 8.10 Oriaination Point. At such time that the City determines that it wants to establish capacity to allow its residents who subscribe to Grantee's Cable Service to receive PEG Access Programming originated from new facilities (other than those having a signal point of origination at the time of the execution of this Agreement); or at such time that the City, or the Consortium, determines that it wants to change or upgrade a location from which PEG Access Programming is currently originated; the City, or the Consortium in the case of a change or upgrade, will give the Grantee written notice detailing the point of origination and the capability sought. The Grantee agrees to submit a cost estimate to implement the plan within a reasonable period of time, but not longer than sixty (60) days. After an agreement to reimburse the Grantee for its expenditure, including but not limited to the application of PEG Capital Fees, the Grantee will implement any necessary system changes within a reasonable period of time, but not longer than one hundred twenty days (120). For the purpose of this section, the term "originated," shall mean the programming was electronically submitted to Grantee's Cable System from such location. As of the effective date of this agreement,the origination point for the Southwest Fox Valley Cable and Telecommunications Consortium is located on the campus of Waubonsee Community College, State Rt. 47, Sugar Grove. Grantee's duty to operate and maintain the return line shall apply from the output of the transport device located on the premises to the head end. SECTION 9: Enforcement of Franchise 9.1. Notice of Violation or Default. In the event the City believes that the Grantee has not complied with a material term of the Franchise, it shall notify the Grantee in writing with specific details regarding the exact nature of the alleged noncompliance or default. 9.2. Grantee's Right to Cure or Respond. The Grantee shall have thirty(30) days from the receipt of the City's written notice: (A) to respond to the City, contesting the assertion of noncompliance or default; or (B) to cure such default; or (C) in the event that, by nature of the default, such default cannot be cured within the thirty(30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that the cure will be completed. 16 9.3. Enforcement. Subject to applicable federal and state law, and following notice and an opportunity to cure and respond pursuant to the provisions of Section 9.2 above, in the event the City determines that the Grantee is in default of any material provision of the Franchise, the City may: 9.3.1. seek specific performance of any provision that reasonably lends itself to such remedy or seek other relief available at law, including declaratory or injunctive relief; or 9.3.2. in the case of a substantial or frequent default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following: i. The City shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have ninety(90)days from the receipt of such notice to object in writing and to state its reasons for such objection. In the event the City has not received a response from the Grantee or upon receipt of the response does not agree with the Grantee's proposed remedy or in the event that the Grantee has not taken action to cure the default, it may then seek termination of the Franchise at a public hearing. The City shall cause to be served upon the Grantee, at least ten (10)days prior to such public hearing,a written notice specifying the time and place of such hearing and stating its intent to request termination of the Franchise. ii. At the designated hearing,the City shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which the City shall determine whether or not the Franchise shall be terminated. The public hearing shall be on the record. A copy of the transcript shall be made available to the Grantee at its sole expense. The decision of the City shall be in writing and shall be delivered to the Grantee in a manner authorized by Section 10.2. The Grantee may appeal such determination to any court with jurisdiction within thirty(30) days after receipt of the City's decision. 9.4. Remedies Not Exclusive. In addition to the remedies set forth in this Section 9,the Grantee acknowledges the City's ability pursuant to Section 4.7 of this Franchise Agreement to enforce the requirements and standards,and the penalties for non-compliance with such standards, consistent with the Illinois Cable and Video Customer Protection Law enacted by the City as Title 7 Chapter 10_of the Code; and, pursuant to Sections 3.1 and 7.1 of this Franchise Agreement and Title 7 Chapter 8 of the Code, to enforce the Grantee's compliance with the City's Right-of-Way Ordinance.Notwithstanding the foregoing,nothing in this Agreement shall be interpreted to permit the City to exercise such rights and remedies in a manner that permits duplicative recovery from, or payments by, the Grantee. Such remedies may be exercised from time to time and as often and in such order as may be deemed expedient by the City. 17 SECTION 10: Miscellaneous Provisions 10.1. Force Majeure.The Grantee shall not be held in default under,or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, failure of utility service necessary to operate the Cable System, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Grantee's ability to anticipate or control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Grantee's cable or equipment is attached, as well as unavailability of materials or qualified labor to perform the work necessary. Non-compliance or default shall be corrected within a reasonable amount of time after force majeure has ceased. 10.2. Notice. Any notification that requires a response or action from a party to this franchise within a specific time-frame, or that would trigger a timeline that would affect one or both parties' rights under this franchise, shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail,registered or certified,return receipt requested,postage prepaid, or by reputable overnight courier service and addressed as follows: To the City: To the Grantee: The City of Yorkville CMN-RUS, Inc. 800 Game Farm Road 8837 Bond Street Yorkville, Illinois 60560 Overland Park, KS 66214 ATTN: City Administrator ATTN: Legal Department Recognizing the widespread usage and acceptance of electronic forms of communication, emails and faxes will be acceptable as formal notification related to the conduct of general business amongst the parties to this contract, including but not limited to programming and price adjustment communications. Such communication should be addressed and directed to the person of record as specified above.Either party may change its address and addressee for notice by notice to the other party under this Section. 10.3. Entire Agreement. This Franchise Agreement embodies the entire understanding and agreement of the City and the Grantee with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and communications, whether written or oral. Except for ordinances adopted pursuant to Sections 2.4 and 2.5 of this Agreement, all ordinances or parts of ordinances related to the provision of Cable Service that are in conflict with or otherwise impose obligations different from the provisions of this Franchise Agreement are superseded by this Franchise Agreement. 10.3.1. The City may adopt a cable television/video service provider regulatory ordinance that complies with applicable law, provided the provisions of any such ordinance adopted subsequent to the Effective Date of this Franchise Agreement shall not apply to the Grantee during the term of this Franchise Agreement. 18 10.4. Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Franchise Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. If any material provision of this Agreement is made or found to be unenforceable by such a binding and final decision, either party may notify the other in writing that the Franchise has been materially altered by the change and of the election to begin negotiations to amend the Franchise in a manner consistent with said proceeding or enactment; provided, however,that any such negotiated modification shall be competitively neutral, and the parties shall be given sufficient time to implement any changes necessitated by the agreed-upon modification. 10.5. Governing Law. This Franchise Agreement shall be deemed to be executed in the State of Illinois, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with,the laws of the State of Illinois and/or Federal law,as applicable. 10.6. Venue. Except as to any matter within the jurisdiction of the federal courts or the FCC,all judicial actions relating to any interpretation,enforcement,dispute resolution or any other aspect of this Agreement shall be brought in the Circuit Court of the State of Illinois, Kendall County, Illinois. Any matter brought pursuant to the jurisdiction of the federal court shall be brought in the United States District Court of the Northern District of Illinois. 10.7. Modification. Except as provided in Sections 5.1.1 and 5.1.2, no provision of this Franchise Agreement shall be amended or otherwise modified, in whole or in part, except by an instrument, in writing, duly executed by the City and the Grantee, which amendment shall be authorized on behalf of the City through the adoption of an appropriate ordinance by the City, as required by applicable law. 10.8. No Third-Party Beneficiaries. Nothing in this Franchise Agreement is intended to confer third-party beneficiary status on any person,individual,corporation or member of the public to enforce the terms of this Franchise Agreement. 10.9. No Waiver of Rights. Nothing in this Franchise Agreement shall be construed as a waiver of any rights,substantive or procedural,Grantee may have under Federal or state law unless such waiver is expressly stated herein. 19 10.10. Validity of Franchise Agreement. The parties acknowledge and agree in good faith on the validity of the provisions, terms and conditions of this Franchise Agreement, in their entirety, and that the Parties have the power and authority to enter into the provisions, terms, and conditions of this Agreement. In the event any provision hereof is nonetheless found by a final, non-appealable judicial order to be invalid or unenforceable in the manner in which it is applied or implemented by the parties hereto, the parties agree that the change in interpretation and performance of this Agreement shall be solely prospective from the effective date of the order and shall not give rise to any retroactive claims for a party's actions in reliance on this Agreement preceding the date of such order unless such order clearly addresses the retroactive and prospective application of such order. 10.11. Authority to Sign Agreement. Grantee warrants to the City that it is authorized to execute, deliver and perform this Franchise Agreement. The individual signing this Franchise Agreement on behalf of the Grantee warrants to the City that s/he is authorized to execute this Franchise Agreement in the name of the Grantee. IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly authorized representatives of the parties as set forth below, as of the date set forth below: For the City of Yorkville For CMN-RUS,Inc. By: AMBy: Name: clfiq J . C OLrtl,�/ Name: J'e6n Cowr,b, Title: MA/W, Title: EVE�(smerol Commit i ICre+4hj Date: ! /I 0 Date: 20 EXHIBIT A INITIAL FRANCHISE AREA * fs Legend Green —Areas that Grantee will buildout as part of the Initial Franchise Area Notes For avoidance of doubt, if Grantee is unable to obtain rights to use private property on reasonable terms, Grantee will not be able to buildout those areas even if they are colored green on the above map.