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HomeMy WebLinkAbout94-98 OrdinanceRECORD OF ORDINANCES ,,.,- `.. Dayton Legal Blank Co. Form No. 30043 Ordinance No.-- ---- ---_94-98-- Passed --- -- ---- --- --- -- ---- ---- --- ------ -19- -- AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A FRANCHISE AGREEMENT WITH THE FISHEL COMPANY OR ITS DESIGNATED AFFILIATE FOR THE CONSTRUCTION, OWNERSHIP, OPERATION, AND MAINTENANCE OF A MULTI- CONDUIT SYSTEM WHEREAS, Dublin City Council adopted a Right of Way Management Ordinance now known as Chapter 98 of the Codified Ordinances of the City of Dublin; and WHEREAS, the City of Dublin desires to fully pursue and achieve those goals set forth in Chapter 98 of the Codified Ordinances of the City of Dublin; and WHEREAS, the franchise agreement is mutually acceptable between the City of Dublin and the Fishel Company or its designated affiliate; and WHEREAS, City Council desires to ratify said Franchise Agreement; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, ~_ of the elected members concurring that: Section 1. The City Manager is hereby authorized to enter into a Franchise Agreement with The Fishel Company or its designated affiliate for the purpose of owning, constructing, operating and maintaining amulti-conduit system in the City of Dublin in accordance with the Franchise Agreement executed by and between the City of Dublin and the Fishel Company or its designated affiliate. Section 2. That this Ordinance shall take effect and be in force on the earliest date permitted by law. Passed this ~ day of Q~~ /.~>°%1998 Utficer ATTEST: Clerk of Council I hereby certify ~~hat copies of this Ordinance/Resototion were pasted in the C;ty ~f Dublin in accordance with Section 731.25 of the Of-io Revised Code. f}3S~'• k of,Co~~ncil, Dublin. Ohio Office of the City Manager 5200 Emerald Parkway • Dublin, Ohio 43017-1006 Phone: 614-761-6500 • Fax: 614-889-0740 Memo To: All Members of Dublin City Council ~ii° From: Timothy C. Hansley, City Manager Date: October 1, 1998 Re: Ordinance 94-98 ~J~ Initiated By: Dana L. McDaniel, Director of S ica~ Thank you for continuing to consider Ordinance 94-98 and for tabling it until your meeting of October 5. Staff recommended tabling this Ordinance at the request of some telephone service "providers" to allow one more round of discussions. Further discussions were held with certain providers' representatives on Tuesday September 21 and Tuesday September 28. Staff listened intently to their concerns and found nothing that would alter our recommendation that Council pass Ordinance 94-98. However, two key changes will very likely be integrated into the Franchise Agreement in an attempt to respond to providers' concerns: 1. The Fishel Company has agreed to incrementalize its construction of DubLink. This will lessen costs to providers by not requiring them to build larger portions as designated in Exhibit A of the Franchise Agreement. However, the phases currently designated in the Agreement will remain priority build areas since they represent the critical mass of the market. This effort by Fishel places much more risk and financial burden on Fishel to carry extra capacity conduit that may not be sold/leased immediately. As a result of this, Fishel will be taking on more of a conduit "developer broker" role. 2. In order to insure providers that the City's intent is to provide and maintain an equal playing field, eliminate barriers to entry, and protect against price gouging, a "pressure valve" will be provided in the Franchise Agreement "`~ for providers in the form of an appeal process. 3. Additionally, Staff has asked the providers to submit language that they think will best cover what the Agreement refers to as "anomaly" builds. Staff remains convinced and stands by the City's ability to manage and protect its right of ways. Ordinance 94-98 is the most sound and methodical way to achieve those goals set forth in Chapter 98 of the City's Codified Ordinances. Further, Staff believes the Fishel Company is the right company to make this concept a reality and will do so in a professional manner. The Fishel Company has worked tirelessly to work towards accommodating the various providers with multiple design concepts and pricing arrangements. The Fishel Company understands that DubLink's success will hinge on their ability to make conduit costs market competitive. It is likely that Council may hear arguments against DubLink at your meeting. Should this be the case, Greg Dunn, Special Legal Counsel, and I will address those to the best of our ability. Should you have any questions you can contact Greg at 229-4506 or Dana at W: 761-6570 or H: 717-0861. Thank You. ., Department of Service 6351 Shier-Rings Road • Dublin, Ohio 43016-1243 Phone: 614-761-6570 Fax: 614-761-6512 Memo To: All Members of Dublin City Council ~ ~%~~ From: Timothy C. Hansley, City Manager Initiated by. Dana L. McDaniel, Director of Service Date: July 30, 1998 Re: Ordinance 94-98 Please find attached Ordinance 94-98, authorizing the City Manager to enter into a Franchise Agreement with the Fishel Company. This franchise agreement ,also attached, enables the Fishel Company to own, construct, operate and maintain amulti-conduit system through a designated area in the City. Staff recommends that the second reading and public hearing for this Ordinance be held at the Council meeting on September 21. Also please note that this franchise agreement is stamped "draft" as it will not be considered final until adopted by Council. This project has been referred to previously as DubLink. By authorizing a franchise to the Fishel Company to construct such a system, those goals expressed by Council in its Right of Way Management Ordinance adopted in late 1997, now known as Chapter 98 of the City's Codified Ordinances, are more likely to be realized. Those goals included: 1. Promote cooperation among telecommunications service providers and the City to minimize public inconvenience during ROW work and disruption of public property, and ensure safe µ,,~ and efficient use of the City's streets, rights of way, and easements. 2. Promote the availability of a wide range of utility, communications, and other services, including the rapid deployment of new technologies and innovative services to City businesses and residents at reasonable costs. 3. Enhance the City's economic development programs. 4. Ensure adequate public compensation for private use of the ROW and related costs, including costs of regulation. Promote and require reasonable accommodation of all uses of ROW. Compliance with TA 96 and state law, thereby minimizing the City's exposure to litigation from parties affected by implementation of this policy. Staff developed the concept ofDubLinknearly 18 months ago. A Request for Quote/Request for Information (RFQ/RFI) was developed and advertised nationally. Replies were received in August 1997. Since that time, staff has undertaken an ongoing negotiation with the Fishel Company to develop a franchise. The Fishel Company's reply to the RFQ/RFI was unique in that Fishel proposed to build a conduit system. Additionally, staff has been negotiating j ointly with Fishel and five telecommunications-related companies as well as other traditional monopoly utilities to formulate the DubLink concept and franchise. __, ._ w x_ ~~_ I ~~...~_.._.., _ ..~...~.~. -._,W,.u Earlier this year, several Council Members received a significant briefing on DubLink and at that time authorized staff to continue to pursue the concept. In summary, the DubLink concept contemplates amulti-conduit system over a 30.5 mile route throughout designated areas of the City concentrating on the business area. The DubLink project consists of an ,~,~, underground conduit and manhole system designed for telecommunications providers in the DubLink area. "` The specific conduit will vary depending upon the needs of the area, but in general will have a combination of 1-1/4" innercuts and 4" PVC conduit. In addition, the system will have 4' x 4' x' 4' manholes placed roughly every 800 feet to accommodate pulling of fiber cable and facilitating individual drop points. Every fourth manhole will be a 4' x 8' x 6' size hole to facilitate splicing for individual carriers. The system will be built on one side of Dublin city streets. Roads will be bored in the future when individual building owners desire to be connected to the DubLink system. The construction of the system is planned to be done in phases as demand for alternative telecommunications services requires. In addition to achieving the goals stated previously, the City will receive its own designated conduit over the entire route. Staff desires to proceed in the following manner: August 10 Council Meeting -- first reading/introduction and referred to Public Services Committee. 2. Public Services Committee -- Weeks of August 24, August 31 or September 7. Please note that Greg Dunn, Special Legal Counsel, will not be available the week of September 14. At this meeting, ~°'~ staff will present a thorough briefing on DubLink and the Fishel Franchise Agreement. Additionally, various telecommunications companies may be present to ask questions or present concerns to Council Members and staff. Second Reading/Public Hearing -- September 21 Council Meeting. For your information, staff may also introduce additional legislation amending Chapter 98/Right of Way Ordinance. These amendments are the results of suggestions by the industry as well as changes needed as a result of further staff assessment. Fishel Company is also working with Peter Lenz to address building code issues to better accommodate a competitive environment. Additionally, Administrative Regulations are being finalized. In closing, the DubLink concept appears to be aone-of-a-kind approach. Staff greatly appreciates the efforts of the Fishel Company and the telecommunications industry to date to continue exploring this concept. Should you have any questions, please contact Dana McDaniel at home: 717-0861 or work: 761-6570 DLM/tb ~~ P AGREEMENT CITY OF DUBLIN, OHIO 0 THIS AGREEMENT (the "Agreement"), entered into at Columbus, Ohio, this day of ~~' , 1998, by and between the City of Dublin, Ohio (the "City") 6351 Shier Rings Road, Dublin, Ohio 43017, and The Fishel Company ("Operator"), an Ohio corporation, 1810 r Arlingate Lane, Columbus, Ohio 43228. WHEREAS, the City desires to make available a state of the art underground Conduit System wihtin the municipality for use by PUCO-certified telecommunication companies, cable television providers, other providers of communications, information, and data services, government entities, residents and businesses; and WHEREAS, the construction and operation of such a Conduit System on a timely basis will facilitate the provision of telecommunications, cable television, and other communications, information, and data services on a competitive and cost-effective basis; bring the benefits of new technological services to residents, businesses, and government agencies; provide increase access to government information and services; promote growth and economic and social development within the City (including the retention and attraction of commerce and businesses); prevent mutliple street cuts and damage to right-of--way and thereby reduce the inconvenience to residents associated therewith; and WHEREAS, Operator engages in the business of designing, constructing, installing, operating, managing, repairing, maintaining, replacing and restoring telecommunication conduits; WHEREAS, Operator has proposed to design, construct, install, own, operate, manage, repair, maintain and restore a Conduit System within the City at its sole cost and expense in accordance with the codified Ordinances and regulations of the City and the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, agreements, terms, provisions and conditions herein set forth, the parties agree as follows: Definitions. As used in this Agreement: A. "Conduit System" (the "System") means an organized system of underground multi- conduits planned and constructed system throughout a designated area ("Dublink area") within the municipality, access to which will be provided at reasonable rates, fees, and charges on anon-discriminatory basis. The System will be constructed in planned phases subject to exceptions for Special Builds as defined in Paragraph 3.B. of this Agreement. B. "Commencement Date" means the first day of the month following the date on which Operator has filed its acceptance of this Agreement with the City Manager under Paragraph 2 of this Agreement. Version 9 -August 6,1998 Page 1 C. "Construction Start Date" means the date on which Operator commences construction and installation of the System. D. "Dublink" means the area described in Exhibit A. E. "Term" means and includes the initial term and any renewal term of this Agreement. F. "Base Amount" means: G. "Regulations" means the Regulations adopted by the City pursuant to the Right of Way Ordinance. H. "Substantial Completion of Construction" means I. "City Manager" means the City Manager of the City of Dublin and/or his/her designee. "Right of Way Ordinance" shall mean Ordinance 152-97 and/or Chapter 98 of the City of Dublin Code of Ordinances and any subsequent amendments. K. For any term that is undefined in this Agreement the definitions set forth in the Right of Way Ordinance shall apply and be incorporated into this Agreement. L. "Overbuild" shall mean the amount of conduit required in excess under the Right of Way Ordinance. M. "Permittee" means any person issued a Right of Way Permit pursuant to the Right of Way Ordinance. 2. Operator Acceptance. Within thirty (30) days of the date of the passage and effective date of legislation of the city approving this Agreement, Operator shall file with the City Manager their written acceptance thereof; and thereupon this Agreement shall be a contract between the City and Operator. The City Manager shall send a letter to Operator certifying the Commencement Date, a copy of which letter shall be attached to, and become part of, this Agreement. 3. Permission Granted by City. A. Rights of Operator. Subject to Paragraphs and .The City hereby authorizes, approves and grants to Operator the exclusive right and authority to design, construct, install, operate, manage, repair, maintain, replace and restore the System in, on, above, below and through the surface of the ground constituting the rights-of--way, easements, and the public roads and streets (collectively referred to as "right-of-way") within the Dublink area subject to the exception set forth in Paragraph 3.B.iii. Operator shall not be subject to any fees or permit requirements Version 9 -August 6, 1998 Page 2 imposed by the Right of Way Ordinance, any amendments thereto, or any other subsequent ordinance governing the use of such right-of--way. All permittees desiring to install new facilities in the Dublink area after the effective date of this agreement shall be required to place such facilities in the System, except as provided in Paragraph 3.B.iii. B. Special Builds. If a permittee has a bona fide need to install facilities in the Dublink area to serve anend-use customer(s) and the plans for the System filed by the Operator with the City Manager pursuant to Paragraph 4 of this Agreement (1) do not contemplate the construction of conduit in a location which would allow the permittee to implement service to such customer(s) through the System or (2) do not contemplate construction of such conduit within a period of which would permit the permittee to implement service to such customer(s) through the System on a timely basis, the permittee shall file an application with the City Manager for a special build. Such application shall specify the location of the customer(s) to be served and the date by which the permittee desires to implement service. i. Upon receipt of such an application, the City Manger shall advise the Operator of permitee's request for a special build and shall provide the Operator with a reasonable opportunity to determine if it wishes to construct the requested conduit. If the Operator elects to construct the requested conduit, such conduit shall be constructed in accordance with System specifications, shall become part of the System, and shall be owned, operated, and maintained by the Operator. Operator shall charge the permittee the rates, fees, and charges specified in Exhibit C as applicable to the appropriate phase of the System for the use of the special build conduit, subject to an adjustment to recognize the carrying costs of the required overbuild (not including the conduit reserved for the City's use) and to recover any additional costs caused by different construction conditions in the special build route. Operator shall file its proposed rates, fees, and charges for the use of each special build conduit constructed pursuant to this Paragraph 3.B.i. as an amendment to Exhibit C. The City Manager shall review the proposed rates, fees, and charges and, upon finding that they are reasonable, shall approve same by regulation. Adjustments for carrying costs of the required overbuild and costs caused by different construction conditions shall be reduced proportionately as additional permittees install facilities in the overbuild. ii. If the Operator declines to construct the special build, the City may construct the special build and may charge such rates, charges, and fees for the use of such special build conduit as maybe established by regulation. iii. If the Operator and the City both decline to construct and own the special build, the City Manager may grant an exception to Operator's exclusive rights under Paragraph 3.A of this Agreement and allow the permitee to Version 9 -August 6, t99s Page 3 construct conduit necessary for facilities to provide service to the customer(s) in question, subject to whichever of the following requirements which the City Manager deems reasonable in light of the circumstances of the requested special build. (a) Require the permittee to construct only that amount of capacity sufficient for its own use. (b) Require the permittee to construct only that amount of capacity sufficient for its own use, but permit the Operator, or, if the Operator declines, the City, to install System conduit in the same trench. If the City installs conduit pursuant to this Subparagraph 3.B.iii.b., the City may charge such rates, charges, and fees for the use of such special build conduit as maybe established by regulation. (c) Require the permitee to construct the conduit to System specifications, including such overbuilds as the Director deems appropriate to effect the goals of the Right Of Way Ordinance and provide the Operator an option to purchase the overbuild for inclusion in the System at a price equal to the actual material costs of conduit and System manholes, plus 75%, such option to remain open for such period as the City Manager shall prescribe. If operator does not exercise this option within the prescribed period, the City shall purchase the overbuild at the price at which it was made available to Operator. The City may charge such rates, charges, and fees for the use of such special build conduit as may be established by regulation. (d) No conduit constructed by a Permittee pursuant Paragraph 3.B.iii shall be leased by Permittee. r~ 4. Conditions of System Design, Construction, Maintenance and Operation. Operator agrees to comply with the following conditions, and the City Manager shall be charged specifically with enforcing the provisions of this Paragraph 4. A. Operator shall file with the City Manager detailed site and location plans showing the proposed location of all conduit and related and auxiliary structures, together with a written explanation of the purpose of the construction. Such plans shall be considered and evaluated from an engineering standpoint taking into account the use of City property other than the right-of--way and the effect of such construction on City operations, planning and development. The City Manager shall inform Operator of the City's suggested revisions and modifications of such plans within thirty (30) days after submission by Operator, and Operator shall submit revised plans for review and approval by the City Manager as may be appropriate and required. Operator agrees that it shall not commence construction and installation of the System, or any part thereof, without first obtaining the written approval of its detailed Version 9 -August 6, 1998 Page 4 ~. site and location plans by the City Manager, which approval shall not be unreasonably withheld. The City recognizes and agrees that, to expedite the review and approval process *~ Operator may submit preliminary site and location plans for all or parts of its proposed System for review and comment by the City Manager prior to submitting +•~ detailed plans and specifications, but approval of any such preliminary plans shall not constitute the final approval of the City Manager. Operator shall notify the City Manager in writing of the Construction Start Date; provided, however, that the Operator shall have sole discretion in determining when the construction of any portion of the System shall commence. The City acknowledges and recognizes that the Operator-plans to construct and install the System in phases as set forth in Exhibit C. B. Construction and maintenance of the System shall be in accordance with the standards attached as Exhibit B, and such applicable regulations and Ordinances of the State of Ohio and the City as maybe presently in effect or may become effective in the future. C. All installation of the System shall be of a permanent nature and durable, installed in accordance with accepted good engineering practices; shall be sufficient to comply with all existing State of Ohio and City of Dublin Codes, Regulations and Ordinances, so as not to interfere in any manner with the right of the public or individual property owners; and shall not interfere with the use or enjoyment of public or private property adjacent thereto. D. Operator shall, upon completion of construction and installation of the System, ~.,g furnish the City Manager with accurate maps and other supporting data showing the location of such installation and a set of "as constructed" drawings in electronic format if available. E. In the event that any installation should thereafter interfere with a proposed public use of the City'sright-of--way or property, Operator shall, upon written request by the City Manager, relocate such installation, at its expense. F. With respect to street openings, Operator shall comply with the provisions of the Codified Ordinances of the City; provided, however, that the construction and installation of the System by Operator shall be treated as a single project and shall not be subject to any permit fees. G. Operator agrees that Operator, or its contractor, shall, prior to commencement of construction and installation of the System, provide the City with a restoration bond in the form and amount generally required of contractors performing construction projects within the City. Version 9 -August 6, 1998 Page 5 ,~ H. Operator shall provide the City Manager with the name of its chief management employee, so that complaints or comments made to any City office maybe referred to that person for proper action. 5. Term. The initial term of this Agreement shall commence on the Commencement Date, and shall end and terminate, unless renewed in the manner herein provided, at midnight, twenty-five (25) years after the Commencement Date. 6. Renewal Term. [to be added] 7. Open Access. Operator agrees that the System shall be operated and managed in a fair and non-discriminatory manner. The System shall be available to all persons, businesses, and public entities having a lawful use therefor, who agree to pay the applicable fees and charges for such use and are holders of a valid right of way permit pursuant to the Right of Way Ordinance. 8. Schedule of Charges and Fees. Charges and fees shall be set by the City Manager pursuant to the following: A. The initial schedule of fees by Operator to users of the System are as set forth in Exhibit C. B. Operator may amend the initial schedule of fees and the corresponding phases of construction by applying to the city Manager for approval of said changes. i. Any changes approved by the City Manager shall be put into effect by Regulation. Exhibit C shall be amended to reflect any such changes. ii. In the event the City Manager does not approve the Operator's proposed change(s) and the Operator then elects not to construct any portion of the System at the rates established in Exhibit C, the City may treat the construction in question or any portion thereof as a Special Build pursuant to Paragraph 3.B.ii and 3.B.iii of this Agreement. 9. Rights of the City. As consideration for the right to enter and use the right-of--way, as provided in Paragraph 3.A, and for the covenants made by and other services to be provided by, the City hereunder, Operator covenants and agrees to dedicate one - 1 1/4" conduit for City use within the System without charge or fee. 10. City's Covenant. Subject to the rights of current public utilities under the Right Of Way Ordinance and the rights of the operators of community antenna television systems under Ch. of the Codified Ordinances of the City, and, further, so long as Operator is not in default hereunder, the City covenants and agrees that the City shall not authorize, permit or agree, or grant any franchise or enter into any agreement which authorizes or permits, any person, firm, partnership or corporation to enter the right-of--way of the Dublink area for the Version 9 -August 6, 1998 Page 6 purpose of installing or construction of the System except as set forth in Paragraph 3.B.iii. In the event that Operator fails to commence construction and installation of the System within one (1) year of the Commencement Date or fails to achieve Substantial Completion of Construction within three (3) years of the Commencement Date, unless such dates may be extended, then in either such event, the City's covenant under this Paragraph shall be and become null and void and of no further force and effect. 11. Insurance. Operator shall, from and after the commencement of the construction and installation of the System, and during the Term hereof, carry and maintain at its sole cost and expense comprehensive general public liability insurance covering the System and Operator's use thereof, against all claims for personal injury or death or property damage, such insurance to afford protection to the limits of Three Million Dollars ($3,000,000) in respect of injury, death and property damage arising out of any one occurrence. In January, 2000, and at five (5) year intervals thereafter during the Term of the Agreement, Operator shall consult with the City Manager as to the advisability of increasing the amount of such coverage based upon inflation and general economic conditions, and Operator shall thereafter increase such coverage at the next annual renewal date of such policy or policies as it shall determine in accordance with the exercise of reasonable business judgment. The insurance coverage required under this Paragraph shall, in addition, extend to any liability of Operator arising out of the indemnities provided for in Paragraph 12. All policies of insurance to be provided by Operator shall name Operator and the City as the insured, as their interests may appear. Operator shall furnish to the City Manager certificates evidencing such coverage which certificates shall provide that such insurance coverage may not be changed, lapsed or canceled without at least thirty (30) days advance written notice from the insurer to the City. At least fifteen (15) days prior to the expiration of any policy of insurance, a certificate for the renewal policy shall be delivered by Operator to the City Manager. All insurance provided for in this Agreement shall be effective under enforceable policies issued by an insurer licensed and qualified to do business in Ohio. 12. Indemnities. Operator agrees to, and does hereby indemnify and save harmless the City and its officials and employees against and from all claims, liabilities, obligations, damages, penalties, fines, costs and expenses, including reasonable attorneys' fees, paid, suffered or incurred as a result of any breach by Operator, Operator's agents, contractors, employees, invitees or licensees, of any provision of this Agreement, or arising from Operator's use of the right-of--way or the conduct of its business or from any activity, work, or thing done or permitted or suffered by Operator (but not from the negligence or willful acts of the City or its officials, employees, agents or contractors). Nothing in this Paragraph or in this Agreement shall constitute, or be deemed or construed to constitute, a waiver, release or forfeiture of the City's rights and immunities as a Version 9 -August 6, 1998 Page 7 ,.:~ municipality under the Constitution and laws of the State of Ohio, which rights and immunities are expressly reserved by the City. 13. Default by Operator Leading to Termination. If Operator (a) fails to commence construction and installation of the System within six (6) months from the Construction Start Date for any portion of the System unless such date may be extended by the City Manager, (b) has commenced construction and installation and abandons such construction and installation without the prior written approval of the City Manager for a period of six (6) consecutive months or more, or (c) has completed such construction and installation and having commenced operation thereafter, ceases to operate, or otherwise abandons, the System, then the Operator shall be in default under this Agreement and this Agreement shall be terminated. 14. Other Defaults by Operator. Except for the acts or omissions of Operator which may constitute a default under Paragraph 13 of this Agreement, if Operator fails to perform any of its other obligations under this Agreement, then in any one or more of such events, the City shall serve a written notice of such failure to perform or default and Operator shall have thirty (30) days to comply with such obligation or remedy such default; provided that, if Operator's obligation is of such a nature that it cannot, with due diligence, be reasonably performed within such thirty (30) day period, then such default shall be deemed to have been cured and remedied if Operator commences such performance within said thirty (30) day period, and, thereafter, undertake and proceeds with due diligence to complete the same and does complete the same. If a default, as described in this Paragraph 14 of this Agreement, has occurred, then the City may sue Operator for specific performance of such obligation or for any injunctive or other equitable relief, or for recovery of any loss or damage sustained by the City as a result of Operator's default. In the event of any such default, the City's rights and remedies shall be limited to such equitable relief or damages, and the City shall not be entitled to terminate this Agreement. The City may elect to treat an act or omission by Operator which may constitute a default by Operator under Paragraph 13 of this Agreement as a default under this Paragraph 14, and, if so, shall so specify in the notice given by the City to Operator. 15. City Assistance. The City covenants and agrees, during the Term of this Agreement to: (a) make available to Operator copies of all maps, site plans, location surveys and other documents filed with, on record with, or otherwise retained by or available to, the City showing the location of pipes, cables, wires or other property or equipment located in the right-of--way by the City, or other governmental agency, by a public utility or the operator of a community antenna television system, or by any other person or entity, and to the extent such records are not kept or retained by the City, to assist Operator in obtaining such information; (b) timely review and act on all applications, submissions and requests submitted by Operator pursuant to this Agreement to facilitate the design, construction, installation, operation, repair, maintenance, replacement and restoration of the System; and Version 9 -August 6, 1998 Page 8 (c) assist operator in obtaining the consent and cooperation of other government agencies within the City to obtain licenses, permits or easements for the use of their property for the location, construction and installation of related and auxiliary equipment used in connection with the System. 16. Delays and Inability To Perform. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, failure of power, riots, insurrection, war, fire or other casualty or other reason of a similar nature beyond the reasonable control of the party delayed in performing its obligations or doing acts required under the terms of this Agreement, then performance of such act shall be excused for the period of the delay and the period for the performance of any such act and this Agreement shall be extended for a period equivalent to the period of such delay. In the event of any event specified hereinabove threatening or causing a delay or inability to perform by either Operator or the City, the affected party shall promptly notify the other party setting forth in writing the cause or reason for such delay or inability to perform and the anticipated period of delay that will occur as a result thereof. 17. Settlement of Disputes. In addition and notwithstanding, the procedures and remedies specified in Paragraphs ,Operator and the City recognize and agree that it is in the mutual interests of the parties that disputes and disagreements that may arise from time to time regarding the interpretation and application of the terms and provisions of this Agreement, and the respective rights and obligations of the parties hereunder, be resolved in a timely, cooperative and cost effective manner. In furtherance of those common and mutual objectives, the parties agree to use, and encourage the other to use, dispute resolution mechanisms and procedures, including binding and non-binding arbitration, other than litigation, to resolve such disputes and disagreements whenever feasible and practical under the circumstances. Any dispute or disagreement arising under this Agreement shall be settled, if possible, by negotiation and mutual agreement of the parties. In the event of their inability to agree, the City Manager shall reduce his findings to writing and mail or otherwise furnish a copy to Operator. Within ten (10) business days from the date of receipt of such copy, Operator may appeal by mailing or otherwise furnishing to the City, a written request to submit the dispute to binding arbitration, non-binding arbitration or other form of dispute resolution then available in Franklin County, Ohio. If Operator does not request one of the foregoing methods, the decision of the City Manager shall be deemed to be final and Operator shall either comply therewith or pursue the remedies available to it hereunder and under applicable law. Within ten (10) days of the City's receipt of an arbitration, or alternative dispute resolution, request by Operator, the parties shall schedule a meeting to determine procedure and time schedules for conducting the arbitration or other proceedings. In the event that the parties Version 9 -August 6, 1998 Page 9 are unable to agree on applicable procedures and time schedules for an arbitration, the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association with the exception that the American Arbitration Association will not choose the arbitrator nor administer the arbitration proceedings. Unless the parties agree otherwise, the dispute will be heard by a single arbitrator. If the parties agree to submit the dispute to binding arbitration, neither party shall have recourse to any court of law or equity as to any disagreement or difference which is subject to the arbitration under this Paragraph ,except for the purpose of confirming, vacating, modifying or correcting the award of the arbitrator on the grounds, for the causes and under the provisions of R.C. §2711.01 et seq. If no such appeal is taken with ten (10) days of the arbitrator's decision, it shall be final and binding on the parties. 18. Periodic Performance Reviews. Periodically during the term of this Agreement as the parties may agree, but no less frequently than once every years, the parties agree to conduct a review of the performance of Operator and the City under this Agreement, affording the public in the City appropriate notice and opportunity for participation. Generally, the performance review will include and apply the standards set forth in Paragraph for the renewal of the term of this Agreement, and, in addition, will consider the future community needs and interests for improvements to the System. 19. Relationship of Parties. Nothing herein contained shall be deemed or construed as creating the relationship of principal and agent, or of a partnership or joint venture between the parties hereto, it being understood and agreed that neither the provision contained herein, nor any acts of the parties, shall be deemed to create any relationship between the parties hereto other than the relationship of independent parties contracting at arm's length nor cause the City to be responsible in any way for the acts, debts or obligations of Operator. 20. Notices. Any notice, demand, request, approval, consent, or other communications which may be, or is required to be, given under this Agreement shall be in writing and shall be deemed to have been given when personally delivered, when mailed by United States certified mail, return receipt requested, postage prepaid, addressed, or when transmitted by fax or facsimile: A. if to the City, to: City of Dublin 6351 Shier Rings Road Dublin, Ohio 43017 or to such other address as the City may designate by notice to Operator in accordance with this Paragraph, and B. if to Operator to: Fishel Company Version 9 -August 6, 1998 Page 10 0 ..R.. 1810 Arlingate Lane Columbus, Ohio 43228 or to such other address as Operator may from time to time designate by notice to the City in accordance with this Paragraph. 21. Mutual Covenant. Operator and the City represent and warrant to the other that: (a) it has all requisite power and authority to execute, deliver and perform this Agreement; (b) this Agreement has been duly authorized, executed and delivered on behalf of such party and constitutes a legal, valid and binding obligation of such party enforceable against it in accordance with its terms, except as enforceability maybe limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally; (c) there is no action, suit or proceeding pending or, to such party's best knowledge, threatened, against it which could have a material adverse effect on the transactions contemplated hereby; (d) except as herein specifically provided, no consent, approval, order, authorization or filing of or with any governmental authority is required in connection with the valid execution, delivery and performance of this Agreement by such party; and (e) the execution, delivery and performance of this Agreement by such party will not violate, contravene or breach any law, rule, regulation, ordinance or order applicable to such party or any indenture, agreement, contract, instrument or undertaking by which such party is bound. 22. Applicable Law. This Agreement shall be construed, governed and enforced in accordance with the laws of the State of Ohio. 23. Severability. It is the intention of the parties hereto that if any provision of this Agreement is capable of two constructions, one of which would render the provision invalid and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Agreement, or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each other term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 24. Right to Withdraw in the Event of Litigation. In the event that litigation is initiated in any judicial or regulatory forum against the Operator and/or the City which challenges, in any way, the Agreement or any City ordinances or City regulation which affects Operator's rights and obligations under this Agreement, Operator may, in its sole discretion, elect to withdraw from this Agreement. Upon notice to the city that Operator has elected to withdraw from this Agreement pursuant to this provision, the City shall purchase the System from the Operator at the net original cost at which the system is maintained on Operator's books. This purchase and sale shall be effective within days of such notice. Any dispute as to the appropriate cost shall Version 9 -August 6, 1998 Page 11 ;,, be governed by Paragraph 17 of this Agreement. The city shall hold the Operator harmless from any costs incurred as a result of such litigation. 24. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except as expressly otherwise provided nothing contained in this Agreement shall be construed so as to confer upon any person rights of a third party beneficiary. 25. Assignment. This Agreement shall not be assigned without the written consent of the City, which consent shall not be unreasonably withheld. [BALANCE OF PAGE LEFT INTENTIONALLY BLANK] Version 9 -August 6, 1998 Page 12 IN THE WITNESS WHEREOF, the City and Operator have duly executed this Agreement as of the day and year first above written. Signed and Acknowledged by the CITY OF DUBLIN, OHIO in the presence of THE FISHEL COMPANY an Ohio corporation By: Title: ~..~. Name: TO FORM: City Attorney: City of Dublin, Ohio: Version 9 -August 6, 1998 Page 13 ~.., .,~ Dublink Area Version 9 -August 6, 1998 Page 14 ~~ Io o t ND Z I ~J p I CC Q 3 a 1 I i i > Y--'--- frae~ r.. (F- ~ Z ~ 'O U U o ~? Z'J ~ Y !l11~ ~ 14 11 ~~ b I I ~' ~lo H O ' Z tt I Z "1 6 3 I I i I I maw ~iCl ~- r_== ~..~._ GTON __ 4 5 ~ ~ /s l ~1d~ it d U -_._ `~ DELAWARE COl ~"' ~ ~ .~ , .~, ~IBEaT~T~P - n .sue Q Q _ C TWP TWP i i l .o COLUMBUS rypO' `~ i i~ HILLIARD CITY OF DUBLIN DubLink Area Map I°°° 5°° I°°° z°°° ~~ ~'p SCALE IN FEET L2000 •lwudotaneQ io lwul~edep a43 }Nlou asoaµl puw} a.+o sawodensp }I paueluo] ue.uy fal]eJ11]]eV! 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BLAZER PKWY. ,a° ~~~ A~ G. •0~~ AVERT RD. I G~ N o ~ -AER~E P ~~ ~~ ~ ~ ~ ~ SO O ~ A~ 3 ~ FTiANZ RD. $~y ~ ~ MILL DR. D,p i PRfl~PEC? :~O DR. Z O y 2 ~ m O n ~ f 0 z XX R~_ MEfATEC BLVD. ~ ~ ~ ~ ~ ~ g~g z 6 0 n 0 `d i PAUL G. BLAZER PKYlY ,a° ~9~oy ~rl i MMERCE PAR ~~ s ~ t~ ~ ~ ~ ~ ~ ~ ~ ~ O O ~ A~ FRANZ RD. ~ to~~ti ~ ~~ `P MILL DR. ~R i v z 0 c~ m RD. Z O ~ -i = O z D p r r~ :~O ~= G. •O 0 DUBLJN CENTER DR. Construction and Maintenance Standards Version 9 -August 6, 1998 Page 15 EXHIBIT B "DUBLINK" NETWORK SPECIFICATIONS General: "Dublink" will be a conduit duct system connecting the business district to competitive communication networks of voice, data, and video. The conduit duct system is primarily designed for fiber optics, however, copper-based carriers are also accommodated in the system with anomaly builds Engineering: All field engineering will be the responsibility of the franchising contractor. The franchising contractor will work with the City of Dublin Engineering Office on locating existing water, gas, and sewer systems. All facility locating will be done prior to any construction. Trench: All construction will be trenched with sand encasement or bored. All plastic conduit will follow the contour of the trench once backfill is in place, therefore, the trench should be as straight and level as possible. The trench bottom will be free of rock or other hard material which could puncture or flatten the conduit. All trench work will be done in accordance with ATT Practice 622-020-020. Conduit: All conduit will be Schedule 40 PVC duct. Duct size will be 1- 1/4 or 4 inch. Four inch ducts will be subdivided with innerduct where required. 1-1/4" duct will be placed in groups of four utilizing Carton's IntraGard or Osburn TetraDuct products or suitable substitute. Atypical section of "Dublink" will be three groups of four 1-1/4" duct and one 4" subdivided. All construction will be done in accordance with ATT Installation Practice 919-240-400. Manholes: All manholes will be precast complete with racking, ladders, and duct terminators. All manholes will have assigned geography locations for subscriber use. All manholes will be equipped with cast iron lids with the words "Telephone" cast on them. All manhole installation will be done in accordance with ATT Installation Practice 622-500-011, 622-240-300. Handholes: All hndholes will be precast or fiberglas 4x4x4 feet with lids, drain, and duct terminators. .~• EXHIBIT B "DUBLINK" NETWORK SPECIFICATIONS General: "Dublink" will be a conduit duct system connecting the business district to competitive communication networks of voice, data, and video. The conduit duct system is primarily designed for fiber optics, however, copper-based carriers are also accommodated in the system with anomaly builds Engineering: All field engineering will be the responsibility of the franchising contractor. The franchising contractor will work with the City of Dublin Engineering Office on locating existing water, gas, and sewer systems. All facility locating will be done prior to any construction. Trench: All construction will be trenched with sand encasement or bored. All plastic conduit will follow the contour of the trench once backfill is in place, therefore, the trench should be as straight and level as possible. The trench bottom will be free of rock or other hard material which could puncture or flatten the conduit. A!I trench work will be done in accordance with ATT Practice 622-020-020. Conduit: All conduit will be Schedule 40 PVC duct. Duct size will be 1- 1/4 or 4 inch. Four inch ducts will be subdivided with innerduct where required. 1-1/4" duct will be placed in groups of four utilizing Carton's IntraGard or Osburn TetraDuct products or suitable substitute. Atypical section of "Dublink" will be three groups of four 1-1/4" duct and one 4" subdivided. All construction will be done in accordance with ATT Installation Practice 919-240-400. Manholes: All manholes will be precast complete with racking, ladders, and duct terminators. All manholes will have assigned geography locations for subscriber use. All manholes will be equipped with cast iron lids with the words "Telephone" cast on them. All manhole installation will be done in accordance with ATT Installation Practice 622-500-011, 622-240-300. Handholes: All handholes will be precast or fiberglas 4x4x4 feet with lids, drain, and duct terminators. Schedule of Charges and Fees Version 9 -August 6, 1998 Page 16 wr EXHIBIT C PHASE 1 PROPOSED PRICING A. One time 25-year lease payment per duct foot.* Founding Users After Year 1 1-1/4" innerduct 7.72 8.87 4" PVC duct 18.80 21.62 (No subleasing allowed until entire duct system is full.) B. Annual lease payment per duct foot.* 1) Rate is adjusted every 5 years by 5% or 80% of CPi (whichever is higher) 2) 15-yr. initial term with 10-yr. extension 3) No subleasing Founding Users After Year 1 1-1/4" innerduct 1.15 1.32 4" PVC duct 2.65 3.05 *In the event that a user desires more capacity within a segment, operator will negotiate a separate agreement to cover the one time costs of this additional capacity. User will have an indefeasible right to use and maintain this additional capacity outside the original Dublink agreement. ~•- w~.r.