29-04 Resolution
RECORD OF RESOLUTIONS
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Resolution No. 29-04 Passed ,20_
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A RESOLUTION AUTHORIZING THE CITY MANAGER
TO ENTER AN AGREEMENT WITH AMERICAN ELECTRIC POWER
(AEP) AND CABOTICS FOR THE USE OF FIBER OPTICS
WHEREAS, the City of Dublin possesses certain conduit and fiber optic cable within the
City of Dublin; and
WHEREAS, the City of Dublin has partnered with CaBotics to deploy such fiber as part
of the City's overall fiber optic system; and
WHEREAS, American Electric Power (AEP) desires to obtain fiber optic connectivity
between its Dublin substation and Sawmill substations; and
WHEREAS, such connectivity is critical to the operation ofthese substations and electric
power to the Dublin community; and
WHEREAS, AEP' s use of City-owned and CaBotics-owned fiber optics would provide a
protected fiber optic pathway and avoid having to construct a new fiber optic line through
neighborhoods; and
WHEREAS, the City of Dublin, CaBotics and AEP desire to work together to exchange
available "dark" fiber for mutually beneficial purposes.
NOW, TH0FORE, BE IT RESOLVED by the Council ofthe City of Dublin, State
of Ohio, of the elected members concurring that:
Section 1. Dublin City Council hereby authorizes the City Manager to enter into an
Agreement with AEP and CaBotics to memorialize the exchange, use and maintenance of
fiber optics.
Section 2. This Resolution shall take effect and be in force on the earliest date
permitted by law.
Passed this 21b day of ~ ,2004
}t40\?(k{J~ ~~~
Mayor - Presiding Officer
ATTEST:
~Q~
Clerk of Council
I hereby certify that copies of this
Ordinance/Resolution were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
Department of Service
6555 Shier Rings Road. Dublin, OH 43016-8716
Phone: 614-410-4750. Fax: 614-923-5529
CITY OF DUBLIN Memo
TO: Members of the Dublin City Council
FROM: Jane S. Brautigam, City Manager~6. Q)~
DATE: June 2,2004
INITIATED BY: Dana L. McDaniel, Deputy City Manager/Director of Service
RE: American Electric Power and CaBotics Fiber Optics Agreement, Resolution 29-04
Back2:round
American Electric Power (AEP) and CaBotics desires to make available newly constructed and
existing fiber optic cable to the City of Dublin in exchange for use of City owned fiber.
AEP operates two electric substations that are critical to the supply of electric power to the
Dublin and surrounding community. The two substations are the Dublin Substation on the
comer of Shier Rings Road and Emerald Parkway and the Sawmill Substation north of
Summitview Road. AEP intends to connect these two substations with fiber optics. Originally,
AEP desired to make this connection by constructing a new "sheathing wire" with fiber optics
atop the existing 69 and 138 Kv transmission line. As Council is aware, these transmission lines
run through several neighborhoods.
Upon learning of this possibility, Staff approached AEP about using Dublin owned fiber for a
portion of this connection. While studying the options for connection, CaBotics expressed a
desire to be part of the project. As Council may recall, the City and CaBotics jointly deployed
fiber along Riverside Drive and Hard Road generally from Emerald Parkway to Dublin Scioto
High School. This was a deployment of fiber through the City's existing storm water system. All
three parties have concurred that a unique opportunity existed for all parties to achieve their
individual needs by "swapping" dark fiber.
In effect, the proposed Agreement enables the following (refer to Map attached to Agreement):
1. The City will make certain City-owned fibers available to AEP. These fibers will be
generally from The Dublin Substation to Emerald Parkway and Riverside Drive. In
exchange, AEP will make fibers available to the City along a new route to be constructed.
This route will be generally from the east side of Dublin Scioto High School north to the
Sawmill Substation along the high voltage transmission line. The addition of these fibers
will extend Dublin's system of fiber optics on the east side of the river north to the
Northeast Quad Park and adjacent to existing and future neighborhoods.
2. CaBotics will enter into a separate Agreement with AEP to provide additional fiber
between the current termination point of the City/CaBotics fiber on Hard Road and the
high voltage transmission line adjacent to Dublin Scioto High School. This Agreement
will make CaBotics' fiber available to the City through this new section, thereby
connecting Dublin's existing fiber between the existing termination point on Hard Road
and the AEP Fiber to be constructed on the high voltage transmission line. CaBotics
desires to make its fiber available to AEP in order to provide a place where they can
"demo" their fiber deployment. CaBotics desires to make fiber available to the City in
the spirit of our previous partnership and to make the connection complete. While our
joint deployment of this fiber was successful, it is yet to be "lit" and actually used.
Therefore, CaBotics wants it to be "lit" in order to "demo" it to others.
3. AEP will construct new fibers along the high voltage transmission line and make them
available to the City, work with CaBotics to connect them with the existing
City/CaBotics fibers and use the City owned fibers to establish connectivity between its
substations.
Although a little complicated, the above exchange of fiber meets the individual needs of all three
parties. This Agreement does not contemplate any exchange of dollars, but an equal exchange of
fibers to extend each party's system.
Recommendation
Staff recommends Council pass Resolution 29-04 authorizing the City Manager to enter into a
joint Agreement with both AEP and CaBotics. The ability of the City to extend its system of
fiber to this area of the City is highly valuable and an equitable exchange of assets. The City will
in no way significantly deplete the existing amount of City owned fiber. In addition, Staff
considers it advantageous to the City and AEP to establish the fiber connection between the two
substations in this manner for two reasons:
1. This connection will be significantly underground, therefore highly protected; and
2. This connection will avoid having to "pull" a new "sheathing wire" with fiber through
numerous neighborhoods.
Please address any questions to Dana McDaniel at 410-4751. Thank you.
T;\wordIDANAIMEMOS\COUNCILIAEP Cabotics Agreement 060204,OOc
FIBER OPTIC EXCHANGE AGREEMENT
THIS FillER OPTIC EXCHANGE AGREEMENT (hereinafter referred to as the "Agreement"), made
and entered into this day of , 2004, among Columbus Southern
Power Company, an Ohio Corporation (hereinafter referred to as "CSP") having an office at One Riverside
Plaza, Columbus, Ohio 43215; the City of Dublin Ohio (hereinafter referred to as "City"), an Ohio Municipal
Corporation having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-006; and Ca-Botics Fiber Systems
(hereinafter referred to as "Ca-Botics") an Limited Liability Corporation, having an office at 6200 Eiterman
Road, Dublin, Ohio 43016; CSP, City and Ca-Botics being collectively referred to as "Parties".
WHEREAS, CSP possesses excess fiber optic capacity inside the City of Dublin corporate limits; and
WHEREAS, the City, via the Dublink system, possesses excess fiber capacity; and
WHEREAS, Ca-Botics possesses excess fiber capacity within the City of Dublin; and
WHEREAS, the Parties desire to exchange various amounts of excess fiber capacity to each other to
.,ist each of them in the expansion of their individual fiber optic networks,
THEREFORE, of the Parties hereby agree as follows:
FillER EXCHANGE:
A. CSP grants to the City of Dublin, pursuant to the Fiber Optic Agreement attached as Exhibit "A",
the right to utilize various fibers belonging to CSP, for a term of fifteen (15) years.
B. The City of Dublin grants to CSP, pursuant to the Fiber Optic Agreement attached as Exhibit
"B", the right to use various City fibers for a period of fifteen (15) years.
C. The Ca-Botics grants to the City of Dublin, pursuant to the Fiber Optic Agreement attached as
Exhibit "C", the right to use various fiber optics for a term of fifteen (15) years.
-
CONSTRUCTION:
Ca-Botics as CSP, by separate Agreement, agree that Ca-Botics will construct the necessary fiber
linkage between the City, Ca-Botics at CSP at the meet points of the respective fibers.
III. TERM:
A. This Agreement shall terminate, upon the termination of the above-referenced Fiber Optic
Agreements among the Parties. In the event, the above-referenced Agreements terminate on
different dates, this Agreement shall terminate when the last Fiber Optic Agreement terminates.
IV. VENUE:
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1
A. This Agreement shall be governed by and construed in accordance with the laws of the State of
Ohio. Any action, dispute or claims concerning, relating to, or involving this Agreement or
product provided hereunder must take place in the appropriate Court of Franklin County, Ohio
and the Parties consent to the jurisdiction of Courts in set County.
V. MISCELLANEOUS:
A. This Agreement sets forth the entire Agreement between and among the Parties with respect to
the subject matter contained and may not be amended or modified except by written document,
signed by the Parties.
B. The rights and remedies of the parties are cumulative and in addition to any rights and remedies
provided by law or equity, waiver or breach of any provision of this Agreement will not
constitute a waiver of the same or any other provision.
C. Notices will be writing, mailed and certified with return receipt requested, effective upon receipt
and sent to: The City of Dublin, ATTN: City Attorney, 5200 Emerald Parkway, Dublin, Ohio
43017-006; Columbus Southern Power Company, ATTN: , One
Riverside Plaza, Columbus, Ohio 43215; copy to Columbus Southern Power Company, ATTN:
J.E. Jadwin, One Riverside Plaza, Columbus, Ohio 43215 or to a replacement address to be later
designated in writing; and Ca-Botics Fiber Systems, ATTN: , 6200
Eiterman Road, Dublin, Ohio 43016.
REST OF DOCUMENT PURPOSELY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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2
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year below written,
but effective as of the day and year first set forth above:
CITY OF DUBLIN:
By:
Its:
COLUMBUS SOUTHERN POWER COMPANY:
By:
Its:
CA-BOTICS FIBER SYSTEMS:
By:
Its:
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3
EXHIBIT" A"
FIBER OPTIC AGREEMENT
THIS FIBER OPTIC AGREEMENT ("Agreement"), made and entered into this _ day of , 2004,
between Columbus Southern Power Company, an Ohio corporation, ("CSP") having an office at 1 Riverside
Plaza, Columbus, OH 43215 and the City of Dublin, Ohio ("City"), an Ohio municipal corporation having an
office at 5200 Emerald Parkway, Dublin Ohio 43017-1006, CSP and City being collectively referred to as the
"Parties" .
BACKGROUND:
CSP will grant to the City a right to use _ single mode fibers on a route from to
(the "CSP Fibers"); and
City has agreed to accept the use of the City Fibers in accordance with the terms and conditions of this
Agreement;
THEREFORE, the Parties agree as follows:
ARTICLE 1. SCOPE OF AGREEMENT
lJ. CSP has designed, engineered, constructed and acquired appropriate interests in real property or other
rights, a fiber optic cable ("Route"), as more fully defined in Exhibit A, Route Diagram. CSP will
inform City of any changes in right-of-way configurations. The following Exhibits, attached hereto, are
by this reference incorporated herein.
Exhibit A Route Diagram
Exhibit B Fiber Optic Specifications
Exhibit C Contact/Escalation List
Exhibit D Consideration Agreement
1.2 CSP grants City access to the CSP Fibers at the locations set forth in Exhibit A.
U The Demarcation Points, as specified in Exhibit A, between CSP and City will be located inside the CSP
Sites and are defined to be at the Fiber Distribution Panel (FDP).
ARTICLE 2. MAINTENANCE
2.1 CSP will exclusively operate and maintain the Route and the City Fibers in accordance with accepted
industry standards and Exhibit B, Leased Fiber Optic Specifications, for the Term ofthis Agreement and
any extensions. In the event that accepted industry standards vary from Exhibit B in any way, the terms
of Exhibit B shall prevail.
2.2 CSP will perform all routine and ordinary maintenance and repairs, as well as emergency repairs to
correct any failure, interruption or impairment in the operation of the City Fibers between the
Demarcation Points on the Route. City will report any emergency to CSP, which will use its best efforts
to dispatch personnel to be on-site within two (2) hours to take corrective action. In the event CSP fails
to respond to such emergency within two (2) hours and to proceed with a good faith effort to expedite
{H0438462,2 }
4
EXHIBIT" A"
repairs, City may contact the number on Exhibit C to work towards a resolution of the problem. The
Parties agree that the fee for Routine Maintenance will be $250.00 per route mile, per year.
2.3 CSP will notify City five (5) days prior to any scheduled commencement of such work at L-)
2.4 All cable relocations required by governmental authorities or third parties will be performed by CSP.
The cost of relocations under this section shall be distributed between the parties on a pro-rata basis.
This distribution shall be determined by using the number of fibers controlled by each party within the
segment to be relocated as a determination of percentage of costs each party owes toward the relocation
fees.
2.5 All cable relocations required by CSP will be performed by CSP at CSP's sole cost.
2.6 CSP will periodically provide City with an updated contact/escalation list to aid in trouble reporting and
resolution. The current list is attached as Exhibit C and may be revised from time to time by written
notice.
ARTICLE 3. TERM/TERMINATION
This Agreement will commence as of the date and year executed and will continue for a period of fifteen (15)
years ("Term").
ARTICLE 4. CONSIDERATION
The consideration for the CSP Fibers on the Route will be the City providing CSP with the right to install,
maintain and use a cable within the City facilities between the following two points
, as displayed in further detail in Exhibit A and D.
ARTICLE 5. WARRANTIES
II The Warranties and remedies set forth in this Agreement constitute the only warranties and remedies
with respect to this Agreement. Such Warranties are in lieu of all other warranties, written or oral,
statutory, express or implied, including without limitation the Warranty of merchantability and the
Warranty of fitness for a particular purpose or use.
5.2 CSP warrants to City that it has the right to perform as required under this Agreement and/or provide to
City the CSP Fibers, and that it is an entity, duly organized, validly existing and in good standing under
the laws of its state of origin of Ohio, with all requisite power to enter into and perform its obligations
under this Agreement.
5.3 CSP warrants to City that all performance obligations rendered by it will be designed, produced,
installed, furnished and in all respects provided and maintained in conformance and compliance with
applicable federal, state and local laws, administrative and regulatory requirements, and any other
authorities having jurisdiction over the subject matter of this Agreement as required by law. CSP will be
responsible for applying for, obtaining and maintaining all registrations and certifications which may be
required by such authorities. CSP agrees to abide by all current and future national, state, or local right-
of-way laws.
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EXHIBIT" A"
5.4 CSP will have obtained or made arrangements to secure all required regulatory authorizations,
construction permits, and appropriate agreements for installation and use of the Route in ducts, on poles,
and/or in trenches on public or private property. It is expressly understood that the Route may be
installed in or on a right of way, the use of which is licensed or leased to CSP by others. CSP will have
acquired such right of way (including any necessary renewals or new licenses or leases) and obtain for
City the right to use, maintain and access the Route without interruption and a guarantee of non-
disturbance during the Term of this Agreement and any renewals. CSP will immediately inform City in
the event that CSP is unable, after diligent and good faith efforts, to obtain renewals of existing licenses
or leases, new licenses or new leases, in order to enable City to protect its rights to use, and access the
Route provided during the Term of this Agreement.
5.5 City warrants to CSP that it has the full right and authority to enter into, execute, deliver and perform its
obligations under this Agreement and this Agreement constitutes a legal, valid, and binding obligation
enforceable in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights and general
equitable principles.
ARTICLE 6. INDEMNIFICATION
CSP SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS CITY AND ITS ELECTED
OFFICIALS, OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES AGAINST ALL SUITS OR
CLAIMS THAT MAYBE BASED UPON ANY INJURY TO PERONS OR PROPERTY THAT MAY ARISE
OUT OF ANY ERROR, OMISSION, OR NEGLIGENT OR WILLFUL ACT OF CSP, AND CSP SHALL, AT
THEIR EXPENSE DEFEND CITY IN ALL LITIGATION, PAY ALL ATTORNEY'S FEES, DAMAGES,
COURT COSTS AND OTHER EXPENSES ARISING OUT OF LITIGATION OF CLAIMS OR
OCCURRENCES IN CONNECTION THEREWITH; AND SHALL AT THEIR OWN EXPENSE, SATISFY
AND CAUSE TO BE DISCHARGED SUCH JUDGMENTS AS MAY BE OBTAINED AGAINST CITY OR
ANY OF ITS OFFICERS, AGENTS, AND EMPLOYEES. UNLESS OTHERWISE SPECIFIED HEREIN,
FOR ANY AND ALL CLAIMS FOR WHICH CSP HAS AGREED TO INDEMNIFY CITY, THE
OBLIGATION TO INDEMNIFY SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON
THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR CSP
UNDER WOKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER
EMPLOYMENT BENEFIT ACTS.
ARTICLE 7. DEFAULT
Ll A default shall be deemed to have occurred under this Agreement if:
(a) in the case of any material breach of this Agreement, a party fails to cure such material breach
within thirty (30) days after notice specifying such breach, provided that if the breach is of a nature that
cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching party
has commenced to cure within said time period and thereafter diligently pursues such cure to
completion; or
(b) an attempt to cure a material breach is made, however the breach has not been cured within ninety
(90) days despite curing efforts, reasonable or not, by the breaching party.
7.2 In the event of any default hereunder, the non-defaulting party may pursue any legal remedies it may
have under applicable law or principles of equity, including specific performance.
{H0438462.2 l
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EXHIBIT" A"
7.3 A waiver by either party at any time of any of its rights as to anything herein contained shall not be
deemed to be a waiver of any breach of covenant or other matter subsequently occurring.
ARTICLE 8 - INDEPENDENT CONTRACTOR STATUS
~ The relationship between City and CSP is that of an independent contractor. The relationship of
employer-employee, principal-agent, or master-servant, either express or implied does not exist between
the contracting parties.
8.2 As an independent contractor, CSP shall retain the sole responsibility for all taxes due to federal, state,
or local governments or agencies.
ARTICLE 9 - VENUE
This Agreement shall be governed by and construed in accordance with the laws of Ohio. Any action, dispute,
or claim concerning, relating to, or involving this Agreement or product provided hereunder must take place in
the appropriate court of Franklin County, Ohio and the parties consent to the jurisdiction of courts in said
County.
ARTICLE to-CITY INCOME TAXES
CSP agrees to and shall cause its agents and subcontractors to, withhold all applicable municipal income taxes
due or payable under the provisions of Chapter 35 of the Codified Ordinances of Dublin, Ohio, for wages,
salaries and commissions paid to its employees in conjunction with Agreement.
ARTICLE 11 - INSURANCE
11.1 CSP shall obtain and furnish a Certificate of Insurance regarding the listed polices below to the City
Manager of City at or before the effective date of this Agreement. Such policies shall be maintained for
the life of this Agreement. Each liability insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew
be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such
intent to cancel or not to renew."
Within thirty (30) days after receipt by the City of said notice, and in no event later than five (5) days
prior to said cancellation, the operator shall obtain and furnish to the City Manager of City a Certificate
of Insurance evidencing replacement insurance policies.
11.2 Comprehensive general liability insurance to cover liability, bodily injury and property damage must be
maintained. Coverage must be written on an occurrence basis, with the following limits of liability and
provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
{H0438462,2 }
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EXHIBIT" A"
(c) Personal Injury
1. Annual Aggregate $3,000,000
(d) Completed Operations and Products Liability shall be maintained for two (2) years after the
termination of this Agreement.
(e) Property Damage Liability Insurance shall include coverage for explosion, collapse, underground.
11.3 Comprehensive auto liability insurance to cover owned, hired, and non-owned vehicles must be
maintained. Coverage must be written on an occurrence basis, with the following limits of liability and
provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
ARTICLE 12 - MISCELLANEOUS
12.1 This Agreement and cited references sets forth the entire Agreement between City and CSP with respect
to the subject matter contained and may not be amended or modified except by written document, signed
by both Parties.
12.2 The rights and remedies of the Parties are cumulative and in addition to any other rights and remedies
provided by law or equity. A waiver of a breach of any provision of this Agreement will not constitute a
waiver of the same or any other provision.
12.3 Notices will be in writing, mailed certified with return receipt requested, effective upon receipt and sent
to:
City:
Attn:
Fax:
CSP:
Columbus Southern Power Company
Attn:
1 Riverside Plaza
Columbus, OH 43215
Copy to:
{H0438462.2 }
8
EXHIBIT" A"
Columbus Southern Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Attn: Jay E. Jadwin
or to replacement addresses that may be later designated in writing.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year below written,
but effective as of the day and year first set forth above.
Columbus Southern Power Company City of Dublin, Ohio
By: By:
Name: Name:
Title: Title:
Date: Date:
{H0438462.2 l
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EXHIBIT" A"
EXHIBIT B
FIBER SPECIFICATIONS
{H0438462.2 }
11
EXHIBIT" A"
EXHIDIT C
CONTACT/ESCALATION LIST
{H0438462.2 }
12
EXHIBIT "B"
FIBER OPTIC CONSIDERATION AGREEMENT
THIS FIBER OPTIC AGREEMENT ("Agreement"), made and entered into this _ day of ,2004,
between Columbus Southern Power Company, an Ohio corporation, ("CSP") having an office at I Riverside
Plaza, Columbus, OH 43215 and the City of Dublin, Ohio ("City"), an Ohio municipal corporation having an
office at 5200 Emerald Parkway, Dublin Ohio 43017-1006, City and CSP being collectively referred to as the
"Parties" .
BACKGROUND:
City will grant to CSP a right to use _ single mode fibers on a route from to
(the "City Fibers"); and
CSP has agreed to accept the use of the City Fibers in accordance with the terms and conditions of this
Agreement;
THEREFORE, the Parties agree as follows:
ARTICLE 1. SCOPE OF AGREEMENT
U City has designed, engineered, constructed and acquired appropriate interests in real property or other
rights, a fiber optic cable ("Route"), as more fully defined in Exhibit A, Route Diagram. The City will
inform CSP of any changes in right of way configurations. The following Exhibits, attached hereto, are
by this reference incorporated herein.
Exhibit A Route Diagram
Exhibit B Fiber Optic Specifications
Exhibit C Contact/Escalation List
1.2 City grants CSP access to the City Fibers at the locations set forth in Exhibit A.
U The Demarcation Points, as specified in Exhibit A, between City and CSP will be located inside the City
Sites and are defined to be at the Fiber Distribution Panel (FDP).
ARTICLE 2. MAINTENANCE
il City will exclusively operate and maintain the Route and the City Fibers in accordance with accepted
industry standards and Exhibit B, Leased Fiber Optic Specifications, for the Term of this Agreement and
any extensions. In the event that accepted industry standards vary from Exhibit B in any way, the terms
of Exhibit B shall prevail.
2.2 City will perform all routine and ordinary maintenance and repairs, as well as emergency repairs to
correct any failure, interruption or impairment in the operation of the City Fibers between the
Demarcation Points on the Route. CSP will report any emergency to City, which will use its best efforts
to dispatch personnel to be on-site within two (2) hours to take corrective action. In the event City fails
to respond to such emergency within two (2) hours and to proceed with a good faith effort to expedite
repairs, CSP may contact the number on Exhibit C to work towards a resolution of the problem. The
Parties agree that the fee for Routine Maintenance will be $250.00 per route mile, per year.
{H0438462,2 }
13
EXHIBIT "B"
2.3 City will notify CSP five (5) days prior to any scheduled commencement of such work at <--.)
2.4 All cable relocations required by governmental authorities or third parties will be performed by City.
The cost of relocations under this section shall be distributed between the parties on a pro-rata basis.
This distribution shall be determined by using the number of fibers controlled by each party within the
segment to be relocated as a determination of percentage of costs each party owes toward the relocation
fees.
2.5 All cable relocations required by City will be performed by City at City's sole cost.
2.6 City will periodically provide CSP with an updated contact/escalation list to aid in trouble reporting and
resolution. The current list is attached as Exhibit C and may be revised from time to time by written
notice.
ARTICLE 3. TERM/TERMINATION
This Agreement will commence as of the date and year executed and will continue for a period of fifteen (15)
years ("Term").
ARTICLE 4. CONSIDERATION
The consideration for the City Fibers on the Route will be CSP providing City with the right to install, maintain
and use a cable within the CSP facilities between the following two points
, as displayed in further detail in Exhibit A.
ARTICLE 5. WARRANTIES
5.1 The Warranties and remedies set forth in this Agreement constitute the only warranties and remedies
with respect to this Agreement. Such Warranties are in lieu of all other warranties, written or oral,
statutory, express or implied, including without limitation the Warranty of merchantability and the
Warranty of fitness for a particular purpose or use.
5.2 City warrants to CSP that it has the right to perform as required under this Agreement and/or provide to
CSP the City Fibers, and that it is an entity, duly organized, validly existing and in good standing under
the laws of its state of origin of , with all requisite power to enter into and perform its obligations
under this Agreement.
5.3 City warrants to CSP that all performance obligations rendered by it will be designed, produced,
installed, furnished and in all respects provided and maintained in conformance and compliance with
applicable federal, state and local laws, administrative and regulatory requirements, and any other
authorities having jurisdiction over the subject matter of this Agreement as required by law. The City
will be responsible for applying for, obtaining and maintaining all registrations and certifications which
may be required by such authorities. The City agrees to abide by all current and future national, state, or
local right-of-way laws.
5.4 The City will have obtained or made arrangements to secure all required regulatory authorizations,
construction permits, and appropriate agreements for installation and use of the Route in ducts, on poles,
and/or in trenches on public or private property. It is expressly understood that the Route may be
{H0438462.2 }
14
EXHIBIT "B"
installed in or on a right of way, the use of which is licensed or leased to City by others. The City will
have acquired such right of way (including any necessary renewals or new licenses or leases) and obtain
for CSP the right to use, maintain and access the Route without interruption and a guarantee of non-
disturbance during the Term of this Agreement and any renewals. The City will immediately inform
CSP in the event that City is unable, after diligent and good faith efforts, to obtain renewals of existing
licenses or leases, new licenses or new leases, in order to enable CSP to protect its rights to use, and
access the Route provided during the Term of this Agreement.
5.5 CSP warrants to City that it has the full right and authority to enter into, execute, deliver and perform its
obligations under this Agreement and this Agreement constitutes a legal, valid, and binding obligation
enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, creditors'
rights and general equitable principles.
ARTICLE 6. INDEMNIFICATION
CSP SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS CITY AND ITS ELECTED
OFFICIALS, OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES AGAINST ALL SUITS OR
CLAIMS THAT MAYBE BASED UPON ANY INJURY TO PERONS OR PROPERTY THAT MAY ARISE
OUT OF ANY ERROR, OMISSION, OR NEGLIGENT OR WILLFUL ACT OF CSP, AND CSP SHALL, AT
THEIR EXPENSE DEFEND CITY IN ALL LITIGATION, PAY ALL ATTORNEY'S FEES, DAMAGES,
COURT COSTS AND OTHER EXPENSES ARISING OUT OF LITIGATION OF CLAIMS OR
OCCURRENCES IN CONNECTION THEREWITH; AND SHALL AT THEIR OWN EXPENSE, SATISFY
AND CAUSE TO BE DISCHARGED SUCH JUDGMENTS AS MAY BE OBTAINED AGAINST CITY OR
ANY OF ITS OFFICERS, AGENTS, AND EMPLOYEES. UNLESS OTHERWISE SPECIFIED HEREIN,
FOR ANY AND ALL CLAIMS FOR WHICH CSP HAS AGREED TO INDEMNIFY CITY, THE
OBLIGATION TO INDEMNIFY SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON
THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS PAYABLE BY OR FOR CSP
UNDER WOKERS' COMPENSATION ACTS, DISABILITY BENEFIT ACTS, OR OTHER
EMPLOYMENT BENEFIT ACTS.
ARTICLE 7. DEFAULT
1J. A default shall be deemed to have occurred under this Agreement if:
(a) in the case of any material breach of this Agreement, a party fails to cure such material breach
within thirty (30) days after notice specifying such breach, provided that if the breach is of a nature that
cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching party
has commenced to cure within said time period and thereafter diligently pursues such cure to
completion; or
(b) an attempt to cure a material breach is made, however the breach has not been cured within ninety
(90) days despite curing efforts, reasonable or not, by the breaching party.
7.2 In the event of any default hereunder, the non-defaulting party may pursue any legal remedies it may
have under applicable law or principles of equity, including specific performance.
7.3 A waiver by either party at any time of any of its rights as to anything herein contained shall not be
deemed to be a waiver of any breach of covenant or other matter subsequently occurring.
ARTICLE 8 - INDEPENDENT CONTRACTOR STATUS
{H0438462.2 }
15
EXHIBIT "B"
liJ. The relationship between CSP and City is that of an independent contractor. The relationship of
employer-employee, principal-agent, or master-servant, either express or implied does not exist between
the contracting parties.
8.2 As an independent contractor, the City shall retain the sole responsibility for all taxes due to federal,
state, or local governments or agencies.
ARTICLE 9 - VENUE
This Agreement shall be governed by and construed in accordance with the laws of Ohio. Any action, dispute,
or claim concerning, relating to, or involving this Agreement or product provided hereunder must take place in
the appropriate court of Franklin County, Ohio and the parties consent to the jurisdiction of courts in said
County.
ARTICLE to-INCOME TAXES
The City agrees to and shall cause its agents and subcontractors to, withhold all applicable municipal income
taxes due or payable under the provisions of Chapter 35 of the Codified Ordinances of Dublin, Ohio, for wages,
salaries and commissions paid to its employees in conjunction with Agreement.
ARTICLE 11 - INSURANCE
11.1 CSP shall obtain and furnish a Certificate of Insurance regarding the listed polices below to the City
Manager of City at or before the effective date of this Agreement. Such policies shall be maintained for
the life of this Agreement. Each liability insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew
be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such
intent to cancel or not to renew."
Within thirty (30) days after receipt by the City of said notice, and in no event later than five (5) days
prior to said cancellation, the operator shall obtain and furnish to the City Manager of City a Certificate
of Insurance evidencing replacement insurance policies.
11.2 Comprehensive general liability insurance to cover liability, bodily injury and property damage must be
maintained. Coverage must be written on an occurrence basis, with the following limits of liability and
provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(c) Personal Injury
1. Annual Aggregate $3,000,000
{H0438462,2 }
16
EXHIBIT "B"
(d) Completed Operations and Products Liability shall be maintained for two (2) years after the
termination of this Agreement.
(e) Property Damage Liability Insurance shall include coverage for explosion, collapse, underground.
11.3 Comprehensive auto liability insurance to cover owned, hired, and non-owned vehicles must be
maintained. Coverage must be written on an occurrence basis, with the following limits of liability and
provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
ARTICLE 12 - MISCELLANEOUS
12.1 This Agreement sets forth the entire Agreement between CSP and City with respect to the subject matter
contained and may not be amended or modified except by written document, signed by both Parties.
12.2 The rights and remedies of the Parties are cumulative and in addition to any other rights and remedies
provided by law or equity. A waiver of a breach of any provision of this Agreement will not constitute a
waiver ofthe same or any other provision.
12.3 Notices will be in writing, mailed certified with return receipt requested, effective upon receipt and sent
to:
CITY:
Attn:
Fax:
CSP:
Columbus Southern Power Company
Attn:
1 Riverside Plaza
Columbus, OH 43215
Copy to:
Columbus Southern Power Company
1 Riverside Plaza
Columbus, Ohio 43215
Attn: Jay E. Jadwin
{H0438462,2 }
17
EXHIBIT "B"
or to replacement addresses that may be later designated in writing.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year below written,
but effective as of the day and year first set forth above.
Columbus Southern Power Company CSP of Dublin, Ohio
By: By:
Name: Name:
Title: Title:
Date: Date:
{H04384622 }
18
EXHIBIT A EXHIBIT "B"
ROUTE DIAGRAM
{H0438462.2 1
19
EXHIBIT "B"
EXHIBIT B
FffiER SPECIFICATIONS
{H0438462,2 }
20
EXHIBIT "B"
EXHIBIT C
CONTACT/ESCALATION LIST
{H0438462.2 }
21
EXHIBIT "C"
FIBER OPTIC AGREEMENT
THIS FIBER OPTIC AGREEMENT ("Agreement"), made and entered into this _ day of ,2004,
between Ca-Botics Fiber System International, Ltd., ("Ca-Botics") whose address is 6200 Eiterman Road,
Dublin, Ohio 43016 and the City of Dublin, Ohio ("City"), an Ohio municipal corporation having an office at
5200 Emerald Parkway, Dublin Ohio 43017-1006, CA-BOTICS and City being collectively referred to as the
"Parties".
BACKGROUND:
Ca-Botics will grant to the City a right to use _ single mode fibers on a route from
to (the "Ca-Botics Fibers"); and
City has agreed to accept the use of the Ca-Botics Fibers in accordance with the terms and conditions of
this Agreement;
THEREFORE, the Parties agree as follows:
ARTICLE 1. SCOPE OF AGREEMENT
1.1 Ca-Botics has designed, engineered, constructed and acquired appropriate interests in real property or
other rights, a fiber optic cable ("Route"), as more fully defined in Exhibit A, Route Diagram. Ca-Botics
will inform City of any changes in right-of-way configurations. The following Exhibits, attached hereto,
are by this reference incorporated herein.
Exhibit A Route Diagram
Exhibit B Fiber Optic Specifications
Exhibit C Contact/Escalation List
1.2 Ca-Botics grants City access to the Ca-Botics Fibers at the locations set forth in Exhibit A.
U The Demarcation Points, as specified in Exhibit A, between Ca-Botics and City will be located inside
the Ca-Botics Sites and are defined to be at the Fiber Distribution Panel (FDP).
ARTICLE 2. MAINTENANCE
il Ca-Botics will exclusively operate and maintain the Route and the Ca-Botics Fibers in accordance with
accepted industry standards and Exhibit B, Leased Fiber Optic Specifications, for the Term of this
Agreement and any extensions. In the event that accepted industry standards vary from Exhibit B in any
way, the terms of Exhibit B shall prevail.
2.2 Ca-Botics will perform all routine and ordinary maintenance and repairs, as well as emergency repairs to
correct any failure, interruption or impairment in the operation of the Ca-Botics Fibers between the
Demarcation Points on the Route. City will report any emergency to Ca-Botics, which will use its best
efforts to dispatch personnel to be on-site within two (2) hours to take corrective action. In the event Ca-
Botics fails to respond to such emergency within two (2) hours and to proceed with a good faith effort to
expedite repairs, City may contact the number on Exhibit C to work towards a resolution of the problem.
The Parties agree that the fee for Routine Maintenance will be $250.00 per route mile, per year.
{H0438462.2 }
22
EXHIBIT "C"
2.3 Ca-Botics will notify City five (5) days prior to any scheduled commencement of such work at L-)
2.4 All cable relocations required by governmental authorities or third parties will be performed by Ca-
Botics. The cost of relocations under this section shall be distributed between the parties on a pro-rata
basis. This distribution shall be determined by using the number of fibers controlled by each party
within the segment to be relocated as a determination of percentage of costs each party owes toward the
relocation fees.
2.5 All cable relocations required by Ca-Botics will be performed by Ca-Botics at Ca-Botics' sole cost.
2.6 Ca-Botics will periodically provide City with an updated contact/escalation list to aid in trouble
reporting and resolution. The current list is attached as Exhibit C and may be revised from time to time
by written notice.
ARTICLE 3. TERM/TERMINATION
This Agreement will commence as of the date and year executed and will continue for a period of fifteen (15)
years ("Term").
ARTICLE 4. CONSIDERATION
The consideration for the Ca-Botics Fibers on the Route will be the City providing Ca-Botics with the right to
install maintain and use a cable within the City facilities between the following two points
ARTICLE 5. WARRANTIES
5.1 The Warranties and remedies set forth in this Agreement constitute the only warranties and remedies
with respect to this Agreement. Such Warranties are in lieu of all other warranties, written or oral,
statutory, express or implied, including without limitation the Warranty of merchantability and the
Warranty of fitness for a particular purpose or use.
5.2 Ca-Botics warrants to City that it has the right to perform as required under this Agreement and/or
provide to City the Ca-Botics Fibers, and that it is an entity, duly organized, validly existing and in good
standing under the laws of its state of origin of Ohio, with all requisite power to enter into and perform
its obligations under this Agreement.
5.3 Ca-Botics warrants to City that all performance obligations rendered by it will be designed, produced,
installed, furnished and in all respects provided and maintained in conformance and compliance with
applicable federal, state and local laws, administrative and regulatory requirements, and any other
authorities having jurisdiction over the subject matter of this Agreement as required by law. Ca-Botics
will be responsible for applying for, obtaining and maintaining all registrations and certifications which
may be required by such authorities. Ca-Botics agrees to abide by all current and future national, state,
or local right of way laws.
5.4 Ca-Botics will have obtained or made arrangements to secure all required regulatory authorizations,
construction permits, and appropriate agreements for installation and use of the Route in ducts, on poles,
and/or in trenches on public or private property. It is expressly understood that the Route may be
{H0438462,2 }
23
EXHIBIT "C"
installed in or on a right of way, the use of which is licensed or leased to Ca-Botics by others. Ca-Botics
will have acquired such right of way (including any necessary renewals or new licenses or leases) and
obtain for City the right to use, maintain and access the Route without interruption and a guarantee of
non-disturbance during the Term of this Agreement and any renewals. Ca-Botics will immediately
inform City in the event that Ca-Botics is unable, after diligent and good faith efforts, to obtain renewals
of existing licenses or leases, new licenses or new leases, in order to enable City to protect its rights to
use, and access the Route provided during the Term of this Agreement.
5.5 City warrants to Ca-Botics that it has the full right and authority to enter into, execute, deliver and
perform its obligations under this Agreement and this Agreement constitutes a legal, valid, and binding
obligation enforceable in accordance with its terms, subject to bankruptcy, insolvency, creditors' rights
and general equitable principles.
ARTICLE 6. INDEMNIFICATION
CA-BOTICS SHALL INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS CITY AND ITS
ELECTED OFFICIALS, OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES AGAINST ALL
SUITS OR CLAIMS THAT MAY BE BASED UPON ANY INJURY TO PERONS OR PROPERTY THAT
MAY ARISE OUT OF ANY ERROR, OMISSION, OR NEGLIGENT OR WILLFUL ACT OF CA-BOTICS,
AND CA-BOTICS SHALL, AT THEIR EXPENSE DEFEND CITY IN ALL LITIGATION, PAY ALL
ATTORNEY'S FEES, DAMAGES, COURT COSTS AND OTHER EXPENSES ARISING OUT OF
LITIGATION OF CLAIMS OR OCCURRENCES IN CONNECTION THEREWITH; AND SHALL AT
THEIR OWN EXPENSE, SATISFY AND CAUSE TO BE DISCHARGED SUCH JUDGMENTS AS MAY
BE OBTAINED AGAINST CITY OR ANY OF ITS OFFICERS, AGENTS, AND EMPLOYEES. UNLESS
OTHERWISE SPECIFIED HEREIN, FOR ANY AND ALL CLAIMS FOR WHICH CA-BOTICS HAS
AGREED TO INDEMNIFY CITY, THE OBLIGATION TO INDEMNIFY SHALL NOT BE LIMITED IN
ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR
BENEFITS PAYABLE BY OR FOR CA-BOTICS UNDER WOKERS' COMPENSATION ACTS,
DISABILITY BENEFIT ACTS, OR OTHER EMPLOYMENT BENEFIT ACTS.
ARTICLE 7. DEFAULT
L.l A default shall be deemed to have occurred under this Agreement if:
(a) in the case of any material breach of this Agreement, a party fails to cure such material breach
within thirty (30) days after notice specifying such breach, provided that if the breach is of a nature that
cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching party
has commenced to cure within said time period and thereafter diligently pursues such cure to
completion; or
(b) an attempt to cure a material breach is made, however the breach has not been cured within ninety
(90) days despite curing efforts, reasonable or not, by the breaching party.
7.2 In the event of any default hereunder, the non-defaulting party may pursue any legal remedies it may
have under applicable law or principles of equity, including specific performance.
7.3 A waiver by either party at any time of any of its rights as to anything herein contained shall not be
deemed to be a waiver of any breach of covenant or other matter subsequently occurring.
ARTICLE 8 - INDEPENDENT CONTRACTOR STATUS
{H0438462,2 }
24
EXHIBIT "C"
U. The relationship between City and Ca-Botics is that of an independent contractor. The relationship of
employer-employee, principal-agent, or master-servant, either express or implied does not exist between
the contracting parties.
8.2 As an independent contractor, Ca-Botics shall retain the sole responsibility for all taxes due to federal,
state, or local governments or agencies.
ARTICLE 9 - VENUE
This Agreement shall be governed by and construed in accordance with the laws of Ohio. Any action, dispute,
or claim concerning, relating to, or involving this Agreement or product provided hereunder must take place in
the appropriate court of Franklin County, Ohio and the parties consent to the jurisdiction of courts in said
County.
ARTICLE to-INCOME TAXES
Ca-Botics agrees to and shall cause its agents and subcontractors to, withhold all applicable municipal income
taxes due or payable under the provisions of Chapter 35 of the Codified Ordinances of Dublin, Ohio, for wages,
salaries and commissions paid to its employees in conjunction with this Agreement.
ARTICLE 11 - INSURANCE
11.1 Ca-Botics shall obtain and furnish a Certificate of Insurance regarding the listed polices below to the
City Manager of City at or before the effective date of this Agreement. Such policies shall be
maintained for the life of this Agreement. Each liability insurance policy shall contain the following
endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew
be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice of such
intent to cancel or not to renew."
Within thirty (30) days after receipt by the City of said notice, and in no event later than five (5) days
prior to said cancellation, the operator shall obtain and furnish to the City Manager of City a Certificate
of Insurance evidencing replacement insurance policies.
11.2 Comprehensive general liability insurance to cover liability, bodily injury and property damage must be
maintained by Ca-Botics. Coverage must be written on an occurrence basis, with the following limits of
liability and provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(c) Personal Injury
1. Annual Aggregate $3,000,000
{H0438462,2 }
25
EXHIBIT "C"
(d) Completed Operations and Products Liability Insurances shall be maintained for two (2) years after
the termination of this Agreement.
(e) Property Damage Liability Insurance shall include coverage for explosion, collapse, underground.
11.3 Comprehensive auto liability insurance to cover owned, hired, and non-owned vehicles must be
maintained. Coverage must be written on an occurrence basis, with the following limits of liability and
provisions, or their equivalent:
(a) Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
(b) Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate $3,000,000
ARTICLE 12 - MISCELLANEOUS
12.1 This Agreement and cited references sets forth the entire Agreement between City and Ca-Botics with
respect to the subject matter contained and may not be amended or modified except by written
document, signed by both Parties.
12.2 The rights and remedies of the Parties are cumulative and in addition to any other rights and remedies
provided by law or equity. A waiver of a breach of any provision of this Agreement will not constitute a
waiver ofthe same or any other provision.
12.3 Notices will be in writing, mailed certified with return receipt requested, effective upon receipt and sent
to:
City:
Attn:
Fax:
CA-BOTICS:
Copy to:
{H0438462,2 }
26
EXHIBIT "C"
or to replacement addresses that may be later designated in writing.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year below written,
but effective as of the day and year first set forth above.
Ca-Botics City of Dublin, Ohio
By: By:
Name: Name:
Title: Title:
Date: Date:
{H0438462,2 }
27
EXHIBIT "C"
EXHIBIT A
ROUTE DIAGRAM
{H0438462,\ } 280f30
EXHIBIT "C"
EXHIBIT B
FIBER SPECIFICATIONS
{H0438462,l } 29 of 30
EXHIBIT "C"
EXHIBIT C
CONTACTIESCALATION LIST
{H0438462,j } 30 of30