Resolution 056-18RECORD OF RESOLUTIONS
Dayton Legal Blank, Inc., Form No. 30045
56-18
Resolution No.
Passed
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO A JOINT USE AGREEMENT BETWEEN THE
CITY OF DUBLIN AND THE OHIO BOARD OF REGENTS
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WHEREAS, the Ohio General Assembly appropriated One Hundred Fifty Thousand
Dollars ($150,000) ("Funds"') to the Ohio Board of Regents to be used by the City of
Dublin; and
WHEREAS, Ohio Administrative Code §3333-1-03 requires a public institution to
submit to the Chancellor of the Ohio Board of Regents a joint use agreement that
contains the requirements in (E)(1)-(11) for review and approval; and
WHEREAS, Dublin has demonstrated that the value of the use of the facility or
equipment is reasonably related to the amount of appropriation; and
WHEREAS, this Agreement is being entered into by and among the City of Dublin; the
Chancellor of the Ohio Board of Regents; and The Ohio State University, an
instrumentality of the State of Ohio, on behalf of the Ohio Academic Resources Network
(hereinafter referred to as "OARnet'7; it is intended that Dublin and ("OARnet`� both
benefit from the terms hereof; and
WHEREAS, Dublin has proposed to extend the deployment of smart city technology
within the local community, placing the benefits of smart cities within reach of our
residents, students, commuters and visitors. The City of Dublin intends to leverage the
work and infrastructure installed to extend broadband connectivity to Dublin City
Schools, by deploying a network of sensors, cameras, dedicated short-range
communications (DSRQ, wired and wireless devices and equipment across local
streets, homes and neighborhoods inside Dublin.
NOW, ZTEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of
Ohio, of the elected members concurring, that:
Section 1. The City Manager is hereby authorized to execute a Joint Use Agreement
between the City of Dublin and the Ohio Board of Regents, in substantially the form
set forth in Exhibit B.
Section 2. This Resolution shall take
4.04(x) of the Revised Charter.
Pas phis ;� foy� day of
fIT V_ "all
yor - Presiding Officer
ATTEST:
Clerk of Council
ct upon passage in accordance with Section
2018
Office of the City Manager
5200 Emerald Parkwayo Dublin OH 43017-109#
10ty of Dublin Phone: 614.410.4400 * Fax: 614f.410.4490
Cit
Toi., Members of Dublin City Council
00p,
Dana L. McDaniel, City Mana. r
Date*, August 23, 2018
ptpi NINO
�es Resolution 56-18 — Authorizing a Joint Use Agreement (JUA) with the Ohio
Academic Resource Network (OARnet)
Resolution 56-18 authorizes the City Manager to enter into a Joint Use Agreement (JUA) with
OARnet. Council may recall that OARnet is a division of the Ohio Board of Regents Technology
Consortium. OARnet serves Ohio's education, health care, public broadcasting and government
*Communities. OARnet's primary mission to those they serve is to:
1. Increase access to affordable broadband service.
2. Reduce the cost of technology through aggregate purchasing.
3. Maximize shared services opportunities.
Exhibit A contains the project application summary submitted to the General Assembly that
resulted in the award of $150,000. The intent of this project, as presented to the State of Ohi#
General Assembly, is:
In order to receive this funding, Ohio Administrative Code (mOAC'� �3333-1-03(E) requires a public
institution to submit to the Chancellor of the Ohio Board of Regents a joint use agreement that
Memo re. Re. 56-18 — Joint Use Agreement (JOA) with OARnet
August 23, 2018
Page 2 of 2
contains the requirements in (E)(l)-(11) for review and approval. Staff has demonstrated that tht
value of the use of the proposed asset will meet the requirements of the Administrative Code. A
draft Joint Use agreement is attached (Exhibit B)V
Sta?� recommends approval of Resolution 56-18. Please contact Doug McCollough at 410-441
with any questions. I
City of
Dublin
OHIO, USA
December 18, 2017
Stephanie L. Kunze
State Senator
16' District
Senate Building
1 Capitol Square
Columbus, OH 43215
Dear Senator Kunze:
On behalf of the City of Dublin, I am pleased to submit the following to be considered for
funding through the State of Ohio Capital Budget:
Dublin Smart Community Connect Project
I respectfully ask for funding in the amount of $325,000 in accordance with our request per
the attached document.
I will serve as the project sponsor and primary point of contact for this project.
Again, on behalf of the City of Dublin, thank you for your consideration of this important
project.
Respectfully Submitted,
Dana McDaniel
City Manager
OFFICE OF THE CITY MANAGER 5200 Emerald Pkwy Dublin, Ohio 43017 phone 614.410.9900 dublinohiousa.gov
Project Name: Dublin Smart Community Connect Project
Leveraging funding provided for Smart City projects from the USDOT, Ohio DOT and other sources
initiated by Governor Kasich, the City of Dublin plans to extend the deployment of smart city
technology within the local community, placing the benefits of smart cities within reach of our
residents, students, commuters and visitors. The technology infrastructure involved in establishing
the NW 33 Smart Mobility Corridor for Connected and Autonomous Vehicle Research on U.S. Route
33 will be available and accessible to the City of Dublin to coordinate the extension of smart
infrastructure into a local community. The City of Dublin intends to leverage this work and
infrastructure installed to extend broadband connectivity to Dublin City Schools, by deploying a
network of sensors, cameras, dedicated short-range communications (DSRC), wired and wireless
devices and equipment across local streets, homes and neighborhoods inside Dublin.
Use of State Capital Dollars:
With the Smart Community Connect Project, Dublin will install the devices and connections to them
to enable smart city services in these key application areas:
• Connected Vehicles
• Smart Parking
• Traffic Congestion Management
• Crime Prevention
• Access to Education Resources
• Police/Public Safety Access and Alerts
• Tele -health Applications
The project will establish smart mobility infrastructure in a select road segment consistent with the
33 Smart Mobility Project, enabling a consistent testing opportunity on municipal streets. It will
establish Smart Neighborhoods by deploying smart city applications inside the homes of Dublin
neighborhoods as a pilot project. The project will connect the local Dublin sensor network data with
the NW 33 Smart Mobility Corridor data with artificial intelligence systems to gain insights and
deliver smart community services to residents and visitors.
State capital dollars would be used to purchase and install:
• Sensors
• Cameras
• Wireless broadcast equipment
• Dedicated short-range communications (DSRC) in vehicles and on roadsides
• Voice interface equipment
• Augmented -reality technologies
PhysicalLocation of the Project:
The project is located in the City of Dublin, Ohio, and within Franklin, Union and Delaware counties.
Entity Sponsoring the Proied:
The project is sponsored by the City of Dublin, Ohio.
Facility/Asset Owner:
The project assets will be deployed along a route of the City of Dublin on State Route 161/Bridge
Street connecting U.S. Route 33 to Sawmill Road. The network infrastructure and data will be
housed within the City's network and technology assets within the Metro Data Center, located at
565 Metro Place South. The assets will be wholly owned by the City of Dublin.
Total Project Cost:
The project will include costs not included in the State Capital Budget request. These costs include
additional fiber network infrastructure and construction, facility construction, software licenses,
professional services, telecommunications services and additional equipment. The project will cost
$650,000 over 3 years.
Amount Requested for the FY 2017-18 capital biennium:
The City of Dublin requests $325,000 in state capital funding. This amount represents 50 percent of
the total project cost and is only for the capital expenditures of sensors, cameras, wireless broadcast
equipment, DSRC equipment, voice interface equipment and augmented -reality technology.
Non -State Funding:
The City of Dublin will provide $325,000 of project funding and has programmed this amount into
the City's Capital Improvements Program budget over 3 years.
Past State Funding:
The project leverages more than $12,000,000 in State of Ohio investments in the U.S. 33 Smart
Mobility Corridor of fiber network infrastructure that will co -terminate inside the Metro Data
Center. Through the 33 Innovation Corridor Council of Governments, consisting of the City of Dublin,
the City of Marysville, Union County and the Union County Port Authority, the Ohio Department of
Transportation has committed resources to implement smart mobility technologies along the
corridor and in the City of Marysville. The requested funding will allow the implementation of smart
mobility to extend into a local community and make possible specific, visible quality of life benefits
to individual citizens.
The project also leverages investment by the U.S. Department of Transportation and Federal
Highway Administration in the form of the Advanced Transportation Congestion Management
Technology Deployment (ATCMTD) grant awarded to the Council of Governments in 2016. That
grant funds the installation of dedicated short-range communications (DSRC) equipment and
devices along the 33 Smart Mobility corridor, and a small amount of DSRC devices within the cities
of Dublin and Marysville, jumpstarting this project and sharing the funding.
Conclusion:
The Dublin Smart Community Connect Project represents an opportunity to extend the
opportunities provided by significant infrastructure investment into local community
neighborhoods. The City of Dublin can quickly implement and display the kinds of visible benefits
promised by our region's prominence in the smart city space, but as of yet has not demonstrated to
residents with significant impact. This project represents practical, demonstrable benefits in safety,
congestion management, and convenience for Ohio citizens.
JOINT USE AGREEMENT
Among the City of Dublin, the Chancellor of the Ohio Board of Regents and
The Ohio State Universitv, on behalf of OARnet
This Joint Use Agreement ("Agreement") is entered into by and among the City of
Dublin, an Ohio municipal corporation (hereinafter referred to as the "City'), having an office at
5200 Emerald Parkway, Dublin, Ohio 43017; the Chancellor of the Ohio Board of Regents,
(hereinafter referred to as "Chancellor"), having an office at 25 South Front Street, Columbus,
Ohio 43215; and The Ohio State University, an instrumentality of the State of Ohio, on behalf of
the Ohio Academic Resources Network (hereinafter referred to as "OARnet"), having an office
at 1224 Kinnear Road, Columbus, Ohio 43212; and which are sometimes referred to individually
as a "Party" and collectively as "Parties."
WHEREAS, House Bill 529 passed by the Ohio General Assembly in 2018 appropriated
One Hundred and fifty Thousand Dollars ($150,000) ("Funds") to the Chancellor to be used by
the City to leverage funding provided for Smart City projects from USDOT, Ohio DOT and
other sources initiated by Governor Kasich. These funds are allocated for the construction of
certain capital infrastructure to extend the deployment of smart city technology within the local
community, placing the benefits of smart cities within reach of our residents, students,
commuters and visitors.
WHEREAS, to expand the impact of the funding provided for Smart City projects from
the USDOT, Ohio DOT and other sources initiated by Governor Kasich, the City of Dublin plans
to extend the deployment of smart city technology within the local community, placing the
benefits of smart cities within reach of our residents, students, commuters and visitors. The
technology infrastructure involved in establishing the NW 33 Smart Mobility Corridor for
Connected and Autonomous Vehicle Research on U.S. Route 33 will be available and accessible
to the City of Dublin to coordinate the extension of smart infrastructure into a local community.
The City of Dublin intends to leverage this work and infrastructure installed to extend broadband
connectivity to Dublin City Schools, by deploying a network of sensors, cameras, dedicated
short-range communications (DSRC), wired and wireless devices and equipment across local
streets, homes and neighborhoods inside Dublin.
WHEREAS, Ohio Administrative Code ("OAC") §3333-1-03(E) requires apublic
institution to submit to the Chancellor of the Ohio Board of Regents a joint use agreement that
contains the requirements in (E)(1)-(11) for review and approval; and
WHEREAS, the City demonstrated the value of the use of the equipment to increase the
value of the infrastructure is reasonably related to the amount of appropriation through the
worksheet included in this Agreement as Attachment A; and
WHEREAS, this Agreement is being entered into by and among the Chancellor, OARnet,
and the City; and
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WHEREAS, the Chancellor has concluded that the value of the City's facilities as provided
to OARnet in this Agreement is reasonably related to the amount of the Funds; and
WHEREAS, City has existing fiber (hereinafter referred to as the " Fiber ") to the Cologix
Data Center, which will add diversity and redundancy to the OARnet network to ensure network
integrity and business continuity for government, both municipal and state, colleges, universities,
and K-12 Schools; and
WHEREAS, the City's fiber will support the research and education mission of Ohio's
universities and colleges in the area of Unmanned Aircraft Systems; and
WHEREAS, the City desire to promote the interconnection of government, both municipal
and state, colleges, universities, and K-12 schools to OARnet; and
WHEREAS, the City will under a separate indefeasible right -to -use agreement, a copy of
which is attached hereto as Attachment B (the "IRU Agreement"), will provide the necessary
return on the investment in City's equipment as a result of increasing the OARnet fiber
infrastructure and ensuring greater resillency and reliability of the OARnet network. OARnet will
receive one pair of Fibers in support of the overall network integrity; and
WHEREAS, OARnet connects government, both municipal and state, colleges,
universities, and K-12 schools in order to foster new collaborations between and among these
entities, while at the same time promoting critical educational, scientific and industrial capacity
and research thereby advancing a technology based economy; 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 consideration of the mutual benefits, promises, terms and
conditions to be performed hereunder, it is hereby agreed to between the Parties as follows:
Facilitv or equipment owned, to be built by the Citv. The "Smart City Equipment"
(SCE) equipment to be purchased under this agreement will be purchased used for data
collection as part of an Smart City Infrastructure and is described in Attachment C.
2. Use of the facilitv or equipment by public institution. The SCE be used to establish
smart mobility infrastructure and to establish Smart Neighborhoods for data collection for
use by government, both municipal and state, colleges, universities, and K-12 schools.
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3. Term. This Agreement shall commence upon execution and shall terminate on the day
which is the last day of the month in which the twentieth (20) anniversary of the date on
which OARnet is granted an IRU for the Fiber.
4. Reimbursement of Funds. In the event that OARnet's indefeasible right -to -use
agreement is terminated by the City prior to the expiration of the twenty-year term, the
City shall reimburse the State of Ohio a pro rata portion of the State appropriation to be
calculated by dividing the funds contributed by the State of Ohio by twenty and
multiplying that sum by twenty less the number of full years the indefeasible right -to -use
agreement is used by OARnet.
5. Use of Funds. The Funds provided under this Agreement shall be used only for capital
improvements to build Smart City Technology Infrastructure.
6. Competitive bidding. The City will follow competitive bidding procedures which
include, at a minimum, publishing advertisements to seek bids, receiving sealed bids, and
awarding contracts to the lowest responsive and responsible bidder, as described
generally in Ohio Revised Code Chapter 153.
7. Amendments. Any amendments to this Agreement shall be in writing, signed and
approved by the City, OARnet and the Chancellor.
8. Records of Universitv Use. Upon request by the Chancellor, the City shall supply the
Chancellor with a copy of the executed IRU Agreement.
9. Distribution of Funds; Administrative Costs. After appropriate State approvals are
obtained, the funds provided in House Bill 529 will be released to OARnet and
subsequently transferred by OARnet to the City after presentation by the City to OARnet
of an invoice or other evidence of expenditures with supporting documentation incurred
by or on behalf of the City for permitted uses of the appropriate funds. Such obligations
must be properly documented to the reasonable satisfaction of OARnet. All expenditures
must be conducted in accordance with State of Ohio guidelines. OARnet shall be paid
for administrative costs incurred as a result of this project. Such administrative cost shall
be Two thousand two hundred and fifty Dollars ($2,250.00), which is equal to 1.5% of
the Funds, and shall be paid to OARnet upon receipt of the Funds.
10. Force Maieure. No Party shall be liable to any other Party 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.
11. 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
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hereof of any rights or obligations hereunder shall be valid for any purpose.
Notwithstanding the foregoing, to the extent OARnet's fiscal agent changes, this
Agreement shall be assigned from The Ohio State University to the new fiscal agent, as
applicable, and such then -current OARnet fiscal agent shall be deemed the fiscal agent
hereunder.
12. Relationship not a Partnership or an Aeencv. The relationship between the Parties
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.
13. 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 any Party obligations to any person or entity other than a
Party.
14. Effect of Section Headings. Section headings appearing in this Agreement are inserted
for convenience only and shall not be construed as interpretations of text.
15. 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 the Chancellor to:
Chancellor
Ohio Board of Regents
25 South Front Street
Columbus, OH 43215
If to the City to
City Manager
5200 Emerald Parkway
Dublin, OH 43017
With a Copy to:
Law Director
If to OARnet:
Executive Director
1224 Kinnear Road
Columbus, OH 43212
With a Copy to:
General Counsel
Office of Legal Affairs
The Ohio State University
1590 North High St., Suite 500
Columbus, OH 43210-2178
Any Party may, by written notice to the other Parties, change the name or address of the
person to receive notices pursuant to this Agreement.
16. Severabilitv. 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
CO\4545497.2
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.
17. Compliance with Law. Each Party hereto agrees that it will perform its respective rights
and obligations hereunder in accordance with all applicable federal, state and local laws,
as well as state administrative regulations.
18. Governing Law and Venue. This Agreement shall be interpreted in accordance with the
Charter and Codified Ordinances of the City, 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.
19. Entire Agreement. This Agreement, including any Attachments and Exhibits attached
hereto, all constitute the entire agreement between the Parties with respect to the subject
matter herein.
20. Hold Harmless. To the extent allowed under Ohio law, the City shall hold harmless the
Chancellor, OARnet and The Ohio State University and its officers, directors, trustees,
employees, agents, representatives and contractors from and against any and all loss, cost
(including attorney's fees), damage, expense and liability in connection with claims,
judgments, damages, penalties, fines, losses, suits and administrative proceedings, arising
out of any action or omission by the City, its agents, employees, contractors, licensees,
invitees or representatives, in connection with the construction, operation and
maintenance cost of the New Fiber System and the use of the Fund. This Paragraph 20
shall survive the expiration or earlier termination of this Agreement.
Proiect:
Date:
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the
day of 12015.
Chancellor
Ohio Board of Regents
Bv:
Print Name:
Title:
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Citv of Dublin
Bv:
Print Name:
Title:
Date:
The Ohio State University on behalf of OARnet
Bv:
Print Name:
Date:
Approved as to Form:
Director
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Attachment A: JOINT USE AGREEMENT WORKSHEET
Joint Use Agreement Worksheet
The Ohio Board of Regents
Project: Joint Use Agreement for City of Dublin, Ohio
Date:
Section L' State appropriation information.
1. Amount of state appropriation provided: 8150,000
2. Estimated annual debt service on the appropriation: 811.531.42
3. Term of the state bond, in years:
Section d Estimated value of use of the equipment
Use(s) of the facility*
a Cost savings associated acquiring the
fiber infrastructure*
b.
C.
d.
e.
f
(* List additional uses on separate page as needed.)
CO\4545497.2
Annual value of use # of years
$ 18,000
Joint Use Agreement Worksheet
7
20
The Ohio Board of Regents
Section III:
On a separate page, explain how each use listed in Section II was valued for this analysis Direction: The
purpose of this worksheet is to enable a campus to demonstrate how the value of the uses that will be derived
from a Joint Use Agreement is reasonably related to the value of the state capital appropriation made to the
partner entity. Section I is to be filled out by the staff of the Board of Regents. Sections II and III are to be
filled out by the partner campus.
Example: A campus wishes to enter into a Joint Use Agreement with a 501(C)(3) entity for a state
appropriation of $5,000,000. The annual debt service paid by the state on this appropriation is about $384,381
per year, for 20 years. To demonstrate that the value of the uses of the facility is reasonably related to the state
appropriation, the sum of the campus' educational uses of the facility should roughly equal $384,381 per year
for 20 years.
The Ohio State University on behalf of OARnet, wishes to enter into a Joint Use Agreement with City of
Dublin and the Chancellor of the Ohio Board of Regents in connection with a state appropriation of $150,000.
The annual debt service paid by the state on this appropriation is $11,531.42 per year for twenty (20) years for
a total of $230,628.40. The value of the fiber being provided to OARnet is based on the estimated cost to
acquire approximately 36 miles of fiber in an existing fiber path.. The estimated annual cost to acquire one
pair of fiber and maintenance on the required path for diversity would be $18,000, for atotal value $360,000
over the 20 year term. Such cost estimate equates to the approximate value of $18,000 per year for 20 years,
which is the life expectancy of the fiber asset. This amount represents cost savings to OARnet resulting from
the City of Dublin fiber by granting OARnet an indefeasible right -to -use fiber during the term of the Joint Use
Agreement. This additional fiber path guarantees OARnet's ability to ensure maximum network availability to
deliver mission critical services to our clients. This fiber path will also be used to support university and
college research and education programs associated with new Unmanned Aircraft System project at the
Springfield airport.
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Attachment B: INDEFEASIBLE RIGHT -TO -USE AGREEMENT
CITY OF DUBLIN, OHIO
INDEFEASIBLE RIGHT -TO -USE AGREEMENT
THIS INDEFEASIBLE RIGHT -TO -USE AGREEMENT (hereinafter referred to as the
"Agreement") made and entered into as of the day of , 20 , 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, and The Ohio State University
on behalf of the Ohio Academic Resources Network (hereinafter referred to as "User") having an
office at 1224 Kinnear Road, Columbus, Ohio 43212, and which are sometimes referred to
individually as 'Party" and collectively as 'Parties."
WITNESSETH:
WHEREAS, the Owner has an fiber (hereinafter referred to as the " Existing Fiber ")
tbetween Splice point at W. Broad St and Phillipi Rd, Columbus, OH 43228 and and Cologix Data Center,
Columbus, OH 43085; and
WHEREAS, in connection with the grantto 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 will, among other things, use the Owner's existing fiber for the purpose
of provisioning diverse and redundant connectivity for government, both municipal and state,
colleges, universities, and K-12 schools. This additional fiber path ensures OARnet's ability to to
deliver mission critical services to keep our clients online, thereby guaranting education and
government service continuity; and
and
WHEREAS, in connection with this undertaking the Owner will provide one pair of
existing fiber 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, for and in consideration of the mutual covenants and agreements set
forth in this Agreement, the Parties hereto do hereby agree as follows:
DEFINITIONS.
A. 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 Indefeasible Right -to -Use Agreement between the Owner and
User which identify the specific 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. Existing Fiber: The optical fiber strands, innerduct, conduit, building entrance
facilities, associated appurtenances for the route specified in this IRU are in Exhibit
A appended hereto.
II. GRANT
A. The Owner hereby grants to User an Indefeasible Right of Use (IRU) of the following
Owner's existing fiber (Fiber):
a. two (2) strands of fiber optic cable From: Splice point at W. Broad St. and Phillipi Rd,
Columbus, OH 43228 To: Cologix Data Center, Columbus, OH 43085, which is
described in Section I (b) above and in Exhibit A appended hereto. The User's Fiber
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 User's facility where
current and existing portions of Owner's Fiber System comprising the User's Fiber
either exist in the public rights of way or cross the User facility's property line,
whichever may be closest to the User's facility. User shall be responsible for all
infrastructure, equipment and service issues between the Demarcation Point and its
facilities, unless Owner otherwise agrees to provide.
III. TERM.
A. Unless sooner terminated in accordance with the terms of this Agreement, the term of this
Agreement is for Twenty (20) years (hereinafter referred to as the "Term"). The Term shall
commence immediately upon final execution of this Agreement by the Parties (hereinafter
referred to as the "Commencement Date") and shall expire twenty years after the
Commencement Date (hereinafter referred to as the Expiration Date").
IV. CONSIDERATION.
A. As consideration for, as inducement to, and as a required condition of Owner granting User
the specific rights to use the existing fiber (Fiber) as described herein, the User and Owner
have entered into a Joint Use Agreement.
10
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V. OWNERS OBLIGATIONS.
A. Owner shall for a period of time equal and coterminous with the term of this Agreement as
defined in III above:
a. Owner will provide the existing fiber (Fiber) for User's use in accordance with the
terms of this Agreement.
b. Provide and/or control maintenance and repair functions on the User's Fiber
through which the User's Fiber passes, including, but not limited to, conduit,
innerduct, poles and equipment, shall be performed under the direction of the
Owner.
C. Maintain the User's Fiber to the specifications provided in Agreement Exhibit B.
VI. USER OBLIGATIONS.
A. User shall for a period of time equal and coterminous with the term of this Agreement as
defined in III above:
a. Provide and pay for all of User's required lateral connectivity from all necessary
termination points of User's proprietary fiber and equipment to all the necessary
Demarcation Points of Owner's Fiber, unless Owner otherwise agrees to provide.
b. Pay for any and all maintenance costs as may be required to be paid by User
pursuant to the requirements of Section VIII (a -c) below. Owner's management
agent's current charges and application rules are identified in Exhibit C attached
hereto.
VII. JOINT OBLIGATIONS.
A. The Owner and User jointly for a period of time equal and coterminous with the term of
this Agreement as defined in Section III above :
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 fiber.
b. Shall provide each other a twenty-four (24) hour a day, three hundred sixty-five
(365) days per year, coordination telephone number.
VIII. MAINTENANCE.
A. All maintenance and repair functions on the User'sFiber and all facilities through which
the User's Fiber 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
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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. User shall
have the right to have an employee or representative available to assist the Owner in any
maintenance or repair of the User's Fiber. The Owner shall maintain the User's Fiber 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 User's Fiber 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 fiber of similar construction, location, use
and type. Such Regular Maintenance shall be performed at the Owner's sole cost.
b. Scheduled Maintenance: The Owner from time to time may schedule and perform
specific periodic maintenance to protect the integrity of the User fiber and perform
changes or modifications to the User's Fiber (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. 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 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 a time -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 C
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 User's fiber. Where necessary, the Owner
shall attempt to respond to any failure, interruption or impairment in the operation
of the User's fiber within Twenty -Four (24) hours after receiving a report of any
such failure, interruption or impairment. 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 Fiber 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 (based on the terms of this
Agreement) over the portions of the User's Fiber requiring such Emergency
Maintenance. The Owner will have such Emergency Maintenance performed on a
time -and -materials basis at the emergency maintenance rates then in effect at the
time services are performed.
B. In the event the Owner, or others acting in the Owner's behalf, at any time during the Term
of this Agreement, discontinues maintenance and/or repair of the User's Fiber, User, or
others acting in User's behalf, shall have the right, but not the obligation, to thereafter
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provide for the previously Owner provided maintenance and repair of the User's Fiber, 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's Fiber is located, for the
purpose of permitting User, or others acting in User's behalf, to undertake such
maintenance and repair of the User's Fiber.
C. In the event any failure, interruption or impairment adversely affects both the Owner's
Fiber, restoration of the User's Fiber 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, 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's Fiber, the Owner may, following written request, permit User
to make repairs to restore the User's Fiber as long as such restoration efforts do not interfere
with the Owner's restoration activities.
D. Any User subcontractors or employees who undertake repair or maintenance work on the
User's Fiber shall first be approved by the Owner to work on the Owner's Fiber. 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's fiber, User shall have an Owner employee or
representative available to assist the User in any repair of the User's fiber.
IX. USE OF THE USER SYSTEM.
A. User shall have exclusive control over its provision of services and/or information over the
fiber provided.
B. User hereby certifies that it is authorized or will be authorized, where required, on the
effective date of this Agreement to provide services and information services within the
State of Ohio, the City of Dublin, Ohio and in such other jurisdictions as the User's fiber
may exist, and that such services can be provided on the Fiber optic cable systems such as
the Fiber owned and operated by the Owner.
C. User understands and acknowledges that its use of the fiber is subjectto 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 is located. User represents and warrants that it shall
operate on the Fiber 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.
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X. DEFAULT.
A. 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 material 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 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 material 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.
B. 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 material 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 material 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.
C. 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.
XI. FORCE MAJEURE.
A. 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
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of transportation; national emergencies; insurrections; riots, wars; or strikes, lockouts,
work stoppages or other labor difficulties (collectively, "Force Majeure Events").
XII. ASSIGNMENT.
A. 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.
XIII. WAIVER OF TERMS OR CONSENT TO BREACH.
A. 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.
XIV. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY.
A. 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.
XV. NO THIRD -PARTY BENEFICIARIES.
A. 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 X B 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.
XVI. EFFECT OF SECTION HEADINGS.
A. Section headings appearing in this Agreement are inserted for convenience only and shall
not be construed as interpretations of text.
XVII. NOTICES.
A. 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 Owner to: If to User to:
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City Attorney
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017
With a Copy to:
Executive Director
OARnet
1224 Kinnear Road
Columbus, OH 43212
With a Copy to:
General Counsel
Ohio State University
1590 N. High Street
Columbus, OH 43201
B. 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.
XVIII. SEVERABILITY.
A. 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.
XIX. 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.
XX. 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 courts
of competent jurisdiction in Franklin County, Ohio
XXI. 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:
W
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USER:
The Ohio State University on behalf of OARNET
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By:
Its:
Approved As To Form:
City Attorney
City of Dublin, Ohio.
CO\4545497.2
17
Exhibit B: FIBER SYSTEM SPECIFICATIONS
1. 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,
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion ( )
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dB/Km
um
nm
nm
ps/ (nm -km)
Exhibit C: MAINTENANCE AND REPAIR
Charges for Time and Material Service
The Owner or Owner's agent may perform maintenance service at the rates established below,
which rates are subject to change. Unless specifically authorized by the User, no Scheduled
Maintenance will be performed outside of normal working hours, detailed below:
Normal Working Hours:
8:00 a.m. to 5:00 p.m.,
Monday through Friday
(Except Owner observed holiday).
Expenses Incurred 2er call out,
Overtime Hours:
5:01 p.m. to 7:59 a.m., Saturday, Sunday,
and all Owner observed holidays.
Labor Rates
Hourly Rate
Overtime Rate
Project Manager
75.00
112.50
Professional Engineer
65.00
97.50
Right of Way Agent
48.50
72.75
Supervisor
47.70
71.55
Foreman
36.90
55.35
Operator
31.50
47.25
Truck Driver
26.00
39.00
Laborer
21.70
32.55
Fiber Splicer
42.00
63.00
Equipment Rates
Hourly Rate
Pickup
16.00
1-ton/flat bed
17.60
2 -ton dump
24.00
Trailer
16.50
Rubber tired backhoe
36.20
Rodding machine
21.75
Winch truck
21.75
Air compressor
16.00
Light plant
17.45
Arrow board
9.00
2" water pump
10.00
Generator
14.50
Cable cart
7.00
Manhole package
14.50
Fusion splicing package
30.00
Charges will be made for travel time to the location where maintenance is to be performed. If
maintenance carries over after 5:00 p.m., or maintenance is required on Saturday, Sunday, or
during holiday hours, charges will also be made for travel time from the said location. Charges
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will be for a minimum of one (1) hour for normal hours and for a minimum of two (2) hours for
overtime holiday hours and special call out.
All rates, charges, and holiday schedules are subject to change.
REST OF PAGE LEFT INTENTIONALLY BLANK
END OF AGREEMENT AND EXHIBITS
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