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HomeMy WebLinkAboutResolution 046-18RECORD OF RESOLUTIONS Dayton Legal Blank, Inc., Form No. 30045 Resolution No. 46-18 Passed A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A SERVICE AGREEMENT WITH METRO DATA CENTER, LLC TO EXPAND THE DUBLINK TRANSPORT 100 GIGABIT PROGRAM ,20 WHEREAS, Dublin has been a worldwide leader in providing technology that enhances the community through the Dublink project; and WHEREAS, Dublin has the opportunity to improve the 21St century technology amenities that are the foundation of innovation companies; and WHEREAS, these amenities include low -latency, unlimited bandwidth; colocation services; cloud computing services; and the ability for Dublin businesses to affordably connect to other IT properties in Central Ohio as well as obtain services from any of the commercial carriers serving Central Ohio; and WHEREAS, the City can provide these amenities by continuing to leverage Dublin's investment in the Dublink Transport 100 Gigabit Program, as well as Metro Data Center's Dublin -based investments in cloud and managed services; NOW, T�FORE, BE IT RESOLVED by the City Council of the City of Dublin, State of Ohio of the elected members concurring that: Section 1. The City Manager is hereby authorized to execute Shared Services Provider Hosting and Managed Services Solutions agreement which will expand the Dublink Transport 100 Gigabit Program. Section 2. Said Shared Services Provider Hosting and Managed Services Solutions Schedule shall be for a period of three (3) years. Section 3. The City Manager is hereby authorized to execute agreements awarding incentives to individual companies consistent with the Dublink Transport 100 Gigabit Program as needed, not to exceed the fiber capacity, and in accordance with the City's approved operating and capital budgets. Staff will provide Council periodic performance reports of this incentive program. Section 4. This Resolutions take effect and be in force on the earliest date perred//this by law. Pas 13t�da � ,� 12018. 114yor — Presidffig Officer ATTEST: Clerk of Council of the anager Cif of Dublin office 00 Emerald Parkway a Dublin, OH 43017°1090 a1 Phone: 614-410-4400 d Fax; 614.410-4490 Memo. "fo: Members of Dublin City Council From: Dana L McDaniel, City Date: August 9, 2016 initiated By: Colleen Gilger, Director of Economic Development Jeremiah Gracia, Economic Development Administrator Re: Resolution 46-18 - Service Agreement with Metro Data Center for the expansion of Dublink Transport 100 -Gigabit Program This memo provides a recommendation regarding the expansion of Dublink Transport, the City's 100 - Gigabit fiber optic incentive program. The City of Dublin leverages certain incentives for the purpose of economic development, One key incentive program has been Dublin's Dublink broadband infrastructure, The City has leveraged this infrastructure asset as a means to save costs, generate revenue, retain, expand, and attract jobs and investment, The overall intent of the Dublink Transport 100 -Gigabit Program is to, provide a fiber optic backbone that can operate at 100 gigabits of broadband speed and capacity in order to create, retain, expand and attract high-tech and broadband driven industry, businesses and jobs in the small to medium business category, and retain and increase overall competitiveness of commercial properties. This project directly supports Council's Strategic Focus Area to maintain the City's fiscal health and economic vitality and Council's goal to keep Dublin's office buildings competitive, Since 2015, the City has leveraged the initial 100 -Gigabit service contract with Metro Data Center (MDC) to pilot and deploy successfully the first phase of the program in Metro Office District, In order to take advantage of the program's main features to Dublin businesses — (1) cost savings and (2) provider choice _ staff is recommending to expand the program's geographic reach in Dublin, The City will continue to leverage the capacity of the 100 -Gigabit backbone as an additional benefit and incentive to its small and medium sized companies, Metro Data Center would provide the following at its own cost: • Design and construction of Dublink laterals from the curb into selected buildings, • Install necessary equipment inside office buildings, • Equipment necessary within its data center, • Engineer and network design. • Installation and connection of routers to backhaul data transport to Metro Data Center. Maintenance and operations of the network, • Provide 24x7x365 network support. • Market the Dublin Transport 100 -Gigabit Program with the City's economic development staff. ® Attend and support City staff with the promotion of the program (attend meetings, conduct tours, provide technical assistance), Provide additional marketing materials, • Promote the City's program along with Metro Data Center's service capabilities, Memo re: Resolution 48.18 - Service Agreement with Metro Data Center for the expansion of Dublink Transport 100 -Gigabit Program August 9, 2018 Page 2 The City would provide; Access to the Dublink fiber optic backbone to Metro Data Center for a three-year period with an option to renew for additional three years, Recommendation Staff recommends Council pass Resolution 46-18, authorizing the City Manager to expand the Dublink Transport 100 -Gigabit Program by entering into this agreement with Metro Data Center, DUBLINK TRANSPORT 100 GIGABIT PROGRAM SERVICE PROVIDER AGREEMENT This DUBLINK TRANSPORT 100 GIGABIT PROVIDER AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into as of the day of 2018, by and between the City of Dublin, an Ohio municipal corporation, having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006 (hereinafter referred to as the "Owner"), and Metro Data Center LLC, an Ohio limited liability company, having an office at 565 Metro Place South, Suite 300, Dublin, Ohio 43017 (hereinafter referred to as the "User"). For the purposes of this Agreement, Owner and User shall individually be referred to as a "Party" and collectively as the "Parties." WITNESSETH: WHEREAS, Owner has an existing optical fiber system (hereinafter referred to as the "Fiber System") throughout the City of Dublin, Ohio; WHEREAS, Owner is willing to grant User access to fibers within the Fiber System to allow User to be a provider of the Dublink Transport 100 -Gigabit Program; WHEREAS, User will fulfill any right-of-way occupancy requirement(s) and/or Construction Permit(s) required by Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio in order to become a provider of the Dublink Transport 100 -Gigabit Program; and WHEREAS, as a provider of the Dublink Transport 100 -Gigabit Program, businesses in the City of Dublin will be able to directly access User's local data center with low -latency, high bandwidth circuits. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereby agree as follows: USER OBLIGATIONS. User, at no cost to Owner, will provide managed services for up to twenty (20) commercial sites in the City of Dublin (hereinafter referred to as the "Commercial Sites"), and provide free, low -latency, high -bandwidth data transport connectivity at speeds from 100 Mbps to 100 Gbps from the Commercial Sites to User's data center, located at 565 Metro Place South, Suite 300, Dublin, OH 43017. User will only provide services to locations that are financially justified through their internal business model. User, at no cost to Owner, will use Owner -approved contractors to design and build laterals. Owner recognizes Columbus Fibemet LLC ("Fishel") as an Owner pre - approved contractor. C0A5890953.3 User will assist Owner with outreach to businesses that are within select locations of the City of Dublin as to the availability of the Dublink Transport 100 -Gigabit Program. 2. OWNER OBLIGATIONS. In consideration of the above, Owner shall execute City of Dublin, Ohio Dark Fiber Lease Agreement between the City of Dublin and Metro Data Center LLC attached as Exhibit A. User shall use the Fiber System described in Exhibit i to Exhibit A solely for the purposes of the Dublin Transport 100 -Gigabit Program. Using the Fiber System described in Exhibit i to Exhibit A for any other purpose shall be considered an act of default. User agrees to the ground rules of operation set forth in Exhibit B. TERM. Unless changed in accordance with the terms of this Agreement, the initial term of this Agreement is for three (3) years (hereinafter referred to as the "Initial Term"). Should Owner terminate this Agreement, User shall be allowed to continue to provide transport services to existing end user customers, in accordance with this Agreement, until their contract terms expire; provided, however, that in no event shall said contract terms extend more than two (2) years after September 1, 2021, the termination date of this Agreement. User would be required to provide Owner with documentation validating the contract end date for each end user customer. After the Initial Term, Owner shall have the right, in its sole discretion, to renew this Agreement for an additional three (3) year term. Such renewal disposition shall be memorialized in writing from Owner to User at least one -hundred and twenty (120) days prior to termination of the Initial Term. 4. INDEMNIFICATION. User undertakes and agrees to protect, indemnify, defend, and hold harmless 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 performances of this Agreement or use of the Fiber System on the part of User, or User's officers, agents, 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. DEFAULT. 2 C0A5890953.3 Last Amended: 07.30.2018 a. 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 Owner has given User written notice of a breach and User fails to cure said breach within thirty (30) days after receipt of notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if User shall proceed promptly and with due diligence to cure the breach, the time for curing such breach may be extended for a reasonable period of time to complete such curing at Owner's sole discretion. Upon the failure by User to timely cure any such breach after notice thereof from Owner, 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. b. Unless otherwise specified in this Agreement, Owner shall not be in default under this Agreement or in breach of any provision hereof unless and until User shall have given Owner written notice of such breach and Owner shall have failed to cure the same within thirty (30) days after receipt of such notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if Owner shall proceed promptly and with due diligence to cure the breach, the time for curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by Owner to timely cure any such breach after notice thereof from User, User shall have the right to take such actions 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. c. 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 Owner may, at its sole option, immediately terminate this Agreement. 6. FORCE MAJEURE. 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 therefor; lack of transportation; national emergencies; insurrections; riots, 3 C0A5890953.3 Last Amended: 07.30.2018 wars; or strikes, lockouts, work stoppages, or other labor difficulties (collectively, "Force Majeure Events"). 7. ASSIGNMENT. 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. Said consent shall not be unreasonably withheld. For purposes of this Agreement, "Assignment" shall exclude: (i) the sale of all or substantially all of the assets of a party, (ii) a merger, consolidation or reorganization, or (iii) the sale or transfer of more than fifty percent (50%) of the voting stock (as measured by assuming all convertible securities converted into common stock) to an individual or entity or group of individuals or entities acting in concert that immediately prior to such sale or transfer did not own more than fifty percent (50%) of the then outstanding voting stock. 8. WAIVER OF TERMS OR CONSENT TO BREACH. 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. 9. THIS AGREEMENT IS NOT A RESTRAINT ON TRADE. By executing this Agreement, User agrees that Owner has in no way limited or restricted User's right to provide the agreed -to services to the general public and that User regularly provide such services to the general public. 10. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY. The relationship between User and 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. By executing this Agreement, User agrees that they are acting as an independent contractor and that they are not entitled to and shall not claim any of the rights, privileges, or benefits of an employee of Owner, except as specifically set forth in this Agreement. 4 C0A5890953.3 Last Amended: 07.30.2018 11 12. 13. 14. NO THIRD -PARTY BENEFICIARIES. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns herein, and shall not be construed as granting rights to any person or entity other than a Party. EFFECT OF SECTION HEADINGS. Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of teat. NOTICES. 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: Niles Overly and Rob Kopp Metro Data Center LLC 565 Metro Place South, Suite 300 Dublin, Ohio 43017 If to Owner to: City Manager City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017-1006 With a Copy to: Law Director City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017-1006 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. SEVERABILITY. 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 courtholds that the invalid terms, covenant, or condition is not separable from all other terms, covenants and conditions of this Agreement. C0A5890953.3 Last Amended: 07.30.2018 15. 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. 16. 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 6 C0A5890953.3 Last Amended: 07.30.2018 IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement effective the day and year first above written: Metro Data Center LLC By: (Signature) Name: (Print) Title: Date: Approved As To Form: Law Director, City of Dublin, Ohio City of Dublin, Ohio By: Colleen Gilger Director of Economic Development Date: By: Donna Goss Director of Development By: Dana McDaniel City Manager Date: 7 C0A5890953.3 Last Amended: 07.30.2018 CERTIFICATION OF FUNDS I hereby certify that the funds required to meet the City's obligation, payment, or expenditure under this Agreement have been lawfully appropriated or authorized for such purpose and are free from any obligation now outstanding Angel L. Mumma / Director of Finance Date C0A5890953.3 Last Amended: 07.30.2018 Exhibit A CITY OF DUBLIN, OHIO DARK FIBER LEASE AGREEMENT This DARK FIBER LEASE AGREEMENT is made and entered into as of the [_] day of [ ], 2018 (hereinafter referred to as the "Effective Date"), 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 Metro Data Center LLC, an Ohio limited liability company (hereinafter referred to as "User"), with an office located at 565 Metro Place South, Suite 300, Dublin, Ohio 43017. For the purposes of this Agreement, Owner and User shall be referred to individually as a "Party" and collectively as the "Parties." WITNESSETH: WHEREAS, 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, Owner has excess fibers in the Fiber System and is willing, from time to time, to provide such fibers to User and to grant User access to such fibers for the purpose of providing telecommunications, video, data, and/or information services; and WHEREAS, in connection with the grant to User for access to such fibers, Owner is willing to allow User to use certain other property owned by 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 (specifically inclusive of, but not limited to, Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio); and WHEREAS, the Parties have agreed to enter into this Agreement which embodies the mutual covenants and agreements between the Parties hereto; 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, pursuant to 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, for and in consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereto do hereby agree as follows: 9 C0A5890953.3 Last Amended: 07.30.2018 1. DEFINITIONS. 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 Dark Fiber Lease Agreement between Owner and User which identify 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 optical fiber strands, innerduct, conduit, building entrance facilities, associated appurtenances, and capacity owned by Owner and located throughout the Rights of Way of the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area (a general depiction of which is attached hereto as Exhibit i). 2. GRANT. Owner hereby grants to User access to four (4) pairs of fiber optic cable (total of eight (8) strands) in the Fiber System. User will work with Owner to define connections to facilities within the Fiber System. 3. TERM. The initial term of this Agreement shall commence on September 1, 2018 and shall terminate three (3) years from the date whereby User commences its use of the fibers in the Fiber System ("Initial Term"). Therefore, User shall commence its use of the fibers in the Fiber System no later than September 1, 2018 and cease its use no later than September 1, 2021. After the Initial Term, Owner shall have the right, in its sole discretion, to renew this Agreement for an additional three (3) year term. Such renewal disposition shall be memorialized in writing from Owner to User at least one -hundred and twenty (120) days prior to September 1, 2021, the termination date of the Initial Term. In the event that User does not renew this Agreement, this Agreement shall terminate. The entire duration this Agreement is in full force and effect is referred to herein as the "Term." Should Owner terminate this Agreement, User shall be allowed to continue to provide transport services to existing end user customers, in accordance with this Agreement, until their contract terms expire; provided, however, that in no event shall said contract terms extend more than two (2) years after September 1, 2021, the termination date of this Agreement. User would be required to provide Owner with documentation validating the contract end date for each end user customer. 4. CONSIDERATION. As consideration for, as inducement to, and as a required condition of Owner granting User the specific rights to use portions of the Fiber System (the "User System") as 10 C0A5890953.3 Last Amended: 07.30.2018 described herein, User hereby agrees to participate in the Dublin Transport 100 -Gigabit Program. 5. OWNER OBLIGATIONS. 5.1 Owner shall: a. Provide the User System for User's use in accordance with the terms of this Agreement. 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. C. Maintain the User System to User's specifications and according to the terms, herein. 6. USER OBLIGATIONS. 6.1 User shall: a. When lateral connectivity is not provided by Owner, provide and pay for lateral connectivity from necessary termination points of User's proprietary fiber and equipment to the necessary demarcation points of the Fiber System. In this event User shall own the lateral. 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 User requires installation of a new distribution ring or concentrator in an already established Fiber 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 iii attached hereto. d. User agrees that it shall not sublease or subdivide its rights granted herein unless otherwise agreed to by Owner. User further agrees to continually meet the requirements of this Agreement. In the event of any breach of the provisions contained in this Section, 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 may be required to be paid by User pursuant to the requirements of Section 8.1(a -c) below. 11 C0A5890953.3 Last Amended: 07.30.2018 7. JOINT OBLIGATIONS. Owner and User jointly shall provide each other a twenty-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 User System and all facilities through which the User System passes, including, but not limited to, conduit, innerduct, poles, and equipment, but specifically excluding all User owned and controlled opto-electronics, shall be performed by or at the direction of 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 Owner in any maintenance or repair of the User System. Owner shall maintain User System in accordance with the technical specifications (hereinafter referred to as the "Specifications") attached hereto in Exhibit ii. All service affecting maintenance shall be conducted during a maintenance window during the hours of 12:00 AM to 6:00 AM local time. a. Regular Maintenance: Owner may from time to time undertake and provide for Regular Maintenance activities in an attempt to keep the Fiber 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. b. Scheduled Maintenance: Owner from time to time may schedule and perform specific periodic maintenance to protect the integrity of the Fiber System and perform changes or modifications to the Fiber System and User System (including but not limited to fiber slicing, etc.) at User's request. Such User requested Scheduled Maintenance shall be performed at User's sole cost and expense. User may request such Scheduled Maintenance by delivering to 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, Owner shall provide an estimate of the price and timing of such Scheduled Maintenance. Following User's acceptance of such estimate, Owner shall schedule and have such Scheduled Maintenance performed. Owner shall have such Scheduled Maintenance performed on a time -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 iii with the understanding that such rates are subject to change at any time. Owner shall provide ten (10) days notice if service shall be affected by Scheduled Maintenance. C. Emergency Maintenance: Owner may undertake and provide for Emergency Maintenance and repair activities for its fibers and connection to the Fiber System. Where necessary, Owner shall attempt to respond to any failure, interruption, or 12 C0A5890953.3 Last Amended: 07.30.2018 impairment in the operation of the Fiber System within four (4) hours after receiving a report of any such failure, interruption, or impairment. Owner shall use its best efforts to perform maintenance and repair to correct any failure, interruption, or impairment in the operation of User's fiber and connection when reported by User in accordance with the procedures set forth in this Agreement within eight (8) hours of detecting a failure, interruption or impairment. User shall be responsible for its prorata share of the costs and expenses associated with such Emergency Maintenance. Owner shall have such Emergency Maintenance performed on atime-and-materials basis at the emergency maintenance rates in then effect at the time services are performed. 8.2 In the event Owner, or others acting in 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 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, Owner shall obtain for User, or others acting on 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. As an alternate remedy, User may elect to terminate this Agreement. 8.3 In the event that any failure, interruption, or impairment adversely affects the Fiber System, restoration of User's fibers shall at all times be subordinate to restoration of the 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 Owner is unable to provide timely repair service to User's fibers, Owner may, following written request, permit User to make repairs to restore its connection as long as such restoration efforts do not interfere with Owner's restoration activities. 8.4 Any User subcontractors or employees who undertake repair or maintenance work on User's fibers shall first be approved by Owner to work on the Fiber System. Currently, Columbus Fibemet, LLC is the only company authorized to perform such repair or maintenance work on the Fiber System, although Owner may authorize other entities to perform such work on the Fiber System from time to time. Prior to User's undertaking Emergency Maintenance or entering an Owner's facility for repair, User shall first notify Owner of the contemplated action and receive Owner's concurrence decision, a decision that 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 its fibers, User shall have an Owner employee or representative available to assist User in any repair. 13 C0A5890953.3 Last Amended: 07.30.2018 9. USE OF USER SYSTEM. 9.1 User shall have exclusive control over its provision of telecommunications, video, data and/or information services. Owner acknowledges that User may use the system for the purpose of transmitting both its own and its customer's 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 of the 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's fibers may exist, and that such services can be provided on the fiber optic cable systems such as the Fiber System owned and operated by Owner. 9.3 User understands and acknowledges that its use of the Fiber System and the 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 User's fibers are located. User represents and warrants that it shall operate on the Fiber System and the 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 User undertakes and agrees to protect, indemnify, defend, and hold harmless 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 User, or User's officers, agents, employees, or subcontractors, except for the active negligence or willful misconduct of 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. 10.2 To the extent permissible under Ohio law, Owner agrees to protect, indemnify, defend, and hold harmless User 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 User. 14 C0A5890953.3 Last Amended: 07.30.2018 11. INSURANCE. 11.1 During the entire Term of this Agreement, unless otherwise agreed to in writing by the authorized representatives, User shall, at its own expense, maintain in effect insurance coverage with limits not less than those set forth herein. 11.2 User shall furnish Owner's authorized representative within thirty (30) days after the Effective Date of the Agreement with insurance endorsements acceptable to Owner's 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 User at User's sole cost and expense. 11.3 User shall at any time upon Owner's request, but no more than twice per year, deliver promptly to customer evidence of continuing coverage in form of certificates of insurance made out by the applicable insurer(s) or their authorized agents for the required insurance under this section and for any material policy amendments thereto. User or the applicable insurer shall provide for thirty (30) days prior written notice to Owner in the event of any termination, non -renewal, or cancelation or any material changes in coverage. User, User's insurer(s), and anyone claiming by, through, under, or on User's behalf shall have no claim, right of action, or right of subrogation against Owner or its elected officials, officers, employees, agents, and volunteers based on any loss or liability insured under the required insurance. 11.4 Such insurance shall not limit or qualify the obligations User assumed under the Agreement. 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 Owner, which may be applicable, shall be deemed to be excess insurance and User's insurance is primary for all purposes of any claim arising out of the performance of the terms of the Agreement, despite any conflicting provision in User's policies to the contrary. 11.6 User shall be responsible for all User contractors' or subcontractors' compliance with the insurance requirements. 11.7 Failure of User to maintain such insurance, or to provide such endorsements to Owner when due, shall be an event of default under the provisions of this Agreement. 11.8 User shall obtain and maintain Commercial General Liability Insurance, including the following coverage: Product liability hazard of User's premises/operations (including explosion, collapse and underground coverage); independent contractors; products and completed operations (extending for one (1) year after the termination of this Agreement); blanket contractual liability (covering the liability assumed in this Agreement); personal injury (including death); and broad form property damage. Such coverage shall provide coverage for total limits actually arranged by User but not less than Two Million Dollars and No Cents (US$2,000,000.00) combined single limit. Should the policy have an aggregate limit, such aggregate limits should not be less than double the combined single limit and be specific for this Agreement. Umbrella or Excess Liability coverage may be 15 C0A5890953.3 Last Amended: 07.30.2018 used to supplement primary coverage to meet the required limits. Evidence of such coverage shall be in a form acceptable to Owner's Director of Law. 11.9 User shall provide Workers' Compensation insurance covering all of User's employees in accordance with the laws of the State of Ohio. 11.10 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 Owner's 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 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 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 curing such breach shall be extended for areasonable period of time to complete such curing. Upon the failure by User to timely cure any such breach after notice thereof from Owner, 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, Owner shall not be in default under this Agreement or in breach of any provision hereof unless and until User shall have given Owner written notice of such breach and Owner shall have failed to cure the same within thirty (30) days after receipt of such notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if 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 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 16 C0A5890953.3 Last Amended: 07.30.2018 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 Owner may, at its sole option, immediately terminate this Agreement. 13. FORCE MAJEURE. 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 therefor; lack of transportation; national emergencies; insurrections; riots, wars, or strikes; lockouts, work stoppages, or other labor difficulties (collectively, "Force Majeure Events"). 14. ASSIGNMENT. 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. Said consent shall not be unreasonably withheld. For purposes of this Agreement, "Assignment" shall exclude: (i) the sale of all or substantially all of the assets of a Party, (ii) a merger, consolidation or reorganization, or (iii) the sale or transfer of more than fifty percent (50%) of the voting stock (as measured by assuming all convertible securities converted into common stock) to an individual or entity or group of individuals or entities acting in concert that immediately prior to such sale or transfer did not own more than fifty percent (50%) of the then outstanding voting stock. 15. WAIVER OF TERMS OR CONSENT TO BREACH. 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. The relationship between User and 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 C0A5890953.3 Last Amended: 07.30.2018 17, 18. 19. 20. NO THIRD -PARTY BENEFICIARIES. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns and 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. EFFECT OF SECTION HEADINGS. Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of teat. 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: Niles Overly and Rob Kopp Metro Data Center LLC 560 Metro Place South, Suite 300 Dublin, Ohio 43017 If to Owner to: City Manager City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017-1006 With a Copy to: Law Director City of Dublin 5200 Emerald Parkway 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. SEVERABILITY. 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. 18 C0A5890953.3 Last Amended: 07.30.2018 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 19 C0A5890953.3 Last Amended: 07.30.2018 IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement effective the day and year first above written: USER: Metro Data Center LLC By: Its: OWNER: City of Dublin, Ohio By: Its: Approved As To Form: Law Director, City of Dublin, Ohio 20 C0A5890953.3 Last Amended: 07.30.2018 Exhibit ii to Exhibit A FIBER SYSTEM SPECIFICATIONS 1. General Owner shall install and maintain the User System within Owner's Fiber System in accordance with the criteria and specifications that follows. II. Design Criteria Owner will endeavor to keep the number of splices in a span to a minimum. III. Optical Fiber Specifications Owner will meet the optical specifications as detailed below for the cable installed: A. Single Mode Fiber Parameter Maximum attenuation, 1310/1550 Cladding diameter Cutoff wavelength Zero dispersion wavelength Maximum dispersion (2.6 — 6.0) Specifications Units .35/.25 dB/Km 125.0 um 1150-1330 nm 1300-1320 nm .05 ps/ (nm -km) 22 C0A5890953.3 Last Amended: 07.30.2018 Exhibit iii to Exhibit A MAINTENANCE AND REPAIR Charges for Time and Material Service Owner or Owner's agent may perform maintenance service at the rates established below, which rates are subject to change. Unless specifically authorized by User, no Scheduled Maintenance will be performed outside of normal working hours, detailed below: Normal Working Hours: 8:00 a.m. to 5:00 p.m., Monday through Friday (Except Owner observed holiday). Expenses Incurred per call out: Overtime Hours: 5:01 p.m. to 7:59 a.m., Saturday, Sunday, and all Owner observed holidays. Labor Rates Hourly Rate Overtime Rate Project Manager 75.00 112.50 Professional Engineer 65.00 97.50 Right of Way Agent 48.50 72.75 Supervisor 47.70 71.55 Foreman 36.90 55.35 Operator 31.50 47.25 Truck Driver 26.00 39.00 Laborer 21.70 32.55 Fiber Splicer 42.00 63.00 Equipment Rates Hourly Rate Pickup 16.00 1-ton/flat bed 17.60 2 -ton dump 24.00 Trailer 16.50 Rubber tired backhoe 36.20 Rodding machine 21.75 Winch truck 21.75 Air compressor 16.00 Light plant 17.45 Arrow board 9.00 2" water pump 10.00 Generator 14.50 Cable cart 7.00 Manhole package 14.50 Fusion splicing package 30.00 23 C0A5890953.3 Last Amended: 07.30.2018 Exhibit B GROUND RULES OF PROGRAM OPERATIONS BETWEEN CITY OF DUBLIN ECONOMIC DEVELOPMENT AND METRO DATA CENTER Both Parties agree to follow the Process Map (next page) for each new facility connected and/or each new lateral built; and that the project -allocated four (4) pairs of fiber will cover approximately twenty (20) lateral deployments. Both Parties agree on making the City of Dublin more attractive for office users, therefore not limiting lateral deployments to only aging or highly -vacant buildings. Priority buildings are office uses. The 100 -Gig program is not intended for retail buildings. Both Parties agree Metro Data Center may make 100 -Gig program lateral connections in any business park or office building within the City of Dublin limits accessible from its approved route map (Exhibit i to Exhibit A), including the specific 100 -Gig Phase 1 office buildings provided below: 1 400 Metro Place 2 425 Metro Place 3 475 Metro Place 4 485 Metro Place 5 495 Metro Place 6 525 Metro Place 7 535 Metro Place 8 545 Metro Place 9 555 Metro Place 10 565 Metro Place 11 570 Metro Place 12 655 Metro Place 13 5200 Upper Metro 24 C0A5890953.3 Last Amended: 07.30.2018 PROCESS NIAP COA5890953.3