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HomeMy WebLinkAboutResolution 006-16RECORD OF RESOLUTIONS Dayton Legal Blank, Inc., Form No. 30045 Resolution No. 06-16 Passed A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN INDEFEASIBLE RIGHT TO USE AGREEMENT WITH CARDINAL HEALTH TO UTILIZE FIBERS WITHIU�, AND CONNECT TO DUBLINK FACILITIES. ,20 WHEREAS, the City of Dublin has an existing optical fiber system (hereinafter referred to as the "Dublink Fiber System ") throughout the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area; WHEREAS, the City of Dublin has excess fibers within the Dublink Fiber System and is willing, from time to time, to provide such fibers to interested users for negotiated consideration; and WHEREAS, the pity of Dublin desires to grant Cardinal Health an indefeasible right to use four (4) fiber strands within the Dublink Fiber System, and the parties must execute an Indefeasible Right to Use Agreement to memorialize this engagement. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, ! of the elected members concurring, that: Section 1. The City Manager is hereby authorized to execute an Indefeasible Right to Use Agreement between the City of Dublin and Cardinal Health, said Agreement authorizing the City of Dublin to give Cardinal Health certain use rights to four (4) strands of fiber within the Dublink Fiber System. Section 2. This Resolution shall take effect upon passage in accordance with Section"'' 4.04(x) of the Revised Charter. Pa sed this !day of , 2016. ,/Mayor - Pr 'sic&j Officer ATTEST: JCL � d Clerk of Council Members of Dublin City Council From: Dana L. McDanielf City Man Dates, January 21, 2016 Initiated By,* Colleen Gilger, Director of Economic Development Greg Dunn, Ice Miller Re: Resolution 06-16 - Authorization to Enter into an Optical Fiber Use Agreemen, with Cardinal Health 7R-1 Staff recommends approval of Resolution 06-16. Cardinal Health continues to exceed expectations in regards to its operations and continued iob cirowth in Dublin. The anticipated growth globally will have a positive influence on the continued growth of its global headquarters operation located in Dublin. The allocation of optical fiber to Cardinal Health will help to facilitate this growth through technology. Please contact Colleen Gilger with any questions. CITY OF DUBLIN, OHIO ,INDEFEASIBLE RIGHT-TO-USE AGREEMENT WITN*ESS'ETH'.- WHEREAS, Owner has an existing optical fiber system, (here*nafter referred to as the "Fiber System") throughout the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area; and. WHEREAS, Owner has excess fibers in the Fiber System and is willing, from time to time,, to provide such fibers to U'ser and. to grant User an. Indefeasible Right of Use or IRU (hereinafter referred to as "IRU") in and to such fibers for the purpose of providing _I telecommunicat ions, video, data, and/or information. services; ana WHEREAS, in. connection, with the grant to User of an IRtJ in and to such fibers, Owner Ming to allowUser to use certain other property owned by Owner, including, but not limited, is wi to. innerduct, conduit, building entrance facties and associated appurtenances* and IV.FIEREAS, User has obtained any and all permits or a provals required to engaae in its p t intended purpose and for the use and occupancy of space in the Rights of Way and further agrees to adhere to any and all requirements of federal., state and, local laws, rules or regulations (speciificallv inclusive of, but not limited to, Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio)-, and WHEREAS, the Parties have .. agreed to enter into this Aoreement which embodies the mutual covenants and agreements between the Parties hereto; and TIVIIEREAS, the Parties may in the future agree to enter into additional separate agreement(s) for additional and/or separate optical fiber uses which will, incorporate the covenants and agreements of this Agreement and which will also set forth the tern-is and provisions unique to each additional or different specific project. NOW., THEREFORE,, pursuant to the teniis of any Right of Way occupancv requirement and/or Construction Permit required by Chapter 98 of the Coded Ordinances o-f the City of Dublin,, Ohio, for and in consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereto do hereby agree as follows: I of 1.5 CO\4978924.3 1'. DEFINITIONS. 1.1 The following terms., whether in the singular or in. the plural, when used in this Agreement and initially c4pitalized, shall have the meaning specified: a. Agreement: This Indefeasible Right-to-Use Agreement between, Owner and User which identifies the specific optical. fiber strands and facilities to be as provided to . A, User by Owner and which sets forth the associated fees/compensation,, terms and conditions for tJser's use of such optical'.fiber strands and facilities. b. Fiber System: The optical fiber strands, Innerduct, conduit, building entrance facilities, associated appurtenances, and capacity owned by Owner and located throughout the Rights of Way of the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area (a general depiction. of which is attached hereto as Exhibit "A") 2. GRANI". 2.1 Owner hereby grants to User an IndefeasIble Right to Use (IRU) of the following Fiber System components. Owner warrants that it has all, rights necessary to make such a grant to User. a. Four (4) strands (equaling two (2) pairs) of fiber optic cable in the Fiber System. User w *I] work with Owner to define connections to facilities within the Fiber System. I b. The four (4) strands shall only be used to connect User's Dublin I'acilities to data W centers and telephone switching centers. Other uses, such as connection to User t'acilities inside of Dublin k's Central Ohio fiber system limits must be approved by Owner. c. Owner has approved connections for two non.-Dublin facilities locally operated by Cardinal Health at t llowing locations: 0 5995 Commerce Center Dr. Groveport, 01443125 * 232.0 McGaw.R.oad,, Obetz, 01-143207 3.1 Unless sooner terminated in accordance with the terms of this Agreement, the term of this Agreement is for ten (10) years (hereinafter referred to as the erm"). 4. CONSIDERATION. 4.1 As consideration for, as inducement to, and as a required condition, of Owner granting User the specific rights to use portions of Owners Fiber System (the User System) as described herein, the User hereby agrees.- 2 of 15 CO\4978924.3 permanently and continually locate, operate and maintain offices for the purpose of business operations within the City of Dublin, Ohio -for the period of time in correspondence with the term of the Agreement. b. From the Commencement Date and for the next ten (10) years, to permanently and continually employ a minimum employment equal to an annual employee withholdings figure (net of refunds) of $8,000,000 (Eight Million Dollars and Zero Cents) within. the geographic limits of the City of Dublin, Ohio. c. That any failure of User to satisfy the terms and conditions of this Section. shall be c *dered a material breach of this Agreement and Owner may then: onsi a. Terminate this Agreement upon giving One Hundred and 'I"wenty (120' dais wi tten notice to User- and r, c. new or extend the nine (9) month fiber lease agreement upon. negotiation between the Owner aid User. 5. OWNERS OBLIGATIONS. 5.1 Owner shall: a. Provide the User System for User's use in accordance with the terms of this Agreement. b. Provide and/or control maintenance and repair functions on the User System. an.ij W all f-acilities in the Fiber System through which the User System passes, including.., but not limited to., conduit, innerduct, poles and equipment, shall 'be performed under the direction of Owner. C. Maintain the User System to User's specifications. 6. USER OB.LJGATJONS. 6.1 User shall.- a. When lateral connectivity is not provided by Owner., provide and pay for lateral connectivity from necessary termination points of 'User s proprietary 'fiber and equipment to the necessary demarcation points of Owner's Fiber System. In this event User shall own, the lateral. However, if the User vacates any premises, 3 of 15 (70\4978924.3 ownership of the lateral. connections from curb into the building(s) shall revert to the Owner. 0 0 C. Pay all necessary costs if User requires installation of a new distribution ring or concentrator in an, already established Fiber System or User System. distribution segment,, rearrangement of existing service connections, and rearrangement ring or concentrator operation. Owner's management agent's current charges and application rules are identified in EA. I n1bit C attached hereto. d. User agrees that it shall not sublease or subdivide the User System, unless otherwise agreed to by Owner. User further agrees to continually meet the requirements of this Agreement. In the event of any breach of the provisions contained in this Section, Owner has the right to terminate this Agreement upon giving thirty (30) days written notice to User. e. Agree to pay any and all maintenance costs as may be required to be paid by tJser pursuant to the requirements of Section 8. 1 (a-c) below. 7. JOINT OBLIGATIONS. 7.1 Owner and User j*olntly,z a. Agree that within sixty (60) days of final execution of this Agreement the Parties will agree upon an Acceptance Plan for User"s initial activation and the "go-live" of User's System. b. Shall provide each other a twenty4our (24) hour a day, three hundred sixty-five (365) days per year, coordination telephone number. 8. MAINTENANCE 4 of 15 User System in accordance with the technical specifications (hereinafter referred to as the "Specifications") attached hereto in Exhibit B. MIEVEMM access to the Rights of Way in., on, across, along or through. which the User System is located, for the purpose of * ftina User, or others acting in User's behalf, permi"i to undertake such maintenance and repair of the User System. As an alternate remedy,, User may elect to terminate thi's Agreement, as well as the above referenced Lease Agreement should Owner discontinue maintenance and/or repair of the'User System. 9. USE OF USER SYSTEM. 9.1 'User shall have exclusive control over its provision of telecommunications, video, data., and/or information services. 0 9.2 User hereby certifies that it is authorized or will be authorized, NN71-lere required, on the effective date this A provide telecommunications, video, data, and/or information services within; the State of Ohio, the City of Dublin, Ohio and in such other jurisdictions as the User System may exist., and that such services can be provided on the Fiber optic cable systems such as the Fiber System owned and operated by Owner. IV 6 of 15 CO\4978924.3 11. INSURANCE. During the Term of this Agreement, unless otherwise agreed to in writing by the authorized. representatives,, User shall at its own expense, maintain in eff.'ect insurance ,C.overage witti limits not less than those set forth herein. City of Dublin Law Director 5200 Emerald Parkwav W Dubl in, Ohio 43 ) 0 17-1006 11.4 Such insurance shall not limit or qualify the obligations User assumed under the Agreement. Owner shall not by reason of ]its inclusion under these policies incur liability to the insurance carrier for payment of the premium for these policies. 7 of 15 CO\4978924.3 'L 1.8 User shall obtain and maintain.*. 11.9 User shall. provide Workers' Compensation insurance covering all, of User's employees in accordance with the laws of the state of Ohio. -10 User may use ai-i Umbrella or Excess Liabi lity coverage to net coverage limits specified in the Agreement. 4 I 'Fhe foregoing 'insurance requirements are not intended to and shall not in. any manner limit or qualify the liabilities and obligations assumed by User under this Agreement. LJser may self-insure all or a portion of the insurance required under this agreement. 12. DEFAULT. 8 of 15 CO\4978924.3 14. ASSIGNIMENT. 15. WAIVER OF TERMS OR CONSENT TO BREACH. 15.1 No term or provision of this Agreement shall be waived and no breach excused, unless such waiver or consent shall be in writing and signed by a duly authorized officer 9 of 15 COA978924.3 of the Party claimed to have waived or consented to such breach. Any consent by either Party to, or waiver of, a 'breach by the other Party shall not constitute a waiver of or consent to any subsequent or different breach of this A�,Yreement by the other Party, such failure to enforce shall not be considered a consent to or a waiver of said breach or any subsequent breach for any put-pose whatsoever. 16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY. 16. 1 The relationship between User and Owner shall not be that of partners or agents for one another and nothing contained in. thi's Agreement shall • deemed to constitute a partnership, joint venture or agency Agreement between the Parties hereto. 1.7.1 This Agreement is for the sole benefit of the Parties hereto and their respective *tted successors and assigns, and except for the requirements of Section 1. 0.2 herein., permi shall not be construed as granting rights to any person or entity other than the Parties or imposing on either Party obligations to any person. or entity other than a Party. 18. EFFECT OF SECTIONNHEADINGS. 18.1 Section headings appearing in this Agreement are inserted for convenience only and shall notbe construed as interpretations of text. 19. NOTICES. 19.1 Any written notice under this Agreement shall be deemed properly given if sent by registered or eertified mail, postage prepaid, or by nationally recognized overnight delivery service or by facsimile to the ad-dress specified below, unless otherwise provided fior in this Agreement: If to 'User: If to Owner to: City Manager City of Dublin, Ohio 5200E r . Parkway Dublin., 011 43017-1006 With a Copy to: Mr. Gregory Durm Ice Miller LIT 250 West Street Columbus, Ohio 43 J215 19.2 Either Party may, by written. notice to the other Party, change the name or address of the person to receive notices pursuant to this Agreement. 10 of 15 C0\4978924.3 1. 2 1. COMPLIANCE wiTij, LAW. 21.1 Each Party hereto agrees that it will Perform its respective rights and obligations hereunder in accordance with all applicable laws, rules and regulations. 23. ENTIRE AGREEMENT. 23.1 This Agreement, Including any Exhibit attached hereto, all. constitute the entire agreement between the parties with respect to the subject matter. This Agreement cannot be modified except in writing signed by both parties. .o 15 CO"149789243 IN WITNESS HEREOF the parties have executed and delivered this Agreement effective the day and year first above written: USER: Card.inal Health 0 Ms t"11 %-,Ay of Dublin, Ohio, an Ohio municipal corporation. LN Its: City Mana( ge L,aw Director, City of Dublin, Ohio. REST'. OF PAGE LEFT INTEN'TJONALLY BLANK 12 of 15 CO\4978924.3 Exhibit A Central Ohio Dublink Fiber Route clughnesw eservo,ir. Shawnee ?A . ... . . . . . . . .105 2 7, Ns I and Rd 10 .?72, of 13 of 15 CO\4978924.3 T 13 Westemil(t ,FI,BER SYSTEM SPECIFICATIONS Owner shall install and maintain the User System within Owner's Fiber System accordance with the criteria and specifications that follows: Owner will. endeavor to keep the number of splices 'in. a span to a minimum. Owner will. meet the optical specifications as detailed below for the cable installed: A. Single Mode FI*ber Parameter Specifications off C0\4978924.3 .35/.25 125.0 1150-1330 1320 .05 14 ILI Charges ior j, ime and Material Service.- Owner or Owner's agent may perform maintenance service at the rates established, below. , which rates are subject to change. tJnless speciffically authorized by User, no Scheduled Maintenance will be performed outside of normal working hours, detailed below: Normal Working Hours: Monday through Friday (Except Owner observed holiday). Expenses Incurred ver call out: __Labor Rates, New Hourly Rate Project Manager $ 102.52 Professional Total $ Engineer $ 88.86 Right of Way Agent $ 66.30 Supervisor $ 65-20 Foreman $ 50.44 Operator $ 42.99 Truck Driver $ 35.54 Laborer $ 29-67 RADD $ 125-00 Eauift)ment Rates no= New Hourly Rate Pick Up $ 16.89 1 Jon $ 18.24 2-ton $ 20.95 Trailer $ 9.46 Rubber Tire Hoe $ 32.43 Redder $ 29.39 Winch Truck $ 29.39 15.54 Light Plant $ 20.81 Arrow Board $ 12.16 211 water pump $ 6.76 Generator $ 6.76 Cable Cart $ 9.46 MH Package $ 19.60 Foreman $ 50.44 Truck $ 16.89 Total $ 67-32 Overtime Hours.- 5:01 p-in. to 7:59 a.m., Saturday, Sunday, and all Owner observed holidays. • 1.5 of 1.5 CO'\4978924.3