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SPONSORSHIP AGREBMENT

This SPONSORSHIP AGREEMENT (the Agreement") is made and entered into as of


this 15tl'day, of August 2016 (the "Effective Date"), by and between Advertising Vehicles, Inc.,
an Ohio Corporation ("4V"), the Southwest Ohio Regional Transit Authority ("SORTA") and
the City of Cincinnati ("City") on the one hand, and the Cincinnati Bell, Inc. ("Cincinnati Bell")
on the other hand. AV, SORTA and City are occasionally referred to herein as the ooStreetcar
Parties" and AV, SORTA, City and Cincinnati Bell are occasionally referred to herein as "Party"
or collectively as "Parties").

WHEREAS, in March 2015, City and SORTA entered into the Operations and
Maintenance Intergovernmental Agreement ("OMIGA") by which SORTA agreed to operate and
maintain the City-owned and City-funded streetcar system, which includes the maintenance and
operation of the CAF USA manufactured modern electric streetcars (collectively, the "Cincinnati
Streetcars") that operate on the streetcar route (the 'oStreetcar Route") outlined on Exhibit A
attached hereto and each of the eighteen ( l8) Cincinnati Streetcar stations on the Streetcar Route
(collectively, the "Cincinnati Streetcar Stations");
WHEREAS, pursuant to its authority under OMIGA, SORTA engaged Transdev North
America, lnc. and its subcontractors ("SORTA Operations Designee") to operate and maintain
the Cincinnati Streetcars and Cincinnati Streetcar Stations, including the equipment involved in
operating the Cincinnati Streetcars and Cincinnati Streetcar Stations (i.e., rails, tracks, power
lines, etc.);

WHEREAS, pursuant to its authority under OMIGA, SORTA is also primarily


responsible for administering advertising contracts, including, selling any advertising and
naming rights sponsorships for the Cincinnati Streetcars and the Cincinnati Streetcar Stations;
\ryHEREAS, pursuant to its authority under OMIGA, SORTA entered into an agreement
with AV to delegate its responsibility of selling advertising and sponsorships for the Cincinnati
Streetcars and the Cincinnati Streetcar Stations to AV, including the naming rights sponsorship;

WHEREAS, Cincinnati Bell is a well-recognized corporate citizen in the Greater


Cincinnati Market and recognizes that the Cincinnati Streetcars and the Cincinnati Streetcar
Stations will have a substantially positive economic impact on the city of Cincinnati; and
WHEREAS, Cincinnati Bell desires to be associated with the Streetcar Cincinnati
Streetcars and the Cincinnati Streetcar Stations as the exclusive naming rights sponsor for each
of Cincinnati Streetcars and the Cincinnati Streetcar Stations on the Streetcar Route under the
terms and conditions herein.

NOW THEREFORE, in consideration


herein, the parties hereby agree as follows:

1,

of the mutual

covenants and promises made

l.

Exclusive Sponsorshi n and Namins Riphts.

a. During the Term of this Agreement (as defined in Section 7 hereol), the Streetcar
Parties hereby grant to Cincinnati Bell the exclusive license, right and privilege to name the
Cincinnati Streetcars. Accordingly, no other Person shall have the right to name any of the
Cincinnati Streetcars during the Term nor have its name, trademark, logo or identifying
characteristic included as part of the name of the Cincinnati Streetcars during the Term. (For
purposes of this agreement, the term "Person" shall mean any natural persons, legal entities, or
other organized group of persons or entities.)
b.

i.

AV and Cincinnati Bell will mutually agree on the name of the Cincinnati
Streetcar ("Cincinnati Bell Streetcar Name"), and neither Party shall unreasonably withhold,
delay or condition any such approval, nor can the Streetcar Parties object to the use of Cincinnati
Bell's name in the Cincinnati Bell Streetcar Name, if Cincinnati Bell elects to use its name in the
Cincinnati Bell Streetcar Name, at its sole election. (The name "Cincinnati Bell Connector"
shall be deemed an approved name for the Cincinnati Bell Streetcar Name if Cincinnati Bell
elects to use such name.) In addition, the Cincinnati Bell Streetcar Name will be subject to the
limitations of the SORTA Advertising Policy, on the condition that either AV or SORTA shall
provide a copy of such SORTA Advertising Policy to Cincinnati Bell on or before execution of
this Agreement.

ii.

At any time during the Term, Cincinnati Bell shall have the right to

change the Cincinnati Bell Streetcar Name, subject to mutual agreement by AV and Cincinnati
Bell on the new Cincinnati Bell Streetcar Name, which neither Party shall unreasonably
withhold, delay or condition any such approval, and provided that Cincinnati Bell pays (or
reimburses AV in a timely manner) the actual, reasonable, out-of-pocket costs and expense
incurred by AV (with Cincinnati Bell's prior written consent in each instance) in respect to any
such additional changes to the Cincinnati Bell Streetcar Name, including, any re-branding,
production, printing and installation costs.

c. Cincinnati Bell will develop the design of the naming signage on the exterior and
interior of the Cincinnati Streetcars, including, without limitation the Cincinnati Streetcar logo,
Cincinnati Streetcar Station logos, and other ancillary media items, subject to AV's approval,
which such approval shall not be unreasonably withheld, delayed or conditioned.
d. For the avoidance of doubt, the naming rights granted to Cincinnati Bell
specifcally includes the right to place branding (as approved pursuant to this Agreement) on
certain exterior and interior advertising spaces prescribed below on all Cincinnati Streetcars
during the Term, including, without limitation any and all additional Cincinnati Streetcars
operated by SORTA and/or the SORTA Operation Designee during the Term (in addition to the
original hve (5) Cincinnati Streetcars) on and in connection with the Streetcar Route at no
additional cost except that Cincinnati Bell shall reimburse AV in a timely manner for any actual,
reasonable, out-otlpocket costs and expense incurred by AV in the production, installation, and
implementation of branding for such additional Cincinnati Streetcars, and provided such costs
and expenses are previously approved by Cincinnati Bell in writing, in each instance, prior to
AV incurring any such costs and expense.

2.

Other Benefts. In addition to the naming rights granted to Cincinnati Bell as prescribed
contained in this Agreement. during the Term of' this
Agreement, Cincinnati Bell shall also be entitled to the following benefts in exchange for the
fes paid pursuant to Section 6 of this Agreement:

in Article 1 above, and otherwise

a.

Streetcar Signage and Advertising. The naming sponsorship shall include the
f-ollowing signage and advertising :

i.
Exterior Signage. Total vehicle graphic package on all Cincinnati
Streetcars including, the initial five (5) Cincinnati Streetcars with the advertising design of
Cincinnati Bell's choosing. During the Term, there will be four-sided branding on all Cincinnati
Streetcars, including the initial fve (5) Cincinnati Streetcars. The f'our-sided branding will
include the areas depicted in red on the attached Exhibit B. For the avoidance of doubt, the
vehicle graphic package under this Agreement does not include the purple or white section on
Exhibit B. The exterior signage will be updated as needed at the option of Cincinnati Bell at a
maximum of once every five (5) years during the Term of this Agreement. If Cincinnati Bell
requests updates to exterior signage more frequently than once during every five (5) years during
the Term of this Agreement, then, notwithstanding anything to the contrary contained in the
preceding sentence, AV shall provide such updated signage as long as Cincinnati Bell reimburses
AV in a timely manner for any actual, reasonable, out-of-pocket costs and expense incurred by
AV in the production, installation, and implementation of such updates, and provided such costs
and expenses are previously approved by Cincinnati Bell in writing, in each instance, prior to
AV incurring any such costs and expense.
ii. Interior Signage. Interior signage on each of the Cincinnati Streetcars will
be provided to Cincinnati Bell on an exclusive basis as follows: (A) two (2) Larye Overhead
Panels (84.75"x9") in the spaces depicted in blue on the attached Exhibit C (which is equal to ten
(10) such Large Overhead Panels in total at the commencement of the Term in the original f,rve
(5) Cincinnati Streetcars); (B) two (2) side-by-side double doors (equal to four (4) actual door
panels) underthe two (2)Large Overhead Panels (which is equal to ten (10) such side-by-side
double doors (and twenty (20) actual door panels) in total at the commencement of the Term in
the original five (5) Cincinnati Streetcars); and (C) two (2) Side Panels (17"x38") in the spaces
depicted in pink on the attached Exhibit C one in the front of each of the Cincinnati Streetcars
and one in the back of each of the Cincinnati Streetcars (which is equal to twenty (20) panels
initially at the commencement of the Term in the original fve (5) Cincinnati Streetcars)
(collectively, the "Exclusive Cincinnati Bell Interior Space"). For the avoidance of doubt,
neither Streetcar Party or any of their respective designees shall offer, provide or sell any
advertising to any other Person on any of the Exclusive Cincinnati Bell Interior Space, which
shall also include inside of any of the doors of any of the Cincinnati Streetcars or on more than
two (2) of the Side Panels prescribed in Subsection (C) above. The interior signage will be
updated as needed at the option of Cincinnati Bell at a maximum of four (4) times each year ol'
this Agreement. If Cincinnati Bell requests updates to interior signage more frequently than f-our
(4) times each year of this Agreement. then, notwithstanding anything to the contrary contained
in the preceding sentence, AV shall provide such updated signage as long as Cincinnati Bell
reimburses AV for any actual, reasonable, out-of-pock costs and expense incurred by AV in the
production. installation, and implementation of such updates, and further provided such costs and
3

expenses are previously approved by Cincinnati Bell in writing, in each instance. prior to AV
incurring any such costs and expense.

iii.

Cincinnati Bell will be responsible f'or all design and, when indicated,
reasonable, out-opocket production costs, and expenses associated with the design of the
exterior signage and interior signage, provided that such costs and expenses are previously
approved by Cincinnati Bell in writing in each instance prior to AV incurring any such costs and
expenses.

b.

Audio Advertisine. The naming sponsorship shall include the fbllowing audio

advertising:

A. An audio mention of the Cincinnati Bell Streetcar Name and


i.
specific Cincinnati Streetcar Station inside each Cincinnati Streetcar ("lnterior Streetcar Audio
Announcement") every time a Cincinnati Streetcar pulls into a Cincinnati Streetcar Station.
Cincinnati Bell shall have the right to approve the Interior Streetcar Audio Announcement.
B.

In addition, an exterlal audio mention of the Cincinnati Bell Streetcar Name at


each Clincinnati Streetcar Station on the Streetcar Route ("Exterior Streetcar Station Audio
Announcement") immediately prior to every time a Cincinnati Streetcar pulls into a Cincinnati
Streetcar Station if and when such capabilities are integrated at the Streetcar Stations. As of the
Effctive Date, the Parties acknowledge and understand that the Exterior Streetcar Station Audio
Announcements are not currently available at the Cincinnati Streetcar Stations, and that the
Streetcar Parties are not obligated to provide such Exterior Streetcar Station Audio
Announcements at the Cincinnati Streetcar Stations during the Term. If and when available,
Cincinnati Bell shall have the right to approve the Exterior Streetcar Station Audio
Announcements; and

ll. At Cincinnati Bell's election, up to five (5) audio commercials of fifteen


(15) seconds or less ("lnterior Streetcar Audio Commercials") on each loop a Cincinnati
Streetcar makes on the Streetcar Route. Cincinnati Bell shall be responsible for creating the
lnterior Streetcar Audio Commercials at its sole cost and expense. Neither Streetcar Party nor
any Person on any Streetcar Party's behalf, shall sell or place any audio or audiovisual
adveftisements to any Person (other than Cincinnati Bell) within the Exclusive Category.

c.

Promotional Benefits. The naming sponsorship shall include the f-ollowing

promotional benefts:

i.

For each year during the Term of this Agreement, Cincinnati Bell shall
receive four (4) charters of a Cincinnati Streetcar fbr a total of four (4) hours in each instance;

lu.

The ability to promote the Cincinnati Streetcar "lnaugural Ride" contest


(20)
free passes;
with up to twenty

iii.

to

use physical images of the Cincinnati Streetcars,


Clincinnati Streetcar Stations, and the Cincinnati Bell Streetcar Name in all internal and external

Limited license

Clincinnati Bell prornotional and rnarketing rnaterials, including, without limitation the Clincinnati
Bell website;

iv.

City and SORTA agree to work with Cincinnati Bell to develop a policy
providing fbr the distribution of promotional materials by Cincinnati Bell on Cincinnati
Streetcars and at Cincinnati Streetcar Stations within the limits of any applicable law. If
Cincinnati Bell is able to distribute promotional materials on Cincinnati Streetcars and at the
Cincinnati Streetcar Stations, Cincinnati Bell shall be responsible for cleaning up any such
promotional materials during the Term that are discarded on the Cincinnati Streetcars and around
the Cincinnati Streetcar Stations, or reimburse AV f'or any reasonable costs charged by SORTA,
the SORTA Operations Designee, City or their respective designees to AV for any such cleanup. Cincinnati Bell representatives engaged in distribution of promotional materials pursuant to
this paragraph shall be deemed by SORTA and the City to be fare-paying patrons of the City for
purposes of access to designated streetcar paid fare only zones. City and SORTA agree to work
with Cincinnati Bell to develop a policy providing for the distribution of promotional materials
by Cincinnati Bell at Cincinnati Streetcar Stations, if possible, within the limits of applicable
law. The Streetcar Parties further acknowledge and agree not to sell or place any advertisements
in any of the Cincinnati Streetcar Stations to any Person within the Exclusive Category during
the Term.

v.

Prominent listing of Cincinnati Bell Streetcar Name in any METRO press


releases or statements involving the Cincinnati Streetcar;

vl. Inclusion of Cincinnati Bell Streetcar Name in media, social media, or


marketing eflbrts initiated by City, METRO or SORTA to promote the Cincinnati Streetcar;
vii.
viii.

Four (4) platinum "Ride Anytime" passes for the Cincinnati Streetcar;

Each yeat during the Term, commencing upon execution of this


Agreement, SORTA and City shall collectively authorize and provide fve thousand (5,000) two
(2) hour Cincinnati Streetcar passes to Cincinnati Bell on a no fee, gratis basis to be distributed
by Cincinnati Bell at its discretion on a no fee, gratis basis to Cincinnati Bell employees,
offtcers, directors, customers, potential customers, vendors, potential vendors, partners,
independent contractors, etc., including, as prizes in sweepstakes and promotions conducted
Cincinnati Bell;

lx.

Inclusion in a minimum of two (2) scheduled press conferences relating to


the Cincinnati Bell Streetcar Naming and Sponsorship to be mutually determined by AV and
Cincinnati Bell;

x.

Use of the agreed upon Cincinnati Bell Streetcar Name and/or associated
Cincinnati Bell branding on all Cincinnati Streetcar fare passes, promotional materials, lre
applications, related Cincinnati Streetcar apps and maps, the Cincinnati Streetcar Stations and
ticket vending machines at the Cincinnati Streetcar Stations. In addition, Cincinnati Bell and AV
shall agree to negotiate in good fith the costs and expense in the placement of the Cincinnati
Bell Marks and branding on any other related Streetcar assets. including, structures, maintenance
vehicles" etc., now or later available from time to time during the Term, provided that neither the

City nor SORTA shall be responsible f'or the payrnent of any such costs and expense mutually
AV.

agreed upon by Cincinnati Bell and

xi.

If,

and when available, subject to the terms and conditions of any


agreement between SORTA and the provider of the technology prescribed in this Subsection
2.c.xi, the ability to integrate or offer on the Cincinnati Bell website and/or via a mobile
application developed by Cincinnati Bell or its designees at Cincinnati Bell's cost: (A) real time
scheduling inf'ormation; (B) route information; and (C) the SORTA and METRO fare app(s). In
addition, there is an agreement to approach on a case-by-case basis via good faith coordination
and negotiation between Cincinnati Bell and the Streetcar Parties (as applicable) in the event that
other technological developments as may be developed from time to time the right(s) of
Cincinnati Bell to integrate or offer them as mutually agreed upon by the Parties;

d,*"
i.

As of the Effective Date of this Agreement, SORTA and City anticipate


will operate on the following schedule:

that the Cincinnati Streetcars

6:30am 8:00am 9:00am 6:30am

12:00am Monday through Thursday;


1:00am Friday;
1:00am Saturday;

1l:00pm Sundays and holidays ("V/eekly Operating Hours").

ii. If at any time during the Term the Weekly Operating Hours are reduced by fifteen
percent (15%) or more for a minimum period of ninety (90) consecutive days ("Reduced
Operating Hours Period"), Cincinnati Bell shall have the right to reduce the Monthly Installment
Payments in an amount to be determined by good faith negotiations between Cincinnati Bell and
AV ("Reduced Monthly Installment Payments") for the duration of the Reduced Operating
Hours Period. If AV and Cincinnati Bell are unable to reach an agreement on the amount of the
Reduced Monthly Installment Payments payable to AV, Cincinnati Bell shall have the right to
terminate this Agreement.
iii.

In addition, if at any time during the Reduced Operating Hours Period the Weekly
Operating Hours are increased to a level that is less than a fifteen percent (15%) reduction as
described in Subsection 2.d.ii above fbr a minimum period of ninety (90) consecutive days then
the amount payable to AV on prospective basis following the end of such ninety (90) day period
shall be the amount of the original Monthly Installment Payments.

" means and includes the exclusive naming


e. i.
"Additional Namin
rights of any streetcars operated by the Streetcar Parties or its designees in whole or in part on
any future streetcar routes (other than the Streetcar Route) in Cincinnati, including, without
limitation. any routes to Covington, Kentucky, or any extensions to the Streetcar Route the
"Additional Streetcar Routes."
ii. During the Term, neither Streetcar Party, nor any entity owned or
controlled by any Streetcar Party, nor any Person acting on behalf of any of the foregoing, will
6

enter into any negotiations with any Person other than Cincinnati Bell in respect to the
Additional Naming Rights unless: (A) the Streetcar Party concerned frst notifies Cincinnati Bell
that it intends to enter into negotiations with respect to the Additional Naming Rights that will be
operated on the Additional Streetcar Routes, and (B) the Streetcar Party concerned negotiates
with Cincinnati Bell in good faith with respect to such Additional Naming Rights for a period of
sixty (60) days after the date when Cincinnati Bell receives the aforesaid notice (the "Exclusive
Negotiation Period"). During the Exclusive Negotiation Period, the Streetcar Party concerned
will engage in good faith discussions solely with Cincinnati Bell with respect to such Additional
Naming Rights.

iii.
iv.
Section 2.d.

3.

will

Intentionally deleted.

No failure by Cincinnati Bell to accept an offer made to it under this

be deemed to waive or otherwise affect any of Cincinnati

Bell's rights.

Limited License to Use Cincinnati Bell Trademarks and Service marks.

a.

During the Term, City grants Cincinnati Bell the non-exclusive, royalty-free,
revocable license, right and privilege but not the obligation to use the Cincinnati Streetcar
trademarks and service marks identified in Exhibit D (the "Existing Streetcar Marks") to identify
Cincinnati Bell as the sponsor of the Cincinnati Streetcar on and in connection with advertising
and promotional activities and materials for Cincinnati Bell within the world (the "Territory"),
provided that Cincinnati Bell obtains City's (or its designee's) approval of the use of such
Existing Streetcar Marks in each instance, which approval shall not be unreasonably withheld,
conditioned or delayed. Accordingly, any and all materials produced by Cincinnati Bell using
the Existing Streetcar Marks must be submitted to City or its designee for review and prior
approval, which such approval shall not be unreasonably withheld conditioned or delayed.
Cincinnati Bell shall utilize only advertising and promotional materials that will enhance (and do
not disparage or place in disrepute) City or its business reputation, or the Existing Streetcar
Marks, and will enhance (and do not adversely affect or detract from) City's goodwill in the
Existing Streetcar Marks. Cincinnati Bell agrees and acknowledges that City is the owner of all
right, title and interest in and to the Existing Streetcar Marks in any form or embodiment thereof
and is also the owner of the goodwill attached or that shall become attached to the Existing
Streetcar Marks.

b.

i.

Subject to the terms of this Agreement and so long as neither Streetcar


Party is in breach of any term or condition hereof, during the Term, Cincinnati Bell grants AV
the non-exclusive and royalty-free, revocable license, with no right to sub-license, to use the
Cincinnati Bell trademarks and service marks identified in Exhibit E ("Cincinnati Bell Marks")
to identify Cincinnati Bell as the naming rights sponsor of the Cincinnati Streetcar in connection
with advertising and the promotional activities and materials f'or AV. separately or collectively,
within the Territory, and as approved by Cincinnati Bell. Any and all materials produced by AV
using the Cincinnati Bell Marks must be submitted to Cincinnati Bell for review and prior
approval, which approval shall not be unreasonably withheld conditioned or delayed. However,
AV shall not make any use of the Cincinnati Bell Marks without the prior written consent of
Cincinnati Bell as to each use. AV shall utilize only advertising and promotional materials that
will enhance (and do not disparage or place in disrepute) Cincinnati Bell, its business or its
business reputation, or the Cincinnati Bell Marks, and will enhance (and do not adversely aflect
7

or detract l'om) Cincinnati Bell's goodwill in the Cincinnati Bell Marks. AV agrees and
acknowledges that Cincinnati Bell is the owner of' all right. title and interest in and to the
Cincinnati Bell Marks in any f-orm or embodirnent thereof and is also the owner of the goodwill
attached or that shall become attached to the Cincinnati Bell Marks.

ii.

Subject to the terms of this Agreement and so long as neither Streetcar


Party is in breach of any term or condition hereof. during the Term, Cincinnati Bell grants
SORTA and the SORTA Operations Designee the non-exclusive and royalty-free. revocable
license, with no right to sub-licenseo to use the Cincinnati Bell Marks to identify Cincinnati Bell
as the naming rights sponsor of the Cincinnati Streetcar in connection with advertising and the
promotional activities and materials for SORTA and the SORTA Operations Designee,
separately or collectively, within the Territory, and as approved by Cincinnati Bell. Any and all
materials produced by SORTA and/or the SORTA Operations Designee using the Cincinnati
Bell Marks must be submitted to Cincinnati Bell for review and prior approval, which approval
shall not be unreasonably withheld conditioned or delayed. However, neither SORTA nor the
SORTA Operations Designee shall make any use of the Cincinnati Bell Marks without the prior
written consent of Cincinnati Bell as to each use. SORTA and the SORTA Operations Designee
shall utilize only advertising and promotional materials that will enhance (and do not disparage
or place in disrepute) Cincinnati Bell, its business or its business reputation, or the Cincinnati
Bell Marks, and will enhance (and do not adversely affct or detract from) Cincinnati Bell's
goodwill in the Cincinnati Bell Marks. SORTA and the SORTA Operations Designee agree and
acknowledge that Cincinnati Bell is the owner of all right, title and interest in and to the
Cincinnati Bell Marks in any form or embodiment thereof and is also the owner of the goodwill
attached or that shall become attached to the Cincinnati Bell Marks.

iii.

Subject to the terms of this Agreement and so long as neither Streetcar


Party is in breach of any term or condition hereof, during the Term, Cincinnati Bell grants City
the non-exclusive and royalty-free, revocable license, with no right to sub-license, to use the
Cincinnati Bell Marks to identify Cincinnati Bell as the naming rights sponsor of the Cincinnati
Streetcar in connection with advertising and the promotional activities and materials for City,
separately or collectively, within the Territory, and as approved by Cincinnati Bell. Any and all
materials produced by City using the Cincinnati Bell Marks must be submitted to Cincinnati Bell
f'or review and prior approval, which approval shall not be unreasonably withheld conditioned or
delayed. However, City shall not make any use of the Cincinnati Bell Marks without the prior
written consent of Cincinnati Bell as to each use. City shall utilize only advertising and
promotional materials that will enhance (and do not disparage or place in disrepute) Cincinnati
Bell, its business or its business reputation, or the Cincinnati Bell Marks, and will enhance (and
do not adversely affct or detract liom) Cincinnati Bell's goodwill in the Cincinnati Bell Marks.
City agrees and acknowledges that Cincinnati Bell is the owner of all right. title and interest in
and to the Cincinnati Bell Marks in any form or embodiment thereof and is also the owner of the
goodwill attached or that shall become attached to the Cincinnati Bell Marks.

c.

Each of the Streetcar Parties acknowledge that the Cincinnati Bell Marks are of a
special, unique and extraordinary character which gives them a peculiar value, and that, in the
event of a material breach of any term, condition, representation, warranty, covenant or
agreement contained in this Section 3 of this Agreement. Cincinnati Bell shall be caused
irreparable injury, including loss of goodwill and harm to reputation, which cannot be adequately
8

compensated by monetary damages. Accordingly, in the event of any such material breach,
actual or threatened, Cincinnati Bell shall have the right. in addition to the right to terminate this
Agreement pursuant to Section I of this Agreement, to injunctive or other equitable relief to
enjoin the Streetcar Parly concerned from taking or continuing to take actions in violation of this
Section 3 ol'the Agreement. The preceding sentence shall not be construed to preclude the
Streetcar Parly concerned from opposing any application for such relief based upon contest of
other fcts alleged by Cincinnati Bell in support of the application.

d. All uses of a trademark, service mark, logo or other identifcation of a party (the
"Marks'o) by a party hereto shall inure to the benefit of the party granting the license in their own
Marks and not the licensee hereunder. No licensee hereunder shall make any claim of ownership
or other interest in any mark licensed to them hereunder.
e.

Except as otherwise mutually agreed upon by the Parties, and subject to any
existing agreements entered into by the Streetcar Parties prior to the beginning of the Term,
neither Streetcar Party shall use, exploit or license the Existing Streetcar Marks in any manner in
the Territory to identify the Cincinnati Streetcars and the Cincinnati Streetcar Stations, and shall
endeavor to use the Cincinnati Streetcar Name whenever possible in identifying, promoting and
marketing the Cincinnati Streetcars and the Cincinnati Streetcar Stations. The foregoing
restriction does not apply to any internal, "non-public," and administrative use of the Existing
Streetcar Marks by the Streetcar Parties during the Term.

4.

Exclusivity: Additional Sponsorships. The Parties hereby understand, warrant and


recognize that AV is responsible f-or maximizing revenues from all sources relating to the
Cincinnati Streetcar. As a result, Cincinnati Bell understands that it will be given certain rights
relating to the Cincinnati Streetcars and Cincinnati Streetcar Stations, and these rights however
shall not be construed to prohibit the Streetcar Parties fiom entering into advertising agreements
for ad space on the Cincinnati Streetcars, or the Cincinnati Streetcar Stations related thereto,
which are not taken by Cincinnati Bell and provided that no such advertising is in violation of
the Exclusive Category. Cincinnati Bell shall be the sole and exclusive sponsor in the Exclusive
Category. For purposes of this Agreement the term "Exclusive Category" shall mean any and all
telecommunication and cable television services which are directly competitive with Cincinnati
Bell's products during the Term and/or marketed to consumers and businesses in Cincinnati
Ohio during the Term, including, without limitation, voice, voice over IP, Internet and wi-f
services to consumers and lT type services f-or business customers. Accordingly, AV shall not
sell any advertising for the Cincinnati Streetcars or the Cincinnati Streetcar Stations that are
direct competitors of Cincinnati Bell in Cincinnati Ohio. For ease of convenience, each year
during the Term, Cincinnati Bell shall provide AV a non-exhaustive list of competitors to
Cincinnati Bell which will include Persons offering similar services and products in Cincinnati
Ohio in the Exclusive Category.

Without limitation to the ftrregoing, the parties acknowledge that during the Term of this
Agreement, new technologies, procedures, vehicle types and other changes may occur with
respect to the Cincinnati Streetcar. AV agrees that as applicable to the Cincinnati Streetcar,
Cincinnati Bell may have the ability to participate in future new underwriting or advertising
media or modality that is implemented by AV or becomes available after the commencement of
this Agreement.

5.

Artwork and Media Costs: lnstallation and Replacernent

C'osts.

a.

Artwork ar-rd Media Costs. Cincinnati Bell shall provide the design of the exterior
signage fbr the Cincinnati Streetcar and Cincinnati Streetcar Stations, and shall be responsible
for engagingany Person responsible for creating any such designs. AV shall bear the production
cost of any Cincinnati Bell signage and marketing materials created for the Cincinnati Streetcars
and Cincinnati Streetcar Stations, which shall include printing, installation and removal, of the
total graphic package on all Cincinnati Streetcars and Cincinnati Streetcar Stations. Except as
otherwise provided in Section 2.a. of this Agreement, AV shall be solely responsible fbr all
production costs it incurs or assumes, including but not limited to the engagement of any Person
to produce, reproduce, print, install and remove any such signage. AV hereby agrees that any
such promotional and marketing materials, including, without limitation signage made or
lurnished by AV or any Person engaged by AV for Cincinnati Bell for the Cincinnati Streetcar
and Cincinnati Streetcar Stations (the "Works") shall be considered a work made for hire for
Cincinnati Bell. To the extent any such TVorks are determined not to be a work made fbr hire for
Cincinnati Bell, AV or any Person engaged by AV to create such Works hereby assigns to
Cincinnati Bell all right, title and interest in and to such Works (excluding the Existing Streetcar
Marks) together with all rights (including copyright and other proprietary rights) in and to such
Works throughout the Tenitory in perpetuity. For all purposes, including f-or purposes of
copyright law, Cincinnati Bell is and shall be deemed the exclusive owner and author of all
Works (excluding the Existing Streetcar Marks). and all duplications in whatever form now or
hereafter known, reproduced therefrom in perpetuity throughout the Territory, fiee from any
claims by the Streetcar Parties or any other Person, and Cincinnati Bell shall have the exclusive
right to register the copyright and trademark in those Works (excluding the Existing Streetcar
Marks) in Cincinnati Bell's name as the author an owner of them and to secure any and all
renewals and extensions throughout the Territory. AV shall execute and deliver to Cincinnati
Bell such instruments of transfer and other documents regarding the rights of Cincinnati Bell in
the Works as Cincinnati Bell may reasonably request to carry out the purposes of this paragraph.
Without limiting the generality of the foregoing, Cincinnati Bell and any Persons authorized by
Cincinnati Bell shall have the unlimited, exclusive rights, throughout the Tenitory to reproduce,
adapt, transmit, distribute, communicate, make available, exhibit, display and otherwise use the
Works in any form and in any and all media now or hereafter known,
For the avoidance of doubt, Cincinnati Bell anticipates that the design work for the Works shall
be generated by Cincinnati Bell personnel. In the event Cincinnati Bell determines it is necessary
to engage a Person other than Cincinnati Bell personnel to assist in developing and creating the
artwork and media for the Works, Cincinnati Bell shall bear such Person's fees and other costs.
As stated above. Cincinnati Bell shall not be responsible fbr the f'ees or costs of any Person
engaged by AV except as otherwise expressly agreed upon in this Agreement.

b.

Schematics of Cincinnati Streetcar and Cincinnati Streetcar Stations. In order for


Cincinnati Bell to develop the artwork and media associated with the Cincinnati Streetcar and the
Cincinnati Streetcar Stations. AV shall provide Cincinnati Bell with the schematics of the
Cincinnati Streetcar and Cincinnati Streetcar Stations upon execution of this Agreement.

c. Installation. AV shall be solely responsible f'or ensuring that the installation of


any signage on the Cincinnati Streetcars and the Cincinnati Streetcar Stations, or other materials
usecl by AV in connection with this Agreement. complies with all f'ederal, state and local laws
10

and regulations. Except as provided in Section 2.a. of this Agreement, AV shall install any
exterior or interior artwork and meclia developed by Cincinnati Bell pursuant to this Agreement.

d.

AV shall bear all costs of replacement or


repair of the exterior and interior artwork and media. AV, SORTA and/or the SORTA
Replacement: Inspection of Streetcars.

Operations Designee shall be responsible f-or periodically inspecting the exterior and interior
artwork and media on the Cincinnati Streetcars and Cincinnati Streetcar Stations (which
inspections shall occur no less than fbur (4) times per year f-or each Cincinnati Streetcar and
Cincinnati Streetcar Station) and, upon noting any artwork or media that is damaged, missing or
defaced, promptly repairing or replacing such arlwork or media such that the repaired or replaced
artwork or media appears substantially in the same condition as when originally installed. If in
Cincinnati Bell's reasonable judgment any Cincinnati Streetcar or Cincinnati Streetcar Station is
not reasonably clean on any day during the Term, Cincinnati Bell's designee shall have the right
to notify the SORTA Operation Designee, which such contact infbrmation will be provided to
Cincinnati Bell by SORTA, and request that the SORTA Operations Designee promptly clean
such Cincinnati Streetcar or Cincinnati Streetcar Station within a reasonable number of hours
following Cincinnati Bell's notice to such SORTA Operations Designee. In any month of the
Term, if Cincinnati Bell sends such notifcations to the SORTA Operations Designee on three (3)
or more occasions, and SORTA or the SORTA Operations Designee fails to clean the Cincinnati
Streetcar or Cincinnati Streetcar Station concerned as requested by Cincinnati Bell in the manner
prescribed in the preceding sentence then Cincinnati Bell has the right withhold fifteen percent
(15%) of the next Monthly Installment Payment due AV hereunder. AV acknowledges and
agrees that Cincinnati Bell shall not be liable for any costs associated with replacement or repair
of any exterior and interior artwork and media that either result from normal wear and tear, result
fiom vandalism or other damage caused by persons not under the control of Cincinnati Bell. AV
shall be solely responsible f'or determining whether the installation of any signage, or other
materials used by AV in connection with this Agreement, complies with all federal, state and
local laws and regulations.

6.

Payment of Sponsorship and Naming Fee.

a.

i.

In exchange for the exclusive naming and sponsorship rights, Cincinnati


Bell shall pay to AV the total sum of Three Million Four Hundred Seventeen Thousand Two
Hundred and Forty Dollars ($3,417,240), payable in monthly installments of Twenty-eight
Thousand Four Hundred Seventy-seven Thousand Dollars (528,477) ("Monthly Installment
Payments"). Each Monthly Installment Payment shall be due and payable to AV on the I't of
each f'ollowing month during the Term, provided that AV sends Cincinnati Bell an invoice for
each such Monthly Installment Payments at least sixty (60) days in advance. Notwithstanding
the f-oregoing, Cincinnati Bell will process the initial two (2) Monthly Installment Payments
under this Agreement within a reasonable period of time following the complete execution of
this Agreement and upon Cincinnati Bell's receipt of the invoices concerned from AV.

ii.

The reimbursement of any previously approved third party costs and expenses
incuned by AV shall be payable to AV within sixty (60) days following Cincinnati Bell's receipt
of an invoice from AV for such expense ("Reimbursement Payment").

t"L

iii.

late f-ee of two percenl (2%) per rnonth will be charged fbr any Monthly
Installment Payrnent or Reimbursement Payment not paid within two (2) weeks when due, until
such amount is paid to AV.

b.

The Monthly lnstallment Payments and Reimbursement Payments, if any, shall


continue to be due and payable to AV (or the Streetcar Party concerned) on the frst of each
month during any Contract Period Option, and as otherwise prescribed in Section 6.a. above.
7.

Term.

a. The term of this Agreement shall commence September l, 2016, and shall
continue thereafter in full force and effct for a period of ten (10) years (the "Initial Contract
Period") unless otherwise terminated in accordance with Section 8 below (the o'Term").
b. The Streetcar Parties grant Cincinnati Bell two (2) separate options (each a
"Contract Period Option") to extend the Term for additional contract periods (sometimes,
hereinafter, referred to as ooOption Periods") for a period of five (5) years for each such Option
Period on the same terms and conditions applicable to the Initial Contract Period during the
Term except that the fe payable to AV (or the Streetcar Party concerned) for each such Option
Period shall be determined by good faith negotiations between Cincinnati Bell, City and AV (or
the Streetcar Party concerned). Cincinnati Bell may exercise each of those Contract Period
Options by sending each of the Streetcar Parties a notice not later than two hundred seventy
(270) days prior to expiration of the Initial Contract Period, or, if applicable, the initial Option
Period. If Cincinnati Bell exercises a Contract Period Option, and the Parties agree upon a fee
payable by Cincinnati Bell for such Option Period, the Option Period concerned shall begin
immediately after the end of the then current contract period and shall continue until the end of
the Option Period concerned.

8.

Termination.

a. i.
Cincinnati Bell shall not be entitled to terminate the Term by reason of
any breach by any of the Streetcar Parties of their material obligations hereunder, including,
without limitation, any failure by the SORTA Operations Designee to fulhll any of its material
obligations hereunder, unless the Streetcar Party concerned (including the SORTA Operations
Designee, if applicable,) has failed to remedy the breach within thirty (30) days following the
applicable Streetcar Party's receipt of notice thereof. (The preceding sentence shall not apply to
any termination by Cincinnati Bell under Subsections 8.b.i, and 8.d.i, below or Section 8.c.
below.)
ii. Neither of the Streetcar Parties shall be entitled to terminate the Term by
reason of any breach by Cincinnati Bell of its material obligations hereunder, unless Cincinnati
Bell has failed to remedy the breach within thirty (30) days ftrllowing receipt of notice thereof,,
except that Cincinnati Bell shall only have five (5) business days f'ollowing its receipt of notice
fbr filure to timely pay AV for any Monthly Installment Payment or Reimbursement Payment to
comply with this provision. (The preceding sentence shall not apply to any termination by the
Streetcar Parties under Subsections 8.b.ii and 8d.ii below.)
b. i.
Notwithstanding anything to the contrary contained in Section 8.a. above,
in the event of AV's dissolution or liquidation of its assets, or the fling by or against AV of a
12

petition f'or liquidation or reorganization under Title I I of the United States Code as now ol'
hereafter in etIct or under any similar statute relating to insolvency, bankruptcy, liquidation or
reorganization, or in the event of the appointment of a trustee, receiver or custodian f'or AV or
for any of AV's property, or in the event that AV makes an assignment fbr the beneft of
creditors or commits any act fbr, or in bankruptcy or becomes insolvent, then at any time after
the occumence of any such event, AV shall have deemed to have breached its material
obligations under this Agreement and, in addition to any other remedies which may be available,
Cincinnati Bell shall have the option by notice to AV to immediately terminate the Term of this
Agreement. Cincinnati Bell shall not exercise that option by reason of the filing of a petition
against AV by a third party under Title l1 of the United States Code or any similar statute,
unless: (A) thirty (30) days elapse after the filing of the petition and the petition is not dismissed
by order of the court within that time; or (B) Cincinnati Bell determines in Cincinnati Bell's sole
judgment that defrment of exercise of the option during that thirty (30) day period might
jeopardize Cincinnati Bell's interests.

ii. Notwithstanding anything to the contrary contained in Section 8.a. above,


in the event of Cincinnati Bell's dissolution or liquidation of its assets, or the hling by or against
Cincinnati Bell of a petition for liquidation or reorganization under Title I I of the United States
Code as now or hereafler in effect or under any similar statute relating to insolvency, bankruptcy,
liquidation or reorganization, or in the event of the appointment of a trustee, receiver or
custodian for Cincinnati Bell or for any of Cincinnati Bell's property, or in the event that
Cincinnati Bell makes an assignment f-or the benefit of creditors or commits any act for, or in
bankruptcy or becomes insolvent, then at any time after the occurrence of any such event,
Cincinnati Bell shall have deemed to have breached its material obligations under this
Agreement and, in addition to any other remedies which may be available, AV shall have the
option by notice to Cincinnati Bell to immediately terminate the Term of this Agreement. AV
shall not exercise that option by reason of the filing of a petition against Cincinnati Bell by a
third party under Title 11 of the United States Code or any similar statute, unless: (A) thirty (30)
days elapse afler the filing of the petition and the petition is not dismissed by order of the court
within that time; or (B) AV determines in AV's sole judgment that deferment of exercise of the
option during that thirty (30) day period might jeopardize AV's interests.
c. i.
Notwithstanding anything to the contrary contained in Section 8.a. above,
in respect to any material breach by any of the Streetcar Parties of Section 3 above, Cincinnati
Bell shall have the right, in addition to Cincinnati Bell's right to injunctive or other equitable
relief prescribed in Section 3, by notice to the Streetcar Parties to terminate the Term of this
Agreement.

ii.

Notwithstanding anything to the contrary contained in Section 8.a. above,


if the City or SORTA elects to stop funding the Cincinnati Streetcars, Cincinnati Bell shall have
the right by notice to the Streetcar Parties to terminate this Agreement. Q.iothing contained in
this Section 8.c. or otherwise contained in this Agreement shall be construed to impose an
independent duty or obligation on any of the Streetcar Parties to maintain, fund or operate the
Cincinnati Streetcars.)

d. i.
Cincinnati Bell shall have the right to terminate this Agreement if any
Streetcar Party commits any act or fails to commit any act which would reasonably and
objectively bring such Streetcar Party, the Cincinnati Streetcar, or Cincinnati Bell into disrepute,
13

or competitive disadvantage, or

causes material harm


reputation or business interests of'Cincinnati Bell at any time during the Term.

contempt, scandal. ridicule,

to

the

ii. The Streetcar Parlies shall have the right to terminate this Agreement if
Cincinnati Bell commits any act or fils to commit an act which would reasonably and
objectively bring such Streetcar Party, the Cincinnati Streetcar or Cincinnati Bell into disrepute,
contempt, scandal, ridicule, or competitive disadvantage, causes material harm to the reputation
or business interests of the Streetcar Parties' reputation at any time during the Term.

e.

The notice of material breach or default shall set forth in detail the act or omission
giving rise to a breach of this Agreement and shall specify in detail what is reasonably expected
of the breaching Party in order to cure such breach.

f.

For purposes of clarification, without limiting the generality of Subsection 9.e.i


below, Cincinnati Bell acknowledges and agrees that, except for the right to injunctive or other
equitable relief prescribed in Section 3 above, Cincinnati Bell's sole remedy for any breach by
SORTA or City under this Agreement shall be limited to terminating the Term of this
Agreement.

g.

Effect of Termination. Upon termination or expiration of this Agreement:

i.

All rights of the Streetcar Parties to use the Cincinnati Bell Marks and the
Marks shall cease and AV must remove all Marks from Cincinnati Streetcars, Cincinnati
Streetcar Stations, advertisements and other instances where AV had been using Marks prior to
the termination.

ii.
iii.

All licenses granted in this Agreement shall terminate.

In the event that this Agreement is terminated by Cincinnati Bell for

AV shall refund to Cincinnati Bell a prorated portion of any fees paid by Cincinnati
Bell for time periods following the effective date of termination.

cause, then

9.

Warrantiesandlndemnification.

a,
i.

General Warranties of the Streetcar Parties.

The Streetcar Parties represent and warrant that: (A) each Streetcar Party has the
power
full corporate
and legal authority to enter into and perform this Agreement in accordance
with its terms; (B) all necessary corporate approvals for the execution, delivery, and performance
by AV of this Agreement have been obtained; (C) this Agreement has been duly executed and
delivered by the Streetcar Parties and constitutes a legal, valid and binding obligation of the
Streetcar Parties enforceable in accordance with its terms; and (D) the execution, delivery and
performance of this Agreement by the Streetcar Parties will not conflict with its articles of
incorporation, by-laws or other governing documents and will not conflict with or result in the
breach or termination of, or constitute a default under, any lease, agreement, commitment or
other instrument, or any order, judgment or decree, to which the Streetcar Parties are a party or
by which the Streetcar Parties are bound.

1,4

ii.

AV furlher represents and warrants that: (A) Cincinnati Bell shall not be required
to make any payments of any nature f-or, or in connection with, the acquisition, exercise or
exploitation of rights by Cincinnati Bell pursuant to this Agreement except as specifically
provided in Section 6 of this Agreement; and (B) the promotional materials created by AV and
any use thereof, and the placement of any promotional materials or signage whether created by
AV or Cincinnati Bell or their respective designees, shall not violate any law and shall not
infringe upon or violate the rights of any Person (including, without limitation, contractual rights,
copyrights, rights of publicity and rights of privacy). Cincinnati Bell's acceptance and/or
utilization of any promotional materials created by AV hereunder shall not constitute a waiver of
AV's representations, warranties or agreements in respect thereof, or a waiver of any of
Cincinnati Bell's rights or remedies.

iii. City f'urther represents and warrants that any approved use of the Existing
Streetcar Marks by Cincinnati Bell during the Term as prescribed in this Agreement shall not
violate any law and shall not infringe upon or violate the rights of any Person (including, without
limitation, any fderal, state or common law trademark rights and/or contractual rights).
Cincinnati Bell's utilization of the Existing Streetcar Marks shall not constitute a waiver of
City's representations, warranties or agreements in respect thereof, or a waiver of any of
Cincinnati Bell's rights or remedies.
iv.

SORTA and the City firther represent and warrant that they or their designees,
including, the SORTA Operations Designee shall use reasonable efbrts to ensure that the
Cincinnati Streetcar, the Cincinnati Streetcar Stations, and any and all equipment involved in
operating the Cincinnati Streetcars and the Cincinnati Streetcar Stations, including, the tracks,
rails and powerlines are maintained in good, safe working condition and operated in a reasonable
and safe manner during the Term.

v.

SORTA further represents and warrants that promptly upon execution of this
Agreement, SORTA will modify the operations agreement between SORTA and the SORTA
Operations Designee (the o'Streetcar Operations Agreement") to expressly provide that,
notwithstanding anything to the contrary contained in any existing provision of the Streetcar
Operations Agreement, Cincinnati Bell is an intended third party beneficiary for purposes of the
indemnification obligations under the Streetcar Operations Agreement, Cincinnati Bell and the
Cincinnati Bell Parties (def,rned below) are added as additional insureds under the Streetcar
Operations Agreement and that SORTA will provide satisfactory proof of such modification to
Cincinnati Bell within thirty (30) days fbllowing the execution of this Agreement.

b.

General Warranties of Cincinnati Bell. Cincinnati Bell represents and warrants


has the full corporate power and legal authority to enter into and perform this
Agreement in accordance with its terms; (ii) all necessary corporate approvals for the execution,
delivery, and perf-ormance by Cincinnati Bell of this Agreement have been obtained; (iii) this
Agreement has been duly executed and delivered by C'incinnati Bell and constitutes a legal, valid
and binding obligation of Cincinnati Bell enforceable in accordance with its terms; and (iv) the
execution. delivery and performance of this Agreement by Cincinnati Bell will not conflict with
its articles of incorporation, by-laws or other governing documents and will not conflict with or
result in the breach or termination of, or constitute a default under, any lease, agreement,
commitment or other instrument, or any order, judgment.

that (i) it

L5

c. Indernnifcation by Clerlain Parties.


i.
AV shall at all times indemnify, defend and hold harmless Cincinnati Bell and
any of Cincinnati Bell's parent, afIliated or subsidiary companies, officers, directors,
shareholders, employees, agents, representatives and attorneys (the "Cincinnati Bell Parties")
fiom and against any and all losses, damages, liabilities, costs and expenses, including, without
limitation, legal expenses and reasonable counsel fees, to the extent that each of the same arises
out of a third party claim in respect to any breach or alleged breach by AV of any warranty or
representation made by AV in this Agreement or any other act or omission by AV. The
indemnification obligation in this Subsection 9.c.i. shall not extend to those third party claims
arising solely out of the gross negligence. or willful misconduct of Cincinnati Bell exercising any
of its rights, privileges or obligations under this Agreement.

ii

SORTA shall require the SORTA Operations Designee to at all times


indemnify, defend and hold harmless Cincinnati Bell and the Cincinnati Bell Parties from and
against any and all losses, damages, liabilities, costs and expenses, including, without limitation,
legal expenses and reasonable counsel fees, to the extent that each of the same arises out of a
third party claim in respect to the SORTA Operations Designee's operations of the Cincinnati
Streetcars and Cincinnati Streetcar Stations. The indemnification obligation in this Subsection
9.c.ii shall not extend to those third-party claims arising solely out of the negligence or willful
misconduct of Cincinnati Bell exercising any of its rights, privileges or obligations under this
Agreement.

iii.

Intentionally deleted

d. Indemnification by Cincinnati Bell. Cincinnati Bell shall at all times indemnify,


defend and hold harmless the Streetcar Parties and the SORTA Operations Designee and any of
their respective parents, affrliated and subsidiary companies, officers, directors, shareholders,
employees, agents, representatives and attorneys from and against any and all losses, damages,
liabilities, costs and expenses, including, without limitation, legal expenses and reasonable
counsel fes, to the extent that each of the same arises out of a third party claim in respect to any
material breach or alleged material breach by Cincinnati Bell of any warranty or representation
made by Cincinnati Bell in this Agreement or any other act or omission by Cincinnati Bell,
including any negligent act or willful misconduct of Cincinnati Bell. The indemnification
obligation in this Section 9.d. shall not extend to those third party claims arising solely out of the
gross negligence or willful misconduct of the Streetcar Party concerned exercising any of its
rights, privileges or obligations under this Agreement. For the sole purpose of enforcing this
Section 9.d., the SORTA Operations Designee shall be deemed a third-party beneficiary of this
Agreement.

e.

i.

tN NO

EVENT SHALL SORTA OR CITY BE LIABLE TO


CTNCINNATI BELL FOR ANY MONETARY DAMAGES, INCLUDING, WITHOUT
LIMITATION, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES,
LOST PROFITS OR ATTORNEYS' FEES IN CONNECTION WITH ANY MATTER
RELATING TO THIS AGREEMENT AND DAMAGES ARISING FROM IMPACTS TO
REPUTATION, COMPANY BRAND, OR GOOD WILL.

16

II.

IN NO EVENT SHALL CINCINNATI BELL, THE SORTA


OPERATIONS DESIGNEE OR AV BE LIABLE TO EACH OTHER FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS OR
ATTORNEYS' FEES IN CONNECTION V/ITH ANY MATTER RELATING TO THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION. DAMAGES ARISING FROM
IMPACTS TO REPUTATION, COMPANY BRAND, OR GOOD WILL.

94.

AV Insurance Oblieations.

a.

AV will maintain insurance coverage of the following types set forth below in
sections (i)-(v) continuously throughout the Term. The insurers must have minimum AM Best
rating of A-VII or better. Such coverage shall insure against third party claims resulting from
personal injury, bodily injury to, or death of Persons and damage to, or loss of property, in, on or
about the areas of the Cincinnati Streetcars and Cincinnati Streetcar Stations including any
related acts or omissions by AV, including those related acts or omissions by any AV employee

or independent contractor:

(i)

Commercial General Liability Insurance - Naming Cincinnati Bell,


its parents, subsidiaries and affiliates as well as each of its directors, officers, partners,
representatives, shareholders' agents, successors, assigns, and employees as additional insured
parties (collectively, the "lnsured Parties" or individually the "lnsured Party") as additional
insured's with the following minimum coverage's and limits:
$1,000,000 Per Occurrence Bodily Injury and Property Damage
$1,000,000 Per Occurrence Personal and Advertising injury

$2,000,000 General Aggregate

(ii)

Commercial Automobile Liability - In an amount of $1,000,000


combined single limit for bodily injury and property damage, covering all owned, non-owned,
hired, or borrowed automobiles used in the course of providing its services to SORTA in respect
to the Cincinnati Streetcars and Cincinnati Streetcar Stations.

(iii)

Workers' Compensation

(iv)

Employer's Liability $l,000,000 per occurrence

state law minimums

(v)

Naming the Insured Parties as


Umbrella or Excess Liability
providing
limits above the required
additional insureds in a minimum amount of S 1,000,000,
Automobile
Liability
and
Employers Liability primary
Commercial General Liability, Commercial

limits. The policy shall contain coverage for tenorism and shall not contain any exclusion except
those customarily contained within the coverage form on such policies.

b.

If AV engages any sub-contractors or independent contractors to complete or


perfbrm any work required for the Cincinnati Streetcars and/or the Cincinnati Streetcar
T7

Stations. AV is resporrsible fbr guaranteeing that all of the subcontractors or independent


contractors are compliant and maintaining the required insurance prescribed in this
Article 94.

c.

All insurance procured/maintained by AV, including the Umbrella or

Excess Liability shall be primary over any insurance or self-insurance available to the Insured
Parties. Any insurance available to the Insured Parties will be considered excess and noncontributing. Each of the required policies shall include a waiver of subrogation in favor of the
Insured Parties.

d.

Certificates of Insurance shall be provided to Cincinnati Bell evidencing


that the required insurance has been obtained and the underlying insurance policies shall be
made available for inspection upon request at the headquarters office of AV during normal
business hours with a reasonable amount of notice. AV will not cancel, non-renew or change in
any material way the nature or extent of the coverage provided by the policy prescribed in this
Article 9A without first giving Cincinnati Bell thirty (30) days prior, written notice by certified
or registered mail.

e.

The insurance requirements set forth will in no way modify, reduce,


or limit the indemnification herein made by the Streetcar Parties.

f.

Intentionally deleted.

g.

Receipt by Cincinnati Bell of a Certificate of Insurance or endorsement


which is more restrictive than the contracted for insurance shall not be construed as a waiver or
modification of the insurance requirements above or an implied agreement to modify same, nor is
any verbal agreement to modify same permissible or binding. Any agreement to amend this or
any other provision of this agreement must be in writing signed by the Parties.

98.

SORTA Operations Designee Insurance Obligations.

a.

SORTA will maintain or cause its designees managing and operating the
Cincinnati Streetcars and the Cincinnati Streetcar Stations, including, the SORTA Operations
Designee's insurance coverage of the following types set forth below in sections (i)-(v)
continuously throughout the Term. The insurers must have minimum AM Best rating of A-VII
or better. Such coverage shall insure against third party claims resulting from Bodily Injury,
Property Damage, Personal Injury and Advertising Injury, arising out of the SORTA Operations
Designee's operations and maintenance of the Cincinnati Streetcars and Cincinnati Streetcar
Stations, including those related acts or omissions by the SORTA Operations Designee's
employees and independent contractors engaged by the SORTA Operations Designee:

L8

(i)

Commercial General Liability Insurance - Naming the Insured


Parties as additional insured's with the f-ollowing minimum coverage's and limits:
$1,000,000 Per Occurrence Bodily Injury and Property Damage
$1,000,000 Per Occurrence Personal and Advertising injury

$2,000,000 General Aggregate

(ii)

Commercial Automobile Liability - Naming the Insured Parties as


Additional Insureds in an amount of $1,000,000 combined single limit for bodily injury and
property damage, covering all owned, non-owned, hired, or borrowed automobiles and streetcar
vehicles used in the course of operating the Cincinnati Streetcars.

(iii)

Workers' Compensation

(iv)

Employer's Liability $1,000,000 per occuffence

state law minimums.

(v)

Naming the Insured Parties as


Umbrella or Excess Liability
additional insureds in a minimum amount of $ 10,000,000, providing limits above the required
Commercial General Liability, Commercial Automobile Liability and Employers Liability primary

limits.

b.

If SORTA or the SORTA Operations Designee engages any sub-contractors


or independent contractors to complete or perform any work required for the Cincinnati
Streetcars and/or the Cincinnati Streetcar Stations, including, without limitation, security,
maintenance and operation, SORTA is responsible for guaranteeing that all of the
subcontractors or independent contractors maintain an amount of insurance consistent
with the services provided by such sub-contractor or independent contractor.

c.

All

insurance procured/maintained by SORTA or the SORTA


Operations Designee, including the Umbrella or Excess Liability shall be primary over any
insurance or self-insurance available to the Insured Parties. Any insurance available to the
Insured Parties will be considered excess and non-contributing. The required limits in Section
98.a. may be met with any combination of primary and umbrella or excess policies. Each of the
required policies shall include a waiver of subrogation in favor of the Insured Parties.

d.

Certificates of Insurance shall be provided to Cincinnati Bell evidencing


that the required insurance has been obtained. Neither SORTA nor SORTA's Operations
Designee will cancel, non-renew or change in any material way so at to effect the rights of the
Additional Insureds the nature or extent of the coverage provided by the policy(ies) prescribed
in this Article 98 without first giving Cincinnati Bell thirty (30) days prior, written notice by
certifed or registered mail.

L9

e.

The insurance requirements set fbrth will in no way rnodify, reduce,


or limit the indemnification herein made by the Streetcar Parties.

f-.

Intentionally deleted

g.

Receipt by Cincinnati Bell of a Certificate of Insurance or endorsement


which is more restrictive than the contracted for insurance shall not be construed as a waiver or
modification of the insurance requirements above or an implied agreement to modify same, nor is
any verbal agreement to modify same permissible or binding. Any agreement to amend this or
any other provision of this agreement must be in writing signed by the parties.

9C.

Cincinnati Bell Insurance Obligations.

a.

Cincinnati Bell will maintain Commercial General Liability Insurance


coverage with the following minimum coverage's and limits continuously throughout the Term.
Such coverage shall insure against third party claims resulting from advertising injury, in, on or
about the areas of the Cincinnati Streetcars and Cincinnati Streetcar Stations including any
related acts or omissions by Cincinnati Bell, including those related acts or omissions by any
Cincinnati Bell employee or independent contractor:

(i)

Commercial General Liability Insurance - with the following


minimum coverage's and limits:
$2,000,000 Per Occurrence Personal and Advertising injury
$4,000,000 General Aggregate

The Parties acknowledge that the foregoing insurance includes a self-insured


Cincinnati Bell will provide the SORTA Operations Designee a certification of

retention.
insurance

evidencing such coverage upon the complete execution of this Agreement.

10.

Binding Effect. The provisions of this Agreement shall be binding upon and inure to the
benefit of each of the Parties and their respective agents, personal representatives, successors,
heirs, and assigns.

Entire Agreement; Amendment. This Agreement contains the entire agreement between
I l.
the Parties relating to the subject matter herein. All prior proposals, discussions and writings by
and among the Parties relating to the subject matter herein are superseded by this Agreement.
This Agreement may not be amended unless such amendment is in writing and signed by duly
authorized representatives of both Parties and recites specifcally that it is an amendment to this
Agreement.

12.

Assignment. Except as otherwise stated in this Agreement, no Party's interests or


obligations under this Agreement may be assigned or transfrred to another party without the
prior written consent of the both Parties hereto, which may be granted or withheld in the sole
discretion of that Party. Cincinnati Bell may assign Cincinnati Bell's rights under this
20

Agreement, in whole or in part to any subsidiary, afliated or controlling corporation, to any


Person owning or acquiring a substantial portion of'stock or assets of Cincinnati Bell, or to any
partnership or other venture in which Cincinnati Bell participates, and such rights may be
similarly assigned by any assignee. No such assignment shall relieve Cincinnati Bell of any of
Cincinnati Bell's obligations hereunder. SORTA may assign SORTA's rights and obligations
under this Agreement, in whole or in part to any Person as required under the OMIGA. Any
other attempted assignments without such consents shall be void ab initio.

13.

Waiver. No Party's delay or failure to exercise any right, power or privilege under this

Agreement or under any other instrument given in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of any event of
default hereunder or any acquiescence therein. No single or partial exercise of any such right,
power or privilege shall preclude the further exercise of such right, power or privilege, or the
exercise of any other right, power or privilege. No waiver shall be valid against any Party unless
made in writing and signed by an authorized officer of the Party against whom enfbrcement of
such waiver is sought and then only to the extent expressly specihed therein.

Severability. If either: (a) a court of competent jurisdiction holds that a material


provision or requirement of this Agreement violates any applicable law, or (b) a government
agency with jurisdiction definitively advises the Parties that a feature or provision of this

14.

Agreement violates laws over which such department or agency has jurisdiction, then each such
provision, feature or requirement shall be fully severable and: (l) this Agreement shall be
construed and enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; (2) the remaining provisions hereof shall remain in full force and effect
and shall not be affected by the severable provision; and (3) the Parties shall in good faith
negotiate and substitute a provision as similar to such severable provision as may be possible and
still be legal, valid and enforceable. If the effect of such severance and substitution, or the
inability promptly to agree upon such substitution, would be to deprive a Party of the benefits
contemplated under this Agreement or increase the risk or liability of a Party, then either Party
may terminate this Agreement by giving such notice to the other Party as is acceptable to such
court or governmental agency, and as is sufficient to provide for an orderly transition consistent
with the terms.

15.

Governins Law. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE STATE
OF OHIO, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND LEGAL
EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS
OF THE STATE OF OHIO, APPLICABLE TO CONTRACTS ENTERED TNTO AND
PERFORMED ENTIRELY WITHIN THE STATE OF OHIO (WITHOUT GIVING EFFECT
ANy CONFLICT OF LAW PRINCIPLES UNDER OHIO LAW). THE OHIO COURTS
(STATE AND FEDERAL) SHALL HAVE SOLE JURISDICTION OF ANY
CONTROVERSIES REGARDING TI_IIS AGREEMENT; ANY ACTION OR OTHER
PROCEEDING WHICH TNVOLVES SUCH CONTROVERSY SHALL BE BROUGHT IN
THOSE COURTS TN HAMILTON COUNTY AND NOT ELSEWHERE. THE PARTIES
WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY
SUBMIT TO THE JURISDICTION OF THOSE COURTS. ANY PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY, AMONG OTHER METHODS, BE SERVED UPON
EITHER PARTY BY DELIVERING IT OR MAILING IT, BY REGISTERED OR CERTIFIED
2L

MAIL" DIRECTED TO TI{E ADDRESS FIRST ABOVE WRITTEN OR SUCH OTHER


ADDRESS AS EITFIER PARTY MAY DESIGNATE PURSUANT TO ARTICLE 16. ANY
SUCH DELIVERY OR MAIL SERVICE SHALL BE DEEMED TO HAVE THE SAME
FORCE AND EFFECT AS PERSONAL SERVICE V/ITHIN THE STATE OF OHIO.

16.

Notices. All notices, requests, demands, waivers, consents and other communications
hereunder shall be in writing, shall be delivered either in person, by overnight air courier, or by
certifed, registered or express mail, and shall be deemed to have been duly given and to have
become effective (a) upon receipt if delivered in person, or on the next succeeding business day
if delivered on a non-business day or after 6:00 p.m. local time, (b) one business day after having
been delivered to an air courier for overnight delivery, or (c) three business days after having
been deposited in the mails as certified, registered or express mail, return receipt requested, all
fees prepaid, directed to the Parties at the f'ollowing addresses (or at such other address as shall
be specified in writing by a recipient Party hereto):

If to AV:
Advertising Vehicles, Inc.
10810 Kenwood Road
Cincinnati, Ohio 45242

with a simultaneous copy (which shall not constitute notice) to counsel for AV:
Strauss Troy Co., LPA
50 East Rivercenter Blvd., Suite 1400

Covington, Kentucky 41 01 I
Attn: C. Richard Colvin, Esq.

If to SORTA:
Southwest Ohio Regional Transit Authority
602 Main Street
suite I 100
Cincinnati, Ohio 45202
Attn: General Manager

With a simultaneous copy (which shall not constitute notice) to counsel for SORTA:

Mr. William J. Desmond


Vice President of Legal Services & General Counsel
Southwest Ohio Regional Transit Authority
602 Main Street
Suite I100
Cincinnati, Ohio 45202

Vorys, Sater, Seymour and Pease LLP


301 East Fourth Street
Suite 3500, Great American Tower
22

Cincinnati, Ohio 45202


Attn: Kimberly J. Schaefer, Esq.

If to City
City of Cincinnati
Office of the City Manager
Attn: Streetcar Project Executive
801 Plum Street
Cincinnati, Ohio 45202
With a simultaneous copy (which shall not constitute notice) to counsel for City
City of Cincinnati
Offrce of the City Solicitor
801 Plum Street
Cincinnati, Ohio 45202

If to Cincinnati Bell:
Cincinnati Bell,Inc.
221East Fourth Street, Suite 103-1090
Cincinnati, Ohio 45202
Attn: Corporate Counsel

with a simultaneous copy (which shall not constitute notice) to counsel for Cincinnati Bell:
Frost Brown Todd, LLC
3300 Great American Tower, 301 East Fourth Street
Cincinnati, Ohio 45202
Attn: Monica Dias, Esq. and Neil Ganulin, Esq.

Notwithstanding anything to the contrary contained in this Agreement, each of the Panies hereby
acknowledge and agree to send a copy of all notices under this Agreement to each of the other
Parties.

17.

Additional Actions and Documents. Each of the Parties hereto shall take or cause to be
taken such further actions, execute, deliver and file or cause to be executed, delivered and filed
such further documents and instruments, and use their respective best efforts to obtain such
consents (including regulatory approvals), as may be reasonably necessary or as may be
reasonably requested in order to fully effectuate this Agreement.

18.

Construction. Each Party hereto acknowledges that it was represented by counsel and
participated equally in the drafting and negotiation of this Agreement and that, accordingly, no
court construing this Agreement shall construe it more stringently against one Party than against
the other.

23

19.

Force Majeure. Neither Party shall be liable to the other if because of any of the
fbllowing events (any such event, a "Force Majeure Event"): act of God; fire; lockout, strike or
other labor dispute; riot or civil commotion; act of public enemy; enactment, rule, order or act of
any government or governmental instrumentality (whether federal, state, local or foreign); failure

of technical fcilities; natural disaster; or other cause of a similar or diffrent nature not
reasonably within either Party's control provided that such Party gives prompt notice of such
condition, and uses reasonable efforts to resume its full performance as soon as possible.

20.

Approvals. As to all matters treated herein to be determined by mutual agreement, or as


to which any approval or consent is required, such agreement, approval or consent shall not be
unreasonably withheld. Each Party's agreement, approval or consent, whenever required,
including, without limitation, written agreement, approval or consent), shall be deemed to have
been given unless the such Party notifies the Party requesting such agreement, approval or
consent within ten (10) business days following the date of its receipt of such request.

21.

Miscellaneous.

a.

Notwithstanding anything to the contrary herein, all Parties acknowledge and


agree that nothing in this Agreement shall obligate, or be construed to obligate, the City, SORTA
or the SORTA Operations Designee to operate or maintain the Cincinnati Streetcars and the
Cincinnati Streetcar Stations and other related assets beyond the obligations imposed by the
terms of the OMIGA.

b.

This Agreement may be executed in two or more counterparts, each of which


shall be deemed an original but all of which together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile or electronic delivery (e.g., PDF format in an email), including electronically signed
versions of the same, shall be as effective as delivery of a manually executed counterpart of this
Agreement and shall be sufficient to bind the Parties to the terms and conditions of this
Agreement.

24

IN \ryITNESS WHEREOF, the parties

have executed the Agreement as of the Effective Date.

CINCINNATI BELL,INC.

CLES,INC.
By:
Its:
Name:

By
Its:
Name:

SOUTH\ryEST

OHIO

Cfr2

REGIONAL CITY OF CINCINNATI

TRANSIT

By:

Harry Black
City Manager

General Manager

Approved as to form:
Approved
By:
By:

25

as

to form:

IN WITNESS WHEREOF,

the parties have executed the Agreement as of the Effective Date.

ADVERTISING VEHICLES,

INC.

CINCINNATI BELL,INC.

By:
Its:

By:
Its:

Name:

Name:

SOUTHWEST OHIO
TRANSIT AUTHORITY

REGIONAL CITY OF CINCINNATI

By:

Dwight A. Ferrell
CEO and General Manager

By:

Approved as to form:
to

By
By

2 3 2010
t
CERTIFICATION OF'
FUNDS N0 REQUTRED
AUG

25

Exhibit A

26

Exhibit B

Side 1 depicted. Side 2 of the streetcar is a mirror image of side 1.

27

Exhibit C

28

EXHIBIT D

Trademark

Owner

Application No. or
Registration No.

Goods/Services

City of Cincinnati

U.S. Application
Serial No. 86/435,676

Class 25: T-shirts,


baseball caps and
hats, shirts, pants, and
jackets

Including any
common law rights

City of Cincinnati

U.S. Application
Serial No. 86/583,933
Including any
common law rights

Class 39: Streetcar


transport
Class 25: T-shirts,
baseball caps and
hats, shirts, pants, and
jackets
Class 39: Streetcar
transport

CINCINNATI
STREETCAR

City of Cincinnati
and/or others

No trademark
application filed.
Common law rights (if
any)

29

All goods/services
associated with
CINCINNATI
STREETCAR,
including but not
limited to streetcar
transport

EXHIBIT E

Trademark

Owner

Application
No. or Reg.
No.
None.
Common
law rights

Cincinnati
Bell Inc.

Goods/Services
All goods and services associated

with
Cincinnati
Bell Inc.

None.
Common
law rights

All goods and services associated


with

Cincinnati
Bell Inc.

None.
Common
law rights

All goods and services associated


with

Cincinnati
Bell Inc.

None.
Common
law rights

All goods and services associated


with

All goods and services associated


with

All goods and services associated


with

30

CB CONNECTOR

Cincinnati
Bell Inc.

CINCINNATI BELL CONNECTOR

Cincinnati
Bell Inc.

CINCINNATI BELL

Cincinnati
Bell Inc.

None.
Common
law rights
None.
Common
law rights
U.S. Reg. No.
3,942,521

All goods and services associated


with
All goods and services associated
with CINCINNATI BELL CONNECTOR
Class 38: Telecommunication
services, namely, local and long
distance transmission of voice, data,
graphics by means of telephone,
telegraphic, cable, and satellite
transmissions
Class 41: Providing educational
services, namely, seminars and
workshops in the field of
telecommunications skills and the
use of telecommunications
equipment and services
Class 42: Designing and engineering
telecommunications systems and
equipment for others and related
consulting services

CINCINNATI BELL

Cincinnati
Bell Inc.

U.S.
Application
Serial No.
86/809,304
Including
common law
rights

31

Class 9: Downloadable software in


the nature of a mobile application
for providing automatic connectivity
to wireless local area network
hotspots; downloadable software in
the nature of a mobile application
for displaying online advertising and
marketing services of others;
downloadable software in the
nature of a mobile application for
advertising and promoting the
goods and services of others;
downloadable software in the
nature of a mobile application for
advertising and promoting the
goods and services of others via
push notification software;
downloadable software in the
nature of a mobile application for
use in advertising third-party goods
and services; downloadable
software in the nature of a mobile

application for advertising and


promoting the goods and services of
others based on the user's location;
downloadable mobile applications
for providing digital maps and
directions to specific locations.
CINCINNATI BELL

CINCINNATI BELL

CINCINNATI BELL

Cincinnati
Bell Inc.

U.S.
Application
Serial No.
86/809,353
Including
common law
rights
U.S.
Application
Serial No.
86/809,399

Cincinnati
Bell Inc.

Including
common law
rights
U.S.
Application
Serial No.
86/809,459

Cincinnati
Bell Inc.

Including
common law
rights

32

Class 35: Providing aggregate


anonymized data and analytic
information to advertisers who
promote their goods and services by
means of a mobile application

Class 35: Marketing the goods and


services of others by means of push
notification technology; mobile
advertising services; marketing the
goods and services of others by
means of location-based messaging
Class 38: High-speed internet access
services; next generation, higher
than high-speed internet access
services; providing public wireless
networks for high-speed internet
access for large groups; providing
wireless network services for
transmission of data; providing
wireless network hotspot services
for transmission of data;
telecommunication services,
namely, transmission of data by
means of telecommunications
networks, wireless communications
networks, a metro Ethernet or the
Internet; video-on-demand
transmissions; digital television
transmission services; providing
broadband internet access; voice
over internet protocol (VOIP)
services; pay-per-view television
transmission services; cable
television transmission; internet
protocol television (IPTV)
transmission services;

telecommunication services,
namely, transmission of voice, data,
graphics, images, audio and video to
digital video recorders
Class 41: Whole-home digital video
recorder (DVR) services, namely,
rental of a digital whole-home video
recorder that allows users to pause,
rewind, fast forward and record
television programs in any room in
the house using one digital video
recorder.
CINCINNATI BELL

Cincinnati
Bell Inc.

U.S.
Application
Serial No.
86/809,513
Including
common law
rights

33

Class 41: Provision of nondownloadable films and television


programs via a video-on-demand
service