38-06 Ordinance RECORD OF ORDINANCES
Da ton Leval Blank, [nc. Form No. 300d?
38-06
Ordinance No. Passed , 2~
AN ORDINANCE AUTHORIZING THE PROVISION
OF CERTAIN INCENTIVES FOR PURPOSES OF
ENCOURAGING THE RETENTION AND EXPANSION
BY INFLUENT, INC. OF ITS OPERATIONS AND
WORKFORCE WITHIN THE CITY AND
AUTHORIZING THE EXECUTION OF AN
ECONOMIC DEVELOPMENT AGREEMENT.
WHEREAS, consistent with its Economic Development Strategy (the "Strategy")
approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and
the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on
July 6, 2004, the City desires to encourage commercial office and retail development
and provide for the creation of employment opportunities within the City; and
WHEREAS, Influent, Inc. ("Influent is desirous of retaining and expanding its
operations and workforce within the City in consideration for the provision by the City
of economic development incentives; and
WHEREAS, this Council has determined to offer economic development incentives,
the terms of which are set forth in a substantially final form of Economic Development
Agreement presently on file in the office of the Clerk of Council, to induce Influent to
retain and expand its operations and workforce within the City, to create jobs and
employment opportunities and to improve the economic welfare of the people of the
State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio
Constitution; and
WHEREAS, this Council finds that it is in the best interest of the City to provide those
economic development incentives to induce Influent to retain and expand its
operations and workforce within the City and to provide for the execution and delivery
of that Economic Development Agreement with Influent;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
Franklin, Union and Delaware Counties, Ohio, ~ of the elected members
concurring, that:
Section 1. The Economic Development Agreement by and between the City and
Influent, in the form presently on file with the Clerk of Council, providing for, among
other things, the provision of incentives to Influent in consideration for Influent's
agreement to retain and expand its operations and workforce within the City, is hereby
approved and authorized with changes therein not inconsistent with this Ordinance and
not substantially adverse to this City and which shall be approved by the City Manager
and Director of Finance. The City Manager and Director of Finance, for and in the
name of this City, are hereby authorized to execute that Economic Development
Agreement, provided further that the approval of changes thereto by those officials, and
their character as not being substantially adverse to the City, shall be evidenced
conclusively by their execution thereof. This Council further authorizes the City
Manager and the Director of Finance, for and in the name of the City, to execute any
amendments to the Economic Development Agreement, which amendments are not
inconsistent with this Ordinance and not substantially adverse to this City.
Section 2. This Council further hereby authorizes and directs the City Manager, the
Clerk of Council, the Director of Law, the Director of Finance, or other appropriate
officers of the City to prepare and sign all agreements and instruments and to take any
other actions as maybe appropriate to implement this Ordinance.
Section 3. This Council finds and determines that all formal actions of this Council
concerning and relating to the passage of this Ordinance were taken in an open meeting
RECORD OF ORDINANCES
Dayton Lcgal Blank, Inc. Form No. 30043
Ordinance No. 38-06 Passed Page 2 . 20
of this Council and that all deliberations of this Council that resulted in those formal
actions were in meetings open to the public in compliance with the law.
Section 4. This Ordinance shall be in full force and effect on the earliest date
permitted by law.
Signed:
Int~Vlayor - r idi g Offi
J Attest:
Clerk of Council
Passed: l , 2006
Effective: l , 2006
I hereby certify that copies of this
Ordinance/Resolution were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
D ty Clerk of Council, Dublin, Ohio
Office of the City Manager
5200 Emerald Parkway, Dublin, Ohio 43017
C11'Y 4F DUBLIN Phone: 614-410-4400 • Fax: 614-410-4490 M e m o
To: Members of Dublin City Council
From: Jane S. Brautigam, City Manager 5
Date: May 31, 2006
Initiated By: Colleen M. Gilger, Acting Director of Economic Development
Re: Ord. 38-06 -Economic Development Agreement with Influent, Inc.
Summary
Staff has been in discussions with Influent, Inc. ("Influent's regarding the retention of its headquarters to
Dublin, in addition to the creation and expansion of a Dublin-based Quality Assurance Center.
Influent provides outsourced sales and service solutions primarily for financial and insurance industries.
The headquarters houses the company's data management and file processing technology. It operates 10
call centers, including three in Ohio at Marietta, New Philadelphia and Tiffin, and employs more than
2,200 worldwide. The company is currently opening its second international center in the Philippines.
Influent currently employs 90 people in Central Ohio with an average salary of $50,000, equating to an
annual payroll of $4.5 million; 50 of these jobs will be retained at the Metro Center headquarters
location, while the remaining 40 will relocate to the Quality Assurance Center on Shamrock Court. The
company is committed to backfilling the headquarters with expanded operations and an additional 20
employees, in addition to growing the Quality Assurance Center by an additional 40 employees by 2010.
By 2010 the company plans to employ approximately 150 in Dublin.
Ordinance 38-06 authorizes an Economic Development Agreement between the City and Influent that
includes a Technology Grant of $35,000 (payable in two installments of $15,000 and $20,000) for the
purpose of upgrading both facilities' technology platforms, and to offset the cost of connecting the
facilities with point-to-point fiber optics. If the company does not meet annual withholdings targets in
2006 and 2007, a 50 percent repayment of the Grant is required in 2008. The City also offers Influent
access to two dedicated optical fibers in DubL1NK in five-year term increments as long as Influent
continues to renew its leases on both facilities within Dublin in five-year increments. The value of two
dedicated fibers is estimated to be $6,500 annually.
Over the term of this agreement, Influent will receive $35,000, should it meet each annual target and
objective set forth in the Agreement; while the City is estimated to retain 90 employees, gain 60
employees and net approximately $685,000 in income tax withholdings on both the retained and new
jobs.
Recommendation
Staff recommends the Economic Development Agreement and Ordinance 38-06 be accepted by City
Council on June 19, 2006.
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into
this day of , 2006, by and between the CITY of DUBLIN, OHIO (the
"City"), a municipal corporation duly organized and validly existing under the Constitution and
the laws of the State of Ohio (the "State") and its Charter, and Influent, Inc. ("Influent") an Ohio
corporation, under the circumstances summarized in the following recitals.
RECITALS:
WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved
by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy
approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires
to encourage commercial office and retail development and provide for the retention and creation
of employment opportunities within the City; and
WHEREAS, Influent desires to retain its operations and expand its Quality Assurance Center
and workforce within the City of Dublin in 2006; and
WHEREAS, pursuant to Ordinance No. 38-06 passed , 2006
(the "Ordinance"), the City has determined to offer economic development incentives described
herein to induce Influent to retain and expand its operations and workforce within the City to create
jobs and employment opportunities and to improve the economic welfare of the people of the State
of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and
WHEREAS, the City and Influent have determined to enter into this Agreement to provide
these incentives to induce Influent to retain its operations and expand its workforce within the
City.
Now THEREFORE, the City and Influent covenant agree and obligate themselves as follows:
Section 1. Influent Agreement to Retain its Headquarters and Create Ouality Assurance
Center. Influent agrees that it will retain its office at 565 Metro Place S. in the City of Dublin (the
"Dublin Headquarters") and at least 50 associated employees, and expand its operations into a
Quality Assurance facility ("QA Facility Influent will occupy the QA Facility no later than
August 31, 2006 and will employ at least 55 fulltime employees within the City of Dublin as part of
its operations by December 31, 2006, growing that workforce with the addition of 5 employees
annually for afive-year period. The average annual wage of all Influent employees combined for
this period is estimated to be approximately $50,000 with total estimated payroll withholdings of
approximately $720,000 over asix-year period. Influent will lease both its Dublin Facility and QA
Facility for a minimum of five (5) years. Proof of such lease will be presented to the City of Dublin
as soon as practical after execution and prior to receiving any incentive from the City of Dublin.
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Section 2. City Agreement to Provide Incentives.
(a) General. In consideration for Influent's agreement to retain its operations'
workforce and associated payroll within the City, the City agrees to provide economic development
incentives to Influent in accordance with this Section.
(b) Use of Optical Fibers. The City will grant Influent the exclusive use of two (2) of
its optical fibers throughout its DubLink system. The City and Influent agree that Influent will be
entitled to five-year fiber use extensions if Influent, shows proof of, either (1) extending it's
lease option at 565 Metro Place N. for additional five-year terms, or (2) entering into a lease of
new space within Dublin for at least five-year terms. Influent will use these optical fibers in
accordance with the Indefeasible Right to Use (IRU) (Exhibit "I-A", attached) to be executed
between the City and Influent.
(c) Technology Grant. Influent will connect the two Dublin-based facilities as a
result of its expansion to the QA Facility. In consideration of that agreement to retain its
headquarters and expand into a second facility within Dublin, the City agrees to provide a grant
to Influent in the amount of $35,000 (the "Grant") in two installments of (1) $15,000 within but
no sooner than 45 days after this agreement has been executed; and (2) $20,000 no sooner than
April 15, 2007. Influent must meet or exceed predetermined payroll withholding targets in 2006
and 2007 as described in the following sections to avoid grant repayment in 2008. At its sole
discretion, and prior to the payment(s) of the Grant, the City may request any reasonable
documentation with respect to how Influent intends to use the Grant, to ensure that the Grant
achieves the purpose for which it has been granted under this Agreement.
(i) Calculation of Actual Withholdings. On or before March 15 of each of the
years 2007 and 2008 the City shall determine whether the actual payroll withholding
taxes collected during the preceding calendar years 2006 and 2007 by the City from all
Employees (the "Actual Withholdings") meet or exceed the target withholdings for that
preceding calendar year (the "Target Withholdings"), all in accordance with the schedule
set forth in subparagraph (iii) below. For purposes of this Section 2, "Employees" shall
include all individuals employed by Influent in the City of Dublin and working at both
Dublin facilities. Influent agrees that, in accordance with the Dublin City Code, the
annual payroll reconciliation relating to the Employees will be provided to the City prior
to February 28 of each calendar year.
(ii) Withholdings and Incentive Pants. With respect to the Actual
Withholdings collected during each of the calendar years 2006 and 2007, inclusive, the
Target Withholdings and Incentive Payment to be paid in respect of each of those calendar
years shall be paid in accordance with the following schedule:
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Calendar Year Target Withholdings Grant Payment
2006 $105,000 $15,000
2007 $115,000 $20,000
The payments provided for in this Section 2 shall be made by the City to Influent by
electronic funds transfer or by such other manner as is mutually agreed to by the City and Influent.
Performance incentive maximum payment caps are set as indicated in the table above in Section
2(c)(ii). The total maximum payment cap associated with the Agreement is $35,000.
(d) Forfeiture of Incentive Payment and Repayment of Grant. Influent agrees that if the
Target Withholdings are not met or exceeded in both 2006 and 2007, as set forth in 2(c)(iii) above,
Influent is obligated to make repayment of $17,500, which is equal to a 50 percent return of the
Grant payment, to the City no later than June 1, 2008.
(e) Citesligation to Make Pa~nents Not Debt• Payments Limited to Non-tax Revenues.
Notwithstanding anything to the contrary herein, the obligations of the City pursuant to this
Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the
general credit or taxes levied by the City, and Influent shall have no right to have excises or taxes
levied by the City, the State or any other political subdivision of the State for the performance of
any obligations of the City herein. Consistent with Section 13 of Article VIII, Ohio Constitution,
any payments or advances required to be made by the City pursuant to this Section 2 shall be
payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to
appropriating monies for such expenditures only on an annual basis, the obligation of the City to
make payments pursuant to this Section 2 shall be subject to annual appropriations by the City
Council and certification by the Director of Finance of the City as to the availability of such non-
tax revenues.
(f) Applicable CitYPayroll Tax Rate. For purposes of calculating the Actual Withholdings
in each calendar year under this Section 2, the City's payroll tax rate shall be assumed to be two
percent (2%).
Section 3. Miscellaneous.
(a) Notices. Except as otherwise specifically set forth in this Agreement, all notices,
demands, requests, consents or approvals given, required or permitted to be given hereunder shall be
in writing and shall be deemed sufficiently given if actually received or ifhand-delivered or sent by
recognized, overnight delivery service or by certified mail, postage prepaid and return receipt
requested, addressed to the other party at the address set forth in this Agreement or any addendum
to or counterpart of this Agreement, or to such other address as the recipient shall have previously
notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by
certified mail, in which event such notice shall be deemed to have been received when the return
receipt is signed or refused. For purposes of this agreement, notices shall be addressed to:
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(i) the City at: 5800 Shier Rings Road
Dublin, Ohio 43016-7295
Attention: Economic Development Director
(ii) Influent at: 565 Metro place South
Dublin, OH 43017
Attention: Roger E. Jacobs
The parties, by notice given hereunder, may designate any further or different addresses to which
subsequent notices; certificates, requests or other communications shall be sent.
(b) Extent of Provisions; No Personal Liability. All rights, remedies, representations,
warranties, covenants, agreements and obligations of the City under this Agreement shall be
effective to the extent authorized and permitted by applicable law. No representation, warranty,
covenant, agreement, obligation or stipulation contained in this Agreement shall be deemed to
constitute a representation, warranty, covenant, agreement, obligation or stipulation of any present
or future trustee, member, officer, agent or employee of the City or Influent in other than his or her
official capacity. No official executing or approving the City's or Influent's participation in this
Agreement shall be liable personally under this Agreement or be subject to any personal liability or
accountability by reason of the issuance thereof.
(c) Successors. This Agreement shall be binding upon and inure to the benefit of Influent
and its successors and assigns.
(d) Recitals. The City and Influent acknowledge and agree that the facts and circumstances
as described in the Recitals hereto are an integral part of this Agreement and as such are
incorporated herein by reference.
(e) Amendments. This Agreement may only be amended by written instrument executed
by the City and Influent.
(f) Executed Counterparts. This Agreement may be executed in several counterparts, each
of which shall be regarded as an original and all of which shall constitute but one and the same
agreement. It shall not be necessary in proving this Agreement to produce or account for more than
one of those counterparts.
(g) Severability. In case any section or provision of this Agreement, or any covenant,
agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or any
application thereof, is held to be illegal or invalid for any reason,
(i) that illegality or invalidity shall not affect the remainder hereof or thereof, any
other section or provision hereof, or any other covenant, agreement, obligation or action, or
part thereof, made, assumed, entered into or taken, all of which shall be construed and
enforced as if the illegal or invalid portion were not contained herein or therein,
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(ii) the illegality or invalidity of any application hereof or thereof shall not affect
any legal and valid application hereof or thereof, and
(iii) each section, provision, covenant, agreement, obligation or action, or part
thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in
the manner and to the full extent permitted by law.
(h) Captions. The captions and headings in this Agreement are for convenience only and in
no way define, limit or describe the scope or intent of any provisions or sections of this Agreement.
(i) Governing Law and Choice of Forum. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio or applicable federal law. All claims,
counterclaims, disputes and other matters in question between the City, its agents and employees,
and Influent, its employees and agents, arising out of or relating to this Agreement or its breach will
be decided in a court of competent jurisdiction within Franklin County, Ohio.
(j) Survival of Representations and Warranties. All representations and warranties of
Influent and the City in this Agreement shall survive the execution and delivery of this
Agreement.
(k) Notwithstanding any clause or provision of this Agreement to the contrary, in no
event shall City or Influent be liable to each other for punitive, special, consequential, or
indirect damages of any type and regardless of whether such damages are claimed under
contract, tort (including negligence and strict liability) or any other theory of law.
IN WITNESS WHEREOF, the City and Influent have caused this Agreement to be executed in
their respective names by their duly authorized representatives, all as of the date first written above.
CITY OF DUBLIN, OHIO
By:
Printed: Jane S. Brautigam
Title: City Manager
Approved as to Form:
By:
Printed: Stephen J. Smith
Title: Director of Law
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Influent, Inc.
By:
Printed:
Title:
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FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing Agreement, certifies
hereby that the moneys required to meet the obligations of the City under the foregoing Agreement
have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the
process of collection to the credit of an appropriate fund, free from any previous encumbrances.
This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code.
Dated: , 2006
Marsha I. Grigsby
Deputy City Manager/Director ofFinance
City of Dublin, Ohio
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CITY OF DUBLIN, OHIO
OPTICAL FIBER USE AGREEMENT
THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the "Agreement") made
and entered into as of the day of , 2006, 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 Influent, Inc., an Ohio corporation
(hereinafter referred to as "User"), having an office at 565 Metro Place South, Dublin, OH
43017, and which are sometimes referred to individually as "Party" and collectively as "Parties."
WITNESSETH:
WHEREAS, the Owner 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 Owner has excess fibers in the Fiber System and is willing to provide
such fibers to User and to grant User an Indefeasible Right of Use or IRU (as hereinafter
defined) in and to such fibers for the purpose of providing telecommunications, video, data,
and/or information services; and
WHEREAS, in connection with the grant to User of an IRU in and to such fibers, the
Owner is willing to allow User to use certain other property owned by the Owner, including, but
not limited to, innerduct, conduit, building entrance facilities and associated appurtenances; and
WHEREAS, User has obtained any and all permits or approvals required to engage in its
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 in
regards to such use and occupancy (specifically inclusive of, but not limited to, applicable
provisions of Chapter 98 of the Codified Ordinances of the City of Dublin, Ohio); and
WHEREAS, in connection with undertaking one or more projects for which the Owner
will provide fibers in the Fiber System to User, 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.
NOW, THEREFORE, in accordance with the terms of any Right of Way occupancy
requirement and/or Construction Permit required by Chapter 98 of the Codified Ordinances of
the City of Dublin, Ohio, -and in consideration of the mutual covenants and agreements set forth
in this Agreement, the Parties hereto do hereby agree as follows:
Page 1
1. DEFINITIONS.
1.1 The following terms, whether in the singular or in the plural, when used in this Agreement
and initially capitalized, shall have the meaning specified:
a. Agreement: This Optical Fiber Use Agreement between the Owner and User
which identifies the specific optical fiber strands and facilities to be as provided to
User by Owner and which set forth the associated fees/compensation, terms and
conditions for User's use of such optical fiber strands and facilities.
b. Fiber System: The Ninety-Six (96) optical fiber strands, innerduct, conduit,
building entrance facilities, associated appurtenances, and capacity owned by the
Owner and located throughout the Rights of Way of the City of Dublin, Ohio and
the greater Columbus, Ohio metropolitan area that is detailed in Exhibit A
appended hereto.
c. User System: The optical fiber strands, innerduct, conduit, building entrance
facilities and associated appurtenances in the Fiber System, to be provided to User
under the terms of this Agreement and the associated rights to access such fiber
strands at Demarcation Points as specified herein all as described herein and
detailed on Exhibit B attached hereto. The Parties shall list the facilities the User
is, or may in the future be, connecting to the Fiber System in Exhibit B. From
time to time, User may request additional or modified connections of facilities to
the Fiber System in accordance with the terms of this Agreement. All such
requests for additional or modified connections shall be made in writing and be
subject to Owner's prior acceptance and approval. User shall make such requests
in writing and Owner shall attempt to review and reasonably respond to such
request within sixty (60) days of receipt. However, Owner shall make a good faith
effort to respond to such requests, to the extent possible in the opinion of the
Owner, within 21 days after the request. Upon Owner's approval and acceptance
of such additional or modified connections, the Parties shall appropriately amend
Exhibit B to reflect the changed circumstances.
2. GRANT
2.1 The Owner hereby grants to User an Indefeasible Right of Use (IRU) of the following
Owner Fiber System components:
a. Exclusive use of two (2) strands of fiber optic cable throughout the Owner's Fiber
System, which is described in 1.1(b) above and in Exhibit A appended hereto.
The User may connect any of its own existing Dublin facilities (Exhibit B) and
future facilities to be established in the City of Dublin to the Owner's Fiber
System. Additionally, User may use the portions of the User System granted
herein to connect to offices and facilities owned and/or controlled by User that are
located within or outside of the City of Dublin. These individual Owner Fiber
System components collectively shall comprise the User System as defined in
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1.1(c) of this Agreement. The User System shall be inclusive of the Owner's
Fiber System between and including the Owner's sides of the originating and
terminating demarcation points. For the purpose of this Agreement, a demarcation
point ("Demarcation Point") shall be considered the minimal point of entry, which
is the closest practical point to a Users facility where current and existing portions
of Owner's Fiber System comprising the User System, either exist in the public
rights of way or crosses the User facility's property line, whichever maybe
closest to the User's facility. User shall be responsible for all infrastructure,
equipment and service issues between the Demarcation Point and User's facilities,
unless Owner otherwise agrees to provide. It is understood and agreed that all
lateral connections into the Owner's Fiber System installed and paid for by User
shall remain User's property, and User shall be responsible for all service issues
with such laterals up to the point of connection of such lateral into Owner's Fiber
System.
3. TERM.
3.1 Unless sooner terminated in accordance with the terms of this Agreement, the term of this
Agreement is five (5) years (hereinafter referred to as the "Term"), commencing on the
date of this Agreement (hereinafter referred to as the "Commencement Date"). This
Agreement will automatically renew indefinitely in five-year increments, if User provides
proof of facility lease extensions in coinciding five-year terms.
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 (i.e. the User System) as
described herein, the User hereby agrees:
a. To permanently and continually locate, operate and maintain -the Corporate
Headquarters and Quality Assurance Office (as defined in the Economic
Development Agreement by and between the City of Dublin and Influent, Inc.
dated , 2006) within the City of Dublin, Ohio for the period of time
equal to and coterminous with the term of the Agreement as defined in 3.1 above.
b. That any failure of User to satisfy the terms and conditions of this Section shall be
considered a material breach of this Agreement and shall give cause to allow the
Owner to then terminate this Agreement upon giving thirty (30) days written
notice to User.
5. OWNER'S OBLIGATIONS.
5.1 Owner shall:
a. Provide the User System for User's use in accordance with the terms of this
Agreement.
Page 3
b. Provide and/or control maintenance and repair functions on the User System and
all facilities in the Fiber System through which the User System passes, including,
but not limited to, conduit, innerduct, poles and equipment, which shall be
performed under the direction of the Owner.
c. Maintain the User System to the specifications provided in Agreement Exhibit C.
6. USER OBLIGATIONS.
6.1 User shall:
a. Provide and pay for all lateral connectivity from all necessary termination points
of User's proprietary fiber and equipment to all the necessary Demarcation Points
of Owner's Fiber System.
b. Pay for any building or external network service connection and disconnection
charges for each building service added or deleted before, during or after the
initial establishment and cutover of a User System fiber segment. User shall be
responsible for any and all costs associated with lateral connectivity to the Fiber
System and shall pay for the costs of all splicing, distribution segment, service
connections, and any ring or concentrator operations.
c. Pay all necessary costs if the 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 of a ring or concentrator operation. Owner's management agent's
current charges and application rules are identified in Exhibit D attached hereto.
d. Agree not to use the User System provided in this Agreement to provide services
to any non-related parties, whether alone or in conjunction with a third party,
without the prior written consent of the Owner. User also agrees that it shall not
provide for or allow any non-related party to use the User System or in any way
sublease or subdivide the User System and provide services to non-related or third
parties without the prior written consent of the Owner. User also agrees that
outside of its connections inside the geographic limits of the City of Dublin, Ohio,
it may only use the portions of the User System granted herein to connect to those
offices and facilities owned and/or controlled by User identified in Exhibit B.
User further agrees to continually meet the requirements of this Agreement. In the
event of any breach of the provisions contained in this Section, the 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 maybe required to be paid by User
pursuant to the requirements of Section 8.1(a-c) below.
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7. JOINT OBLIGATIONS.
7.1 The Owner and User jointly:
a. Agree that within thirty (30) 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 atwenty-four (24) hour a day, three hundred sixty-five
(365) days per year, coordination telephone number.
8. MAINTENANCE.
8.1 All maintenance and repair functions on the Fiber System and all facilities through which
the Fiber System passes, including, but not limited to, conduit, innerduct, poles, and
equipment shall be performed by or at the direction of the Owner or Owner's appointed
agent with reasonable notice to User. Except as otherwise may be agreed to by the
Parties, User is prohibited from performing any maintenance or repair on the Fiber
System or User System. User shall have the right to have an employee or representative
available to assist the Owner in any maintenance or repair of the User System. The
Owner shall maintain the User System in accordance with the technical specifications
(hereinafter referred to as the "Specifications") attached hereto in Exhibit C.
a. Regular Maintenance: Owner may from time to time undertake and provide for
Regular Maintenance activities in an attempt to keep the Fiber System and/or
User System in good working order and repair so that it performs to a standard
equal to that which is then commonly believed to be acceptable for systems of
similar construction, location, use and type. Such Regular Maintenance shall be
performed at the Owner's sole cost. Owner shall make a good faith effort to,
whenever possible in the opinion of the Owner undertake regular maintenance
after User's regular business hours, or in a manner that minimizes any disruption
of the User System.
b. Scheduled Maintenance: The Owner from time to time may schedule and
perform specific periodic maintenance to protect the integrity of the Fiber System
and/or User System (and Owner shall make a good faith effort to, whenever
possible in the opinion of the Owner undertake such scheduled maintenance after
User's regular business hours, or in a manner that minimizes any disruption of the
User System) and perform changes or modifications to the Fiber System and/or
User System (including but not limited to fiber slicing, etc.) at the User's request.
Such User requested Scheduled Maintenance shall be performed at the User's sole
cost and expense and after User's regular business hours, if requested by the User
(subject to the User paying any applicable overtime rates specified in Exhibit D).
User may request such Scheduled Maintenance by delivering to the Owner a
Statement of Work detailing the service User desires to be performed, including
the time schedule for such services. Upon receipt of such a Statement of Work,
the Owner will provide an estimate of the price and timing of such Scheduled
Page 5
Maintenance. Following User's acceptance of such estimate, the Owner will
schedule and have such Scheduled Maintenance performed. The Owner will have
such Scheduled Maintenance performed on atime-and-materials basis at the
standard rates in then effect at the time services are performed. Rates in effect will
be those identified in Exhibit D with the understanding that such rates are subject
to change at any time.
c. Emergency Maintenance: The Owner may undertake and provide for Emergency
Maintenance and repair activities for the Fiber System and/or User System.
Where necessary, the Owner shall attempt to respond to any failure, interruption
or impairment in the operation of the User System within Twenty-Four (24) hours
after receiving a report of any such failure, interruption or impairment. (However,
Owner shall make a good faith effort to respond to such requests, to the extent
possible in the opinion of the Owner, within 2 hours after the request.). The
Owner shall use its best efforts to perform maintenance and repair to correct any
failure, interruption or impairment in the operation of the User System when
reported by User in accordance with the procedures set forth in this Agreement.
The costs and expenses associated with such Emergency Maintenance shall be
apportioned between Owner and User in percentages equal to their respective
interests of control (and based on the terms of this Agreement) over the portions
of the User System and/or Fiber System requiring such Emergency Maintenance.
The Owner will have such Emergency Maintenance performed on a time-and-
materials basis at the emergency maintenance rates in then effect at the time
services are performed.
8.2 In the event the Owner, or others acting on the Owner's behalf, at any time during the Term
of this Agreement, discontinues maintenance and/or repair of the User System, User, or
others acting in User's behalf, shall have the right, but not the obligation, to thereafter
provide for the previously Owner provided maintenance and repair of the User System, at
the User's sole cost and expense. Any such discontinuance shall be upon not less than six
(6) months prior written notice to User. In the event of such discontinuance, the Owner
shall obtain for User, or others acting in User's behalf, approval for adequate access to the
Rights of Way in, on, across, along or through which the User System is located, for the
purpose of permitting User, or others acting in User's behalf, to undertake such
maintenance and repair of the User System.
8.3 In the event any failure, interruption or impairment adversely affects both the Owner's
Fiber System and the User System, restoration of the User System shall at all times be
subordinate to restoration of the Owner's Fiber System with special priority for Owner's
public safety and municipal infrastructure functions carried over the Fiber System, unless
otherwise agreed to in advance by the Parties hereto. In such event or in the event the
Owner is unable to provide timely repair service to the User System, the Owner may,
following written request, permit User to make repairs to restore the User System as long
as such restoration efforts do not interfere with the Owner's restoration activities.
8.4 Any User subcontractors or employees who undertake repair or maintenance work on the
User System shall first be approved by the Owner to work on the Owner's Fiber System.
Page 6
Prior to User's undertaking Emergency Maintenance or entering an Owner's facility for
repair, User shall first notify the Owner of the contemplated action and receive the
Owner's concurrence decision, a decision that the Owner shall provide to User no later
than twelve (12) hours from User's notification to Owner of contemplated action. When
User undertakes Emergency Maintenance of the User System, User shall have an Owner
employee or representative available to assist the User in any repair of the User System.
9. USE OF THE USER SYSTEM.
9.1 User shall have exclusive control over its provision of telecommunications, video, data,
and/or information services.
9.2 User hereby certifies that it is authorized or will be authorized, where required, on the
effective date this Agreement to 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 the Owner.
9.3 User understands and acknowledges that its use of the Fiber System and User System are
subject to all applicable local, state and federal laws, rules and regulations, as enacted,
either currently or in the future, in the jurisdictions in which the Fiber System and User
System are located. User represents and warrants that it shall operate on the Fiber System
and User System subject to, and in accordance with, all laws, rules and regulations and
shall secure all permits, approvals, and authorizations from all such jurisdictional entities
as may be necessary.
10. INDEMNIFICATION.
10.1 The User undertakes and agrees to protect, indemnify, defend, and hold harmless the
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, attorneys 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 performance of this Agreement or
use of the Fiber System on the part of the User, or the User's officers, agents, employees,
or subcontractors, except for the negligent acts, errors, omissions or willful misconduct of
the Owner, and its elected officials, officers, 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 Owner.
User shall, where lawful, be required as a condition of this Agreement to make Columbus
Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio limited liability
company ("Fibernet") a third party beneficiary of this Agreement for the sole and limited
purpose of User providing specific indemnification as follows: User shall indemnify,
protect, and defend Fibernet against, and hold Fibernet harmless from, any claims, losses,
Page 7
damages, costs or expenses including, without limitation, reasonable attorneys' fees,
asserted against, incurred, or suffered by Fibernet resulting from any personal injury or
property damage occurring in, on, or about the Fiber System or relating thereto from any
cause whatsoever caused by User other than as a consequence of the acts or omissions of
Fibernet, its agents, employees, or contractors.
10.2 Any claim for indemnification by the Owner or Fibernet hereunder must be in writing and
sent to User within Thirty (30) business days of the occurrence of any event which is
either known to the party claiming indemnification or reasonably should be known to
such party to give rise to an actual or possible claim for indemnification. Upon receipt of
such notice, the User shall either agree to undertake the indemnification pursuant to the
terms herein, or object to same, and in the case of an objection, the party claiming
indemnification shall represent and defend its own interests in the matter in question, and
may thereafter pursue a claim against the User in a court of law based on a breach of this
Agreement (if such breach is substantiated by the terms of this Agreement). The
indemnified party must, as a condition of User's indemnification herein, agree to allow
the User to select, retain and manage counsel of its choice to represent the interests of the
User and such indemnified party in the matter in question, and the User shall have the full
right, at User's expense, to defend, prosecute or settle the matter on behalf of the User
and/or indemnified party.
11. INSURANCE.
11.1 During the Term of this Agreement, unless otherwise agreed to in writing by the
authorized representatives, User shall at its own expense, maintain in effect,
commercially reasonable insurance coverage as specified in Section 11.8 below.
11.2 The User shall furnish the Owner's authorized representative within thirty (30) days after
the Commencement Date of the Agreement with insurance endorsements respecting the
coverage in Section 11.8, which must be reasonably acceptable to Owners Director of
Law. The endorsements shall be evidence that the policies providing coverage and limits
of insurance are in full force and effect. Such insurance shall be maintained by the User
at the User's sole cost and expense.
11.3 The User endorsements for the coverage specified in Section 11.8 shall name the Owner
as an additional insured in respect to the interests of the Owner, and all of its elected
officials, officers and employees, agents and volunteers. The endorsements shall also
contain a provision that the policy cannot be canceled or reduced in coverage or amount
without first giving thirty (30) calendar days written notice thereof by registered mail to
the Owner at the following address:
City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 43017-1006
Page 8
11.4 Such insurance shall not limit or qualify the obligations the User assumed under the
Agreement. The 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.
11.5 Any insurance or other liability protection carried or possessed by the Owner, which may
be applicable, shall be deemed to be excess insurance and the User's insurance is primary
for all purposes related to the coverage requirements of the User set forth in Section 11.8
herein, despite any conflicting provision in the User's policies to the contrary.
11.6 User and Owner shall each be responsible for their respective contractors' or
subcontractors' compliance with insurance requirements.
11.7 Failure of the User to maintain the insurance; specified in Section 11.8 or 11.9, or to
provide endorsements required hereunder to the Owner when due, shall be an event of
default under the provisions of this Agreement.
11.8 The User shall obtain and maintain Commercial General Liability Insurance, including
the following coverages: Product liability hazard of User's premises/operations
(including explosion, collapse and underground coverages); independent contractors;
products and completed operations (extending for one (1) year a$er the termination of
this Agreement); blanket contractual liability (covering the liability assumed in this
Agreement); personal injury (including death); and broad from property damage. Such
coverage shall provide coverage for total limits actually arranged by the User but not less
than Two Million Dollars and No Cents (US $2,000,000.00) combined single limit.
Umbrella or Excess Liability coverages maybe used to supplement primary coverages to
meet the required limits. Evidence of such coverage shall be in a form acceptable to the
Owner's Director of Law. The User may self-insure all or part of such insurance
coverage through abona-fide program ofself-insurance.
11.9 The User shall provide Workers' Compensation insurance (or if permitted by Ohio law,
self insurance) covering all of the User's employees in accordance with the laws of the
state of Ohio.
11.10 The User may use an Umbrella or Excess Liability coverage to net coverage limits
specified in the Agreement. Evidence of Excess Liability shall be in a form acceptable to
Owners Director of Law.
11.11 The foregoing insurance requirements are not intended to and shall not in any manner
limit or qualify the liabilities and obligations assumed by the User under this Agreement.
12. DEFAULT.
12.1 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 the Owner shall have
given User written notice of a breach and User shall have failed to cure the same within
thirty (30) days after receipt of a notice; provided, however, that where such breach
cannot reasonably be cured within such thirty (30) day period, if User shall proceed
promptly to cure the same and prosecute such curing with due diligence, the time for
Page 9
curing such breach shall be extended for a reasonable period of time to complete such
curing. Upon the failure by User to timely cure any such breach after notice thereof from
the Owner, the 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.
12.2 Unless otherwise specified in this Agreement, the Owner shall not be in default under this
Agreement or in breach of any provision hereof unless and until User shall have given the
Owner written notice of such breach and the 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 the 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 the Owner to timely cure any such breach
after notice thereof from User, User 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 other remedies as may be provided at law or in equity.
12.3 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 the Owner may, at its sole option, immediately terminate
this Agreement.
12.4 Nothing herein shall be construed to require the User to use the User System or Fiber
System, but if anytime User shall do so, such use shall be in accordance with the terms of
this Agreement. The User may terminate this Agreement without cause at anytime upon
written notice to the Owner, in which case, User shall cease all use of the User System
and Fiber System.
13. FORCE MAJEURE.
13.1 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").
Page 10
14. ASSIGNMENT.
14.1 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 a "Transfer") of
any rights or obligations hereunder shall be valid for any purpose without the prior
written consent of each Party hereto.
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 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 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.
16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY.
16.1 The relationship between User and the 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.
17. NO THIRD-PARTY BENEFICIARIES.
17.1 This Agreement is for the sole benefit of the Parties hereto and their respective permitted
successors and assigns, and except for the requirements of Section 10.2 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.
18. EFFECT OF SECTION HEADINGS.
18.1 Section headings appearing in this Agreement are inserted for convenience only and shall
not be 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 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 User to: If to Owner to:
Influent Inc. City Manager
Attn: Chief Executive Officer City of Dublin, Ohio
565 Metro Place South 5200 Emerald Parkway
Dublin, Ohio 43017 Dublin, Ohio 43017-1006
Page 11
With a Copy to: With a Copy to:
General Counsel Law Director
Influent Inc. City of Dublin, Ohio
565 Metro Place South 5200 Emerald Parkway
Dublin, Ohio 43017 Dublin, Ohio 43017-1006
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.
20. SEVERABILITY.
20.1 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.
21. 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.
22. 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.
23. 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.
Page 12
IN WITNESS WHEREOF the parties have executed and delivered this Agreement effective the
day and year first above written:
USER:
Influent Inc., an Ohio corporation
By:
Roger E. Jacobs, Executive Vice President & CFO
and
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By:
Its:
Approved As To Form:
Law Director, City of Dublin, Ohio.
Page 13
Exhibit A
OWNERS FIBER SYSTEM DESCRIPTION AND MAP
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Page 14
Exhibit B
USER SYSTEM DESCRIPTION AND MAP
Need addresses of all existing Influent Inc.-owned locations/leased locations that it desires to
connect to the system. City can then create a map for this Exhibit.
Potential locations for connectivity to Dublin fiber:
Location Address
Influent Headquarters 565 Metro Place South
Quality Assurance Center Shamrock Court
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Page 15
Exhibit C
FIBER SYSTEM SPECIFICATIONS
I. General
The Owner shall install and maintain the User System within the Owner's Fiber System
in accordance with the criteria and specifications that follows:
II. Design Criteria
The Owner will endeavor to keep the number of splices in a span to a minimum.
III. Optical Fiber Specifications
The Owner will meet the optical specifications as detailed below for the cable installed:
A. Single Mode Fiber
Parameter Specifications Units
Maximum attenuation, dB/Km
Cladding diameter um
Cutoff wavelength nm
Zero dispersion wavelength nm
Maximum dispersion - ) psi
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