Resolution 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.
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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
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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
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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:
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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]
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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.
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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.
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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.
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