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HomeMy WebLinkAbout38-06 Ordinance RECORD OF ORDINANCES Da ton Leval Blank, [nc. Form No. 300d? 38-06 Ordinance No. Passed , 2~ AN ORDINANCE AUTHORIZING THE PROVISION OF CERTAIN INCENTIVES FOR PURPOSES OF ENCOURAGING THE RETENTION AND EXPANSION BY INFLUENT, INC. OF ITS OPERATIONS AND WORKFORCE WITHIN THE CITY AND AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT. WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the creation of employment opportunities within the City; and WHEREAS, Influent, Inc. ("Influent is desirous of retaining and expanding its operations and workforce within the City in consideration for the provision by the City of economic development incentives; and WHEREAS, this Council has determined to offer economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce Influent to retain and expand its operations and workforce within the City, to create jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce Influent to retain and expand its operations and workforce within the City and to provide for the execution and delivery of that Economic Development Agreement with Influent; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, ~ of the elected members concurring, that: Section 1. The Economic Development Agreement by and between the City and Influent, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to Influent in consideration for Influent's agreement to retain and expand its operations and workforce within the City, is hereby approved and authorized with changes therein not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The City Manager and Director of Finance, for and in the name of this City, are hereby authorized to execute that Economic Development Agreement, provided further that the approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. This Council further hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as maybe appropriate to implement this Ordinance. Section 3. This Council finds and determines that all formal actions of this Council concerning and relating to the passage of this Ordinance were taken in an open meeting RECORD OF ORDINANCES Dayton Lcgal Blank, Inc. Form No. 30043 Ordinance No. 38-06 Passed Page 2 . 20 of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 4. This Ordinance shall be in full force and effect on the earliest date permitted by law. Signed: Int~Vlayor - r idi g Offi J Attest: Clerk of Council Passed: l , 2006 Effective: l , 2006 I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. D ty Clerk of Council, Dublin, Ohio Office of the City Manager 5200 Emerald Parkway, Dublin, Ohio 43017 C11'Y 4F DUBLIN Phone: 614-410-4400 • Fax: 614-410-4490 M e m o To: Members of Dublin City Council From: Jane S. Brautigam, City Manager 5 Date: May 31, 2006 Initiated By: Colleen M. Gilger, Acting Director of Economic Development Re: Ord. 38-06 -Economic Development Agreement with Influent, Inc. Summary Staff has been in discussions with Influent, Inc. ("Influent's regarding the retention of its headquarters to Dublin, in addition to the creation and expansion of a Dublin-based Quality Assurance Center. Influent provides outsourced sales and service solutions primarily for financial and insurance industries. The headquarters houses the company's data management and file processing technology. It operates 10 call centers, including three in Ohio at Marietta, New Philadelphia and Tiffin, and employs more than 2,200 worldwide. The company is currently opening its second international center in the Philippines. Influent currently employs 90 people in Central Ohio with an average salary of $50,000, equating to an annual payroll of $4.5 million; 50 of these jobs will be retained at the Metro Center headquarters location, while the remaining 40 will relocate to the Quality Assurance Center on Shamrock Court. The company is committed to backfilling the headquarters with expanded operations and an additional 20 employees, in addition to growing the Quality Assurance Center by an additional 40 employees by 2010. By 2010 the company plans to employ approximately 150 in Dublin. Ordinance 38-06 authorizes an Economic Development Agreement between the City and Influent that includes a Technology Grant of $35,000 (payable in two installments of $15,000 and $20,000) for the purpose of upgrading both facilities' technology platforms, and to offset the cost of connecting the facilities with point-to-point fiber optics. If the company does not meet annual withholdings targets in 2006 and 2007, a 50 percent repayment of the Grant is required in 2008. The City also offers Influent access to two dedicated optical fibers in DubL1NK in five-year term increments as long as Influent continues to renew its leases on both facilities within Dublin in five-year increments. The value of two dedicated fibers is estimated to be $6,500 annually. Over the term of this agreement, Influent will receive $35,000, should it meet each annual target and objective set forth in the Agreement; while the City is estimated to retain 90 employees, gain 60 employees and net approximately $685,000 in income tax withholdings on both the retained and new jobs. Recommendation Staff recommends the Economic Development Agreement and Ordinance 38-06 be accepted by City Council on June 19, 2006. ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this day of , 2006, by and between the CITY of DUBLIN, OHIO (the "City"), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State") and its Charter, and Influent, Inc. ("Influent") an Ohio corporation, under the circumstances summarized in the following recitals. RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office and retail development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, Influent desires to retain its operations and expand its Quality Assurance Center and workforce within the City of Dublin in 2006; and WHEREAS, pursuant to Ordinance No. 38-06 passed , 2006 (the "Ordinance"), the City has determined to offer economic development incentives described herein to induce Influent to retain and expand its operations and workforce within the City to create jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, the City and Influent have determined to enter into this Agreement to provide these incentives to induce Influent to retain its operations and expand its workforce within the City. Now THEREFORE, the City and Influent covenant agree and obligate themselves as follows: Section 1. Influent Agreement to Retain its Headquarters and Create Ouality Assurance Center. Influent agrees that it will retain its office at 565 Metro Place S. in the City of Dublin (the "Dublin Headquarters") and at least 50 associated employees, and expand its operations into a Quality Assurance facility ("QA Facility Influent will occupy the QA Facility no later than August 31, 2006 and will employ at least 55 fulltime employees within the City of Dublin as part of its operations by December 31, 2006, growing that workforce with the addition of 5 employees annually for afive-year period. The average annual wage of all Influent employees combined for this period is estimated to be approximately $50,000 with total estimated payroll withholdings of approximately $720,000 over asix-year period. Influent will lease both its Dublin Facility and QA Facility for a minimum of five (5) years. Proof of such lease will be presented to the City of Dublin as soon as practical after execution and prior to receiving any incentive from the City of Dublin. -i- Section 2. City Agreement to Provide Incentives. (a) General. In consideration for Influent's agreement to retain its operations' workforce and associated payroll within the City, the City agrees to provide economic development incentives to Influent in accordance with this Section. (b) Use of Optical Fibers. The City will grant Influent the exclusive use of two (2) of its optical fibers throughout its DubLink system. The City and Influent agree that Influent will be entitled to five-year fiber use extensions if Influent, shows proof of, either (1) extending it's lease option at 565 Metro Place N. for additional five-year terms, or (2) entering into a lease of new space within Dublin for at least five-year terms. Influent will use these optical fibers in accordance with the Indefeasible Right to Use (IRU) (Exhibit "I-A", attached) to be executed between the City and Influent. (c) Technology Grant. Influent will connect the two Dublin-based facilities as a result of its expansion to the QA Facility. In consideration of that agreement to retain its headquarters and expand into a second facility within Dublin, the City agrees to provide a grant to Influent in the amount of $35,000 (the "Grant") in two installments of (1) $15,000 within but no sooner than 45 days after this agreement has been executed; and (2) $20,000 no sooner than April 15, 2007. Influent must meet or exceed predetermined payroll withholding targets in 2006 and 2007 as described in the following sections to avoid grant repayment in 2008. At its sole discretion, and prior to the payment(s) of the Grant, the City may request any reasonable documentation with respect to how Influent intends to use the Grant, to ensure that the Grant achieves the purpose for which it has been granted under this Agreement. (i) Calculation of Actual Withholdings. On or before March 15 of each of the years 2007 and 2008 the City shall determine whether the actual payroll withholding taxes collected during the preceding calendar years 2006 and 2007 by the City from all Employees (the "Actual Withholdings") meet or exceed the target withholdings for that preceding calendar year (the "Target Withholdings"), all in accordance with the schedule set forth in subparagraph (iii) below. For purposes of this Section 2, "Employees" shall include all individuals employed by Influent in the City of Dublin and working at both Dublin facilities. Influent agrees that, in accordance with the Dublin City Code, the annual payroll reconciliation relating to the Employees will be provided to the City prior to February 28 of each calendar year. (ii) Withholdings and Incentive Pants. With respect to the Actual Withholdings collected during each of the calendar years 2006 and 2007, inclusive, the Target Withholdings and Incentive Payment to be paid in respect of each of those calendar years shall be paid in accordance with the following schedule: -2- Calendar Year Target Withholdings Grant Payment 2006 $105,000 $15,000 2007 $115,000 $20,000 The payments provided for in this Section 2 shall be made by the City to Influent by electronic funds transfer or by such other manner as is mutually agreed to by the City and Influent. Performance incentive maximum payment caps are set as indicated in the table above in Section 2(c)(ii). The total maximum payment cap associated with the Agreement is $35,000. (d) Forfeiture of Incentive Payment and Repayment of Grant. Influent agrees that if the Target Withholdings are not met or exceeded in both 2006 and 2007, as set forth in 2(c)(iii) above, Influent is obligated to make repayment of $17,500, which is equal to a 50 percent return of the Grant payment, to the City no later than June 1, 2008. (e) Citesligation to Make Pa~nents Not Debt• Payments Limited to Non-tax Revenues. Notwithstanding anything to the contrary herein, the obligations of the City pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by the City, and Influent shall have no right to have excises or taxes levied by the City, the State or any other political subdivision of the State for the performance of any obligations of the City herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by the City pursuant to this Section 2 shall be payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to appropriating monies for such expenditures only on an annual basis, the obligation of the City to make payments pursuant to this Section 2 shall be subject to annual appropriations by the City Council and certification by the Director of Finance of the City as to the availability of such non- tax revenues. (f) Applicable CitYPayroll Tax Rate. For purposes of calculating the Actual Withholdings in each calendar year under this Section 2, the City's payroll tax rate shall be assumed to be two percent (2%). Section 3. Miscellaneous. (a) Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or ifhand-delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. For purposes of this agreement, notices shall be addressed to: -3- (i) the City at: 5800 Shier Rings Road Dublin, Ohio 43016-7295 Attention: Economic Development Director (ii) Influent at: 565 Metro place South Dublin, OH 43017 Attention: Roger E. Jacobs The parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices; certificates, requests or other communications shall be sent. (b) Extent of Provisions; No Personal Liability. All rights, remedies, representations, warranties, covenants, agreements and obligations of the City under this Agreement shall be effective to the extent authorized and permitted by applicable law. No representation, warranty, covenant, agreement, obligation or stipulation contained in this Agreement shall be deemed to constitute a representation, warranty, covenant, agreement, obligation or stipulation of any present or future trustee, member, officer, agent or employee of the City or Influent in other than his or her official capacity. No official executing or approving the City's or Influent's participation in this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. (c) Successors. This Agreement shall be binding upon and inure to the benefit of Influent and its successors and assigns. (d) Recitals. The City and Influent acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. (e) Amendments. This Agreement may only be amended by written instrument executed by the City and Influent. (f) Executed Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same agreement. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. (g) Severability. In case any section or provision of this Agreement, or any covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or any application thereof, is held to be illegal or invalid for any reason, (i) that illegality or invalidity shall not affect the remainder hereof or thereof, any other section or provision hereof, or any other covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, all of which shall be construed and enforced as if the illegal or invalid portion were not contained herein or therein, -4- (ii) the illegality or invalidity of any application hereof or thereof shall not affect any legal and valid application hereof or thereof, and (iii) each section, provision, covenant, agreement, obligation or action, or part thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in the manner and to the full extent permitted by law. (h) Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. (i) Governing Law and Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. All claims, counterclaims, disputes and other matters in question between the City, its agents and employees, and Influent, its employees and agents, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. (j) Survival of Representations and Warranties. All representations and warranties of Influent and the City in this Agreement shall survive the execution and delivery of this Agreement. (k) Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or Influent be liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of whether such damages are claimed under contract, tort (including negligence and strict liability) or any other theory of law. IN WITNESS WHEREOF, the City and Influent have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO By: Printed: Jane S. Brautigam Title: City Manager Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law -5- Influent, Inc. By: Printed: Title: -6- FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City under the foregoing Agreement have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code. Dated: , 2006 Marsha I. Grigsby Deputy City Manager/Director ofFinance City of Dublin, Ohio -7- CITY OF DUBLIN, OHIO OPTICAL FIBER USE AGREEMENT THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of the day of , 2006, between the City of Dublin, Ohio, an Ohio municipal corporation (hereinafter referred to as the "Owner"), having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006, and Influent, Inc., an Ohio corporation (hereinafter referred to as "User"), having an office at 565 Metro Place South, Dublin, OH 43017, and which are sometimes referred to individually as "Party" and collectively as "Parties." WITNESSETH: WHEREAS, the Owner has an existing optical fiber system (hereinafter referred to as the "Fiber System") throughout the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area; and WHEREAS, the Owner has excess fibers in the Fiber System and is willing to provide such fibers to User and to grant User an Indefeasible Right of Use or IRU (as hereinafter defined) in and to such fibers for the purpose of providing telecommunications, video, data, and/or information services; and WHEREAS, in connection with the grant to User of an IRU in and to such fibers, the Owner is willing to allow User to use certain other property owned by the Owner, including, but not limited to, innerduct, conduit, building entrance facilities and associated appurtenances; and WHEREAS, User has obtained any and all permits or approvals required to engage in its intended purpose and for the use and occupancy of space in the Rights of Way and further agrees to adhere to any and all requirements of federal, state and local laws, rules or regulations in regards to such use and occupancy (specifically inclusive of, but not limited to, applicable provisions of Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio); and WHEREAS, in connection with undertaking one or more projects for which the Owner will provide fibers in the Fiber System to User, the Parties have agreed to enter into this Agreement which embodies the mutual covenants and agreements for the long term relationship between the Parties hereto and for each such project; and WHEREAS, the Parties may in the future agree to enter into additional separate agreement(s) for additional and/or separate optical fiber uses which will incorporate the covenants and agreements of this Agreement and which will also set forth the terms and provisions unique to each additional or different specific project. NOW, THEREFORE, in accordance with the terms of any Right of Way occupancy requirement and/or Construction Permit required by Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio, -and in consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereto do hereby agree as follows: Page 1 1. DEFINITIONS. 1.1 The following terms, whether in the singular or in the plural, when used in this Agreement and initially capitalized, shall have the meaning specified: a. Agreement: This Optical Fiber Use Agreement between the Owner and User which identifies the specific optical fiber strands and facilities to be as provided to User by Owner and which set forth the associated fees/compensation, terms and conditions for User's use of such optical fiber strands and facilities. b. Fiber System: The Ninety-Six (96) optical fiber strands, innerduct, conduit, building entrance facilities, associated appurtenances, and capacity owned by the Owner and located throughout the Rights of Way of the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area that is detailed in Exhibit A appended hereto. c. User System: The optical fiber strands, innerduct, conduit, building entrance facilities and associated appurtenances in the Fiber System, to be provided to User under the terms of this Agreement and the associated rights to access such fiber strands at Demarcation Points as specified herein all as described herein and detailed on Exhibit B attached hereto. The Parties shall list the facilities the User is, or may in the future be, connecting to the Fiber System in Exhibit B. From time to time, User may request additional or modified connections of facilities to the Fiber System in accordance with the terms of this Agreement. All such requests for additional or modified connections shall be made in writing and be subject to Owner's prior acceptance and approval. User shall make such requests in writing and Owner shall attempt to review and reasonably respond to such request within sixty (60) days of receipt. However, Owner shall make a good faith effort to respond to such requests, to the extent possible in the opinion of the Owner, within 21 days after the request. Upon Owner's approval and acceptance of such additional or modified connections, the Parties shall appropriately amend Exhibit B to reflect the changed circumstances. 2. GRANT 2.1 The Owner hereby grants to User an Indefeasible Right of Use (IRU) of the following Owner Fiber System components: a. Exclusive use of two (2) strands of fiber optic cable throughout the Owner's Fiber System, which is described in 1.1(b) above and in Exhibit A appended hereto. The User may connect any of its own existing Dublin facilities (Exhibit B) and future facilities to be established in the City of Dublin to the Owner's Fiber System. Additionally, User may use the portions of the User System granted herein to connect to offices and facilities owned and/or controlled by User that are located within or outside of the City of Dublin. These individual Owner Fiber System components collectively shall comprise the User System as defined in Page 2 1.1(c) of this Agreement. The User System shall be inclusive of the Owner's Fiber System between and including the Owner's sides of the originating and terminating demarcation points. For the purpose of this Agreement, a demarcation point ("Demarcation Point") shall be considered the minimal point of entry, which is the closest practical point to a Users facility where current and existing portions of Owner's Fiber System comprising the User System, either exist in the public rights of way or crosses the User facility's property line, whichever maybe closest to the User's facility. User shall be responsible for all infrastructure, equipment and service issues between the Demarcation Point and User's facilities, unless Owner otherwise agrees to provide. It is understood and agreed that all lateral connections into the Owner's Fiber System installed and paid for by User shall remain User's property, and User shall be responsible for all service issues with such laterals up to the point of connection of such lateral into Owner's Fiber System. 3. TERM. 3.1 Unless sooner terminated in accordance with the terms of this Agreement, the term of this Agreement is five (5) years (hereinafter referred to as the "Term"), commencing on the date of this Agreement (hereinafter referred to as the "Commencement Date"). This Agreement will automatically renew indefinitely in five-year increments, if User provides proof of facility lease extensions in coinciding five-year terms. 4. CONSIDERATION. 4.1 As consideration for, as inducement to, and as a required condition of Owner granting User the specific rights to use portions of Owners Fiber System (i.e. the User System) as described herein, the User hereby agrees: a. To permanently and continually locate, operate and maintain -the Corporate Headquarters and Quality Assurance Office (as defined in the Economic Development Agreement by and between the City of Dublin and Influent, Inc. dated , 2006) within the City of Dublin, Ohio for the period of time equal to and coterminous with the term of the Agreement as defined in 3.1 above. b. That any failure of User to satisfy the terms and conditions of this Section shall be considered a material breach of this Agreement and shall give cause to allow the Owner to then terminate this Agreement upon giving thirty (30) days written notice to User. 5. OWNER'S OBLIGATIONS. 5.1 Owner shall: a. Provide the User System for User's use in accordance with the terms of this Agreement. Page 3 b. Provide and/or control maintenance and repair functions on the User System and all facilities in the Fiber System through which the User System passes, including, but not limited to, conduit, innerduct, poles and equipment, which shall be performed under the direction of the Owner. c. Maintain the User System to the specifications provided in Agreement Exhibit C. 6. USER OBLIGATIONS. 6.1 User shall: a. Provide and pay for all lateral connectivity from all necessary termination points of User's proprietary fiber and equipment to all the necessary Demarcation Points of Owner's Fiber System. b. Pay for any building or external network service connection and disconnection charges for each building service added or deleted before, during or after the initial establishment and cutover of a User System fiber segment. User shall be responsible for any and all costs associated with lateral connectivity to the Fiber System and shall pay for the costs of all splicing, distribution segment, service connections, and any ring or concentrator operations. c. Pay all necessary costs if the User requires installation of a new distribution ring or concentrator in an already established Fiber System or User System distribution segment, rearrangement of existing service connections, and rearrangement of a ring or concentrator operation. Owner's management agent's current charges and application rules are identified in Exhibit D attached hereto. d. Agree not to use the User System provided in this Agreement to provide services to any non-related parties, whether alone or in conjunction with a third party, without the prior written consent of the Owner. User also agrees that it shall not provide for or allow any non-related party to use the User System or in any way sublease or subdivide the User System and provide services to non-related or third parties without the prior written consent of the Owner. User also agrees that outside of its connections inside the geographic limits of the City of Dublin, Ohio, it may only use the portions of the User System granted herein to connect to those offices and facilities owned and/or controlled by User identified in Exhibit B. User further agrees to continually meet the requirements of this Agreement. In the event of any breach of the provisions contained in this Section, the Owner has the right to terminate this Agreement upon giving thirty (30) days written notice to User. e. Agree to pay any and all maintenance costs as maybe required to be paid by User pursuant to the requirements of Section 8.1(a-c) below. Page 4 7. JOINT OBLIGATIONS. 7.1 The Owner and User jointly: a. Agree that within thirty (30) days of final execution of this Agreement the Parties will agree upon an Acceptance Plan for User's initial activation and the "go-live" of User's System. b. Shall provide each other atwenty-four (24) hour a day, three hundred sixty-five (365) days per year, coordination telephone number. 8. MAINTENANCE. 8.1 All maintenance and repair functions on the Fiber System and all facilities through which the Fiber System passes, including, but not limited to, conduit, innerduct, poles, and equipment shall be performed by or at the direction of the Owner or Owner's appointed agent with reasonable notice to User. Except as otherwise may be agreed to by the Parties, User is prohibited from performing any maintenance or repair on the Fiber System or User System. User shall have the right to have an employee or representative available to assist the Owner in any maintenance or repair of the User System. The Owner shall maintain the User System in accordance with the technical specifications (hereinafter referred to as the "Specifications") attached hereto in Exhibit C. a. Regular Maintenance: Owner may from time to time undertake and provide for Regular Maintenance activities in an attempt to keep the Fiber System and/or User System in good working order and repair so that it performs to a standard equal to that which is then commonly believed to be acceptable for systems of similar construction, location, use and type. Such Regular Maintenance shall be performed at the Owner's sole cost. Owner shall make a good faith effort to, whenever possible in the opinion of the Owner undertake regular maintenance after User's regular business hours, or in a manner that minimizes any disruption of the User System. b. Scheduled Maintenance: The Owner from time to time may schedule and perform specific periodic maintenance to protect the integrity of the Fiber System and/or User System (and Owner shall make a good faith effort to, whenever possible in the opinion of the Owner undertake such scheduled maintenance after User's regular business hours, or in a manner that minimizes any disruption of the User System) and perform changes or modifications to the Fiber System and/or User System (including but not limited to fiber slicing, etc.) at the User's request. Such User requested Scheduled Maintenance shall be performed at the User's sole cost and expense and after User's regular business hours, if requested by the User (subject to the User paying any applicable overtime rates specified in Exhibit D). User may request such Scheduled Maintenance by delivering to the Owner a Statement of Work detailing the service User desires to be performed, including the time schedule for such services. Upon receipt of such a Statement of Work, the Owner will provide an estimate of the price and timing of such Scheduled Page 5 Maintenance. Following User's acceptance of such estimate, the Owner will schedule and have such Scheduled Maintenance performed. The Owner will have such Scheduled Maintenance performed on atime-and-materials basis at the standard rates in then effect at the time services are performed. Rates in effect will be those identified in Exhibit D with the understanding that such rates are subject to change at any time. c. Emergency Maintenance: The Owner may undertake and provide for Emergency Maintenance and repair activities for the Fiber System and/or User System. Where necessary, the Owner shall attempt to respond to any failure, interruption or impairment in the operation of the User System within Twenty-Four (24) hours after receiving a report of any such failure, interruption or impairment. (However, Owner shall make a good faith effort to respond to such requests, to the extent possible in the opinion of the Owner, within 2 hours after the request.). The Owner shall use its best efforts to perform maintenance and repair to correct any failure, interruption or impairment in the operation of the User System when reported by User in accordance with the procedures set forth in this Agreement. The costs and expenses associated with such Emergency Maintenance shall be apportioned between Owner and User in percentages equal to their respective interests of control (and based on the terms of this Agreement) over the portions of the User System and/or Fiber System requiring such Emergency Maintenance. The Owner will have such Emergency Maintenance performed on a time-and- materials basis at the emergency maintenance rates in then effect at the time services are performed. 8.2 In the event the Owner, or others acting on the Owner's behalf, at any time during the Term of this Agreement, discontinues maintenance and/or repair of the User System, User, or others acting in User's behalf, shall have the right, but not the obligation, to thereafter provide for the previously Owner provided maintenance and repair of the User System, at the User's sole cost and expense. Any such discontinuance shall be upon not less than six (6) months prior written notice to User. In the event of such discontinuance, the Owner shall obtain for User, or others acting in User's behalf, approval for adequate access to the Rights of Way in, on, across, along or through which the User System is located, for the purpose of permitting User, or others acting in User's behalf, to undertake such maintenance and repair of the User System. 8.3 In the event any failure, interruption or impairment adversely affects both the Owner's Fiber System and the User System, restoration of the User System shall at all times be subordinate to restoration of the Owner's Fiber System with special priority for Owner's public safety and municipal infrastructure functions carried over the Fiber System, unless otherwise agreed to in advance by the Parties hereto. In such event or in the event the Owner is unable to provide timely repair service to the User System, the Owner may, following written request, permit User to make repairs to restore the User System as long as such restoration efforts do not interfere with the Owner's restoration activities. 8.4 Any User subcontractors or employees who undertake repair or maintenance work on the User System shall first be approved by the Owner to work on the Owner's Fiber System. Page 6 Prior to User's undertaking Emergency Maintenance or entering an Owner's facility for repair, User shall first notify the Owner of the contemplated action and receive the Owner's concurrence decision, a decision that the Owner shall provide to User no later than twelve (12) hours from User's notification to Owner of contemplated action. When User undertakes Emergency Maintenance of the User System, User shall have an Owner employee or representative available to assist the User in any repair of the User System. 9. USE OF THE USER SYSTEM. 9.1 User shall have exclusive control over its provision of telecommunications, video, data, and/or information services. 9.2 User hereby certifies that it is authorized or will be authorized, where required, on the effective date this Agreement to provide telecommunications, video, data, and/or information services within the State of Ohio, the City of Dublin, Ohio and in such other jurisdictions as the User System may exist, and that such services can be provided on the Fiber optic cable systems such as the Fiber System owned and operated by the Owner. 9.3 User understands and acknowledges that its use of the Fiber System and User System are subject to all applicable local, state and federal laws, rules and regulations, as enacted, either currently or in the future, in the jurisdictions in which the Fiber System and User System are located. User represents and warrants that it shall operate on the Fiber System and User System subject to, and in accordance with, all laws, rules and regulations and shall secure all permits, approvals, and authorizations from all such jurisdictional entities as may be necessary. 10. INDEMNIFICATION. 10.1 The User undertakes and agrees to protect, indemnify, defend, and hold harmless the Owner and all of its elected officials, officers and employees, agents and volunteers from and against any and all suits and causes of action, claims, charges, damages, demands, judgments, civil fines, penalties, costs, attorneys fees and costs, expenses or losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person, including User's employees and agents, or damage or destruction to any property of either party hereto, or third persons in any manner arising by reason of the negligent acts, errors, omissions or willful misconduct incident to the performance of this Agreement or use of the Fiber System on the part of the User, or the User's officers, agents, employees, or subcontractors, except for the negligent acts, errors, omissions or willful misconduct of the Owner, and its elected officials, officers, employees, agents and volunteers. User's indemnity requirements herein shall also specifically include all claims of intellectual property, copyright or trademark infringement made by third parties against Owner. User shall, where lawful, be required as a condition of this Agreement to make Columbus Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio limited liability company ("Fibernet") a third party beneficiary of this Agreement for the sole and limited purpose of User providing specific indemnification as follows: User shall indemnify, protect, and defend Fibernet against, and hold Fibernet harmless from, any claims, losses, Page 7 damages, costs or expenses including, without limitation, reasonable attorneys' fees, asserted against, incurred, or suffered by Fibernet resulting from any personal injury or property damage occurring in, on, or about the Fiber System or relating thereto from any cause whatsoever caused by User other than as a consequence of the acts or omissions of Fibernet, its agents, employees, or contractors. 10.2 Any claim for indemnification by the Owner or Fibernet hereunder must be in writing and sent to User within Thirty (30) business days of the occurrence of any event which is either known to the party claiming indemnification or reasonably should be known to such party to give rise to an actual or possible claim for indemnification. Upon receipt of such notice, the User shall either agree to undertake the indemnification pursuant to the terms herein, or object to same, and in the case of an objection, the party claiming indemnification shall represent and defend its own interests in the matter in question, and may thereafter pursue a claim against the User in a court of law based on a breach of this Agreement (if such breach is substantiated by the terms of this Agreement). The indemnified party must, as a condition of User's indemnification herein, agree to allow the User to select, retain and manage counsel of its choice to represent the interests of the User and such indemnified party in the matter in question, and the User shall have the full right, at User's expense, to defend, prosecute or settle the matter on behalf of the User and/or indemnified party. 11. INSURANCE. 11.1 During the Term of this Agreement, unless otherwise agreed to in writing by the authorized representatives, User shall at its own expense, maintain in effect, commercially reasonable insurance coverage as specified in Section 11.8 below. 11.2 The User shall furnish the Owner's authorized representative within thirty (30) days after the Commencement Date of the Agreement with insurance endorsements respecting the coverage in Section 11.8, which must be reasonably acceptable to Owners Director of Law. The endorsements shall be evidence that the policies providing coverage and limits of insurance are in full force and effect. Such insurance shall be maintained by the User at the User's sole cost and expense. 11.3 The User endorsements for the coverage specified in Section 11.8 shall name the Owner as an additional insured in respect to the interests of the Owner, and all of its elected officials, officers and employees, agents and volunteers. The endorsements shall also contain a provision that the policy cannot be canceled or reduced in coverage or amount without first giving thirty (30) calendar days written notice thereof by registered mail to the Owner at the following address: City of Dublin Law Director 5200 Emerald Parkway Dublin, Ohio 43017-1006 Page 8 11.4 Such insurance shall not limit or qualify the obligations the User assumed under the Agreement. The Owner shall not by reason of its inclusion under these policies incur liability to the insurance carrier for payment of the premium for these policies. 11.5 Any insurance or other liability protection carried or possessed by the Owner, which may be applicable, shall be deemed to be excess insurance and the User's insurance is primary for all purposes related to the coverage requirements of the User set forth in Section 11.8 herein, despite any conflicting provision in the User's policies to the contrary. 11.6 User and Owner shall each be responsible for their respective contractors' or subcontractors' compliance with insurance requirements. 11.7 Failure of the User to maintain the insurance; specified in Section 11.8 or 11.9, or to provide endorsements required hereunder to the Owner when due, shall be an event of default under the provisions of this Agreement. 11.8 The User shall obtain and maintain Commercial General Liability Insurance, including the following coverages: Product liability hazard of User's premises/operations (including explosion, collapse and underground coverages); independent contractors; products and completed operations (extending for one (1) year a$er the termination of this Agreement); blanket contractual liability (covering the liability assumed in this Agreement); personal injury (including death); and broad from property damage. Such coverage shall provide coverage for total limits actually arranged by the User but not less than Two Million Dollars and No Cents (US $2,000,000.00) combined single limit. Umbrella or Excess Liability coverages maybe used to supplement primary coverages to meet the required limits. Evidence of such coverage shall be in a form acceptable to the Owner's Director of Law. The User may self-insure all or part of such insurance coverage through abona-fide program ofself-insurance. 11.9 The User shall provide Workers' Compensation insurance (or if permitted by Ohio law, self insurance) covering all of the User's employees in accordance with the laws of the state of Ohio. 11.10 The User may use an Umbrella or Excess Liability coverage to net coverage limits specified in the Agreement. Evidence of Excess Liability shall be in a form acceptable to Owners Director of Law. 11.11 The foregoing insurance requirements are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the User under this Agreement. 12. DEFAULT. 12.1 Unless otherwise specified in this Agreement, User shall not be in default under this Agreement, or in breach of any provision hereof unless and until the Owner shall have given User written notice of a breach and User shall have failed to cure the same within thirty (30) days after receipt of a notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if User shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for Page 9 curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by User to timely cure any such breach after notice thereof from the Owner, the Owner shall have the right to take such action as it may determine, in its sole discretion, to be necessary to cure the breach or terminate this Agreement or pursue such other remedies as may be provided at law or in equity. 12.2 Unless otherwise specified in this Agreement, the Owner shall not be in default under this Agreement or in breach of any provision hereof unless and until User shall have given the Owner written notice of such breach and the Owner shall have failed to cure the same within thirty (30) days after receipt of such notice; provided, however, that where such breach cannot be reasonably be cured within such thirty (30) day period, if the Owner shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by the Owner to timely cure any such breach after notice thereof from User, User shall have the right to take such action as it may determine, in its sole discretion, to be necessary to cure the breach or terminate this Agreement or pursue other remedies as may be provided at law or in equity. 12.3 If User, shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal or state bankruptcy law or under any similar federal or state law, or shall be adjudicated a bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, or if any involuntary petition proposing the adjudication of User, as a bankrupt or its reorganization under any present or future federal or state bankruptcy law or any similar federal or state law shall be filed in any court and such petition shall not be discharged or denied within ninety (90) days after the filing thereof, or if a receiver, trustee or liquidator of all or substantially all of the assets of User shall be appointed, then the Owner may, at its sole option, immediately terminate this Agreement. 12.4 Nothing herein shall be construed to require the User to use the User System or Fiber System, but if anytime User shall do so, such use shall be in accordance with the terms of this Agreement. The User may terminate this Agreement without cause at anytime upon written notice to the Owner, in which case, User shall cease all use of the User System and Fiber System. 13. FORCE MAJEURE. 13.1 Neither Party shall be liable to the other for any failure of performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein), including, but not limited to: acts of God, fire, flood, earthquake or other catastrophes; adverse weather conditions; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefore; lack of transportation; national emergencies; insurrections; riots, wars; or strikes, lockouts, work stoppages or other labor difficulties (collectively, "Force Majeure Events"). Page 10 14. ASSIGNMENT. 14.1 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors or assigns; provided, however, that no assignment hereof or sublease, assignment or licensing (hereinafter collectively referred to as a "Transfer") of any rights or obligations hereunder shall be valid for any purpose without the prior written consent of each Party hereto. 15. WAIVER OF TERMS OR CONSENT TO BREACH. 15.1 No term or provision of this Agreement shall be waived and no breach excused, unless such waiver or consent shall be in writing and signed by a duly authorized officer of the Party claimed to have waived or consented to such breach. Any consent by either Party to, or waiver of, a breach by the other Party shall not constitute a waiver of or consent to any subsequent or different breach of this Agreement by the other Party, such failure to enforce shall not be considered a consent to or a waiver of said breach or any subsequent breach for any purpose whatsoever. 16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY. 16.1 The relationship between User and the Owner shall not be that of partners or agents for one another and nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture or agency Agreement between the Parties hereto. 17. NO THIRD-PARTY BENEFICIARIES. 17.1 This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and except for the requirements of Section 10.2 herein, shall not be construed as granting rights to any person or entity other than the Parties or imposing on either Party obligations to any person or entity other than a Party. 18. EFFECT OF SECTION HEADINGS. 18.1 Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of text. 19. NOTICES. 19.1 Any written notice under this Agreement shall be deemed properly given if sent by registered or certified mail, postage prepaid, or by nationally recognized overnight delivery service or by facsimile to the address specified below, unless otherwise provided for in this Agreement: If to User to: If to Owner to: Influent Inc. City Manager Attn: Chief Executive Officer City of Dublin, Ohio 565 Metro Place South 5200 Emerald Parkway Dublin, Ohio 43017 Dublin, Ohio 43017-1006 Page 11 With a Copy to: With a Copy to: General Counsel Law Director Influent Inc. City of Dublin, Ohio 565 Metro Place South 5200 Emerald Parkway Dublin, Ohio 43017 Dublin, Ohio 43017-1006 19.2 Either Party may, by written notice to the other Party, change the name or address of the person to receive notices pursuant to this Agreement. 20. SEVERABILITY. 20.1 In the event any term, covenant or condition of this Agreement, or the application of such term, covenant or condition, shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants and conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that the invalid term, covenant or condition is not separable from all other terms, covenants and conditions of this Agreement. 21. COMPLIANCE WITH LAW. Each Party hereto agrees that it will perform its respective rights and obligations hereunder in accordance with all applicable laws, rules and regulations. 22. GOVERNING LAW AND VENUE. This Agreement shall be interpreted in accordance with the Charter and Codified Ordinances of the City of Dublin, as amended, the laws of the State of Ohio, and all applicable federal laws, rules and regulations as if this Agreement were executed and performed wholly within the State of Ohio. No conflict of law provisions shall be invoked so as to use the laws of any other jurisdiction. The exclusive venue for all cases or disputes related to or arising out of this Agreement shall be the state and federal courts in Franklin County, Ohio. 23. ENTIRE AGREEMENT. This Agreement, including any Exhibit attached hereto, all constitute the entire agreement between the Parties with respect to the subject matter. This Agreement cannot be modified except in writing signed by both Parties. Page 12 IN WITNESS WHEREOF the parties have executed and delivered this Agreement effective the day and year first above written: USER: Influent Inc., an Ohio corporation By: Roger E. Jacobs, Executive Vice President & CFO and OWNER: City of Dublin, Ohio, an Ohio municipal corporation. By: Its: Approved As To Form: Law Director, City of Dublin, Ohio. Page 13 Exhibit A OWNERS FIBER SYSTEM DESCRIPTION AND MAP ~ A~h~tUgAnessv l_T.1 ~ ~ f2+szrvcR g; E~ ie~ - ~ ~a Shatxnea s ~ 11 s' Hills` ~ ~ 915; ~ i _ 750 _raPiOwell ~ ~owell Rd E .k_ -1r'~-~:. R_, 3 d ~ , . ~ , R„_ ~ ~ : --,gHa.Etti. 185 r'; _ . ~ouniy ~jrya,tjj~. ~ - _ ~ ~ ~k ~d , ~ ~ WesteMlfe --W ~ZIYt ~Q, I r - I Sharon Wood, _ - E_1~VafnUh9t,.-. s? ~ Rd 257 _ .Hard Rd ~ 1 i h~tropolRan P$rk -,a ' - - , _ , ~1 ~ _ _ ~ ~ orthiRglon G _ i ~ Huber ge 33 ~ 70 ~ `_--h. ~ r r i _ _ _ Ohin Mate ~ 1f r ~ ~ Q_~ ~ _ ~ University ~ _ Airport ( _ _ fL ~erlea ~ E ~ ' ~ ' 0 H Ii~~ 0 ' ~ Mi~rba~ark~ R ~ ~ t G t ! t '~B~thel Rd ~ ~ 1 ~ ~ i 1 ~ `Hengerson R ~ ~ ~AoraeRd 4 e . ~ . ~ 4 ~ ~ ~ ~ ~ _ t ~ ~ j ~ i ! ~ t j t y 'z 4McCoy~ 3 E 'a ~ g~~ ( j u g ~~se^~aiY ~ P ~ td L 1 `N , I~ ~I ~ _ i s.Rc~ _ _ ~ ~ m, d 5 ~ . ~ , _ ( ~ ~ + 1 _ ~ishin eY Rd ~ - q- I ,ggl®r Rd ~ ' ~ o ~ ~ tiara ~ ~ ~ ' ~r ~ ~ ~ ~Rd i Toilin~er~ ~ ~ ' .1m .A - E - -,j~ ~ _ _ ~3 Afli-ilg<Oti I t k'~ur=r zt -_,_~"'.~~#3d ~s. ' ~ ~ ~ Lade Aye S~~ ~ m. ~ r r - °`Stina[1~.'~3 ~ ~ ~ ~ ~ ~ ~7th1a ~ a ~ ~ ~ r t ~ ~ Utito ~ NC , _ ~ ~ Expo } ~ ~ j , t i ~a v ~ rt . ~ I Cerrte ~ f ~ ~ ~ _ _ ~ i ~ ~ ~ Marine c1~~ ~ ~ ~n Kve~ " g - - - - ~t~ Av_& -r- _ - d GrandviewHeigMa ~ r'~dalg + _ . r ~1S ~ 33 - y~ . ~ - ~ Bexley _ _ ~ _ _ Yalleyview . - a - ~ , ~ ~ _ _ ° ~ i i I f L rc~. _ ~ ~ ; h ~ ~ '~'~~~rXt'tt~t,ls r , r O(aim ~.YPAI( J _....1 a ~ ~ S'.t,1. ~ REST OF PAGE LEFT INTENTIONALLY BLANK Page 14 Exhibit B USER SYSTEM DESCRIPTION AND MAP Need addresses of all existing Influent Inc.-owned locations/leased locations that it desires to connect to the system. City can then create a map for this Exhibit. Potential locations for connectivity to Dublin fiber: Location Address Influent Headquarters 565 Metro Place South Quality Assurance Center Shamrock Court REST OF PAGE LEFT INTENTIONALLY BLANK Page 15 Exhibit C FIBER SYSTEM SPECIFICATIONS I. General The Owner shall install and maintain the User System within the Owner's Fiber System in accordance with the criteria and specifications that follows: II. Design Criteria The Owner will endeavor to keep the number of splices in a span to a minimum. III. Optical Fiber Specifications The Owner will meet the optical specifications as detailed below for the cable installed: A. Single Mode Fiber Parameter Specifications Units Maximum attenuation, dB/Km Cladding diameter um Cutoff wavelength nm Zero dispersion wavelength nm Maximum dispersion - ) psi REST OF PAGE LEFT INTENTIONALLY BLANK Page 16