HomeMy WebLinkAbout40-05 Resolution
RECORD OF RESOLUTIONS
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Resolution No. 40-05
Passed
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AUTHORIZING THE CITY MANAGER TO ENTER INTO A PURCHASE
AGREEMENT WITH AMERICAN ELECTRIC POWER FOR CERTAIN
OPTICAL FIBERS, DECLARING SOLEI SINGLE SOURCE AND
WAIVING COMPETITIVE BIDDING
WHEREAS, section 8.04 (C)("WAIVER OF COMPETITIVE BIDDING") of the Revised
Dublin Charter authorizes Council, by a vote of no less than five (5) members, to waive
competitive bidding requirements if they determine that such waiver is in the best interest
of the City; and
WHEREAS, Council has determined that there is a legitimate need to declare the
procurement of the above referenced optical fibers thereto as a "single source" purchase for
the reason that the City owned optical fiber system and the AEP fiber system is the only
compatible systems for the purpose of providing the desired access points and redundancy;
and
WHEREAS, the procurement of such a system is consistent with the goals presented in
and endorsed by Council's telecommunication-related goals, economic development goals,
capital investment in its own optical fiber system and use of State of Ohio Capital Fund
Grant dollars; and
WHEREAS, it is necessary to procure this system through the execution of an Agreement
with American Electric Power/Columbus Southern Power, Inc.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of
Ohio, + of the elected members concurring:
Section 1. That the procurement of certain optical fibers from American Electric Power/
Columbus Southern Power, Inc., is hereby declared to be sole/single source procurement.
Section 2. That competitive bidding requirements are hereby waived for the procurement
ofthe above referenced optical fibers.
Section 3. That the City Manager is hereby authorized to enter into a Purchase Agreement
with American Electric Power/Columbus Southern Power, Inc. for the procurement of the
above referenced optical fibers in an amount not to exceed $50,000.00.
Section 4. That this Agreement shall not become effective until approved as to form by the
City Attorney and signed by the City Manager.
Section 5. That this Resolution shall take effect and be in force on the earliest date
permitted by law.
Passed this U1h. day of ~~ ,2005
)kk~-
Mayor - Presiding Officer
ATTEST:
~ @~~/
Clerk of Council
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.
Office of the City Mana~er
5200 Emerald Parkway · Dub in, OH 43017
Phone: 614-410-4400. Fax: 614-410-4490
CITY OF DUBLIN
Memo
To: Members of the Dublin City Council
p From: Jane S. Brautigam, City Manage~~ 5. G~~'
Date: May 31, 2005
..., .~
Initiated By: Dana L. McDaniel, Director of Economic Development
Re: Resolution #40-05
BACKGROUND
Attached for your consideration please find Resolution 40-05 declaring the procurement of certain
optical fiber "sole/single source", waiving competitive bidding requirements, and authorizing the City
Manager to enter into a Purchase Agreement with American Electric Power (AEP)/Columbus Southern
Power, Inc. (CSP). Section 8.04(c) of the Revised Dublin Charter authorizes Council, by a vote of no
less than five (5) members, to waive competitive bidding requirements if it determines that an item is
available and can be acquired only from a "single source."
The City of Dublin has completed its purchase of 376,000 linear feet of optical fiber pursuant to
Ordinance 68-04 for the purpose of owning bandwidth for government use; point-to-point connectivity;
dark fiber leasing and to promote economic development. To make this optical fiber more useful and
effective, it is necessary to obtain access to various, but certain, "points of presence" (POPs). POPs are
physical facilities where optical fibers are connected to "meet points" with other entities who own
optical fiber and/or to "service providers" who provide telecommunication-related services that travel
over optical fibers. By having access to these POPs, the City will be able to "meet" entities (such as the
,","'-1l Third Frontier Network, Battelle, etc.) and multiple service providers.
h".. For several months the City has been working to identify the desired POPs to establish the connectivity
or "meet points" explained above. In order to gain access to certain POPs, the City would need to
construct "laterals" (much the same as any other utility) into the individual POP facilities. Costs to do
so include: easements, "space costs internal to the particular POP", permitting, materials, labor, etc.
During the process of determining how to establish connectivity to the Third Frontier Network and to
Battelle, staff discovered the availability of certain fibers already constructed that provide access to
multiple POPs. These fibers belong to AEP/CSP. The attached map (Exhibit "A") shows the route of
these optical fibers and the various POP sites. Staff has determined that this system is the only existing
system compatible to Dublin's existing optical fiber system, provides entrance to the desired POP sites,
and provides the added benefit of route redundancy. With minimal construction, the City will be able to
connect its system to the existing AEP/CSP optical fiber system - external to the POP sites - then
procure part of their existing optical fiber system to gain the needed access.
Staff is convinced that in addition to being "single/sole" source, the cost of the AEP/CSP optical fiber is
very competitive to that which the City paid for its much larger optical fiber system on a cost per foot
basis. The City will purchase 4.5 miles of 6 optical fibers. Total cost of the AEP/CSP optical fibers is
anticipated to not exceed $50,000.00. The cost per foot for the AEP/CSP fiber is $.28/LF. This is very
competitive to the cost to lease lown CFN/Metro Duct Systems (in the same vicinity) and dubLINK
conduit (without fiber). These costs range from $6.00 to $10.00 per linear foot. The City purchased its
96 optical fiber system for $8.78 per linear foot (with conduit, 96 fibers, splicing, testing and five (5)
years of emergency fiber restoration retain age at no additional cost (worth $24,000/year)). Staff
estimates the cost to externally connect its optical fiber system to the AEP/CSP system to be less than
$30,000. That cost will be above and beyond the cost to purchase the AEP/CSP optical fibers.
The City anticipates using the State Capital Fund Grant dollars; the additional $70,000 from a State of
Ohio Technology Grant (intended for the purpose of connecting Battelle to the system); and the $39,000
technology grant from the City of Dublin also intended for the Battelle connectivity to fund the
procurement and establish connectivity.
The proposed Purchase Agreement is also attached (Exhibit B). Should Council pass this Resolution,
the City Manager will execute the Agreement with AEP/CSP. The Agreement is comprehensive and
covers all aspects for the procurement of the system, what the system consists of, responsibilities of the
parties, etc. It is feasible that very minor changes to the Purchasing Agreement may be needed even
after approval by City Council. Obviously, any changes of a substantive nature will be brought back to
Council for additional review and approval. However, staff does not anticipate any at this time.
RECOMMENDATION
Staff recommends Council approve Resolution 40-05. Should you have specific questions about the
Purchase Agreement, you can address those to Greg Dunn at 0: 462-2339. Greg also will be available
at the Council meeting to answer questions.. You may also address questions regarding this Resolution
to Dana McDaniel at 410-4619.
As Council already knows, the possibilities presented by the presence of this fiber/bandwidth, when
proper! y "connected", are significant.
Thank you.
EXHIBIT A
W SPRING
W BROAD
. A - C3 POP. 251 NEILSTON AVE
B - C3 NODE. 180 EAST BROAD ST
C - C3 NODE - AEP ONE RIVERSIDE PLAZA E NL..l(
D. C3 NODE. AMERITECH CO
Patrick J. Collins ~
Director of Business Development C3 Networks
614.223.3598 1 Riverside Plaza-25th Floor
614.582.4022 mobile Columbus, OH 43215
www.c3net.com
EXHIBIT B
CONTRACT OF SALE
FOR OPTICAL FIBER SYSTEM
BETWEEN
AMERICAN ELECTRIC POWER!
COLUMBUS SOUTHERN POWER
AND
THE CITY OF DUBLIN, OHIO
DATED , ,2005
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TABLE OF CONTENTS
ARTICLE I PROPERTY CONVEYED.. ........... ..... ........ ................. ....... ....... ............................ 4
ARTICLE II PURCHASE PRICE .......... ...................................................... ........... .... ...... ........ 5
ARTI CLE III EVIDENCE OF OWNERSHIP... ........ .................. .............................................. 5
ARTICLE IV SELLER'S REPRESENTATIONS AND WARRANTIES .................................5
ARTICLE V BUYER'S REPRESENTATIONS AND WARRANTIES ................................... 6
ARTI CLE VI UNDERL YING RIGHTS.................................................................................... 7
ARTI CLE VII ACCESS............................................................................................................ 7
ARTICLE VIII RESTRICTIONS ....... ........ ......... ............... .................... ................... ................ 7
ARTICLE IX MAINTENANCE.... .... .... ............. ......... ............ .......... ............ ............................ 8
ARTI CLE X TAXES.................................................................................................................. 8
ARTI CLE XI INSURANCE...................................................................................................... 8
ARTI CLE XII INDEMNIFICATION......... ............................................................................. 10
ARTI CLE XIII LIMIT A TION OF LIABILITy............................................ ........................... 12
ARTICLE XIV CLOSING ............ ................................................................ ........ ..... ......... ..... 12
ARTICLE XV TERMINATION OR DEFAULT..................................................................... 13
ARTICLE XVI REMEDIES ........... .......... .... ........... ........... ............. ......... .... .... ....................... 13
ARTICLE XVII DAMAGE OR DESTRUCTION .................................................................. 13
ARTICLE XVIII CONDEMNATION................. ................. .............................. ............. ........ 14
ARTICLE XIX BANKRUPTCY/INSOL VENCY ................................................................... 14
ARTI CLE XX MISCELLANEOUS......................................................................................... 14
EXHIBIT A OPTICAL FIBER DESCRIPTION AND MAP ................................................... 18
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EXHIBIT B PROPERTY DESCRIPTION AND MAP............................................................ 20
EXHIBIT C CLOSING CHECKLIST ............ ......... .................... ....... ...................................... 22
REST OF PAGE LEFT INTENTIONALLY BLANK
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CONTRACT OF SALE
This Contract of Sale ("Contract") is entered into this _ day of ,2005
by and between American Electric Power/Columbus Southern Power, Columbus, Ohio _, an
Ohio ("Seller") and the City of Dublin, Ohio, an Ohio municipal corporation with
offices at 5800 Shier Rings Road, Dublin, Ohio 43016 ("Buyer"), (collectively, the "Parties").
RECITALS
WHEREAS, Seller has constructed and owns an organized system of underground optical
fiber and related facilities in the city of Columbus, Ohio (the "Optical Fiber System"); and
WHEREAS, Seller wishes to sell optical fiber within the Optical Fiber System to providers
and users of telecommunications, video, data, and/or information services ("Telecommunications
Services") for use by such providers and users in supplying Telecommunications Services to end-
users utilizing Telecommunications Services; and
WHEREAS, Buyer wishes to acquire a specified amount of installed optical fiber in the
optical fiber system; and
WHEREAS, Buyer wishes Seller to maintain such fiber pursuant to the terms specified
herein;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby
acknowledged, Seller agrees to sell, and Buyer agrees to buy, the installed and spliced fiber as
specified herein, subject to the promises, covenants, and warranties set forth in this Contract and its
attachments.
ARTICLE I
PROPERTY CONVEYED
1.1 Optical Fiber System. The Optical Fiber System consists of approximately
miles of ducts located in the city of Columbus, Ohio as shown on the
map attached hereto as Exhibit A. The Optical Fiber System includes manholes and other
appurtenances constructed by Seller to facilitate access to the ducts.
1.2 Property To Be Conveyed. Seller agrees to sell, and Buyer agrees to buy, the portion
of the Optical Fiber System consisting of Four and One-Half (4.5) linear miles of Six (6) strands of
single mode fiber installed therein, which shall be spliced and tested by Seller to the satisfaction of
the Buyer prior to and as a condition of closing (collectively, the "Property"). The specific details
and performance parameters of the Property shall be as described in the attachments and drawings
appended hereto as Exhibit B.
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ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. Seller shall pay the Purchase Price to Buyer in accordance with the
following: One Thousand Five Hundred Dollars and No Cents (US$l ,500.00) shall be paid for each
complete strand mile of optical fiber provided by Seller to Buyer ("the Purchase Price"). There shall
be a total of six (6) individual strands of optical fiber, each running for a length of Four and One-
Half (4.5) miles, for a sum total of Twenty Seven (27) fiber miles of optical fiber. The Purchase
Price shall be paid at closing following the Seller's satisfaction and the Buyer's acceptance of all
required conditions of closing as described on Exhibit C attached hereto (the "Closing Checklist").
ARTICLE III
EVIDENCE OF OWNERSHIP
3.1 Ownership Documents. On the effective date of this Contract, Seller shall furnish to
Buyer a true and correct copy of a complete set of plans and specifications for the portion of the
Optical Fiber System in which the Property is located. In addition, Seller shall provide Buyer with
copies of the following for Buyer's review and approval prior to closing:
a. All existing approvals and authorizations secured by Seller from
governmental authorities in connection with the routing and construction of
the Optical Fiber System; and
b. Any existing private right-of-way agreements or private easements secured by
Seller in connection with the routing of the Optical Fiber System.
ARTICLE IV
SELLER'S REPRESENT A TIONS AND WARRANTIES
4.1 Condition of Property. Seller warrants that as ofthe date of closing the Property will
materially and substantially comply with the plans and specifications provided pursuant to Section
3.1 of this Contract and that the Property is free from material defects, deviations, errors, or
omissions in construction and has experienced no failures of performance. If, within twelve (12)
months from the date of closing, Buyer discovers any material defect, deviation, error, or omission in
the construction of the Property experiences any failure of performance due to any material, defect,
deviation, error, or omission in construction, Seller will, within fifteen (15) days after receipt of
written notice of such defect from Buyer, inspect the portion ofthe Property in question and, within
thirty (30) days thereafter, correct such defect at no cost to Buyer or notify Buyer that it disputes that
the defect, deviation, error, or omission in construction identified in the notice exists, in which case
the parties will proceed as provided in Section XVI.
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4.2 Ownership. Seller is the owner of the entire right, title, and interest in and to the
Property. Seller represents and warrants that there are no mortgages, liens or other encumbrances
upon its clear and unfettered title to the Property.
4.3 Seller's Power and Authority. Seller and its representatives have all power and
authority legally necessary to enter into this Contract, execute and deliver the Closing documents,
and sell the Property in accordance with the terms of this Contract.
4.4 No Actions Against Seller. Seller knows of no action, suit, proceeding, or assessment
pending or threatened against Seller, which could adversely and/or materially affect Seller's ability to
perform its obligations under this Contract.
4.5 No Additional Approvals Required. Neither Seller's execution of this Contract nor
Seller's performance of any of its obligations hereunder:
a. Violates any written or oral contract, agreement or instrument to which Seller
is bound or which affects the Property or any part of it;
b. Constitutes or will result in the violation or breach by Seller of any judgment,
order, writ, injunction or decree issued or imposed upon Seller, or result in
violation of any federal, state, local and other laws, statutes, regulations,
codes, orders, ordinances and rules; or
c. Requires that Seller obtain any approval, consent, order, authorization,
designation, filing (other than recording), registration, notification of, by, or
with any judicial or governmental authority except as expressly provided in
this Contract.
ARTICLE V
BUYER'S REPRESENTATIONS AND WARRANTIES
5.1 Buyer's Power and Authority. Buyer and its representatives have all power and
authority legally necessary to enter into this Contract, execute and deliver the Closing documents,
and purchase the Property in accordance with the terms of this Contract and the requirements of Ohio
law.
5.2 No Actions Against Buyer. Buyer knows of no action, suit, or proceeding, pending or
threatened against Buyer, which could adversely and/or materially affect Buyer's ability to perform
its obligations under this Contract.
5.3 Submission to All Applicable Local Right-of-Wav Controls. Buyer understands and
acknowledges that the Property is subject to all applicable local right of way controls as enacted,
either currently or in the future, by those political subdivisions in which the Property is located.
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Buyer represents and warrants that it shall own and operate the Property subject to, and in
accordance with, the requirements of those municipalities and will secure all necessary permits,
approvals, and authorizations from such municipalities. Upon thirty (30) days written request, Buyer
will provide Seller with evidence that it has secured, or has applied for all necessary permits,
approvals, and authorizations from such political subdivisions.
ARTICLE VI
UNDERLYING RIGHTS
6.1 Underlying Rights. The Optical Fiber is subject to the terms of certain right-of-way
agreements that Seller has obtained for the construction and operation of the Optical Fiber System, to
such terms as the grantors of such right of way may be subject as owners of the underlying real
property, to the rights of tenants and licensees in possession of such real property, and to the prior
rights of the grantors to use the right of way for their own business or other purposes (collectively,
the "Underlying Rights"). The Property conveyed and other rights granted herein are subject to the
Underlying Rights applicable to that portion of the Optical Fiber System in which the Property is
located as well as to the rights of Seller granted under the Underlying Rights.
ARTICLE VII
ACCESS
7.1 Access. Seller hereby grants Buyer a non-exclusive license to use all manholes and
hand holes that provide access to the Property.
7.2 Notice. Buyer understands that other providers or users of Telecommunications
Services have acquired, or may, in the future, acquire, optical fiber within the Optical Fiber System.
In order that Seller may coordinate access to the manholes and hand holes by all such providers,
Buyer shall notify Seller, in writing, no fewer than twenty four (24) hours in advance of its desire to
access the Property. In case of emergency, Buyer shall notify Seller of its need for immediate access
to the Property. Seller shall respond within four (4) hours of the receipt of such emergency notice. If
Seller does not respond within this four (4) hour period, Seller shall be deemed to have approved the
requested emergency access. Seller shall have a representative present during any Buyer access to
manholes or hand holes and Buyer shall pay to Seller all reasonable costs related to the services
provided by such Seller's representative except in the case of emergency where Seller has not
responded within four (4) hours of receipt of the emergency notice.
ARTICLE VIII
RESTRICTIONS
8.1 Restrictions on Additional Construction. Buyer understands and acknowledges that,
because other providers and users of Telecommunications Services have acquired, or may, in the
future, acquire, optical fibers within the Optical Fiber System, it may be necessary to restrict points
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of access to the optical fibers. Accordingly, Buyer agrees that it will not undertake any additional
construction between the manholes to provide additional access to the Property without the express
written agreement of Seller.
ARTICLE IX
MAINTENANCE
9.1 Maintenance. Buyer shall use commercially reasonable methods to maintain, manage,
and operate the Property in a secure and good condition that meets or exceeds industry standards.
Seller shall use commercially reasonable methods to maintain, manage, and operate the Optical Fiber
System in a secure and good condition that meets or exceeds industry standards. Maintenance of
the Property and the Optical Fiber System shall be performed by Buyer and Seller, respectively, on a
regular basis as is customary in the industry and otherwise as maybe required.
ARTICLE X
TAXES
10.1 Responsibility for Taxes. Seller recognizes that Buyer is tax exempt. Upon request,
Buyer will provide Seller with evidence of such tax exempt status. Each party, in accordance with
their taxable standing, shall be responsible for and pay all taxes associated with their respective
interests in the Optical Fiber. To the extent that taxes are applicable to Buyer and have not been
separately assessed or imposed upon or against the interest of Buyer, Seller shall timely file and pay
all such taxes if legally required. Seller shall then bill Buyer for its proportionate share of such taxes
based, to the extent possible, on the methodology used by the authority imposing the tax. Seller shall
provide Buyer with documentation supporting any such invoice. Buyer shall pay the invoice within
thirty (30) days of receipt. Seller agrees that it will fully cooperate with Buyer in any
protest/challenge of any applicable tax or contest with any taxing authority undertaken by Buyer for
the purpose a modification of taxable value/assessment or any other such action based upon Buyer's
status as a tax exempt entity.
ARTICLE XI
INSURANCE
11.1 Insurance Coverage. The Parties and their assignees shall maintain in force during
their period of ownership and use of the Optical Fiber System and Property, one or more policies of
"per occurrence" liability insurance naming the other Party, its elected officials, officers, agents,
employees, contractors, and volunteers as additional insured(s) and containing a requirement that the
other Party be notified thirty (30) days in advance of any termination or diminution of coverage by
the insurance carrier. Current copies of certificates of insurance showing the essential elements of
coverage for each policy required under this Section shall be provided by each Party to the other
prior to closing and subsequently upon request within ten (10) days after receipt of such request.
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Without limiting the generality of the foregoing, the Parties, during their period of ownership
and use of the Optical Fiber System and Property, shall at a minimum maintain insurance in the
following types and amounts:
a. Standard workers' compensation as required by law;
b. Comprehensive general liability insurance to include coverage for personal
injury liability, broad form property damage liability, and completed
operations and products liability must be maintained. All coverage must be
written on an occurrence basis, with the following minimum limits of liability
and provisions, or their equivalent:
1. Personal/Bodily injury
Combined single limit: Two million dollars (US$2,OOO,OOO).
11. Property damage
Combined single limit: Two million dollars (US$2,OOO,OOO).
Property damage liability insurance shall include provisions for
coverage for the following hazards: E - explosion, C - collapse, U -
underground.
c. Completed operations and products liability of two million dollars
(US$2,OOO,OOO.OO) shall also be maintained for the period of ownership and
use of the Optical Fiber System and Property and six (6) months after the
termination of, or expiration of that period of ownership and use of the
Optical Fiber and Property.
d. Where necessary, automobile liability insurance insuring owned, non-owned,
hired, leased, or borrowed automobiles in the minimum amount of two
million dollars (US$2,OOO,OOO.OO) per occurrence.
e. The Parties shall require that any assignee, designee, contractor, or
subcontractor maintain the same coverages.
f. Each certificate of insurance provided to meet the requirements of this
Section shall:
1. Verify that an insurance policy has been issued to the Party by an
insurance company licensed to do business in the State of Ohio;
11. Verify that the Party is insured on an occurrence basis against claims
for personal injury, including death, as well as claims for property
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damage arising out of the: use and occupancy of the Optical Fiber
System or Property by the Party, its elected officials, officers, agents,
employees, contractors, and volunteers; and placement and use of
cable and/or fiber in the Optical Fiber System or Property by the
Party, its elected officials, officers, agents, employees, contractors,
and volunteers including, but not limited to, protection against
liability arising from any and all operations, damage of explosion,
environmental release, and collapse of property;
Ill. Name the other Party, its elected officials, officers, agents,
employees, contractors, and volunteers as additional insureds as to
whom the comprehensive general liability and completed operation
and products liability insurance required herein are in force and
applicable and for whom defense will be provided as to all such
coverages;
IV. Require that the other Party (primary additional insured only) be
notified thirty (30) days in advance of cancellation of, or coverage
reductions or deletions in, the policy. The liability insurance policies
required by this Section shall contain the following endorsement: "It
is hereby understood and agreed that this policy may not be
diminished in value, be canceled, nor the intention not to renew be
stated, until thirty (30) days after receipt by the additionally insured
Party, by registered mail, return receipt requested, of a written notice
addressed to the additionally insured Party of such intent to cancel,
diminish, or not to renew." Within thirty (30) days after receipt by
the other Party of said notice, and in no event later than five (5) days
prior to said cancellation, the insuring Party shall obtain and provide
to the additionally insured Party a certificate of insurance evidencing
appropriate replacement insurance policies.
ARTICLE XII
INDEMNIFICATION
12.1 Seller's Indemnity. Seller agrees to indemnify, protect, defend, and hold harmless
Buyer, its elected officials, officers, employees, agents, contractors, and volunteers against any and
all claims, demands, liabilities, losses, damages, costs and expenses including, without limitation,
reasonable attorney's fees, asserted against, incurred, or suffered by Buyer its elected officials,
officers, employees, agents, contractors, and volunteers resulting from any personal injury or
property damage occurring in, on, or about the Optical Fiber System or Property on or before the date
of closing from any cause whatsoever other than as a consequence of the acts or omissions of Buyer,
its elected officials, officers, employees, agents, contractors, and volunteers. Following the date of
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closing, Seller agrees to indemnify, protect, defend, and hold harmless Buyer, its elected officials,
officers, employees, agents, contractors, and volunteers against any and all claims, demands,
liabilities, losses, damages, costs and expenses including, without limitation, reasonable attorney's
fees, asserted against, incurred, or suffered by Buyer its elected officials, officers, employees, agents,
contractors, and volunteers resulting from any personal injury or property damage occurring in, on,
or about the Optical Fiber System or Property relating thereto relating to or arising out of Seller's
operation of the Optical Fiber System or Seller's agents or assignees use of the Optical Fiber System
other than as a consequence of the acts or omissions of Buyer, its elected officials, officers,
employees, agents, contractors, and volunteers. Neither the foregoing nor any other provision of this
Contract shall limit the rights and remedies available to Buyer or Seller at law or in equity.
12.2. Buyer's Indemnity. Buyer shall not be obligated to indemnify Seller either directly or
indirectly for Buyer's use or occupancy of the Property or Optical Fiber System.
12.3 Environmental Indemnity - Hazardous SubstanceslEnvironmental Laws. As used
herein the following terms shall have the following meanings:
a. Environmental Laws. "Environmental Laws" shall mean all federal, state, or
local laws relating to pollution or protection of human health or the
environment, including, without any limitation, the Comprehensive
En vironmental Response Compensation and Liability Act of 1980
("CERCLA"), as amended, 42 D.S.C. ~9601 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 D.S.C. ~6901 et seq.,
and laws relating to emissions, discharges, releases or threatened releases of
any Hazardous Substance into the environment (including without limitation
ambient air, surface water, ground water or land), or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Hazardous Substances and any and all
regulations, codes, standards, plans, orders, decrees, judgments, injunctions,
notices or demand letters issued, entered, promulgated or approved
thereunder.
b. Hazardous Substance. "Hazardous Substance(s)" shall mean any pollutant,
contaminant, hazardous, toxic or dangerous waste, substance or material, or
any other substance or material regulated or controlled pursuant to any
Environmental Law, including, without limiting the generality of the
foregoing, asbestos, PCBs, petroleum products (including crude oil, natural
gas, natural gas liquids, liquefied natural gas or synthetic gas) or any other
substance defined as a Hazardous Substance, "extremely hazardous waste", "a
restricted hazardous waste", "hazardous material", "hazardous chemical",
"hazardous waste", "regulated substance", "a toxic chemical", "a toxic
substance", or other similar term in any Environmental Law.
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Each of the Parties agrees that it will not use, generate, store, or dispose of
any Hazardous Substances on, under, about, or within the Optical Fiber
System or Property in violation of any Environmental Laws. Each Party
represents, warrants, and agrees; that neither it nor any third party has used,
generated, stored, or disposed of, or permitted the use, generation, storage or
disposal of, any Hazardous Substances (defined above) on, under, about, or
within the Optical Fiber System or Property in violation of any
Environmental Law, and that each Party will not, and will not allow, any third
party to use, generate, store, or dispose of any Hazardous Substances on,
under, about or within, the Optical Fiber System or Property in violation of
any Environmental Law. The Seller each agrees to defend, indemnify, and
hold harmless the Buyer and the other's elected officials, officers, agents,
employees, contractors, and volunteers against any and all losses, liabilities,
claims and/or costs (including reasonable attorney's fees and costs) arising
from any breach of any representation, warranty, or agreement contained in
this Section.
ARTICLE XIII
LIMIT A TION OF LIABILITY
13.1 Liability. Notwithstanding any other provision ofthis Contract, it is the intent ofthe
parties that each shall be liable to the other for any actual and direct damages incurred as a result of a
party's failure to perform its obligations as required by this Contract; provided, however, that, in no
event, will either party, nor any of their contractors, subcontractors, agents, or employees be liable
for any loss of revenue, lost profit, or other indirect, special, or consequential damages suffered as a
result of either party's breach of its obligations under this Contract.
ARTICLE XIV
CLOSING
14.1 Place and Date of Closing. The closing for the purchase and sale shall take place at
such place and time as Seller and Buyer may agree.
14.2 Seller's Closing Obligations. The Parties will complete all the requirements of the
closing checklist attached as Exhibit C (the "Closing Checklist"). At closing, Seller shall deliver to
Buyer all items required in the Closing Checklist.
14.3 Adjustments at Closing. Adjustments shall be made in accordance with the Closing
Checklist of Exhibit C. All expenses associated with the Property shall be prorated as of the date of
closing. To the extent that information for any such proration calculation is not available at closing,
the parties shall effect such proration within ninety (90) days after closing. The covenants set forth in
this section shall survive the closing.
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14.4 Buyer's Closing Obligations. At closing, Buyer shall deliver to Seller all items
required in the Closing Checklist.
14.5 Possession at Closing. Possession of the Property shall be delivered to Buyer by
Seller at closing.
14.6 Closing Costs. Buyer shall pay for all transfer and conveyance fees in connection
with the sale of the Property, if any, in accordance with the Closing Checklist of Exhibit C. Each
party will be responsible for its own legal fees.
ARTICLE XV
TERMINATION OR DEFAULT
15.1 Buyer's Termination. If Seller is unable to convey title to the Property, any portion
thereof, Buyer may, at Buyer's option, terminate this Contract in its entirety without further
obligation. Buyer shall provide written notice to Seller of its intention in this regard not later than
the closing date.
15.2 Default. If either Seller or Buyer fails or refuses to perform their respective
obligations hereunder, including the failure to pay any amount when due, for any reason other than
the other party's default or a duly-noticed termination expressly permitted under this Contract, Seller
or Buyer, as applicable, may pursue any remedies available to such party at law or equity or may
terminate this Contract.
ARTICLE XVI
REMEDIES
16.1 Jurisdiction/Venue. Any claim, controversy, or dispute between Buyer and Seller that
is related directly to this Contract, whether sounding in contract, tort, statute, fraud,
misrepresentation or other legal theory, shall attorn to the appropriate court in Franklin County,
Ohio.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 Damage or Destruction. Neither party shall be liable to the other for any failure of
performance under this Contract due to causes beyond its control, including but not limited to: acts
of God, fire, flood, or other catastrophes; any law, order, regulation, direction, action, or request of
the United States government, or any other government, including state and local governments
having or claiming jurisdiction over such party, or any department, agency, commission, bureau,
corporation or other instrumentality of anyone or more of these federal, state, or local governments,
or of any civil or military authority; national emergencies; unavailability of materials or rights-of-
way; insurrections, riots, or wars; strikes, lock-outs, or work stoppages (collectively, "Force Majeure
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Events"). If the Property is destroyed or partially damaged by any casualty prior to the closing date,
Buyer may, at Buyer's option, terminate this Contract in its entirety without further obligation. If,
following closing, all or any portion of the Optical Fiber System containing the Property is rendered
inoperable or is beyond feasible repair due to a casualty or Force Majeure event as described herein,
both parties shall be entitled to seek to recover the economic value of their investment of their
respective interests from any third party which may be legally responsible for causing such casualty.
The parties will share in any such recoveries as their respective economic interests support.
ARTICLE XVIII
CONDEMNATION
18.1 Eminent Domain. If, prior to closing, any portion of the Property is taken by any
governmental authority under the power of eminent domain or by any private entity possessing the
power of eminent domain, Buyer may, at Buyer's option, terminate this Contract in its entirety
without further obligation. If, following closing, all or any portion of the Optical Fiber containing the
Property is taken for any public or quasi-public purpose by any lawful power or authority by exercise
of the right of condemnation or eminent domain, the Parties shall be entitled to participate in any
condemnation proceedings to seek to obtain compensation for the economic value of their respective
interests.
ARTICLE XIX
BANKRUPTCYnNSOLVENCY
19.1 Prior to Closing. If, prior to closing, a court or governmental authority of competent
jurisdiction shall enter an order appointing, without consent of the Party, a custodian, receiver,
trustee, intervener, or other officer with similar powers with respect to it or with respect to any
substantial part of its property, or constituting an order for relief or approving a petition in
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding up, or
liquidation of a Party, or if any such petition shall be filed against a Party and shall not be dismissed
by the date of closing, or an order shall have been issued granting either party a suspension of
payments under applicable law and any such order is not dismissed by the date of closing, the other
Party may at its option, terminate this Contract in its entirety without further obligation.
ARTICLE XX
MISCELLANEOUS
20.1 Assignment. Unless otherwise specified to the contrary herein or in any attachment
hereto, the Parties may assign or transfer this Contract, or any rights and obligations arising
hereunder, without prior written consent. Seller may not assign its obligations under Section IX
regarding Maintenance without prior written consent of the Buyer, which consent shall not be
unreasonably withheld.
20.2 Notices. All notices, approvals, waivers, objections or other communications under
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this Contract shall, unless otherwise specified, be in writing and deemed to be duly delivered if
delivered in person, by overnight courier with evidence of delivery, by facsimile transmission with
confirmation of receipt, or by certified or registered mail:
a. If to Buyer, to: Economic Development Director
City of Dublin
5800 Shier-Rings Road
Dublin, Ohio 43016
Copy to: Law Director
City of Dublin
250 West Street
Columbus, Ohio 43215
b. If to Seller, to: American Electric Power/
Columbus Southern Power
Attention:
xxxxxxxxxxxxx
Columbus, Ohio XXXXX
Phone: (614) ---.----
Fax: (614) ---.----
20.3 Entire Agreement. This Contract and the exhibits attached hereto constitute the entire
agreement between the Seller and Buyer and supersedes all prior agreements and understandings
between them as to the subject matter of the Contract. There are no restrictions, arrangements, or
undertakings, oral or written, between the parties relating to the transaction contemplated hereby
which are not expressed or expressly referred to herein.
20.4 Binding Effect. This Contract shall be binding upon, and inure to the benefit of, the
Buyer and Seller and their respective successors and permitted assigns.
20.5 Amendments and Waivers. This contract may not be amended except by a written
instrument executed by each of the parties. No waiver, change, modification, consent or discharge
shall be effected except by a written instrument executed by the party from which such waiver,
change, modification, consent, or discharge is sought.
20.6 Severability. If any term or provision of this Contract is invalid, illegal, or incapable
of being enforced by any rule, law, or public policy, all other terms and provisions of the Contract
shall remain in full force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner adverse to either party. Upon a determination that
any term or provision is invalid, illegal, or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Contract so as to effect the original intent of the parties as
closely as possible to the end that the transactions contemplated hereby are fulfilled to greatest extent
I H0555364.1 }
15
possible. If any term or provision is capable of two constructions, one of which would render the
term or provision invalid and the other of which would render the provision valid, then the provision
shall have the meaning which renders the term of provision valid.
20.7 Counterparts. This Contract may be executed in counterparts, each of which will, for
all purposes, be deemed to be an original and all of which, together, will constitute one and the same
instrument. In pleading or proving any provision of this Contract, it shall not be necessary to
produce more than one complete set of such counterparts.
20.8 Governing Law. This Contract shall be construed, governed, and enforced in
accordance with the laws of the state of Ohio, without reference to its conflict of laws principles.
SIGNATURE PAGE TO IMMEDIATELY FOLLOW
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IN WITNESS WHEREOF, the parties have caused this Contract to be signed by their
respective duly authorized officers as of the date first written above.
CITY OF DUBLIN, OHIO AMERICAN ELECTRIC POWER!
(Buyer) COLUMrnUSSOUTHERNPOWER
(Seller)
By:
By:
Its:
Its:
Approved As To Form:
Law Director, City of Dublin, Ohio.
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EXHIBIT A
OPTICAL FIBER SYSTEM DESCRIPTION AND MAP
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EXHIBIT A
OPTICAL FIBER SYSTEM DESCRIPTION AND MAP
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EXHIBIT B
PROPERTY DESCRIPTION AND MAP
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EXHIBIT B
PROPERTY DESCRIPTION AND MAP
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EXHIBIT C
CLOSING CHECKLIST
Pa2e 1 of 1
SELLER'S RESPONSIBll..JTY: Prior to or at Closing, Seller will provide (or complete) the
following to Buyer's reasonable satisfaction:
. Current as built drawings, plans, specifications and maps for the Optical Fiber
System and the Property.
. Copies of all existing (or required) approvals, permits or authorizations secured by
Seller from governmental authorities in connection with the routing and construction
of the Optical Fiber System.
. Copies of all existing (or required) private right of way agreements or easements
secured by Seller in connection with the routing and construction of the Property
Portion of the Optical Fiber System.
. Statement of ownership and clear unencumbered title to the Optical Fiber System and
Property.
. Proof of insurance.
. Performance testing results and specifications for the Property.
. Bill of Sale and title documents.
BUYER'S RESPONSIBllJTY: Prior to or at closing, Buyer shall provide (or complete) the
following to Seller's reasonable satisfaction:
. Copies of all existing approvals, permits or authorizations secured by Buyer from
governmental authorities in connection with the Property.
. Proof of insurance.
. Buyer shall be responsible for transfer and conveyance fees in connection with this
sale of the Property.
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