68-04 OrdinanceRECORD OF ORDINANCES
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Ordinance No.
68-04
AN ORDINANCE DECLARING THE PROCUREMENT OF,
INSTALLATION OF, AND SERVICE TO CONDUIT AND OPTICAL
FIBERS AS A "SINGLE SOURCE" PROCUREMENT, WAIVING
COMPETITIVE BIDDING REQUIREMENTS AND AUTHORIZING
THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH
COLUMBUS FIBER NET, LLC FOR THE PURPOSE OF EXPANDING
THE "DUBLINK" SYSTEM, AND DECLARING AN EMERGENCY.
Passed
20
WHEREAS, Section 8.04 (c) ("WAIVER OF COMPETITNE 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 conduit, optical fibers and services thereto as a "single source" purchase for
the reason that the Dublink system and Columbus Fiber Net is the only compatible system to the
City's own existing conduit and fiber system; and
WHEREAS, the procurement of such a system is consistent with those goals presented and
endorsed during Council's review and approval of the 2005-2009 Capital Improvements Budget;
and
WHEREAS, it is necessary to procure this system through the execution of an Agreement with
Columbus Fiber Net LLC; and
WHEREAS, it is necessary to declare an emergency after two readings of this Ordinance and
waive the 30-day waiting period due to the nature of this procurement and its support to
emergency services;
NOW THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio,
~_ of the elected members concurring:
Section 1. That the procurement of conduit, optical fibers and services thereto, in the amount of
$3,300,000 and maintenance costs as specified in the Agreement, are hereby declared to be a
"single source" procurement.
Section 2. That competitive bidding requirements are hereby waived for the procurement of the
above referenced conduit, optical fibers and services.
Section 3. That the City Manager is hereby authorized to enter into an Agreement with
Columbus Fiber Net, LLC for the procurement of the above referenced conduit, optical fibers and
service thereto.
Section 4. That this Ordinance is hereby declared an emergency measure necessary for the
preservation of the public peace, health, safety and welfare for the reason that the availability of
bandwidth for governmental use will help to facilitate safety related services. Therefore, this
Ordinance shall take effect and be in force immediately upon adoption.
Passed this day of ~ ~~C~1~ ~ , 2004
l
r ~~
Mayor -Presiding Officer ~~~~
ATTEST:
Clerk of Council
I hereby certify that copies of thi
Ordinance/Resolution were posted in th
City of Dublin in accordance with Sectio:
731.25 of the Ohio Revised Code.
uty Clerk of Council, Dublin, Ohio
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of City Council _
From: Jane S. Brautigam, City Manager `J • ~.r~`'O~Q"^"J
Memo
Date: October 12, 2004
Initiated By: Dana L. McDaniel, Deputy City Manager/Director of Economic Developme,)''~
Re: Ordinance #68-04
BACKGROUND:
Please find attached Ordinance 68-04. Accompanying this Ordinance is the proposed Contract for Sale
for conduit, optical fibers and maintenance services from Columbus Fiber Net. The Contract for Sale
contains certain changes since Council's last meeting. A report from Chris Miller, of legal staff, is also
attached highlighting these changes.
RECOMMENDATION:
Staff recommends Council adopt Ordinance 68-04 and waive the 30-day waiting period. As Staff
presented in its previous report and at last Council meeting, Columbus Fiber Net is a single source
system and is available at very low cost -comparatively. The acquisition of these fibers will provide a
vital infrastructure that will enable the City to introduce critical bandwidth capacity for City use and
residual bandwidth for others' use.
Please address any questions to Dana McDaniel at 410-4619.
Thank you.
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
CITY OF DUBLIN
emo
To: Members of the Dublin City Council
From: Jane S. Brautigam, City Manage~T~,,,~,V ~ . '~~'`^'~'`~t °`^N`~
Date: September 29, 2004
Initiated By: Dana L. McDaniel, Director of Economic Developmi/^'
Re: Ordinance #68-04
Attached for your consideration please find Ordinance 68-04 declaring the procurement, installation of
and service to conduit and optical fibers "single source", waiving competitive bidding requirements,
authorizing the City Manager to enter into an Agreement and declaring an emergency. 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." Council may recall that this is one of two projects presented to and approved by City
Council for the 2005-2009 Capital Improvements Budget. This project is the procurement of 376,000
linear feet of fiber optics and conduit at a cost of $3.3 million for the purpose of owning bandwidth for
government use and making available additional "dark fiber" bandwidth.
The reason for declaring this procurement "single/sole source" and waiving competitive bidding is to
achieve an expansion of the City's existing conduit and fiber system otherwise known as the dubLINK
system. As Council is aware, the City possesses several miles of conduit and fiber already within the
dubLINK system, which is owned and operated by the Fishel Company. The Fishel Company expanded
the dubLINK concept throughout Central Ohio (see map, Exhibit A). The Fishel Company has two
subsidiary LLCs named in this larger "dubLINK -type system" known as Columbus Fiber Net, LLC
(CFN) and Metro Duct Systems, LLC. CFN and Metro Duct Systems comprise the only system of its
kind that travels through the desired geography and connects to the existing dubLINK system. Staff has
determined that this system is the only existing system compatible to Dublin's existing conduit and fiber
system. Therefore, staff views this procurement as an expansion of the existing City-owned dubLINK
system.
Staff is convinced that in addition to being "single/sole" source, Columbus Fiber Net, LLC offers a very
competitive price. For example, the cost to lease/own CFN/Metro Duct Systems and dubLINK conduit
ranges from $6.00 to $10.00 per liner foot. This does not include the cost of fiber, installation and
splicing. This procurement will obtain for the City, conduit with 96 fibers, splicing, testing and five (5)
years of emergency fiber restoration retainage at no additional cost (worth $24,000/year) for $8.78 per
foot. An additional cost Council will note in the Agreement is $63,900 per year for "locate" and
scheduled conduit maintenance.
Council budgeted for the expansion of dubLINK in the OS-09 Capital Improvements Program. Should
Council approve this Ordinance, staff intends to execute the Agreement and get the project underway as
soon as possible (yet this year). Staff will achieve this by using a portion (approximately $500,000) of
the CIP funds for utility improvements budgeted for 2003 and 2004. Staff will continue to evaluate debt
financing options with repayment coming from the funds allocated for utility improvements in the 2005-
2009 CIP, as originally presented during the 2005-2009 CIP Council review process.
Staff recommends two readings of this Ordinance, but requests Council declare an emergency on the
second reading and waive the 30-day waiting period. Staff desires to procure the system in order to
make it available as soon as possible. Staff desires to establish intergovernmental connectivity, if
possible, (i.e. backup dispatch center, backup emergency operations center, etc. and "backhaul"
capability to support the proposed Wifi deployment). Any of these would be beneficial to the health,
safety and welfare of the City's residents. Additionally, though not a safety concern, certain companies
have expressed an interest in the use of the fiber, and staff sees an opportunity to leverage the
availability of fiber as part of economic development incentives.
The proposed Agreement is also attached (Exhibit B). Should Council pass this Ordinance, the City
Manager will execute the Agreement with Columbus Fiber Net, LLC, a subsidiary of the Fishel
Company. The Agreement is comprehensive and covers all aspects for the procurement of the system,
what the system consists of, responsibilities of the parties, maintenance, etc. Should you have specific
questions about the Agreement, you can address those to Greg Dunn at O: 462-2339. Greg also will be
available at the Council meeting to answer questions.
The possibilities presented by the presence of this fiber and its bandwidth are significant, as discussed
during the CIP review process. You may also address questions regarding this Ordinance to Dana
McDaniel at 410-4619.
Thank you.
MEMORANDUM
TO: Dana McDaniel
Deputy City Manager and Economic Development Director
City Of Dublin, Ohio.
FROM: Christopher L. Miller
Schottenstein, Zox and Dunn
DATE: October 12, 2004
RE: Description of the significant alterations, amendments and modifications made to
the previously circulated Draft Columbus Fibernet, LLC Contract of Sale
(September 29, 2004) resulting in the Final October 12, 2004 Columbus Fibernet,
LLC Contract of Sale (October 12, 2004).
Pursuant to your request and for your information, I have detailed below the significant
alterations, amendments and modifications made to the previously circulated Draft Columbus
Fibernet, LLC Contract of Sale (September 29, 2004) resulting in the Final Columbus Fibernet,
LLC Contract of Sale (October 12, 2004).
• Section 2.1 -The Purchase Price has changed from $3,300,000.00 at Closing to
$500,000.00 at execution, $1,400,000.00 on or before March 1, 2005 and a final
$1,400,000.00 at Closing.
• Section 7.2 -Seller is required to have a representative present when City accesses
manholes or handholes in the Conduit System unless there is an emergency situation
where Seller fails to respond within four (4) hours rather than the previous proposal that
no Sellers representative ever be required.
• Section 7.3 -City has access to use 1/6`h the space in manholes and handholes rather than
1/8`h as previously proposed.
• Section 9.1 -Scheduled Maintenance for $63,900.00 only required to be purchased by
City for ten (10) years with three (3) options for an additional two (2) years, rather than
previous draft requirement of a perpetual annual requirement with a sixty (60) day
cancellation option.
• Section 9.1 -Scheduled Maintenance is better and more specifically defined in the text of
Section 9.1 and in Exhibit D attached.
~H0479RR9.1 ~
Memorandum to Dana McDaniel
From Christopher L. Miller
October 12, 2004
Paee 2 of 2
• Section 9.2 -Unscheduled Maintenance is better and more specifically defined in the text
of Section 9.2 and in Exhibit E attached.
• Section 12.2 -Buyer's Indemnity is altered to provide that City has no obligation to
indemnify the Seller, but where legally possibly, the City will ask its third party users to
indemnify the Seller in regards to their use and occupancy of the Conduit System.
• Section 12.3 -Environmental Indemnity is amended to specifically require that Seller
indemnify the City (but not vice-versa). The parties have discussed and agreed that City
has a policy of not indemnifying others and is specifically excluded such obligation to
indemnify Seller in Section 12.2.
• Section 20.1 -Assignment has been amended to reflect that each party may assign their
rights and/or obligations but, Seller may not assign its service and maintenance
obligations without the prior written consent of the City.
• Section 20.6 (September 29, 2004 draft) -Non-Appropriation language deleted at the
request of the Seller. Significant discussions were held regarding the issue of "non-
appropriation" and municipal funding and Seller is aware of the realities and legal facts
regarding this issue.
• Exhibit A -Better description of Conduit System and mapping information added.
• Exhibit B -Better description of Property and Dublink Fiber and mapping information
added.
• Exhibit C -Closing Checklist created and added.
• Exhibit D -Scheduled Maintenance defined and better descriptive added.
• Exhibit E -Unscheduled Maintenance defined, better descriptive and schedule of charges
and fees added.
• Exhibit F -The Fiber Restoration Agreement has been amended to reflect insurance
requirements identical to those required of Seller in the Contract of Sale. Additionally,
Appendices have been added that include descriptive information regarding services,
contact information, schedules of fees, and mapping information.
Please let me know if you have any additional questions or concerns about the Contract of Sale,
its attachments or the above information.
(H11179RX9.1 ~
t
TABLE OF CONTENTS
ARTICLE I ROPERTY CONVEYED ..........................................................................................3
ARTICLE II PURCHASE PRICE ............................................................................................... . 4
ARTICLE III EVIDENCE OF OWNERSHIP ............................................................................. .4
ARTICLE IV SELLER'S REPRESENTATIONS AND WARRANTIES ................................... . 5
ARTICLE V UYER'S REPRESENTATIONS AND WARRANTIES ........................................ . 6
ARTICLE VI UNDERLYING RIGHTS ...................................................................................... .6
ARTICLE VII ACCESS .............................................................................................................. . 6
ARTICLE VIII RESTRICTIONS ................................................................................................ . 7
ARTICLE IX MAINTENANCE, REPAIR, AND RELOCATION ..............................................7
ARTICLE X TAXES .................................................................................................................... . 8
ARTICLE XI INSURANCE ......................................................................................................... 9
ARTICLE XII INDEMNIFICATION ......................................................................................... 11
ARTICLE XIII LIMITATION OF LIABILITY ......................................................................... 12
ARTICLE XIV CLOSING .......................................................................................................... 13
ARTICLE XV TERMINATION OR DEFAULT ........................................................................ 13
ARTICLE XVI REMEDIES ....................................................................................................... 14
ARTICLE XVII DAMAGE OR DESTRUCTION ..................................................................... 14
ARTICLE XVIII CONDEMNATION ........................................................................................ 14
ARTICLE XIX BANKRUPTCY/INSOLVENCY ...................................................................... 14
ARTICLE XX MISCELLANEOUS ............................................................................................ 15
EXHIBIT A .................................................................................................................................. 18
EXHIBIT B .................................................................................................................................. 20
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EXHIBIT C .................................................................................................................................. 22
EXHIBIT D .................................................................................................................................. 23
EXHIBIT E .................................................................................................................................. 24
EXHIBIT F .................................................................................................................................. 26
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CONTRACT OF SALE
This Contract of Sale ("Contract") is entered into this day of , 2004
by and between Columbus Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio
limited liability company ("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 ofmulti-duct underground
conduit and related facilities in the city of Columbus, Ohio and in certain political subdivisions in
the Columbus, Ohio metropolitan area (the "Conduit System"); and
WHEREAS, Seller wishes to sell ducts within the Conduit 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-user customers,
utilizing Telecommunications Services, and/or leasing duct space to other providers of
Telecommunications Services; and
WHEREAS, Buyer wishes to acquire a duct within the Conduit System complete with a
specified amount of installed optical fiber; and
WHEREAS, Buyer wishes Seller to maintain such duct and 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 duct identified herein, complete
with 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 Conduit System. The Conduit System consists of approximately seventy-two (72)
miles of sixteen (16) one point nine inch (1.9") HDPE ducts located in the city of Columbus, Ohio
and in certain political subdivisions in the Columbus, Ohio metropolitan area as shown on the map
attached hereto as Exhibit A. The Conduit System includes all manholes and other appurtenances
constructed by Seller to facilitate access to the ducts. In each underground segment of the Conduit
System, the sixteen (16) ducts are segregated, for purposes of access, into two (2) six (6)-duct
subsets measuring approximately seven inches (7") and one (1) four (4)-duct subset measuring
approximately five inches (5"), with each such subset served by separate manholes.
1.2 PropertXTo Be Conveyed. Seller agrees to sell, and Buyer agrees to buy, the portion
of the Conduit System consisting of three hundred seventy six thousand (376,000) linear feet of one
{ H0479933J ; 3
(1) one point nine inch (1.9") duct ("Buyer's Duct"), and a ninety six (96) strand 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"). In addition, Seller agrees to sell, and
Buyer agrees to buy, a ninety six (96) strand single mode fiber installed by Seller in the sixty five
thousand (65,000) linear foot duct previously dedicated to Buyer in the system of conduit currently
owned and operated by Dublink Development Company L.L.C. ("DDC")within the City of Dublin
pursuant to the franchise agreement between DDC and the City of Dublin dated December 14,1998,
as authorized by Ordinance No. 94-98 of the City of Dublin, which fiber shall be spliced and tested
by Seller to the satisfaction of the Buyer prior to and as a condition of closing (the "Dublink Fiber"}.
Seller shall interconnect the Dublink Fiber with the fiber in Buyer's duct in the Conduit System at
the point identified on Exhibit B. The specific details and performance parameters of the Property
(inclusive of the fiber) and the Dublink Fiber shall be as described in the attachments and drawings
appended hereto as Exhibit B.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The total purchase price for the Property, Buyer's Duct, and Dublink
Fiber shall be three million three hundred thousand dollars and no cents (US$3,300,000.00) ("the
Purchase Price"). Seller shall pay the Purchase Price to Buyer in accordance with the following
schedule: five hundred thousand dollars and no cents (US$500,000.00) shall be paid upon execution
of the Contract by the Parties; one million four hundred thousand dollars and no cents
(US$1,400,000.00) shall be paid on or before March 1, 2005; and the remaining one million four
hundred thousand dollars and no cents (US$1,400,000.00) 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
Conduit 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 Conduit System; and
b. Any existing privateright-of--way agreements or private easements secured by
Seller in connection with the routing of the Conduit System.
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ARTICLE IV
SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 Condition of Property. Seller warrants that as of the date of closing the Property and
the Dublink Fiber will materially and substantially comply with the plans and specifications provided
pursuant to Section 3.1 of this Contract and that the Property and the Dublink Fiber 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 or the Dublink Fiber or the
Property or the Dublink Fiber 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 of the Property or the Dublink Fiber 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.
4.2 Ownership. Seller is the owner of the entire right, title, and interest in and to the
Property and the Dublink Fiber. Seller represents and warrants that there are no mortgages, liens or
other encumbrances upon its clear and unfettered title to the Property and the Dublink Fiber.
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 and the Dublink Fiber 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.
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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 and the Dublink Fiber 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 Ri t-of--Way 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.
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 Conduit System is subject to the terms of certain right-of-
way agreements that Seller has obtained for the construction and operation of the Conduit 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 Conduit 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 to Duct. Seller hereby grants Buyer anon-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, ducts within the Conduit 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
{ H0479933. I , 6
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.
7.3 Use of Manholes. Because other providers and users of Telecommunications
Services have acquired, or may, in the future, acquire ducts within the Conduit System, space within
each manhole will be allocated based on the ratio of the number of ducts purchased in the subset of
ducts accessed through the manhole in question to the total number of ducts in such subset. Buyer's
license to use the manhole includes the right to use one-sixth (1 /6) of the space therein as allocated
pursuant to this ratio.
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, ducts within the Conduit System, it is necessary to restrict points of access to the
ducts. 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, REPAIR, AND RELOCATION
9.1 Scheduled 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 Conduit System in a secure and good condition that meets or exceeds industry standards.
Maintenance of the Property and the Conduit System shall be performed by Buyer and Seller,
respectively, on a regular basis as is customary in the industry and otherwise as maybe required. All
routine scheduled maintenance ("Scheduled Maintenance") shall include, but is not limited to,
locating and marking duct and pumping, venting, air quality testing, and proofing the duct when
necessary. Seller agrees to perform the Scheduled Maintenance required by Buyer pursuant to this
Section 9.1, as described herein and in Exhibit D, for Buyer for an annual maintenance fee of sixty
three thousand nine hundred dollars and no cents (US$63,900.00} (the "Annual Maintenance Fee")
for an initial term of ten (10) years. Thereafter, Buyer shall have the option of requiring Seller to
perform Scheduled Maintenance for Buyer for up to three (3) additional two (2) year terms, the
maintenance fees for all such additional terms to be negotiated by the Parties prior to the expiration
of the then current term. Buyer shall provide Seller with written notice of its intent to exercise such
options no later than sixty (60} days prior to the expiration of the then current term. The Annual
Maintenance Fee for the initial twelve (12) month period shall be paid at closing. The Annual
Maintenance Fee for subsequent twelve (12) month periods shall be due and payable on or before the
tH0479933.1 } /
anniversary date of the closing. Seller shall have no responsibility for maintaining the fiber within
the duct or for maintaining the Dublink Fiber.
9.2 Unscheduled Maintenance of Buyer's Duct. Unscheduled, non-routine maintenance
("Unscheduled Maintenance") of Buyer's Duct shall be performed by Seller. Unscheduled
Maintenance shall include, but is not limited to, relocation of a portion of the Conduit System in
which the Property is located, emergency repairs, or any other maintenance necessary to prevent any
failure, interruption, or impairment in the operation of the Conduit System and other work described
in Exhibit E attached hereto. The charges and fees for Unscheduled Maintenance shall be as set forth
in Exhibit E. The cost of any Unscheduled Maintenance performed solely for the benefit of Buyer
will be charged directly to the Buyer. With respect to all other Unscheduled Maintenance, Buyer
shall be charged one-sixteenth (1 /16) of the cost of the services performed. Seller will provide Buyer
with a statement of the applicable charges within thirty (30) days of the date the costs are incurred.
Unless otherwise being reasonably disputed, this invoice will be due and payable by Buyer thirty (30)
days after receipt. Unscheduled Maintenance charges not paid within five (5) days of the due date
will interest at a rate of one and one half percent (1.5%) per month or the maximum interest rate
allowed bylaw, whichever is less, until paid in full. Seller will, where reasonable, notify Buyer of
any non-emergency required relocation of the Conduit System at least ninety (90) days prior to the
anticipated relocation date. Unscheduled, non-routine maintenance, emergency repairs, and other
non-scheduled maintenance or work necessary to maintain the operation of the Property, other than
Unscheduled Maintenance of Buyer's Duct as described above, and/or the Dublink Fiber shall be
performed by Seller as described in the fiber restoration agreement (the "Fiber Restoration
Agreement") as executed by the Parties and attached hereto as Exhibit F. The charges and fees for
such fiber restoration work shall be paid by Buyer to Seller in accordance with the Fiber Restoration
Agreement as set forth in Exhibit F.
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 Conduit System. 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. If the
methodology cannot be determined or applied, Seller shall bill Buyer for its share of such legally
required taxes based on one-sixteenth (1/16) of the total taxes imposed on the portion of the Conduit
System in which the Property is located that may be legally collected from Buyer by a taxing
authority. 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.
(H0479933J ; 8
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 Conduit 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 insureds) 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.
Without limiting the generality of the foregoing, the Parties, during their period of ownership
and use of the Conduit 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:
Personal/Bodily injury
Combined single limit: Two million dollars (US$2,000,000).
ii. Property damage
Combined single limit: Two million dollars (US$2,000,000).
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$2,000,000.00) shall also be maintained for the period of ownership and
use of the Conduit System and Property and six (6) months after the
termination of, or expiration of that period of ownership and use of the
Conduit System 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$2,000,000.00) per occurrence.
jH0479933.1 )9
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:
Verify that an insurance policy has been issued to the Party by an
insurance company licensed to do business in the State of Ohio;
ii. Verify that the Party is insured on an occurrence basis against claims
for personal injury, including death, as well as claims for property
damage arising out of the: use and occupancy of the Conduit 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 Conduit 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;
iii. 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.
{ H0479933_ I) I 0
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 Conduit System, Property or Dublink Fiber 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 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 Conduit System, Property or Dublink Fiber relating
thereto relating to or arising out of Seller's operation of the Conduit System or Seller's agents or
assignees use of the Conduit 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, Buyer's Duct, Conduit System or Dublink
Fiber. Alternatively, Buyer shall, where lawful, require as a condition of each contract, lease or
agreement with any other party for the use and/ or occupancy of Buyer's Duct or Property, that such
third party make Seller a third party beneficiary of such agreement (for the limited purpose of
indemnification) and indemnify, protect, and defend Seller against, and hold Seller harmless from,
any claims, losses, damages, costs or expenses including, without limitation, reasonable attorneys'
fees, asserted against, incurred, or suffered by Seller resulting from any personal injury or property
damage occurring in, on, or about the Buyers Duct or Property or relating thereto from any cause
whatsoever caused by such party other than as a consequence of the acts or omissions of Seller, its
agents, employees, or contractors.
Neither the foregoing nor any other provision of this Contract shall limit the rights
and remedies available to Seller at law or equity.
12.3 Environmental Indemnity -Hazardous Substances/Environmental 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
Environmental Response Compensation and Liability Act of 1980
;HOd799331 ; 1 1
("CERCLA"), as amended, 42 U.S.C. §9601 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.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.
Each of the Parties agrees that it will not use, generate, store, or dispose of
any Hazardous Substances on, under, about, or within the Conduit 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
Conduit 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
Conduit 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
LIMITATION OF LIABILITY
13.1 Liability. Notwithstanding any other provision of this Contract, it is the intent of the
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
jH0479933.1) 12
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
Seller's office at 1810 Arlingate Lane, Columbus, Ohio 43228 on April 29, 2005, or at such other
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 and the Dublink Fiber 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.
14.4 Buyer's Closing Obli ations. At closing, Buyer shall deliver to Seller all items
required in the Closing Checklist.
14.5 Possession at Closing. Possession of the Property and the Dublink Fiber 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 and the Dublink Fiber, 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, or the Dublink Fiber, 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 aduly-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.
{H0479933.1 } 1 3
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 ofany one 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
Events"). If the Property or the Dublink Fiber 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 Conduit System containing the
Property or Dublink Fiber 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 maybe
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 Conduit System containing
the Property or Dublink Fiber is taken for any public orquasi-public purpose by any lawful power or
authority (including, but not limited to, the City of Dublin, Ohio) 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
BANKRUPTCY/INSOLVENCY
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,
~H04J99331 } 14
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 Iaw 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 Assi n~ ment. 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 Scheduled Maintenance and Unscheduled 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
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: Columbus Fibernet LLC
Attention: General Manager
1810 Arlingate Lane
Columbus, Ohio 43228
Phone: (614) 274-8100
Fax: (614) 274-6794
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.
~H0479933J ; 15
20.4 Bindin Eg ffect. 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
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 maybe executed in counterparts, each ofwhich 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
}H0479933.1 } 1 6
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
(Buyer)
COLUMBUS FIBERNET, LLC
(Seller)
By:
Its:
Approved As To Form:
Law Director, City of Dublin, Ohio.
By:
Its:
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~H0479933J } l /
EXHIBIT A
CONDUIT SYSTEM DESCRIPTION AND MAP
Page 1 of 2
Columbus Fibernet is a telecommunications conduit access ring, surrounding Greater Columbus.
The 16 continuous 1.9" conduits connect Dublink to the following areas: Worthington, southern
Delaware County, Polaris, Westerville, Easton, OSU Campus area, downtown Columbus, west
Columbus, and Hilliard.
Columbus Fibernet is identified by the color Black and Red on the map, located Page 2 of
Exhibit A.
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{H0479933.1 } 1 8
EXHIBIT A
CONDUIT SYSTEM DESCRIPTION AND MAP
Page 2 of 2
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{H0479933.1 } 1 9
EXHIBIT B
PROPERTY AND DUBLINK FIBER DESCRIPTION AND MAP
Pale 1 of 2
Description of Conduit:
ARTICLE XXI
ARTICLE XXIIThe Red conduit is populated with the fiber optic cable
The Red conduit is located within the Columbus Fibernet conduit system
Description of Fiber:
Ninety-Six (96) count, Single Mode fiber optic cable
Loose tube construction
Manufactured at .35/.25 attenuation
All dielectric construction
Dublink Interconnection Locations:
The interconnections are marked on map, located on Page 2 of Exhibit B.
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~H0479933.I )2~
EXHIBIT B
PROPERTY AND DUBLINK FIBER DESCRIPTION AND MAP
Page 2 of 2
~ ~ Boa
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j H0479933. I ) 21
EXHIBIT C
CLOSING CHECKLIST
Pale 1 of 1
SELLER'S RESPONSIBILITY: 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 Property, Buyers
Duct and the Dublink Fiber.
• 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 Conduit 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 Conduit
System.
• Statement of ownership and clear unencumbered title to the Conduit System,
Property, and Dublink fiber.
• Proof of insurance.
• Performance testing results and specifications for the Property, Buyer's Duct and
Dublink fiber.
• Bill of Sale and title documents.
BUYER'S RESPONSIBILITY: 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 Buyer's Duct or the Property.
• Proof of insurance.
• Buyer shall be responsible for transfer and conveyance fees in connection with this
sale of the Property, Buyer's Duct and Dublink Fiber.
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H0479933.1 } 22
EXHIBIT D
SCHEDULED MAINTENANCE
Pale 1 of 1
Scheduled Maintenance:
Routine Maintenance and repair of the Conduit System described in this section ("Scheduled
Maintenance") shall be performed by or under the direction of the Seller, at Sellers reasonable
discretion or at Buyers reasonable request. Scheduled Maintenance shall include the following
activities:
• Review of all known construction projects for any system conflicts
• Membership to the Ohio Utility Protection Service COUPS)
• Review of all notifications received from OUPS
• Physically mark each necessary location, as it relates to notifications from OUPS
• Patrol of Conduit System route on a regular basis
• Physical site surveillance when construction projects are in the location of the conduit system
• Coordination and scheduling of any construction projects where the system must be relocated
• General Maintenance of access points (manholes)
• Pumping and venting the manholes when necessary
• Proofing of conduit when necessary
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{H0479933.1 )23
EXHIBIT E
UNSCHEDULED MAINTENANCE
Pale 1 of 2
Unscheduled Maintenance:
Non-routine maintenance and repair of the Conduit System which is not included as Scheduled
Maintenance ("Unscheduled Maintenance"), shall be performed by or under the direction of the
Seller. Unscheduled Maintenance shall include the following activities:
• Seller will promptly notify Buyer of any required relocation of the Conduit System
• Design and permitting for required construction projects
• Necessary relocation of segments of the conduit system
• Emergency repairs to the conduit system
• Inspection surveillance at the sole benefit of the Buyer
SCHEDULE OF CHARGES AND FEES
Labor Rates Hourly Rate Overtime Rate
Project Manager 75.00 112.50
Professional Engineer 65.00 97.50
Right of Way Agent 48.50 72.75
Supervisor 47.70 71.55
Foreman 36.90 55.35
Operator 31.50 47.25
Truck Driver 26.00 39.00
Laborer 21.70 32.55
Equipment Rates Hourl.~te
Pickup 12.50
1-ton /flat bed 13.50
2-ton dump 15.50
Trailer 7.00
Rubber tires backhoe 24.00
Rodding machine 21.75
Winch truck 21.75
Air compressor 11.50
Light plant 15.40
Arrow board 9.00
2" water pump 5.00
Generator 5.00
Cable Cart 7.00
Manhole package 14.50
{H0479933.1 ~ 24
EXHIBIT E
UNSCHEDULED MAINTENANCE
Page 2 of 2
These rates are guaranteed through December 31, 2004, afterwards they will be adjusted to the rates
approved under the Dublink Franchise Agreement between DDC and the City of Dublin dated
December 14, 1998, as authorized by Ordinance No. 94-98 of the City of Dublin, Ohio.
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~ H0479933.1 J 2 S
EXHIBIT F
Pale 1 of 16
FIBER RESTORATION AGREEMENT
THIS FIBER RESTORATION AGREEMENT, ("Agreement") is entered into this day of
200_ by and between Columbus Fibernet LLC, 1810 Arlingate Lane,
Columbus, Ohio 43228, an Ohio limited liability company ("Contractor") and the City of Dublin,
Ohio, an Ohio municipal corporation with offices at 5800 Shier Rings Road, Dublin, Ohio 43016
("Dublin"), collectively the "Parties."
WITNESSETH:
WHEREAS, Dublin has purchased from Contractor certain portions a multi-duct
underground conduit system including optical fiber and related facilities in and around the city of
Columbus, Ohio and in certain political subdivisions in the Columbus, Ohio metropolitan area (the
"Conduit System") originally constructed and owned by Contractor; and
WHEREAS, Dublin owns or controls other conduit and optical fiber within the geographic
limits of the City of Dublin; and
WHEREAS, Dublin desires to employ Contractor as an independent contractor to provide
emergency maintenance and fiber restoration services as defined herein for Dublin's fiber optic
network in the county of Franklin, state of Ohio (the "Service Area") as defined in Appendix A
attached hereto and incorporated herein; and
WHEREAS, Contractor desires to provide such services to Dublin upon the terms and
conditions herein; and
WHEREAS, Contractor has quoted prices for various aspects of its emergency maintenance
and fiber restoration services; and
WHEREAS, the Parties agree that a contract should be formed which incorporates both the
terms and conditions set forth herein and the prices quoted by Contractor, which are attached hereto
and incorporated herein as Appendix B.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the Parties hereto agree as follows:
1. COMMENCEMENT DATE: This Agreement shall be effective on the date in
which Contractor submits a letter to Dublin stating that Dublin's fiber optic network meets the
serviceability requirements set forth in Section 4 of this Agreement (hereinafter the "Commencement
Date").
{H0479933.1 )26
EXHIBIT F
Pale 2 of 16
2. TERM: The initial term of this Agreement shall be for five (5) years from the
Commencement Date, and may be extended thereafter in one-year terms by mutual written
agreement of the parties. Either Party may elect early termination of the Agreement on the
anniversary date by giving sixty (60) days prior written notice. The Parties' rights and obligations
which by their nature would extend beyond the termination or expiration of this expiration of this
Agreement shall survive such termination or expiration.
3. PRICING: The Parties agree that Dublin will pay Contractor fees for service
according to the schedule set forth in Appendix B.
4. DUBLIN'S SERVICEABILITY REQUIREMENTS: Dublin's fiber optic network
shall be eligible for service under this Agreement, and the obligations of the Parties hereto shall
commence, when Dublin has provided to Contractor:
a. A system schematic and cable schedule, listing number and types of fiber
terminations, splices, and interconnects.
b. Cable inside and outside drawings, showing routing, link lengths and interconnects.
c. Specifications on fiber, connectors and splices.
d. A contact list and access permission for local work permits, street blockage, and
municipal code compliance, as requested by Contractor to perform restoration
activities.
e. An Escalation List of names and work telephone numbers for supervisory and
management employees of Dublin responsible for cable restoration.
5. CONTRACTOR'S SERVICE REQUIREMENTS: Contractor agrees to provide,
and Dublin agrees to accept service according to the following standards:
a. Point of Contact: Contractor will provide a single point of contact to initiate
restoration service and from that point on will provide a single point of contact at the
restoration site until all temporary or permanent restoration is complete.
b. Support Center Location: Contractor will provide qualified employees and
supervisors, including skilled fiber optic splicers, locally based in the Service Area.
jH0479933.I )2 /
EXHIBIT F
Pale 3 of 16
c. Response Time: Upon receipt of telephone call from Dublin's authorized
representative to Contractor indicating the existence of a potential problem,
Contractor will have service technicians respond to a site designated by Dublin
within two (2) hours of such notification.
d. Dedicated Service: Upon starting of restoration services, Contractor technicians will
continue those services as expeditiously as possible until temporary emergency
services (splice or bridge around) are completed and the fiber link is again ready for
service.
e. Covera eg Time: Contractor crews will be available seven (7) days/week, fifty-two
(52) weeks/year, twenty-four (24) hours/day.
£ Material Provisioning: Contractor will provide all tools, materials and test
equipment which will be set aside for use at the Support Center locations identified
in Appendix D which will also become available on an expedited basis (tools and test
sets may at times be obtained from locally available Contractor locations). Dublin
will provide the necessary fiber cable, unless otherwise specified, which will also be
stocked at the Contractor Support Center.
g. Supplementary Support: Contractor will make advance arrangements and maintain a
list of preferred construction Contractors who will be contacted to provide, on an
availability basis, the required heavy construction equipment such as backhoes,
trenchers, if their use becomes necessary.
h. Network Records: Contractor will retain system maps and detailed street and
building engineering documentation obtained from Dublin after Dublin's acceptance
of the Service Agreement. The documentation will be kept separate from Dublin's
facilities to allow prompt availability upon request for call-out services.
Escalation Contacts: Contractor shall provide Dublin with a list containing the
Support Center addresses, and the names and work telephone numbers of supervisory
management employees responsible for cable restoration. Contractor shall update the
list immediately upon a change in address or personnel.
j. Plan of Action: Dublin and Contractor have prepared, and will maintain, a detailed
Plan of Action for emergency response and restoration of service according to the
general guidelines set forth in Appendix C.
{H0479933.I }28
EXHIBIT F
Page 4 of 16
k. Communication Devices: If necessary, Contractor shall provide communication
devices separate from the fiber cable at the scene of the restoration activity to provide
reliable two way communications at all times during the restoration, e.g., using two-
way radios, fiber talk path and/or mobile phones.
Status Reports: Contractor will initiate no less than hourly status reports to the
designated Dublin point of contact during emergency temporary restoration.
m. Licenses and Certifications: All of Contractor's qualified employees, supervisors
and supplemental support will maintain any and all current licenses and certifications
that maybe necessary for the work which such person will be performing.
6. EQUIPMENT AND SUPPLIES: Contractor shall maintain a minimum of
equipment and supplies as set forth in Appendix D, which is attached hereto and incorporated herein
by this reference. Nothing in this paragraph shall be deemed to obligate Dublin to purchase or pay
for tools, equipment, or vehicles which Contractor utilized to carry out its duties under this
agreement, even though they may be destroyed or expended while not being incorporated into
Dublin's network.
7. COMPLIANCE WITH APPLICABLE LAWS: Contractor agrees to comply, and
to cause its agents, employees and subcontractors to comply, with all applicable requirements of law
pertaining to Contractor's activities in connection with this Agreement, including without limitation:
a. all requirements of law affecting safety and health, including without limitation the
Occupational Safety and Health Act of 1970 (as amended);
b. all requirements of law prohibiting discrimination against any employee or applicant
for employment because of race, color, religion, sex, national origin, age, handicap,
or any other illegal discrimination;
c. all requirements of law necessary to make Contractor a qualified subcontractor for
the provision of Communications Services to federal, state, and local governmental
entities;
d. workers compensation laws, unemployment compensation laws, sickness and
disability laws, social security laws, the Fair Labor Standards Act of 1938 (as
amended), and all other requirements of law relating to employment and to the
licensing and operations of Contractor's agents employees;
{H0479933.1 ;29
EXHIBIT F
Page 5 of 16
e. requirements imposed by the Federal Communications Commission, and by any
other federal, state, and local regulatory bodies having jurisdiction over Contractor's
activities in connection with this Agreement. Contractor shall furnish certificates of
compliance where required bylaw or requested by Dublin.
f. all requirements of law concerning the environment, and Contractor hereby
represents and warrants to Dublin that it will not deposit, store, dispose, bury,
discharge, or spill any oil, petroleum, asbestos, chemical liquids or solids, liquid or
gaseous products, or any other hazardous wastes or hazardous substances at, upon,
under, or within the Service Area. Contractor shall indemnify protect, defend and
hold harmless Dublin, its elected officials, officers, employees, agents, contractors,
and volunteers from any and all liability for violation of environmental laws or
regulations relating to work performed by Contractor under this Agreement.
8. RESPONSIBILITY FOR CONTRACTOR'S EMPLOYEES: This Agreement and
the work performed hereunder shall not be deemed to create a relationship of employment between
Dublin and Contractor's employees, or between Dublin and the employees of any subcontractor or
sub-subcontractor of Contractor. Contractor and Dublin further agree as follows:
a. Contractor shall be responsible for the safety of all work performed by its employees.
If Contractor is found to be in violation of any federal, state, or local requirements of
law pertaining to safety or health, Contractor shall immediately remedy the condition
at its own expense.
b. agrees to release, indemnify, protect, defend, and hold harmless by counsel
acceptable to Dublin, Dublin's elected officials, officers, employees, agents,
contractors, ,and volunteers) against all losses, cost (including reasonable attorneys'
fees), damages, and liabilities arising out of or caused by:
(1) claims alleging, or resulting from negligence, willful misconduct, or
breach of contract by Contractor or its employees in connection with or
relating to this Agreement;
(2) any suit or action by any person (including but not limited to suits or
actions in tort, breach of contract, breach of warranties, and strict liability) on
account of any property damage, personal injury, or death resulting in
connection with Contractor's performance of this Agreement;
{H0479933.1 }30
EXHIBIT F
Pale 6 of 16
(3) claims or charges that Contractor or its employees have failed to
comply with applicable requirements of law;
(4) claims by any of Contractor's employees arising from the suspension
or termination of work;
(5) claims or liens alleging, or resulting from, Contractor's failure to pay
amounts due Contractor's agents, employees, subcontractors or third parties
for labor, equipment, materials, taxes, and/or other obligations.
9. LABOR RELATIONS: Contractor and Dublin agree that each shall be responsible
for labor relations with its own employees. Contractor further agrees to notify Dublin immediately if
a labor dispute is delaying or threatens to delay Contractor's timely performance of work under this
Agreement. If labor difficulties of Contractor prevent Contractor from providing timely performance
of its work under this Agreement, Dublin may, at its option, demand that Contractor minimize
impairment of service (by using Contractor's management personnel to perform work, or by other
means), perform the work with Dublin's own employees, or contract with an alternative vendor.
Contractor agrees to reimburse Dublin for its reasonable costs in providing emergency maintenance
and restoration services during labor difficulties of Contractor.
10. SUBCONTRACTORS: Contractor shall not subcontract any of the work under this
Agreement without Dublin's consent, which shall not be unreasonably withheld or unduly delayed.
Before the commencement of work by any subcontractor of Contractor, Contractor shall furnish
Dublin a nondisclosure agreement executed by such subcontractor agreeing to hold Dublin's
proprietary information in confidence pursuant to Paragraph 14 of this Agreement. Contractor shall
pay all subcontractors promptly, shall deliver lien waivers from any and all subcontractors allowed
hereunder, and shall indemnify, defend and hold Dublin harmless from any claims or liens asserted
by any such subcontractors.
11. INDEMNITY: To the extent not precluded by law, Contractor shall indemnify,
protect, defend and hold harmless Dublin, its elected officials, officers, employees, agents,
contractors, and volunteers from and against any and all liability, damages, losses, suits, claims,
demands, judgments, costs and expenses (including court costs and attorneys' fees) of every nature
and kind (specifically including, but not limited to, injury to or death of any person, damage to or
destruction of property, or claims regarding intellectual property rights), arising out of or incidental
to or in any way resulting from the acts or omissions, whether negligent or otherwise, of the
Contractor, its employees, subcontractors or agents in performance under this Agreement.
{H0479933.I )31
EXHIBIT F
Page 7 of 16
12. INSURANCE: The Contractor and its assignees shall maintain in force at all times
while this Agreement is in effect and thereafter as specified herein, one or more policies of "per
occurrence" liability insurance naming Dublin, its elected officials, officers, agents, employees,
contractors, and volunteers as additional insureds) and containing a requirement that Dublin 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 the Contractor to Dublin prior to the
Commencement Date and subsequently upon request within ten (10) days after receipt of such
request.
Without limiting the generality of the foregoing, the Contractor shall at a minimum maintain
insurance in the following types and amounts at all times while this Agreement is in effect and
thereafter:
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$2,000,000).
(2) Property damage
Combined single limit: Two million dollars (US$2,000,000).
Property damage liability insurance shall include provisions for coverage for
the following hazards: E - explosion, C - collapse, U -underground.
Completed operations and products liability of two million dollars
(US$2,000,000.00) shall also be maintained for the period of ownership and use of
the Conduit System and Property and six (6) months after the termination of, or
expiration of that period of ownership and use of the Conduit System 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$2,000,000.00) per occurrence.
{H0479933J ;32
EXHIBIT F
Page 8 of 16
e. The Contractor 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 Contractor by
an insurance company licensed to do business in the State of Ohio;
(2} Verify that the Contractor is insured on an occurrence basis against
claims for personal injury, including death, as well as claims for
property damage arising out of the services being performed under
this Agreement; including, but not limited to, protection against
liability arising from any and all operations, damage of explosion,
environmental release, and collapse of property;
(3) Name Dublin, 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;
(4) Require that the Dublin (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 Dublin, by registered mail, return
receipt requested, of a written notice addressed to Dublin of such
intent to cancel, diminish, or not to renew." Within thirty (30) days
after receipt by the Dublin of said notice, and in no event later than
five (5) days prior to said cancellation, the Contractor shall obtain and
provide to the additionally Dublin a certificate of insurance
evidencing appropriate replacement insurance policies.
13. FORCE MAJEURE: Except as otherwise expressly provided in this Agreement,
neither Party shall be liable to the other for damages resulting from any force majeure event,
including without limitation the elements; lightning; pest damage; power surges, fluctuations, or
failures; strikes or labor disputes; water; acts of God; war, civil disturbances, acts of civil or military
authorities, or the public enemy; fuel or energy shortages; or any other cause beyond such party's
reasonable control.
;HOa~9vss.i }33
EXHIBIT F
Page 9 of 16
14. ASSIGNMENT: Dublin may assign its rights or delegate its obligations under this
Agreement to its parent, affiliate or subsidiary, or any company merging with or acquiring
substantially all of the assets or ownership interests of Dublin, or substantially all of Dublin's
network in the Service Area.
15. NOTICES: All notices, request, consents and other communication under this
Agreement shall be in writing and shall be deemed to have been delivered on the date received, if
sent by postage prepaid certified mail with return receipt requested, or sent via major overnight
courier to the respective Parties hereto as follows:
If to Dublin: Economic Development Director
City of Dublin
5800 Shier-Rings Road
Dublin, Ohio 43016
With a Copy to: Law Director
City of Dublin
250 West Street
Columbus, Ohio 43215
If to Contractor: Columbus Fibernet LLC
Attention: General Manager
1810 Arlingate Lane
Columbus, Ohio 43228
Phone: (614) 274-8100
Fax: (614) 274-6794
16. AMENDMENTS: This agreement may be modified or amended only by written
agreement signed by both Parties.
17. TITLES: Titles to paragraphs, sections, schedules and Appendices are used merely
for convenience and shall not be taken as an interpretation of the contents of those passages or as an
attempt to enlarge, limit or define terms covered by this Agreement.
18. SAVINGS CLAUSE: If any provision of this Agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or
the application of such provision to persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby.
{f10479933.1 ;34
EXHIBIT F
Page 10 of 16
19. WAIVER: Failure of either Party at any time to require performance of any
provision of this Agreement shall not limit the Party's right to enforce the provision, nor shall any
waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a
waiver of the provision itself for any other provision.
20. PRESUMPTION: This Agreement or any section thereof shall not be construed
against any Party due to the fact that said Agreement or any section thereof was drafted by said Party.
21. GOVERNING LAW/VENUE: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Ohio without regard to that state's conflicts of
laws provisions. All disputes between the Parties shall attorn to the jurisdiction of the courts of
Franklin County, Ohio.
22. PAYMENT: Payment terms shall be net Thirty (30) from date of invoice.
SIGNATURE PAGE TO IMMEDIATELY FOLLOW
{H0479933J }3 5
EXHIBIT F
Pale 11 of 16
IN WITNESS WHEREOF, the parties execute this Agreement by their duly authorized
representatives as of the day and year first above written.
CONTRACTOR
Columbus Fibernet LLC
By:
Name:
Title:
DUBLIN
City of Dublin, Ohio
By:
Name:
Title:
Approved As To Form:
Law Director, City of Dublin, Ohio.
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{ H0479933. I J 3 6
EXHIBIT F
Page 12 of 16
APPENDIX A
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SERVICE AREA MAP
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(H0479933.1 } 3 /
EXHIBIT F
Pale 13 of 16
APPENDIX B
1 of 2
SCHEDULE OF PRICES
1) Emergency Restoration Services:
Provides: Two (2) Hour Response
Twenty Four (24) Hours/Day Coverage
Three Hundred and Sixty Five (365) Days/Year coverage
Provides all products, materials, labor, and test sets required to perform temporary
restoration of Dublin's fiber network.
Dublin to provide fiber cable.
Annual Retainage Fee :Two Thousand Dollars and No Cents (US$2,000.00) per
month (Fee waived for first five (5) years)
Additional Expenses Incurred per Call out:
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{H0479933.1 J 3 8
EXHIBIT F
Pale 14 of 16
APPENDIX B
2 of 2
SCHEDULE OF PRICES
All product and material costs required to restock materials setaside for future use.
Labor Rates Hourl Rate Overtime Rate
Pro'ect Mana er 75.00 112.50
Professional Engineer 65.00 97.50
Ri ht of Way Agent 48.50 72.75
Su ervisor 47.70 71.55
Foreman 36.90 55.35
O erator 31.50 47.25
Truck Driver 26.00 39.00
Laborer 21.70 32.55
Fiber S licer 42.00 63.00
E ui ment Rates Hourl Rate
Picku 16.00
1-ton/flat bed 17.60
2-ton dump 24.00
Trailer 16.50
Rubber tired backhoe 36.20
Roddin machine 21.75
Winch truck 21.75
Air compressor 16.00
Light lant 17.45
Arrow board 9.00
2" water um 10.00
Generator 14.50
Cable cart 7.00
Manhole acka e 14.50
Fusion splicin acka e 30.00
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jt30479933.1 X39
EXHIBIT F
Page 15 of 16
APPENDIX C
1 of 1
CONTACTS, ESCALATIONS, AND PROCEDURES
Dublin's Single Point of Contact for Emergency Restoration Service will be General Manager,
Columbus FiberNet (CFN) at 614-274-8100. For the duration of an emergency restoration, Dublin
will be updated at least once an hour with progress reports.
Contractor personnel on site will provide assistance as needed; however the following escalation list
is provided should further assistance be needed:
Name Title Cell Phone
Dean Pence General Manager -CFN 614-207-8478
Tim Griffin Area Manager -The Fishel Co. 614-554-6481
Eric Smith President -CFN 614-571-6018
Dublin will require one test of the Emergency Restoration Service annually. The purpose of these
tests is to insure that all personnel and material required for the Emergency Restoration Service are
able to respond should a real emergency occur. Dublin will pay the time and charges per the
schedule in Appendix B for these tests.
Contractor's Single Point of Contact for Emergency Operations will be General Manager -CFN.
For the duration of any emergency restoration, Contractor will update Dublin once per hour with
progress reports.
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{H0479933.1 }40
Y
EXHIBIT F
Page 16 of 16
APPENDIX D
lofl
EQUIPMENT & SUPPORT CENTER LOCATION
Contractor will maintain the following inventory of materials and supplies for the sole purpose of
providing emergency restoration services:
Item uantit
Fiber optic splice closure 2
Splice tray 24
Fusion splice sleeves l ,000
In addition, Contractor will make available the following tools and equipment for immediate
deployment:
Item uantit
Single mode fusion splicer 1
OTDR 1
Stocked tool kits ea. Technician
Communication sets 2
Portable generator 1
Manhole pump & blower 1
Splicing van/trailer 1
Safety & Traffic control equipment ea. vehicle
All equipment and supplies will be located at The Fishel Company yard located at 1600 Walcutt
Road, Columbus, Ohio 43228.
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END
H0479933.I }4I
CONTRACT OF SALE
FOR MULTI-DUCT UNDERGROUND CONDUIT AND
RELATED FACILITIES
BETWEEN
COLUMBUS FIBERNET, LLC
AND
THE CITY OF DUBLIN, OHIO
DATED 2 ,L~yc~~~ . , 2004
{H0479933.2 )
TABLE OF CONTENTS
ARTICLE I PROPERTY CONVEYED ...................................................................................... 4
ARTICLE II PURCHASE PRICE .............................................................................................. . 5
ARTICLE III EVIDENCE OF OWNERSHIP ........................................................................... . 5
ARTICLE IV SELLER'S REPRESENTATIONS AND WARRANTIES .................................. . 6
ARTICLE V BUYER'S REPRESENTATIONS AND WARRANTIES .................................... . 7
ARTICLE VI UNDERLYING RIGHTS .................................................................................... . 7
ARTICLE VII ACCESS ............................................................................................................. . 7
ARTICLE VIII RESTRICTIONS ..........................................................................................:.... . 8
ARTICLE IX MAINTENANCE, REPAIR, AND RELOCATION ........................................... . 8
ARTICLE X TAXES ................................................................................................................... . 9
ARTICLE XI INSURANCE ...................................................................................................... 10
ARTICLE XII INDEMNIFICATION ........................................................................................ 12
ARTICLE XIII LIMITATION OF LIABILITY ........................................................................ 13
ARTICLE XIV CLOSING ......................................................................................................... 14
ARTICLE XV TERMINATION OR DEFAULT ...................................................................... 14
ARTICLE XVI REMEDIES ...............................•---.................---.........---................................... 15
ARTICLE XVII DAMAGE OR DESTRUCTION .................................................................... 15
ARTICLE XVIII CONDEMNATION ...................................................................................... 15
ARTICLE XIX BANKRUPTCY/INSOLVENCY .................................................................... 15
ARTICLE XX MISCELLANEOUS .......................................................................................... 16
EXHIBIT A CONDUIT SYSTEM DESCRIPTION AND MAP ................................................ 19
EXHIBIT B PROPERTY AND DUBLINK FIBER DESCRIPTION AND MAP ...................... 21
{H0479933.2 )
2
EXHIBIT C CLOSING CHECKLIST ........................................................................................ 23
EXHIBIT D SCHEDULED MAINTENANCE .......................................................................... 24
EXHIBIT E UNSCHEDULED MAINTENANCE .................................................................... 25
EXHIBIT F FIBER RESTORATION AGREEMENT ............................................................... 27
REST OF PAGE LEFT INTENTIONALLY BLANK
{HQ479933.2 }
3
CONTRACT OF SALE
This Contract of Sale ("Contract") is entered into this _ day of , 2004
by and between Columbus Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio
limited liability company ("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 ofmulti-duct underground
conduit and related facilities in the city of Columbus, Ohio and in certain political subdivisions in
the Columbus, Ohio metropolitan area (the "Conduit System"); and
WHEREAS, Seller wishes to sell ducts within the Conduit 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-user customers,
utilizing Telecommunications Services, and/or leasing duct space to other providers of
Telecommunications Services; and
WHEREAS, Buyer wishes to acquire a duct within the Conduit System complete with a
specified amount of installed optical fiber; and
WHEREAS, Buyer wishes Seller to maintain such duct and 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 duct identified herein, complete
with 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 Conduit System. The Conduit System consists of approximately seventy-two (72)
miles of sixteen (16) one point nine inch (1.9") HDPE ducts located in the city of Columbus, Ohio
and in certain political subdivisions in the Columbus, Ohio metropolitan area as shown on the map
attached hereto as Exhibit A. The Conduit System includes all manholes and other appurtenances
constructed by Seller to facilitate access to the ducts. In each underground segment of the Conduit
System, the sixteen (16) ducts are segregated, for purposes of access, into two (2) six (6)-duct
subsets measuring approximately seven inches (7") and one (1) four (4)-duct subset measuring
approximately five inches (5"), with each such subset served by separate manholes.
1.2 Property To Be Convey. Seller agrees to sell, and Buyer agrees to buy, the portion
of the Conduit System consisting of three hundred seventy six thousand (3 76,000) linear feet of one
{H0479933.2 j
4
(1) one point nine inch (1.9") duct ("Buyer's Duct"), and a ninety six (96) strand 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"). In addition, Seller agrees to sell, and
Buyer agrees to buy, a ninety six (96) strand single mode fiber installed by Seller in the sixty five
thousand (65,000) linear foot duct previously dedicated to Buyer in the system of conduit currently
owned and operated by Dublink Development Company L.L.C. ("DDC")within the City of Dublin
pursuant to the franchise agreement between DDC and the City of Dublin dated December 14,1998,
as authorized by Ordinance No. 94-98 of the City of Dublin, which fiber shall be spliced and tested
by Seller to the satisfaction of the Buyer prior to and as a condition of closing (the "Dublink Fiber").
Seller shall interconnect the Dublink Fiber with the fiber in Buyer's duct in the Conduit System at
the point identified on Exhibit B. The specific details and performance parameters of the Property
(inclusive of the fiber) and the Dublink Fiber shall be as described in the attachments and drawings
appended hereto as Exhibit B.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The total purchase price for the Property, Buyer's Duct, and Dublink
Fiber shall be three million three hundred thousand dollars and no cents (US$3,300,000.00) ("the
Purchase Price"). Seller shall pay the Purchase Price to Buyer in accordance with the following
schedule: five hundred thousand dollars and no cents (US$500,000.00) shall be paid upon execution
of the Contract by the Parties; one million four hundred thousand dollars and no cents
(US$1,400,000.00) shall be paid on or before March 1, 2005; and the remaining one million four
hundred thousand dollars and no cents (US$1,400,000.00) 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
Conduit 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 Conduit System; and
b. Any existing privateright-of--way agreements or private easements secured by
Seller in connection with the routing of the Conduit System.
{H0479933.2 )
5
ARTICLE IV
SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 Condition of Property. Seller warrants that as of the date of closing the Property and
the Dublink Fiber will materially and substantially comply with the plans and specifications provided
pursuant to Section 3.1 of this Contract and that the Property and the Dublink Fiber 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 or the Dublink Fiber or the
Property or the Dublink Fiber 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 of the Property or the Dublink Fiber 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.
4.2 Ownership. Seller is the owner of the entire right, title, and interest in and to the
Property and the Dublink Fiber. Seller represents and warrants that there are no mortgages, liens or
other encumbrances upon its clear and unfettered title to the Property and the Dublink Fiber.
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 and the Dublink Fiber in accordance with the terms of this Contract.
4.4 No Actions Against Seller. Seller knows ofno 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.
{H0479933.2 )
6
{H04799332 }
EXHIBIT A
CONDUIT SYSTEM DESCRIPTION AND MAP
Page 2 of 2
REST OF PAGE LEFT INTENTIONALLY BLANK
20
EXHIBIT B
PROPERTY AND DUBLINK FIBER DESCRIPTION AND MAP
Page 1 of 2
Description of Conduit:
The Red conduit is populated with the fiber optic cable.
The Red conduit is located within the Columbus Fibernet conduit system.
Description of Fiber:
Ninety-Six (96) count, Single Mode fiber optic cable
Loose tube construction
Manufactured at .35/.25 attenuation
All dielectric construction
Dublink Interconnection Locations:
The interconnections are marked on map, located on Page 2 of Exhibit B.
REST OF PAGE LEFT INTENTIONALLY BLANK
{H0479933.2 j
21
EXHIBIT B
PROPERTY AND DUBLINK FIBER DESCRIPTION AND MAP
Page 2 of 2
EXHIBIT B
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;H04799332 j
22
EXHIBIT C
CLOSING CHECKLIST
Page 1 of 1
SELLER'S RESPONSIBILITY: 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 Property, Buyers
Duct and the Dublink Fiber.
• 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 Conduit 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 Conduit
System.
• Statement of ownership and clear unencumbered title to the Conduit System,
Property, and Dublink fiber.
• Proof of insurance.
• Performance testing results and specifications for the Property, Buyer's Duct and
Dublink fiber.
• Bill of Sale and title documents.
BUYER'S RESPONSIBILITY: 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 Buyer's Duct or the Property.
• Proof of insurance.
• Buyer shall be responsible for transfer and conveyance fees in connection with this
sale of the Property, Buyer's Duct and Dublink Fiber.
REST OF PAGE LEFT INTENTIONALLY BLANK
{H04799332 j
23
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 and the Dublink Fiber 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--Way 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.
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 Underl.. i~Ri ts. The Conduit System is subject to the terms of certain right-of-
way agreements that Seller has obtained for the construction and operation of the Conduit 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 Conduit 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 to Duct. Seller hereby grants Buyer anon-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, ducts within the Conduit 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
{H04799332 )
7
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.
7.3 Use of Manholes. Because other providers and users of Telecommunications
Services have acquired, or may, in the future, acquire ducts within the Conduit System, space within
each manhole will be allocated based on the ratio of the number of ducts purchased in the subset of
ducts accessed through the manhole in question to the total number of ducts in such subset. Buyer's
license to use the manhole includes the right to use one-sixth (1 /6) of the space therein as allocated
pursuant to this ratio.
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, ducts within the Conduit System, it is necessary to restrict points of access to the
ducts. 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, REPAIR, AND RELOCATION
9.1 Scheduled 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 Conduit System in a secure and good condition that meets or exceeds industry standards.
Maintenance of the Property and the Conduit System shall be performed by Buyer and Seller,
respectively, on a regular basis as is customary in the industry and otherwise as maybe required. All
routine scheduled maintenance ("Scheduled Maintenance") shall include, but is not limited to,
locating and marking duct and pumping, venting, air quality testing, and proofing the duct when
necessary. Seller agrees to perform the Scheduled Maintenance required by Buyer pursuant to this
Section 9.1, as described herein and in Exhibit D, for Buyer for an annual maintenance fee of sixty
three thousand nine hundred dollars and no cents (US$63,900.00) (the "Annual Maintenance Fee")
for an initial term of ten (10) years. Thereafter, Buyer shall have the option of requiring Seller to
perform Scheduled Maintenance for Buyer for up to three (3) additional two (2) year terms, the
maintenance fees for all such additional terms to be negotiated by the Parties prior to the expiration
of the then current term. Buyer shall provide Seller with written notice of its intent to exercise such
options no later than sixty (60) days prior to the expiration of the then current term. The Annual
Maintenance Fee for the initial twelve (12) month period shall be paid at closing. The Annual
Maintenance Fee for subsequent twelve (12) month periods shall be due and payable on or before the
{H0479933.2 }
8
anniversary date of the closing. Seller shall have no responsibility for maintaining the fiber within
the duct or for maintaining the Dublink Fiber.
9.2 Unscheduled Maintenance of Buyer's Duct. Unscheduled, non-routine maintenance
("Unscheduled Maintenance") of Buyer's Duct shall be performed by Seller. Unscheduled
Maintenance shall include, but is not limited to, relocation of a portion of the Conduit System in
which the Property is located, emergency repairs, or any other maintenance necessary to prevent any
failure, interruption, or impairment in the operation of the Conduit System and other work described
in Exhibit E attached hereto. The charges and fees for Unscheduled Maintenance shall be as set forth
in Exhibit E. The cost of any Unscheduled Maintenance performed solely for the benefit of Buyer
will be charged directly to the Buyer. With respect to all other Unscheduled Maintenance, Buyer
shall be charged one-sixteenth (1 / 16) of the cost of the services performed. Seller will provide Buyer
with a statement of the applicable charges within thirty (30) days of the date the costs are incurred.
Unless otherwise being reasonably disputed, this invoice will be due and payable by Buyer thirty (30)
days after receipt. Unscheduled Maintenance charges not paid within five (5) days of the due date
will interest at a rate of one and one half percent (1.5%) per month or the maximum interest rate
allowed by law, whichever is less, until paid in full. Seller will, where reasonable, notify Buyer of
any non-emergency required relocation of the Conduit System at least ninety (90) days prior to the
anticipated relocation date. Unscheduled, non-routine maintenance, emergency repairs, and other
non-scheduled maintenance or work necessary to maintain the operation of the Property, other than
Unscheduled Maintenance of Buyer's Duct as described above, and/or the Dublink Fiber shall be
performed by Seller as described in the fiber restoration agreement (the "Fiber Restoration
Agreement") as executed by the Parties and attached hereto as Exhibit F. The charges and fees for
such fiber restoration work shall be paid by Buyer to Seller in accordance with the Fiber Restoration
Agreement as set forth in Exhibit F.
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 Conduit System. 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. If the
methodology cannot be determined or applied, Seller shall bill Buyer for its share of such legally
required taxes based on one-sixteenth (1 /16) of the total taxes imposed on the portion of the Conduit
System in which the Property is located that may be legally collected from Buyer by a taxing
authority. 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 many 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.
{H0479933.2 }
9
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 Conduit 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 insureds) 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.
Without limiting the generality of the foregoing, the Parties, during their period of ownership
and use of the Conduit System and Property, shall at a minimum maintain insurance in the following
types and amounts:
a. Standard workers' compensation as required bylaw;
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:
i. PersonalBodily injury
Combined single limit: Two million dollars (US$2,000,000).
ii. Property damage
Combined single limit: Two million dollars (US$2,000,000).
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$2,000,000.00) shall also be maintained for the period of ownership and
use of the Conduit System and Property and six (6) months after the
termination of, or expiration of that period of ownership and use of the
Conduit System 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 (LJS$2,000,000.00) per occurrence.
{H04799332 }
10
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:
i. Verify that an insurance policy has been issued to the Party by an
insurance company licensed to do business in the State of Ohio;
ii. Verify that the Party is insured on an occurrence basis against claims
for personal injury, including death, as well as claims for property
damage arising out of the: use and occupancy of the Conduit 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 Conduit 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;
iii. 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.
{H04799332 }
11
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 Conduit System, Property or Dublink Fiber 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 closing, Seller agrees to indemnify, protect, defend, and hold harmless Buyer,
its elected officials, officers, employees, agents, contractors, and volunteers against any and ali
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 Conduit System, Property or Dublink Fiber relating
thereto relating to or arising out of Seller's operation of the Conduit System or Seller's agents or
assignees use of the Conduit 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, Buyer's Duct, Conduit System or Dublink
Fiber. Alternatively, Buyer shall, where lawful, require as a condition of each contract, lease or
agreement with any other party for the useand/ or occupancy of Buyer's Duct or Property, that such
third party make Seller a third party beneficiary of such agreement (for the limited purpose of
indemnification) and indemnify, protect, and defend Seller against, and hold Seller harmless from,
any claims, losses, damages, costs or expenses including, without limitation, reasonable attorneys'
fees, asserted against, incurred, or suffered by Seller resulting from any personal injury or property
damage occurring in, on, or about the Buyers Duct or Property or relating thereto from any cause
whatsoever caused by such party other than as a consequence of the acts or omissions of Seller, its
agents, employees, or contractors.
Neither the foregoing nor any other provision of this Contract shall limit the rights
and remedies available to Seller at law or equity.
12.3 Environmental Indemnity -Hazardous Substances/Environmental 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
Environmental Response Compensation and Liability Act of 1980
{H0479933.2 J
12
("CERCLA"), as amended, 42 U.S.C. §9601 et seq., the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42 U.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.
Each of the Parties agrees that it will not use, generate, store, or dispose of
any Hazardous Substances on, under, about, or within the Conduit 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
Conduit 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
Conduit 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 Fontained in this Section.
ARTICLE XIII
LIMITATION OF LIABILITY
13.1 Liabili .Notwithstanding any other provision of this Contract, it is the intent of the
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
~HD4799332 }
13
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
Seller's office at 1810 Arlingate Lane, Columbus, Ohio 43228 on April 29, 2005, or at such other
place and time as Seller and Buyer may agree.
14.2 Seller's Closing_Obli atg ions. 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 and the Dublink Fiber 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.
14.4 Buyer's Closing_ Obli atg_ ions. At closing, Buyer shall deliver to Seller all items
required in the Closing Checklist.
14.5 Possession at Closing. Possession of the Property and the Dublink Fiber 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 and the Dublink Fiber, 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, or the Dublink Fiber, 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 aduly-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.
{H0479933.2 )
14
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 deparhnent, agency, commission, bureau,
corporation or other instrumentality ofany one 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
Events"). If the Property or the Dublink Fiber 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 Conduit System containing the
Property or Dublink Fiber 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 maybe
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 Conduit System containing
the Property or Dublink Fiber is taken for any public orquasi-public purpose by any lawful power or
authority (including, but not limited to, the City of Dublin, Ohio) 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
BANKRUPTCY/INSOLVENCY
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,
{H0479933.2 }
15
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 Assi ru~ent. 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 Scheduled Maintenance and Unscheduled 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
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: Columbus Fibernet LLC
Attention: General Manager
1810 Arlingate Lane
Columbus, Ohio 43228
Phone: (614) 274-8100
Fax: (614) 274-6794
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.
{H0479933.2 )
16
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
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
{H0479933.2 }
17
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
(Buyer)
By: ~.'~ ~~~wriJ
COLUMBUS FIBERNET, LLC
(Seller)
By:
Its: ~ i ~ ;,'''1/t A/~4GC~
Approved As To Form:
v
Law Director, City of Dublin, Ohio.
Its: ~~3i,~~~
~~
it/Zt~~
~`rA c m r ~. `.M...~ c ~
{H0479933.2 }
18
EXHIBIT A
CONDUIT SYSTEM DESCRIPTION AND MAP
Page 1 of 2
Columbus Fibernet is a telecommunications conduit access ring, surrounding Greater Columbus.
The 16 continuous 1.9" conduits connect Dublink to the following areas: Worthington, southern
Delaware County, Polaris, Westerville, Easton, OSU Campus area, downtown Columbus, west
Columbus, and Hilliard.
Columbus Fibernet is identified by the color Black and Red on the map, located Page 2 of
Exhibit A.
REST OF PAGE LEFT INTENTIONALLY BLANK
{H0479933.2 )
19
EXHIBIT D
SCHEDULED MAINTENANCE
Page 1 of 1
Scheduled Maintenance:
Routine Maintenance and repair of the Conduit System described in this section ("Scheduled
,,.~w Maintenance") shall be performed by or under the direction of the Seller, at Sellers reasonable
discretion or at Buyers reasonable request. Scheduled Maintenance shall include the following
~~A activities:
• Review of all known construction projects for any system conflicts
• Membership to the Ohio Utility Protection Service COUPS)
• Review of all notifications received from OUPS
• Physically mark each necessary location, as it relates to notifications from OUPS
• Patrol of Conduit System route on a regular basis
• Physical site surveillance when construction projects are in the location of the conduit system
• Coordination and scheduling of any construction projects where the system must be relocated
• General Maintenance of access points (manholes)
• Pumping and venting the manholes when necessary
• Proofing of conduit when necessary
REST OF PAGE LEFT INTENTIONALLY BLANK
{H04799332 ~
24
EXHIBIT E
UNSCHEDULED MAINTENANCE
Page 2 of 2
These rates are guaranteed through December 31, 2004, afterwards they will be adjusted to the rates
approved under the Dublink Franchise Agreement between DDC and the City of Dublin dated
December 14, 1998, as authorized by Ordinance No. 94-98 of the City of Dublin, Ohio.
REST OF PAGE LEFT INTENTIONALLY BLANK
{H04799332 }
26
EXHIBIT F
Page 1 of 16
FIBER RESTORATION AGREEMENT
THIS FIBER RESTORATION AGREEMENT, ("Agreement") is entered into this day of
200_ by and between Columbus Fibernet LLC, 1810 Arlingate Lane,
Columbus, Ohio 43228, an Ohio limited liability company ("Contractor") and the City of Dublin,
Ohio, an Ohio municipal corporation with offices at 5800 Shier Rings Road, Dublin, Ohio 43016
("Dublin"}, collectively the "Parties."
WITNESSETH:
WHEREAS, Dublin has purchased from Contractor certain portions a multi-duct
underground conduit system including optical fiber and related facilities in and around the city of
Columbus, Ohio and in certain political subdivisions in the Columbus, Ohio metropolitan area (the
"Conduit System") originally constructed and owned by Contractor; and
WHEREAS, Dublin owns or controls other conduit and optical fiber within the geographic
limits of the City of Dublin; and
WHEREAS, Dublin desires to employ Contractor as an independent contractor to provide
emergency maintenance and fiber restoration services as defined herein for Dublin's fiber optic
network in the county of Franklin, state of Ohio (the "Service Area") as defined in Appendix A
attached hereto and incorporated herein; and
WHEREAS, Contractor desires to provide such services to Dublin upon the terms and
conditions herein; and
WHEREAS, Contractor has quoted prices for various aspects of its emergency maintenance
and fiber restoration services; and
WHEREAS, the Parties agree that a contract should be formed which incorporates both the
terms and conditions set forth herein and the prices quoted by Contractor, which are attached hereto
and incorporated herein as Appendix B.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein, the Parties hereto agree as follows:
1. COMMENCEMENT DATE: This Agreement shall be effective on the date in
which Contractor submits a letter to Dublin stating that Dublin's fiber optic network meets the
serviceability requirements set forth in Section 4 of this Agreement (hereinafter the "Commencement
Date").
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EXHIBIT F
Page 2 of 16
2. TERM: The initial term of this Agreement shall be for five (5) years from the
Commencement Date, and may be extended thereafter in one-year terms by mutual written
agreement of the parties. Either Party may elect early termination of the Agreement on the
anniversary date by giving sixty (60) days prior written notice. The Parties' rights and obligations
which by their nature would extend beyond the termination or expiration of this expiration of this
Agreement shall survive such termination or expiration.
3. PRICING: The Parties agree that Dublin will pay Contractor fees for service
according to the schedule set forth in Appendix B.
4. DUBLIN'S SERVICEABILITY REQUIREMENTS: Dublin's fiber optic network
shall be eligible for service under this Agreement, and the obligations of the Parties hereto shall
commence, when Dublin has provided to Contractor:
a. A system schematic and cable schedule, listing number and types of fiber
terminations, splices, and interconnects.
b. Cable inside and outside drawings, showing routing, link lengths and interconnects.
c. Specifications on fiber, connectors and splices.
d. A contact list and access permission for local work permits, street blockage, and
municipal code compliance, as requested by Contractor to perform restoration
activities.
e. An Escalation List of names and work telephone numbers for supervisory and
management employees of Dublin responsible for cable restoration.
5. CONTRACTOR'S SERVICE REQUIREMENTS: Contractor agrees to provide,
and Dublin agrees to accept service according to the following standards:
a. Point of Contact: Contractor will provide a single point of contact to initiate
restoration service and from that point on will provide a single point of contact at the
restoration site until all temporary or permanent restoration is complete.
b. Support Center Location: Contractor will provide qualified employees and
supervisors, including skilled fiber optic splicers, locally based in the Service Area.
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EXHIBIT F
Page 3 of 16
c. Response Time: Upon receipt of telephone call from Dublin's authorized
representative to Contractor indicating the existence of a potential problem,
Contractor will have service technicians respond to a site designated by Dublin
within two (2) hours of such notification.
d. Dedicated Service: Upon starting of restoration services, Contractor technicians will
continue those services as expeditiously as possible until temporary emergency
services (splice or bridge around) are completed and the fiber link is again ready for
service.
e. Covera eg_Time: Contractor crews will be available seven (7) days/week, fifty-two
(52) weeks/year, twenty-four (24) hours/day.
f. Material Provisioning: Contractor will provide all tools, materials and test
equipment which will be set aside for use at the Support Center locations identified
in Appendix D which will also become available on an expedited basis (tools and test
sets may at times be obtained from locally available Contractor locations). Dublin
will provide the necessary fiber cable, unless otherwise specified, which will also be
stocked at the Contractor Support Center.
g. Supplementary Support: Contractor will make advance arrangements and maintain a
list of preferred construction Contractors who will be contacted to provide, on an
availability basis, the required heavy construction equipment such as backhoes,
trenchers, if their use becomes necessary.
h. Network Records: Contractor will retain system maps and detailed street and
building engineering documentation obtained from Dublin after Dublin's acceptance
of the Service Agreement. The documentation will be kept separate from Dublin's
facilities to allow prompt availability upon request for call-out services.
i. Escalation Contacts: Contractor shall provide Dublin with a list containing the
Support Center addresses, and the names and work telephone numbers of supervisory
management employees responsible for cable restoration. Contractor shall update the
list immediately upon a change in address or personnel.
j. Plan of Action: Dublin and Contractor have prepared, and will maintain, a detailed
Plan of Action for emergency response and restoration of service according to the
general guidelines set forth in Appendix C.
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EXHIBIT F
Page 4 of 16
k. Communication Devices: If necessary, Contractor shall provide communication
devices separate from the fiber cable at the scene of the restoration activity to provide
reliable two way communications at all times during the restoration, e.g., using two-
way radios, fiber talk path and/or mobile phones.
1. Status Reports: Contractor will initiate no less than hourly status reports to the
designated Dublin point of contact during emergency temporary restoration.
m. Licenses and Certifications: All of Contractor's qualified employees, supervisors
and supplemental support will maintain any and all current licenses and certifications
that maybe necessary for the work which such person will be performing.
6. EQUIPMENT AND SUPPLIES: Contractor shall maintain a minimum of
equipment and supplies asset forth in Appendix D, which is attached hereto and incorporated herein
by this reference. Nothing in this paragraph shall be deemed to obligate Dublin to purchase or pay
for tools, equipment, or vehicles which Contractor utilized to carry out its duties under this
agreement, even though they may be destroyed or expended while not being incorporated into
Dublin's network.
7. COMPLIANCE WITH APPLICABLE LAWS: Contractor agrees to comply, and
to cause its agents, employees and subcontractors to comply, with all applicable requirements of law
pertaining to Contractor's activities in connection with this Agreement, including without limitation:
a. all requirements of law affecting safety and health, including without limitation the
Occupational Safety and Health Act of 1970 (as amended);
b. all requirements of law prohibiting discrimination against any employee or applicant
for employment because of race, color, religion, sex, national origin, age, handicap,
or any other illegal discrimination;
c. all requirements of law necessary to make Contractor a qualified subcontractor for
the provision of Communications Services to federal, state, and local governmental
entities;
d. workers compensation laws, unemployment compensation laws, sickness and
disability laws, social security laws, the Fair Labor Standards Act of 1938 (as
amended), and all other requirements of law relating to employment and to the
licensing and operations of Contractor's agents employees;
(H04799332 )
30
EXHIBIT F
Page 5 of 16
e. requirements imposed by the Federal Communications Commission, and by any
other federal, state, and local regulatory bodies having jurisdiction over Contractor's
activities in connection with this Agreement. Contractor shall furnish certificates of
compliance where required by law or requested by Dublin.
f. all requirements of law concerning the environment, and Contractor hereby
represents and warrants to Dublin that it will not deposit, store, dispose, bury,
discharge, or spill any oil, petroleum, asbestos, chemical liquids or solids, liquid or
gaseous products, or any other hazardous wastes or hazardous substances at, upon,
under, or within the Service Area. Contractor shall indemnify protect, defend and
hold harmless Dublin, its elected officials, officers, employees, agents, contractors,
and volunteers from any and all liability for violation of environmental laws or
regulations relating to work performed by Contractor under this Agreement.
8. RESPONSIBILITY FOR CONTRACTOR'S EMPLOYEES: This Agreement and
the work performed hereunder shall not be deemed to create a relationship of employment between
Dublin and Contractor's employees, or between Dublin and the employees of any subcontractor or
sub-subcontractor of Contractor. Contractor and Dublin further agree as follows:
a. Contractor shall be responsible for the safety of all work performed by its employees.
If Contractor is found to be in violation of any federal, state, or local requirements of
law pertaining to safety or health, Contractor shall immediately remedy the condition
at its own expense.
b. agrees to release, indemnify, protect, defend, and hold harmless by counsel
acceptable to Dublin, Dublin's elected officials, officers, employees, agents,
contractors, ,and volunteers) against all losses, cost (including reasonable attorneys'
fees), damages, and liabilities arising out of or caused by:
(1) claims alleging, or resulting from negligence, willful misconduct, or
breach of contract by Contractor or its employees in connection with or
relating to this Agreement;
(2) any suit or action by any person (including but not limited to suits or
actions in tort, breach of contract, breach of warranties, and strict liability) on
account of any property damage, personal injury, or death resulting in
connection with Contractor's performance of this Agreement;
{H04799332 J
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EXHIBIT F
Page 6 of 16
(3) claims or charges that Contractor or its employees have failed to
comply with applicable requirements of law;
(4) claims by any of Contractor's employees arising from the suspension
or termination of work;
(5) claims or liens alleging, or resulting from, Contractor's failure to pay
amounts due Contractor's agents, employees, subcontractors or third parties
for labor, equipment, materials, taxes, and/or other obligations.
9. LABOR RELATIONS: Contractor and Dublin agree that each shall be responsible
for labor relations with its own employees. Contractor further agrees to notify Dublin immediately if
a labor dispute is delaying or threatens to delay Contractor's timely performance of work under this
Agreement. If labor difficulties of Contractor prevent Contractor from providing timely performance
of its work under this Agreement, Dublin may, at its option, demand that Contractor minimize
impairment of service (by using Contractor's management personnel to perform work, or by other
means), perform the work with Dublin's own employees, or contract with an alternative vendor.
Contractor agrees to reimburse Dublin for its reasonable costs in providing emergencymaintenance
and restoration services during labor difficulties of Contractor.
10. SUBCONTRACTORS: Contractor shall not subcontract any of the work under this
Agreement without Dublin's consent, which shall not be unreasonably withheld or unduly delayed.
Before the commencement of work by any subcontractor of Contractor, Contractor shall furnish
Dublin a nondisclosure agreement executed by such subcontractor agreeing to hold Dublin's
proprietary information in confidence pursuant to Paragraph 14 of this Agreement. Contractor shall
pay all subcontractors promptly, shall deliver lien waivers from any and all subcontractors allowed
hereunder, and shall indemnify, defend and hold Dublin harmless from any claims or liens asserted
by any such subcontractors.
11. INDEMNITY: To the extent not precluded by law, Contractor shall indemnify,
protect, defend and hold harmless Dublin, its elected officials, officers, employees, agents,
contractors, and volunteers from and against any and all liability, damages, losses, suits, claims,
demands, judgments, costs and expenses (including court costs and attorneys' fees) of every nature
and kind (specifically including, but not limited to, injury to or death of any person, damage to or
destruction of property, or claims regarding intellectual property rights), arising out of or incidental
to or in any way resulting from the acts or omissions, whether negligent or otherwise, of the
Contractor, its employees, subcontractors or agents in performance under this Agreement.
{H04799332 ]
32
EXHIBIT F
Page 7 of 16
12. INSURANCE: The Contractor and its assignees shall maintain in force at all times
while this Agreement is in effect and thereafter as specified herein, one or more policies of "per
occurrence" liability insurance naming Dublin, its elected officials, officers, agents, employees,
contractors, and volunteers as additional insureds) and containing a requirement that Dublin 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 the Contractor to Dublin prior to the
Commencement Date and subsequently upon request within ten (10) days after receipt of such
request.
Without limiting the generality of the foregoing, the Contractor shall at a minimum maintain
insurance in the following types and amounts at all times while this Agreement is in effect and
thereafter:
a. Standard workers' compensation as required bylaw;
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$2,000,000).
(2) Property damage
Combined single limit: Two million dollars (US$2,000,000).
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$2,000,000.00) shall also be maintained for the period of ownership and use of
the Conduit System and Property and six (6} months after the termination of, or
expiration of that period of ownership and use of the Conduit System 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
(L1S$2,000,000.00) per occurrence.
{H0479933.2 j
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EXHIBIT F
Page 8 of 16
e. The Contractor 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 Contractor by
an insurance company licensed to do business in the State of Ohio;
(2) Verify that the Contractor is insured on an occurrence basis against
claims for personal injury, including death, as well as claims for
property damage arising out of the services being performed under
this Agreement; including, but not limited to, protection against
liability arising from any and all operations, damage of explosion,
environmental release, and collapse of property;
(3) Name Dublin, 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;
(4) Require that the Dublin (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 Dublin, by registered mail, return
receipt requested, of a written notice addressed to Dublin of such
intent to cancel, diminish, or not to renew." Within thirty (30) days
after receipt by the Dublin of said notice, and in no event later than
five (5) days prior to said cancellation, the Contractor shall obtain and
provide to the additionally Dublin a certificate of insurance
evidencing appropriate replacement insurance policies.
13. FORCE MAJEURE: Except as otherwise expressly provided in this Agreement,
neither Party shall be liable to the other for damages resulting from any force majeure event,
including without limitation the elements; lightning; pest damage; power surges, fluctuations, or
failures; strikes or labor disputes; water; acts of God; war, civil disturbances, acts of civil or military
authorities, or the public enemy; fuel or energy shortages; or any other cause beyond such party's
reasonable control.
(H04799332 )
34
EXHIBIT F
Page 9 of 16
14. ASSIGNMENT: Dublin may assign its rights or delegate its obligations under this
Agreement to its parent, affiliate or subsidiary, or any company merging with or acquiring
substantially all of the assets or ownership interests of Dublin, or substantially all of Dublin's
network in the Service Area.
15. NOTICES: All notices, request, consents and other communication under this
Agreement shall be in writing and shall be deemed to have been delivered on the date received, if
sent by postage prepaid certified mail with return receipt requested, or sent via major overnight
courier to the respective Parties hereto as follows:
If to Dublin: Economic Development Director
City of Dublin
5800 Shier-Rings Road
Dublin,-Ohio 43016
With a Copy to: Law Director
City of Dublin
250 West Street
Columbus, Ohio 43215
If to Contractor: Columbus Fibernet LLC
Attention: General Manager
1810 Arlingate Lane
Columbus, Ohio 43228
Phone: (614) 274-8100
Fax: (614) 274-6794
16. AMENDMENTS: This agreement may be modified or amended only by written
agreement signed by both Parties.
17. TITLES: Titles to paragraphs, sections, schedules and Appendices are used merely
for convenience and shall not be taken as an interpretation of the contents of those passages or as an
attempt to enlarge, limit or define terms covered by this Agreement.
18. SAVINGS CLAUSE: If any provision of this Agreement, or the application of such
provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or
the application of such provision to persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby.
{1{(14799332 }
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EXHIBIT F
Page 10 of 16
19. WAIVER: Failure of either Party at any time to require performance of any
provision of this Agreement shall not limit the Parry's right to enforce the provision, nor shall any
waiver of any breach of any provision be a waiver of any succeeding breach of any provision or a
waiver of the provision itself for any other provision.
20. PRESUMPTION: This Agreement or any section thereof shall not be construed
against any Party due to the fact that said Agreement or any section thereof was drafted by said Party.
21. GOVERNING LAW/VENUE: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Ohio without regard to that state's conflicts of
laws provisions. All disputes between the Parties shall attorn to the jurisdiction of the courts of
Franklin County, Ohio.
22. PAYMENT: Payment terms shall be net Thirty (30) from date of invoice.
SIGNATURE PAGE TO IMMEDIATELY FOLLOW
{H0479933.2
36
EXHIBIT F
Page 11 of 16
IN WITNESS WHEREOF, the parties execute this Agreement by their duly authorized
representatives as of the day and year first above written.
CONTRACTOR
Columbus Fibernet LLC
By:
Name: ~1 ~ C- ~ 1`T~-~-
Title: ~~ / ~S~/l~~-
DUBLIN
City of Dublin, Ohio
Name: .~1~f~~ S ~2/a~` _'~ C:-~,»
Title: ~~ i T'/ r~~%~~l~t~G ~ ~~
Approved As To Form:
~~.-~
~~
/~
C ///~
///`f
aw Director, City of Dublin, Ohio.
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(H0479933.2 }
37
EXHIBIT F
Page 12 of 16
APPENDIX A
1 of 1
SERVICE AREA MAP
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38
EXHIBIT F
Page 13 of 16
APPENDIX B
1 of 2
SCHEDULE OF PRICES
1) Emergency Restoration Services:
Provides: Two (2) Hour Response
Twenty Four (24) Hours/Day Coverage
Three Hundred and Sixty Five (365) Days/Year coverage
Provides all products, materials, labor, and test sets required to perform temporary
restoration of Dublin's fiber network.
Dublin to provide fiber cable.
Annual Retainage Fee :Two Thousand Dollars and No Cents (US$2,000.00) per
month (Fee waived for first five (5) years)
Additional Expenses Incurred per Call out:
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{H0479933.2 }
39
EXHIBIT F
Page 14 of 16
APPENDIX B
2 of 2
SCHEDULE OF PRICES
All product and material costs required to restock materials setaside for future use.
Labor Rates Hourl Rate Overtime Rate
Pro'ect Mana er 75.00 112.50
Professional En ineer 65.00 97.50
Ri t of Wa A ent 48.50 72.75
Su ervisor 47.70 71.55
Foreman 36.90 55.35
erator 31.50 47.25
Truck Driver 26.00 39.00
Laborer 21.70 32.55
Fiber S liter 42.00 63.00
E ui ment Rates Hourl Rate
Picku 16.00
1-ton/flat bed 17.60
2-ton dum 24.00
Trailer 16.50
Rubber tired backhoe 36.20
Roddin machine 21.75
Winch truck 21.75
Air tom ressor 16.00
Li t lant 17.45
Arrow board 9.00
2" water um 10.00
Generator 14.50
Cable cart 7.00
Manhole acka e 14.50
Fusions licin acka e 30.00
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~H0479933.2 )
40
EXHIBIT F
Page 15 of 16
APPENDIX C
lofl
CONTACTS, ESCALATIONS, AND PROCEDURES
Dublin's Single Point of Contact for Emergency Restoration Service will be General Manager,
Columbus FiberNet (CFN) at 614-274-8100. For the duration of an emergency restoration, Dublin
will be updated at least once an hour with progress reports.
Contractor personnel on site will provide assistance as needed; however the following escalation list
is provided should further assistance be needed:
Name Title Cell Phone
Dean Pence General Manager -CFN 614-207-8478
Tim Griffin Area Manager -The Fishel Co. 614-554-6481
Eric Smith President -CFN 614-571-6018
Dublin will require one test of the Emergency Restoration Service annually. The purpose of these
tests is to insure that all personnel and material required for the Emergency Restoration Service are
able to respond should a real emergency occur. Dublin will pay the time and charges per the
schedule in Appendix B for these tests.
Contractor's Single Point of Contact for Emergency Operations will be General Manager -CFN.
For the duration of any emergency restoration, Contractor will update Dublin once per hour with
progress reports.
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{H04799332 )
41
EXHIBIT F
Page 16 of 16
APPENDIX D
lofl
EQUIPMENT & SUPPORT CENTER LOCATION
Contractor will maintain the following inventory of materials and supplies for the sole purpose of
providing emergency restoration services:
Item uantit
Fiber optic splice closure 2
Splice tray 24
Fusion splice sleeves 1,000
In addition, Contractor will make available the following tools and equipment for immediate
deployment:
Item uantit
Single mode fusion splicer 1
OTDR 1
Stocked tool kits ea. Technician
Communication sets 2
Portable generator 1
Manhole pump & blower 1
Splicing van/trailer 1
Safety & Traffic control equipment ea. vehicle
All equipment and supplies will be located at The Fishel Company yard located at 1600 Walcutt
Road, Columbus, Ohio 43228.
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END
(H04799332
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