Loading...
HomeMy WebLinkAboutResolution 086-17RECORD OF RESOLUTIONS Dayton Legal Blank, Inc., Form No. 30045 86-17 Resolution No. Passed , 20 A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A SERVICE AGREEMENT WITH CONTINENTAL BROADBAND PENNSYLVANIA LLC (DBA EXPEDIENT COMMUNICATIONS) TO EXPAND THE DUBLINK TRANSPORT 100 GIGABIT PROGRAM WHEREAS, Dublin has been a worldwide leader in providing technology that enhances the community through the Dublink project; and WHEREAS, Dublin has the opportunity to improve the 2111 century technology amenities that are the foundation of innovation companies; and WHEREAS, these amenities include low -latency, unlimited bandwidth; colocation services; cloud computing services; and the ability for Dublin businesses to affordably connect: to other IT properties in Central Ohio as well as obtain services from any of the commercial carriers serving Central Ohio; and WHEREAS, the City can provide these amenities by continuing to leverage Dublin's investment in the Dublink Transport 100 Gigabit Program, as well as Expedient's Dublin -based investments in cloud and managed services. NOW, THEREF - RE, BE IT RESOLVED by the City 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 a Shared Services Provider Hosting and Managed Services Solutions agreement, which will expand the Dublink Transport 100 Gigabit Program. Section 2. Said Shared Services Provider Hosting and Managed Services Solutions Schedule shall be for a period of three (3) years. Section 3. The City Manager is hereby authorized to execute agreements awarding incentives to individual companies consistent with the Dublink Transport 100 Gigabit Program as needed, not to exceed the fiber capacity, and in accordance with the City's approved operating and capital budgets. Staff will provide Council periodic performance reports of this incentive program. Section 4. This Resolution 4.04(a�of the Revised Cp� Pas4ed this 1,17 cJAy of yor — Priding Officer ATTEST: Clerk of Council Sall take effect upon passage in accordance with Section er. 2017. WON - 14 10. Members of Dublin City Council From:, Dana L. McDaniel, City Mana Date: November 30, 2017 (nitiated By,x Colleen GilgerDirector of Economic Development Re: Resolution 86-17 - Service Agreement with Expedient for the Expansion of Dublink Transport 100-Gigabl"t Program This memo provides a recommendation regarding the expansion of Dublink Transport, the City"s 100 -Gigabit fiber optic incentive program. The City of Dublin leverages certain incentives for the purpose of economic development. One key incentive program has been Dublin's Dublink broadband infrastructure. The City has leveraged this infrastructure asset as a means to save costs, generate revenue, and retain, expand, attract and create companies and jobs. The City, since 2015, has leveraged the al 100abit service contract with Metro Data Center! (MDQ to pilot successfully and deploy the first phase of the program in Metro Center (see attached memo for program update). Since the initial pilot program launch, another data center, Expedient, has selected Dublin as a business location, completing construction of a new data center on Innovation Drive in 2016. M Kesolution 86-17 - Service Agreement with Expedient for Expansion of Dublink Transport 100 -Gigabit November 30, 2017 Page 2 Staff recommends Council approval of Resolution 86-17, authorizing the City Manager to expand the Dublink Transport 100 -Gigabit Program by entering into a service agreement with Expedient. 10. Members of Dublin City Council Ji From,: Dana L. McDaniel, City Manager<,,", Date: November 30, 2017 Initiated By,* Colleen Gilger, Director of Economic Development Jeremiah Gracia, Economic Development Administrator m Dublink Transport 100 -Gigabit Program Updatt For instance, in 2015, Total Sim saved more than $17,000 on internet services as a result of being able to leverage Dublink 100gb Transport. Another company, Viaquest, Inc. was able to utilize tht-- Dublink Transport network to redesign and deploy their company network shortly after hiring a new Chief Information Officer in 2015. The network allowed them to make this transition much easier an consolidate some of their network equipment into Metro Data Center. More importantly, the incentive program has resulted in the retention/creation of 304 jobs with �tayroll withholdings of $386,111,, and 26 extended/new leases in Metro Center, This memo is for information only. The program has achieved positive results and the Economic 1 1- Development team plans to continue to utilize the assets as necessary to compete for deve opmen,-1 projects. Please contact Colleen Gilger or Jeremiah Gracia with any further questions. DUBLINK TRANSPORT 100 GIGABIT PROGRAM SERVICE PROVIDER AGREEMENT This DUBLINK TRANSPORT 100 GIGABIT PROVIDER AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into as of the day of 12017, by and between the City of Dublin, an Ohio municipal corporation having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006 (the "Owner"), and Continental Broadband Pennsylvania LLC, dba Expedient Communications, a Pennsylvania limited liability company having an office at 5000 Arlington Center Boulevard, Upper Arlington, Ohio 43220 (the "User"). For the purposes of this Agreement, Owner and User shall collectively be referred to as the "Parties". WITNESSETH: WHEREAS, the Owner has an existing optical fiber system (hereinafter referred to as the "Fiber System") throughout the City of Dublin, Ohio; WHEREAS, the Owner is willing to grant the User access to fibers within the Fiber System to allow the User to be a provider of the Dublink Transport 100 -Gigabit Program; WHEREAS, the User will fulfill any right-of-way occupancy requirement(s) and/ or Construction Permit(s) required by Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio in order to become a provider of the Dublink Transport 100 -Gigabit Program; and WHEREAS, as a provider of the Dublink Transport 100 -Gigabit Program, small- and medium-sized businesses in the City of Dublin will be able to directly access the User's local data center with low -latency high bandwidth circuits. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereby agree as follows: USER OBLIGATIONS. The User, at no cost to the Owner, will provide managed services for up to twenty (20) commercial sites in the City of Dublin (the "Commercial Sites"), and provide free, low -latency, high -bandwidth data transport connectivity at speeds from 100 Mbps to 100 Gbps from the Commercial Sites to the User's data center, located at 5700 Innovation Drive, Dublin, Ohio 43016. The User, at no cost to the Owner, will use Owner -approved contractors to design and build laterals. The Owner recognizes Columbus Fibernet LLC ("Fishel") as an Owner pre -approved contractor. Substantially Complete Final Draft, Nov. 28, 2017 The User will assist the Owner with outreach to businesses that are within select locations of the City of Dublin as to the availability of the Dublink Transport 100 - Gigabit Program. 2. OWNER OBLIGATIONS In consideration of the above, Owner shall execute Amendment No. 1 to the City of Dublin Dark Fiber Lease Agreement between the City of Dublin and Continental Broadband Pennsylvania LLC. Amendment No. 1 is attached as Exhibit A. User shall use the Fiber System described in Exhibit A solely for the purposes of the Dublin Transport 100 -Gigabit Program. Using the Fiber System described in Exhibit A for any other purpose shall be considered an act of default. TERM Unless changed in accordance with the terms of this Agreement, the initial term of this Agreement is for three (3) years (hereinafter referred to as the "Initial Term"). 4. INDEMNIFICATION User undertakes and agrees to protect, indemnify, defend, and hold harmless Owner and all of its elected officials, officers and employees, agents and volunteers from and against any and all suits and causes of action, claims, charges, damages, demands, judgments, civil fines, penalties, costs, attorney's fees and costs, expenses or losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person, including User's employees and agents, or damage or destruction to any property of either party hereto, or third persons in any manner arising by reason of the negligent acts, errors, omissions or willful misconduct incident to the performances of this Agreement or use of the Fiber System on the part of User, or User's officers, agents, employees, agents and volunteers. User's indemnity requirements herein shall also specifically include all claims of intellectual property, copyright or trademark infringement made by third parties against the Owner. DEFAULT Unless otherwise specified in this Agreement, User shall not be in default under this Agreement, or in breach of any provision hereof unless and until Owner has given User written notice of a breach and User fails to cure said breach within thirty (30) days after receipt of notice; provided, however, that where such breach cannot reasonably be cured within such thirty (30) day period, if User shall proceed promptly and with due diligence to cure the breach, the time for curing such breach may be extended for a reasonable period of time to complete such curing at the Owner's sole discretion. Upon the failure by User to timely cure any such breach 2 Substantially Complete Final Draft, Nov. 28, 2017 after notice thereof from Owner, Owner shall have the right to take such action as it may determine, in its sole discretion, to be necessary to cure the breach or terminate this Agreement or pursue such other remedies as may be provided at law or in equity. a. Unless otherwise specified in this Agreement, Owner shall not be in default under this Agreement or in breach of any provision hereof unless and until User shall have given Owner written notice of such breach and Owner shall have failed to cure the same within thirty (30)days after receipt of such notice; provided, however that where such breach cannot be reasonably be cured within such thirty (30) day period, if Owner shall proceed promptly to cure the same and prosecute such curing with due diligence, the time for curing such breach shall be extended for a reasonable period of time to complete such curing. Upon the failure by Owner to timely cure any such breach after notice thereof from User, User shall have the right to take such actions as it may determine, in its sole discretion , to be necessary to cure the breach or terminate this Agreement or pursue other remedies as may be provided at law or in equity. b. If User shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to any present or future federal or state bankruptcy law or under any similar federal or state law, or shall be adjudicated a bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, or if any involuntary petition proposing the adjudication of User, as a bankrupt or its reorganization under any present or future federal or state bankruptcy law or any similar federal or state law shall be filed in any court and such petition shall not be discharged or denied within ninety (90) days after the filing thereof, or if a receiver, trustee or liquidator of all or substantially all of the assets of User shall be appointed then Owner may, at its sole option, immediately terminate this Agreement. 6. FORCE MAJEURE Neither Party shall be liable to the other for any failure of performance under this Agreement due to causes beyond its control (except for the fulfillment of payment obligations as set forth herein), including, but not limited to: acts of God, fire, flood, earthquake or other catastrophes; adverse weather conditions; material or facility shortages or unavailability not resulting from such Party's failure to timely place orders therefor; lack or transportation; national emergencies; insurrections; riots, wars or strikes, lockouts, work stoppages or other labor difficulties (collectively, "Force Majeure Events") 7. ASSIGNMENT This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors or assigns; provided, however, that no assignment hereof or sublease, assignment or licensing (hereinafter collectively referred to as 3 Substantially Complete Final Draft, Nov. 28, 2017 a "Transfer") of any rights or obligations hereunder shall be valid for any purpose without the prior written consent of each Party hereto. Said consent shall not be unreasonably withheld. For purposes of this Agreement, "Assignment" shall exclude: (i) the sale of all or substantially all of the assets of a party, (ii) a merger, consolidation or reorganization, or (iii) the sale or transfer of more than fifty (50%) of the voting stock (as measured by assuming all convertible securities converted into common stock) to an individual or entity or group of individuals or entities acting in concert that immediately prior to such sale or transfer did not own more than fifty percent (50%) of the then outstanding voting stock. 8. WAIVER OF TERMS OR CONSENT TO BREACH 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 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 constituent a waiver of or consent to any subsequent or different breach of this Agreement 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 purpose whatsoever. 9. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY The relationship between User and Owner shall not be that of partners or agents for one another and nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture or agency Agreement between the Parties hereto. 10. NO THIRD -PARTY BENEFICIARIES This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns herein shall not be construed as granting rights to any person or entity other than a Party. 11. EFFECT OF SECTION HEADINGS Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of text. 12. NOTICES Any written notice under this Agreement shall be deemed properly given if sent by registered or certified mail, postage prepaid, or by nationally recognized overnight delivery service or by facsimile to the address specified below, unless otherwise provided for this Agreement: If to User to: If to Owner to: 4 Substantially Complete Final Draft, Nov. 28, 2017 13. 14. 15. Expedient Communications, LLC General Management 5000 Arlington Center Blvd. Upper Arlington, Ohio 43220 With a Copy to: Continental Broadband Pennsylvania, LLC Chief Financial Officer Two Allegheny Center Mall 101h Floor Pittsburgh, PA 15212 City Manager City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 With a Copy to: Law Director City of Dublin 5200 Emerald Parkway Dublin, Ohio 43017 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. SEVERABILITY In the event any term, covenant or condition of this Agreement, or the application of such term, covenant or condition, shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants and conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that the invalid terms, covenant or condition is not separable from all other terms, covenants and conditions of this Agreement. COMPLIANCE WITH LAW Each Party hereto agrees that it will perform its respective rights and obligations hereunder in accordance with all applicable laws, rules and regulations. GOVERNING LAW AND VENUE This Agreement shall be interpreted in accordance with the Charter and Codified ordinances of the City of Dublin, as amended, the laws of the State of Ohio, and all applicable federal laws, rules and regulations as if this Agreement were executed and performed wholly within the State of Ohio. No conflict of law provisions shall be invoked so as to use the laws of any other jurisdiction. The exclusive venue for all cases or disputes related to or arising out of this Agreement shall be the state and federal courts in Franklin County, Ohio. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Substantially Complete Final Draft, Nov. 28, 2017 Continental Broadband Pennsylvania LLC City of Dublin dba Expedient Communications By: (signature) (print) By: (signature) (print) Title: Title: Date: Approved As To Form: Law Director, City of Dublin, Ohio. 6 Substantially Complete Final Draft, Nov. 28, 2017 Date: Exhibit A THIS IS THE FIRST AMENDEMENT to the Dark Fiber Lease Agreement dated January 26, 2011 ("Original Agreement"), between the City of Dublin, Ohio an Ohio municipal corporation (hereinafter referred to as the "Owner"), having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006, and Continental Broadband Pennsylvania, LLC dba, Expedient Communications, a Pennsylvania limited liability company with an office located at 5000 Arlington Center Boulevard, Upper Arlington, Ohio 43220 (hereinafter referred to as "User"), Owner and User referred to individually as "Party" and collectively as "Parties". WHEREAS, The Parties have executed a Dark Fiber Lease Agreement dated January 26, 2011; and WHEREAS, User and the Owner desire to expand their relationship; WHEREAS, User and Owner have agreed to extend and add to the fiber route that User may utilize; route; WHEREAS, the Parties have agreed to amend the Original Agreement, to include a new NOW, THEREFORE, User and the Owner hereby agree as follows: 1. GRANT Owner grants an additional two (2) pairs of fiber on the route described in the Exhibit to this Amendment No. 1 (hereinafter "Route Two"). User may conduct, with Owner's written approval, splice work attaching building entrance laterals to Route Two for the purpose of connecting business entities' location or locations within the City of Dublin to User. User may also conduct, with Owner's written permission, splice work to disconnect laterals from Route Two as needed. 2. TERM The term of this Amendment No. 1 for Route Two shall be co -terminus with the Dublink Transport 100 Gigabit Program Service Provider Agreement. 3. PRIOR AGREEMENT All other terms and conditions set forth in the Original Agreement shall apply to Route Two. 7 Substantially Complete Final Draft, Nov. 28, 2017 4. ENTIRE AGREEMENT This Amendment, including any Exhibit attached hereto, all constitute the entire agreement between the parties with respect to Route Two. This Agreement cannot be modified except in writing signed by both parties. IN WITNESS HEREOF the Parties have executed and delivered this Agreement effective USER: Continental Broadband Pennsylvania, LLC dba Expedient Communications By: Its: OWNER: City of Dublin, Ohio, an Ohio municipal corporation. By: Its: Citv Manager Approved As To Form: Law Director, City of Dublin, Ohio. 12 Substantially Complete Final Draft, Nov. 28, 2017