Resolution 27-21
To: Members of Dublin City Council
From: Dana L. McDaniel, City Manager
Date: May 4, 2021
Initiated By: Jennifer Readler, Law Director
Gregory Dunn, Special Legal Counsel, IceMiller L.L.P.
Re: Resolution 27-21 – Contract Modifications with Dublink Development L.L.C. and
Columbus Fibernet L.L.C.
Background
The Dublink Project originated with a series of contracts between the City of Dublin and Fishel
Company. These contracts were initially entered into in 1998 and were expanded upon and
modified over the years. For the purposes of this report, we will refer to Fishel and its subsidiary
Dublink Development L.L.C., both as the Fishel Company. Dublink consists of a multi-conduit
system owned and operated by the Fishel Company, with one conduit of the system dedicated for
use by the City of Dublin. The City populated its conduit in the Dublink system with fiber optics.
The City has used fiber optics over the years for institutional/public purposes, economic
development attraction, retention and expansion, and dark fiber leasing. The City owns
approximately 25 miles of fiber optics within the City of Dublin and nearly 100 miles of fiber optics
outside the City of Dublin. The Fishel Company has contractually managed and maintained the
City’s fiber optics since it initial deployment.
The relationship with the Fishel Company has been a good one and at this time both the Fishel
Company and the City of Dublin believe it is desirable to bring the Agreements up to date by
consolidating phase lease pricing and memorializing certain operational understandings we have
had with the Fishel Company. Resolution 27-21 with two associated Agreements, the Amendment
to the Agreement and Maintenance Agreement with Columbus FiberNet, if passed by Council, will
achieve this needed update. The two Agreements accompanying Resolution 27-21 do the following
1. The Fishel Company has built a conduit system inside the City of Dublin in multiple phases
over time and each of the phases has a different pricing structure. With the addition of new
conduit in the West Innovation District/University Boulevard, recently constructed conduit
on Bridge Street, generally between Post/Franz Road and Riverside Drive, and City-owned
conduit in Bridge Park, there would be seven (7) phases each with separate pricing
structures. Therefore, it is in both the City and The Fishel Company’s best interests to
simplify the conduit pricing structure. Accordingly, staff and the Fishel Company propose
to restructure conduit pricing to three (3) phases instead of potentially seven (7) (See
Exhibit C of the Amendment to the Agreement).
2. The Maintenance Agreement for the Dublin owned fiber outside of Dublin, which is
contained in the Columbus FiberNet Conduit, has expired. Staff recommends renewing the
Maintenance Agreement at the same costs as in the Original Agreement ($63,900.00 per
Office of the City Manager
5555 Perimeter Drive • Dublin, OH 43017
Phone: 614.410.4400 Memo
Memo re. Contract Modifications with Fishel
May 4, 2021
Page 2 of 2
year). The new Agreement will add CPI cost of living adjustment not previously provided.
Consistency in the management and maintenance of the City’s fiber optic system is critical
to the system’s integrity and reliability.
3. The Fishel Company, as part of its partnership with Dublin, provided location services for
the laterals, which Dublin built to serve certain Dublin K-12 Schools. The Fishel Company
has been providing these services at no charge to the City. The proposed Agreement adds
language that will reimburse the Fishel Company for its actual costs of providing location
services for these particular laterals. The City possesses other similar laterals into privately
and publicly owned buildings. Retaining the responsibility to locate these laterals is critical
to maintaining the integrity of the entire system.
4. As part of the public street construction in Bridge Park, the City also constructed a multi-
conduit system in which the City retains ownership. As has been accomplished with the
many phases of the Dublink multi-conduit system in the public right of way over the years,
it was critically important to construct a similar system in this dense urban setting in order
to avoid continuous disruption by multiple service providers while accommodating and
encouraging rapid service/technology deployment. Staff recommends engaging the Fishel
Company to provide consistent maintenance and management of the Dublin owned conduit
system for the integrity of the entire system. Staff recommends engaging the Fishel
Company for Fifteen-Thousand Dollars ($15,000.00) per year to manage and maintain this
part of the system. The Fishel Company will charge lessees of the conduit the rate of
$10.00 per conduit foot. Upon receipt of payment, the Fishel Company will then remit the
payment to the City of Dublin. Since the City owns this conduit in this phase, a lower rate
will encourage the provisioning of better connectivity for businesses and citizens in the
Bridge Park area while minimizing disruption and accelerated deterioration of other
infrastructure. This arrangement keeps the Fishel Company as a “one stop shop” for
companies wishing to access the Dublink system in this particular phase, as well as,
throughout the City of Dublin and in its portion of the system outside the City of Dublin.
Recommendation
Staff recommends Council pass Resolution 27-21 and its associated Agreements. Passing
Resolution 27-21 will help to make Dublink even more competitive, while ensuring its integrity and
reliability into the future.
4849-4820-7591.4
MAINTENANCE AGREEMENT
IN CONNECTION WITH THE
MUTLI-DUCT UNDERGROUND CONDUIT AND RELATED FACILITIES
BETWEEN COLUMBUS FIBERNET, LLC AND THE CITY OF DUBLIN
This Maintenance Agreement hereinafter referred to as the “Agreement”, is made and entered into
as of the ___ day of _________, 2021, by and between Columbus Fibernet, LLC, an Ohio limited
liability company with offices at 1810 Arlingate Lane, Columbus, Ohio 43228 (“Seller”) and the
City of Dublin, Ohio, an Ohio municipal corporation with offices at 5200 Emerald Parkway,
Dublin, Ohio 43017, (“Buyer”), For the purposes of this Agreement, Seller and Buyer shall be
referred to individually as a “Party” and collectively as the “Parties.”
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Contract of Sale for Multi-Duct
Underground Conduit and Related Facilities on November 19, 2004 (the “Contract”), in which
Buyer agreed to acquire a duct within the Conduit System, as such term is defined in the Contract,
complete with a specified amount of installed optical fiber and Seller agreed to maintain such duct
and fiber pursuant to the terms specified therein;
WHEREAS, Article IX, Section 9.1 of the Contract provides the terms under which Seller
would provide Scheduled Maintenance, Repair, and Relocation of the Conduit System and the duct
acquired by Buyer;
WHEREAS, the term of Article IX, Section 9.1 of the Contract, including all contemplated
renewals, expired;
WHEREAS, Buyer desires for Seller to continue to provide such Scheduled Maintenance;
and
WHEREAS, Seller is willing to continue to provide such Scheduled Maintenance in
accordance with the terms of the Contract and this Agreement.
NOW, THEREFORE, effective as of the date hereof and in consideration of the mutual
agreements set forth below and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound Buyer and Seller agree as
follows:
1. Term. This Agreement shall have an Effective Date when fully executed and shall terminate
ten (10) years from the anniversary of that effective date.
4849-4820-7591.4
2. Operations and Maintenance. Buyer shall continue to perform the maintenance, repair, and
relocation requirements in accordance with the terms that follow and as further provided in
Exhibit A of the Contract:
A. Scheduled Maintenance. Buyer shall use commercially reasonable methods to
maintain, manage, and operate the Property in a secure and good condition that meets
or exceeds industry standards. Seller shall use commercially reasonable methods to
maintain, manage, and operate the Conduit System in a secure and good condition that
meets or exceeds industry standards. Maintenance of the Property and the Conduit
System shall be performed by Buyer and Seller, respectively, on a regular basis as is
customary in the industry and otherwise as maybe required. All routine scheduled
maintenance (“Scheduled Maintenance”) shall include, but is not limited to, locating
and marking duct and pumping, venting, air quality testing, and proofing the duct when
necessary.
Seller shall have no responsibility for maintaining the fiber within the duct or for
maintaining the Dublink Fiber.
3. Compensation. Seller agrees to perform the Scheduled Maintenance pursuant to Section 2 for
Buyer for an annual maintenance fee of Sixty-Three Thousand and Nine Hundred Dollars and
No Cents (US$63,900.00) (the “Annual Maintenance Fee”). The Annual Maintenance Fee
shall be adjusted once each calendar year for monthly or annually recurring Scheduled
Maintenance services on a date Buyer selects (and of which Buyer provides notice to Seller)
to reflect net increases since the Effective Date in the original data value set forth in the U.S.
Consumer Price Index (specifically, Bureau of Labor Statistics “CPI - All Urban Consumers,
Not Seasonally adjusted, Midwest region”) or five percent (5%), whichever is less (the
“Annual Adjustment”); provided however, that in no event shall any rate subject to the Annual
Adjustment be less than its initial value set forth in this Agreement. In the event that the Bureau
of Labor Statistics, or its successor organization, no longer publishes this index, Seller shall
designate, with Buyer’s agreement, which shall not be unreasonably withheld, a new statistical
index and formula appropriate for calculations of Annual Adjustments.
4. Severability. If any term or provision of this Agreement shall be invalid or unenforceable to
any extent, the remainder of this Agreement shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
5. Modifications. Except as otherwise provided herein, no variation, modification, or change to
this Agreement shall be binding upon any Party hereto unless mutually agreed to in a writing
executed by a duly authorized officer or agent of each Party.
6. Prevailing Party. If any Party to this Agreement brings an action or proceeding to enforce
the terms of this Agreement or to declare rights under this Agreement, the prevailing Party in
any such action, proceeding, or appeal thereon, shall be entitled to reasonable attorneys’ fees
and expenses from the non-prevailing Party.
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7. Successors and Assigns. All rights and obligations under this Agreement shall be binding
upon and inure to the benefit of the Parties and their heirs, personal representatives, successors
and assigns.
8. Interpretation/Definitions/Counterparts. Unless otherwise provided herein, all terms and
conditions of the Contract shall remain in full force and effect and are hereby confirmed by
Buyer and Seller and incorporated herein. Unless otherwise defined herein, all capitalized
terms contained in this Agreement shall have the meaning ascribed to them in the Contract.
This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be a duplicate original, but all of which, taken together, shall constitute a single instrument.
9. Conflict. In the event of any conflict between any provisions of this Agreement and any
provisions of the Contract, the provisions of this Agreement shall control.
[Signature page follows]
4849-4820-7591.4
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
respective duly authorized officers as of the date first written above.
CITY OF DUBLIN, OHIO
(Buyer)
By: ________________________________
Its: ________________________________
COLUMBUS FIBERNET, LLC
(Seller)
By: ________________________________
Its: ________________________________
4849-4820-7591.4
Approved As To Form:
Law Director, City of Dublin, Ohio.
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4849-4820-7591.4
EXHIBIT A
SCHEDULED MAINTENANCE
Page 1 of 1
Scheduled Maintenance:
Routine Maintenance and repair of the Conduit System described in this section (“Scheduled
Maintenance”) shall be performed by or under the direction of the Seller, at Sellers reasonable
discretion or at Buyers reasonable request. Scheduled Maintenance shall include the following
activities:
• Review of all known construction projects for any system conflicts
• Membership to the Ohio Utility Protection Service (OUPS)
• Review of all notifications received from OUPS
• Physically mark each necessary location, as it relates to notifications from OUPS
• Patrol of Conduit System route on a regular basis
• Physical site surveillance when construction projects are in the location of the conduit system
• Coordination and scheduling of any construction projects where the system must be relocated
• General Maintenance of access points (manholes)
• Pumping and venting the manholes when necessary
• Proofing of conduit when necessary
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4836-8020-8615.4
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered into
as of the ___ day of _________, 2021, by and between the City of Dublin, Ohio, an Ohio
municipal corporation (the “City”), having an office at 5200 Emerald Parkway, Dublin, Ohio
43017, and Dublink Development Company L.L.C., an Ohio limited liability company
(“Operator”), having an office at 1810 Arlingate Lane, Columbus, Ohio 43228. For the purposes
of this Amendment, City and Operator shall be referred to individually as a “Party” and
collectively as the “Parties.”
WITNESSETH:
WHEREAS, City and Operator entered into that certain Agreement dated December 14,
1998 (the “Agreement”), granting Operator the exclusive right and authority to design, construct,
install, own, operate, manage, repair, maintain and restore a Conduit System, as such term is
defined in the Agreement, within the City at Operator’s sole cost and expense, as more
particularly described in the Agreement attached hereto as Exhibit A and incorporated herein;
WHEREAS, as an extension of the Agreement, but not commemorated therein, the
Operator locates, builds, and maintains lateral connections to every K-12 public education
institution in the City;
WHEREAS, the City is willing to compensate the Operator for such construction in
accordance with the terms contained in this Amendment;
WHEREAS, additional changes in the phases of construction of the Conduit System have
also necessitated the Parties to amend the Schedule of Charges and Fees provided for in the
Agreement in order to accurately reflect such phases of the Conduit System;
WHEREAS, under the Agreement, Operator may amend the Schedule of Charges and
Fees applicable to an identified phase of construction by applying to the City Manager for
approval of such changes, including changes in the phases of construction themselves;
WHEREAS, as a part of such application, Operator shall provide documentation
supporting the reasonableness of any proposed change and shall provide such additional
documentation as the City Manager may require;
WHEREAS, upon a determination that the proposed change is reasonable, the City
Manager will approve the same by Regulation and Exhibit C of the Agreement shall be amended
to reflect any such approved changes;
WHEREAS, Operator has met the aforementioned requirements under the Agreement;
and
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WHEREAS, the City and Operator seek to execute this Amendment in order to amend
Section 9, Rights of the City, to reflect the lateral connections constructed by the Operator, and to
amend Exhibit C of the Agreement to reflect the revised charges and fees in accordance with the
terms of the Agreement and as further set forth and amended below.
NOW, THEREFORE, effective as of the date hereof and in consideration of the mutual
agreements set forth below and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound City and Operator agree as
follows:
1. Section 9 of the Agreement shall be replaced with the following, with additions in
boldfaced print:
Rights of the City. As consideration for the right to enter and use the right-of-way, as
provided in Paragraph 3.A, and for the covenants made by and other services to be
provided by the City hereunder, Operator covenants and agrees to dedicate one - 1 1/4"
conduit for City use within the System without charge or fee. Operator further agrees
to continue to locate and maintain lateral connections (collectively “Lateral
Services”) to every K-12 public education institution located within the City of
Dublin and as reflected in Exhibit D. The City shall compensate Operator for the
actual costs of providing Lateral Services. Actual costs shall be determined as set
forth in the original agreement attached as Exhibit A.
2. Exhibit C of the Agreement shall be replaced with the following:
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EXHIBIT C
PHASE 1 PRICING
A. One-time lease payment for initial 25-year term per Section 2
Price Per Foot
1-1/4” Conduit $ 17.56
4” Conduit $ 42.67
B. Annual lease payment per duct foot.
1) Rate is adjusted every 5 years by 5% or 80% of CPI (whichever is higher)
2) 15-yr. initial term with extension per Section 2.
3) No subleasing
Price Per Foot
2” Conduit $ 2.86
4” Conduit $ 6.94
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4836-8020-8615.4
EXHIBIT C
PHASE 2 PRICING
A. One-time lease payment for initial 25-year term per Section 2
Price Per Foot
1-1/4” Conduit $ 51.00
B. Annual lease payment per duct foot.
1) Rate is adjusted every 5 years by 5% or 80% of CPI (whichever is higher)
2) 15-yr. initial term with extension per Section 2.
3) No subleasing
Price Per Foot
1-1/4” Conduit $ 8.31
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4836-8020-8615.4
EXHIBIT C
PHASE 3 PRICING AND REQUIREMENTS
A. One-time lease payment for initial 25-year term per Section 2
Price Per Foot
1-1/4” Conduit $ 10.00
4” Conduit $ 24.30
B. Annual lease payment per duct foot.
1) Rate is adjusted every 5 years by 5% or 80% of CPI (whichever is higher)
2) 15-yr. initial term with extension per Section 2.
Price Per Foot
1-1/4” Conduit $ 1.63
4” Conduit $ 3.96
C. No subleasing
D. The City shall select the Indefeasible Right to Use agreement to be executed for use of
the Bridge Street conduit. Operator shall maintain a list of the third-party users of the
Bridge Street Conduit.
E. Payment by Phase III leasees shall be remitted directly to the City of Dublin.
F. Operator shall provide maintenance and management services as determined in the
original Agreement attached as Exhibit A.
G. Operator shall be paid $15,000.00 per year by the City of Dublin for providing the
maintenance and management services set forth above.
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4836-8020-8615.4
EXHIBIT C
PHASES I, II AND III MAP
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3. Exhibit D shall be amended into the Agreement to provide the map contemplated
in revised Section 9, as follows:
EXHIBIT D
MAP OF K-12 LATERAL CONNECTIONS
Green is School Fiber built in Phase 1 (Fishel locates and maintains)
Blue is School Fiber built in Phase 2 (Fishel locates and maintains)
Violet is Crown Castle Fiber (maintained by others)
Red is AEP Fiber (maintained by others)
[Signature page follows.]
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4836-8020-8615.4
IN WITNESS WHEREOF, City and Operator have executed this Amendment to be
effective as of the date first written above.
OWNER:
The City of Dublin, Ohio,
an Ohio municipal corporation.
By:
Name:
Its:
Date:
OPERATOR :
Dublink Development Company L.L.C.,
an Ohio limited liability company.
By:
Name:
Its:
Date:
Approved As To Form:
______________________________
Law Director, City of Dublin, Ohio
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4836-8020-8615.4
FISCAL OFFICER’S CERTIFICATE
The undersigned, Director of Finance for the City of Dublin, Ohio under the foregoing
Agreement, certifies hereby that the moneys required to meet the obligations of the City under the
foregoing Agreement during Fiscal Year 2021 have been appropriated lawfully for that purpose,
and are in the Treasury of the City of Dublin, Ohio 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: ______________________, 2021
Director of Finance
City of Dublin, Ohio
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4836-8020-8615.4
EXHIBIT A Agreement