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HomeMy WebLinkAbout39-05 Resolution RECORD OF RESOLUTIONS __ J?ayton Legal Blank, Inc,,_~?~}:-!~:}OO45 ----- -- --------.-.. ----- --- ----------- --------- - ------------- - ----.- --.- 39-05 Resolution No, Passed ,20 ------------------------- ----- ---- _ -..-------------.--.- -- ------- AUTHORIZING THE CITY MANAGER TO ENTER INTO A JOINT USE AGREEMENT WITH THE omo BOARD OF REGENTS WHEREAS, the City of Dublin has adopted certain telecommunication-related goals, such as: to comply with the Telecommunications Act of 1996; facilitate the rapid deployment of bandwidth and associated services/technologies; and enhance economic development; and WHEREAS, the City of Dublin has determined that available bandwidth is a critical infrastructure necessary to meet these goals; and WHEREAS, the City of Dublin owns and manages its own underground optical fiber system which provides access to bandwidth; and WHEREAS, the City of Dublin promotes the access to its bandwidth for institutional use; point-to-point connectivity; dark fiber leasing; and for purposes that promote economic development; and WHEREAS, the City of Dublin desires to connect its optical fibers to the Third Frontier Network "TFN", which includes OARnet and the Ohio Super Computer Center, for the purpose of connecting schools, research universities and institutes, colleges, government, and business; and WHEREAS, connectivity to the TFN will foster new collaborations between and among these entities, while at the same time promoting critical educational, scientific and industrial capacities and research, thereby advancing the technology-based economy that will be instrumental in the future economic development of the City of Dublin and Central Ohio; and WHEREAS, the State of Ohio has identified a grant of $500,000 from the State of Ohio Capital Fund for Dublin's "Central Ohio Technology Corridor", which is comprised of Dublin's optical fiber system; and WHEREAS, it is necessary for the City to enter into a Joint Use Agreement with the Ohio Board of Regents to establish the connectivity with the TFN and to receive the grant of capital fund dollars from the State of Ohio, NOW, c;EREFORE, BE IT RESOL YED by the Council of the City of Dublin, State of Ohio, of the elected members concurring: Section 1, That the City Manager is hereby authorized to enter into a Joint Use Agreement with the Ohio Board of Regents for the purpose of receiving grant funds from the State of Ohio Capital Fund and establishing connectivity with and operations of certain optical fibers/bandwidth with the Third Frontier NetworklOARnet/Ohio Super Computer Center. Section 2, That this Agreement shall not become effective until approved as to form by the City Attorney and signed by the City Manager, Section 3. That this Resolution shall take effect and be in force on the earliest date permitted by law. Passed this ~ day of r ,2005 }LL r r Mayor - Presiding Officer ATTEST: I hereby certify that copIes of this ~~~ Ordinance/Resolution were posted in the City of Dublin in accordance with Section Clerk of Council 731.25 of the Ohio Revised Code, EXHIBIT A JOINT USE AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE OHIO BOARD OF REGENTS THIS JOINT USE AGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of the day of , 2005, between the CITY OF DUBLIN, OHIO, an Ohio municipal corporation (hereinafter referred to as the "City"), having an office at 5200 Emerald Parkway, Dublin, Ohio 43017-1006, and the OHIO BOARD OF REGENTS, an instrumentality of the State of Ohio created and existing under Chapter 3333 of the Ohio Revised Code (hereinafter referred to as "Board"), having an office at 30 East Broad Street, Columbus, Ohio 43215, and which are sometimes referred to individually as "Party" and collectively as "Parties, " RECITALS WHEREAS, House Bill 16 passed by the 125th Ohio General Assembly appropriates Five-Hundred Thousand Dollars ($500,000) ("Funds") to the Board to be used by City of Dublin for construction of certain capital infrastructure to facilitate the dubLINK fiber project; and WHEREAS, this Agreement is being entered into between the Board and the City as the Funds were appropriated to the Board rather than the University, although it is intended that OARnet benefit from the terms hereof; and WHEREAS, the Board has concluded that the value of Dublin's facilities as provided to OARnet in this agreement is reasonably related to the amount of the Funds; and WHEREAS, the City has an existing optical fiber system (hereinafter referred to as the "Fiber System") throughout the City of Dublin, Ohio and the greater Columbus, Ohio metropolitan area; and WHEREAS, the City desires to interconnect with Ohio's Universities and Colleges for the purpose of furthering research and education; and {H0549797,5 } lof7 WHEREAS, the City possesses fibers in the Fiber System and will provide four (4) fibers ("Fibers") to OARnet and to grant OARnet an Indefeasible Right of Use or IRU (attached hereto as an Exhibit "A") in and to such fibers for the purpose of providing telecommunications, video, data, and/or information services; and WHEREAS, OARnet is operating the Third Frontier Network ("TFN"), which will connect schools, research universities, medium and smaller universities and colleges, government agencies and others in order to foster new collaborations between and among these entities, while at the same time promoting critical educational, scientific and industrial capacities and research thereby advancing a technology based economy; and WHEREAS, in connection with the grant to OARnet of an IRU in and to such Fibers, the City is willing to allow Board to use certain other property owned by the City, including, but not limited to, inner duct, conduit, building entrance facilities and associated appurtenances; and WHEREAS, in connection with undertaking one or more projects for which the City will provide Fibers in the Fiber System to OARnet, the Parties have agreed to enter into this Agreement which embodies the mutual covenants and agreements for the long term relationship between the Parties hereto and for each such project; and WHEREAS, 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 terms and provisions unique to each additional or different specific project. WHEREAS, City has obtained, for the benefit of Board and the City, a $500,000 grant (hereinafter "Grant") from the State of Ohio Capital Fund, with the belief that this Grant would be spent to develop TFN services in Franklin County and Dublin, Ohio. {H0549797,5 } 20f7 NOW, THEREFORE, in consideration of the mutual benefits hereunder and the benefits conterred upon OARnet, the Parties hereto do hereby agree as follows: 1. Indefeasible Right-to-Use. Dublin hereby agrees to grant the use of four fiber optic cables covering nearly 100 miles in Franklin County, to OARnet. Therefore, The parties agree to the terms and conditions contained in the attached IRU and agree to execute the IRU granting said use, contemporaneously with this Agreement. 2, Cost Reimbursement. Within thirty (30) days of receipt of the Grant, Board agrees to pay City $500,000.00 as partial reimbursement for the costs associated with its purchase of the Fibers, 3, Connectivity. City agrees that it will collaborate with the Ohio Board of Regents and Third Frontier Network in the purchase and installation of the equipment necessary to provide a reliable interface and satisfactory operational connectivity between the TFN backbone and the Fibers granted to OARnet by the IRU, The functionality referenced herein shall be provided pursuant to a mutually agreed upon plan and procedure approved by the Parties. 4. Term: Termination Prior to Expiration of Term. The term of this Agreement shall commence as of the date of execution set forth below and shall end twenty (20) years thereafter. If Dublin fails to execute the IRU contained, then the Board shall have the right to terminate this Agreement upon forty-five (45) days' written notice to Dublin, provided that Dublin does not cure the breach within 45-day period. 5, Guidelines and Reports. Upon request, Dublin shall prepare a report that shall include documentation of the transfer of the fiber and the facilities connected to the fiber. {H0549797.5 I 3of7 6, Reimbursement of State upon Termination. In the even that this Agreement is terminated because Dublin's failure to execute the IRU, Dublin shall remit to the State of Ohio the Funds. 7. Funds Used Only for Capital Improvements. The Funds provided under this Agreement shall be used only to reimburse City for purchase of the Fibers and for capital infrastructure related to the construction of the Fibers. 8, Amendments. Any amendments to this Agreement shall be in writing, signed and approved by Dublin and signed and approved by the Board. 9, Records of University Use. Upon request by the Board and/or University, Dublin shall supply the Board with a copy of the executed IRU. 10, Distribution of Funds: Administrative Costs. Upon execution of this Agreement the Board shall release the Funds to Dublin for the uses specified herein. 11, Public Relations. The Parties will cooperate to issue mutually agreed upon press releases to assist City in its economic development efforts. 12, 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 therefore; lack of transportation; national emergencies; insurrections; riots, wars; or strikes, lockouts, work stoppages or other labor difficulties (collectively, "Force Majeure Events"), 13, 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 I H0549797.5 } 40f7 hereof or sublease, assignment or licensing (hereinafter collectively referred to as a "Transfer") of any rights or obligations hereunder shall be valid for any purpose without the prior written consent of each Party hereto. 14. Relationship not a Partnership or an Agency. The relationship between Board and the City 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. 15, No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and assigns, and except for the requirements herein, 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. 16, Effect of Section Headings. Section headings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretations of text. 17, 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 in this Agreement: If to Board to: If to City to: Chancellor City Manager Ohio Board of Regents City of Dublin, Ohio 30 East Broad Street 5200 Emerald Parkway Columbus, OH 43215 Dublin,OH 43017-1006 With a Copy to: With a Copy to: Law Director City of Dublin, Ohio 5200 Emerald Parkway Dublin, OH 43017-1006 (H0549797.5 I 50f7 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. 18, 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 term, covenant or condition is not separable from all other terms, covenants and conditions of this Agreement. 19, 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, 20, 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, 21, Entire Agreement. 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. IN WITNESS HEREOF, the parties have executed and delivered this Agreement effective the day and year first above written: I H0549797,5 } 60f7 OHIO BOARD OF REGENTS: By: Its: CITY OF DUBLIN: By: Its: Approved As To Form: Law Director, City of Dublin, Ohio, {HOS49797S} 7of7