37-09 ResolutionRECORD OF RESOLUTIONS
Blank. Inc.. Form No. 30045
Resolution No.
37-09
Pnssecl
20
A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER
INTO I\~DEFEASIBLE RIGHT OF USE (IRU) AGREEMENTS FOR
THE PURPOSE OF LEASING CERTAIN DARK OPTICAL FIBERS
WHEREAS, the City of Dublin has adopted certain telecommunication-related goals,
including compliance with the Telecommunications Act of 1996; facilitating the rapid
deployment of bandwidth and associated services/technologies; and enhancing economic
development; and
WHEREAS, the City of Dublin has determined that available bandwidth is a critical
infrastructure necessary to meet these goals; and
WHEREAS, the City of Dublin owns and manages its own underground optical fiber system,
which provides access to bandwidth and consists of at least 96 dark optical fibers over a 120-
mile route; and
WHEREAS, the City of Dublin promotes the access to its bandwidth for institutional use;
point-to-point connectivity; and for purposes that promote economic development; and
WHEREAS, the City of Dublin desires to make certain of its own dark optical fiber available
for leasing; and
WHEREAS, leasing certain dark optical fiber would result in creating non-tax revenues for
the City of Dublin; and
WHEREAS, it is necessary to respond quickly to market conditions and demands when
leasing opportunities arise; and
WHEREAS, it is necessary for the City to enter into Indefeasible Right of Use Agreement(s)
when leasing dark optical fiber(s).
NOW~REFORE, BE IT RESOLVED by the Council of the City of Dublin, State of
Ohio, of the elected members concurring:
Section 1. That the City Manager is hereby authorized to make available for the purpose of
leasing up to and no more than twelve (12) of the City's ninety-six (96) dark optical fibers in
increments of one pair.
Section 2. That the City Manager is hereby authorized to lease said pairs of dark optical fiber
via an Indefeasible Right of Use (IRU) agreement in amounts no less than:
a. 56,000 per month for one pair of looped fiber.
b. 53,000 per month for one pair ofpoint-to-point fiber.
c. The City Manager shall strive to maximize the per month lease rate above those
amounts set forth in Section 2(a) and 2(b) above, whenever possible.
d. The City Manager shall first seek Council's authorization to lease fiber at any
monthly rate less than that set forth in Section 2(a) and 2(b) above.
Section 3. That the City Manager is hereby authorized to enter into Indefeasible Right of Use
Agreement(s) and other necessary ancillary agreements consistent with this Resolution with
lessee(s) approved by the City Manager and in the form and manner presented to and
approved by Dublin City Council via this Resolution.
Section 4. That this Resolution shall take effect and be in force on the earliest date permitted
by law.
Passed this 1 ~~ day of , 2009
ATTEST:
Clerk of Council
CITY OF DiBLI
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of the Dublin City Council
From: Terry Foegler, City Manager ~ t~~
Date: August 13, 2009
Memo
Initiated By: Dana McDaniel, Deputy City Manager/Director of Economic Development
Gregory Dunn, Attorney, Schottenstein, Zox & Dunn
Re: Resolution 37-09 -Leasing of Dark Optical Fibers
Background
For over 12 years, the City of Dublin has been a global leader (Smart2l) as an owner and
operator of its own optical fiber system. The City was one of the first to develop aright-of--way
ordinance that allowed for the development of amulti-conduit bank system to be built
throughout the commercial areas of Dublin for the purpose of protecting the City's right-of--way
and facilitating the rapid deployment of optical fiber, resulting in significant bandwidth
capability. This system has been commonly referred to as "Dublink." Later, the City invested
53.3 million to build out an optical fiber system within the Dublink conduit in the City of Dublin
and throughout the Central Ohio area via the Columbus Fibernet (CFN) conduit system.
Collectively, this is a 96 optical fiber system stretching over 120 miles. The City has used
Dublink for institutional purposes; allowed access to it by certain businesses in the form of
Indefeasible Right of Use Agreements; developed the Central Ohio Research Network (CORN)
and provided the "fiber backbone" for its WiFi system. Enhancements to the system have been
made by building laterals from the system into data centers and "carrier hotels," which has added
significant value to the system.
Of the 96 fibers, the City has used/allocated the following:
OSC/Garnet/CORN - 4 fibers/2 pair
Ohio Health - 4 fibers/2 pair
Battelle - 4 fibers/2 pair
OCLC - 2 fibers/1 pair
Ohio Proton Therapy - 2 fibers/1 pair
WiFi/DHB - 12 fibers/6 pair with reverter
City ofDublin - 18 fibers/9 pair reserved for City/institutional uses
Total allocated to date - 46 fibers/23 pair
Unallocated to date - 50 fibers/25 pair
Staff recommends Council establish a policy of leasing up to and no more than 12 fibers/6 pair
of the remaining 50 fibers/25 pair for the purpose of creating anon-tax revenue. Possessing this
optical fiber asset is certainly rare among municipalities and represents an investment of public
dollars that could realize a significant return on investment. After much research, discussion and
seeking potential lessees, staff has come to realize that the City's "dark" optical fiber system has
Memo re. Resolution 37-09 IRU Agreements -Leasing Dark Optical Fibers
August 13, 2009
Page 2 of 2
significant value and the potential to be leased. Staff estimates the market value of a lease as
follows:
Lease for no less than 56,000 per month per pair (2) of dark fiber in a looped configuration
Lease for not less than 53;000 per month per pair (2) of dark fiber for apoint-to-point connection
Obviously, this could yield revenues as follows:
56,000/month pair X 6 pair = 536,000/month
$36,000/month X 12 months = 5432,000/year
The market price is as much as $7,000/month/pair which would yield as much as 5504,000/year.
By leasing this small portion of the overall asset, the City can easily recover its initial investment
and more. As explained below, the City would pay a "representation fee" of 10% to fiber
industry representatives who bring the lessee to the City. The City reserves the right to seek out
its own lessees and avoid a "representation fee."
Attachment 1 is a model agreement which includes an Indefeasible Right of Use (IRU) to be
used by the City Manager for conduit use and fiber leasing. Generally, this Agreement provides
for the following:
1. Enables the City to lease directly or indirectly to a user.
2. The City leases fiber as either a looped pair or point-to-point pair.
3. Authorizes a 10% representation fee (10% of the lease rate) if the "Company" brings a
lessee to the City. This provision is important in that certain data centers and other
service providers have better knowledge of and access to potential customers than does
the City.
4. Methods of payment.
5. Provides for Term, Termination, Default, Right to Cure, Liability and Miscellaneous.
The form and type of Indefeasible Right of Use Agreement presented herein is very similar to
those previously executed by the City with other optical fiber users and to those incorporated
into previous Economic Development Agreements.
It is important to point out that staff will be selective as to whom the City will enter into an
Agreement with. It is not in the City's best interest to enter into Agreements that in any way
degrade the City's position and advantage in owning and operating this critical infrastructure.
The value of leasing a portion of this City-owned asset not only will result in revenues to the
City and a return on investment, it will add to the amount of available bandwidth in the region
that leads back to Dublin.
Recommendation
Staff recommends approval of Resolution 37-09 at the August 17 Council meeting. Please
direct any questions to Dana McDaniel.
ATTACHMENT #1
CONDUIT USE AND FIBER LEASE AGREEMENT
THIS CONDUIT USE AND FIBER LEASE AGREEMENT and any attached
exhibits (all referred to as the "Agreement") is entered into and effective on this day of
2009 (the "Effective Date") by and between the City of Dublin (the "City"), a
municipal corporation duly organized and validly existing under the laws of the State of Ohio
(the "State"), with offices located at 5200 Emerald Parkway, Dublin, Ohio 43017-1006 and
(the "Company"), with offices located at
(City and Company may be referred to herein individually
as a "Party" or collectively as the "Parties").
WITNESSETH
WHEREAS, the City has existing conduit contained within the Columbus FiberNet, LLC
system (the "System") described more fully in Exhibit A (hereinafter "CFN"); and
WHEREAS, the City has placed ninety-six (96) fibers within the conduit and has
capacity for the placement of additional fiber; and
WHEREAS, the Fishel Company, via its subsidiary Columbus FiberNet, LLC, built and
maintains the System; and
WHEREAS, Company owns ("Facility") which acts as a
carrier neutral facility for businesses to store and connect information technology equipment; and
WHEREAS, City desires to lease some of its fibers to third parties ("Fiber Lessees") and
Company has the industry contacts to assist in the leasing of the fiber.
NOW, THEREFORE, in consideration of the terms and conditions set forth in this
Agreement, the parties agree as follows:
AGREEMENT
1. Company's Obligations. In consideration for the City's promises under this Agreement,
Company shall assist City in the lease of its fiber strands to third parties. Assistance
would be in the following manner:
a. The fiber lease ("Lease") would be of two (2) City fibers.
b. The leasing would occur by an Indefeasible Right to Use (IRU),
acceptable to the City, an example of which is attached as Exhibit A, and the term of the
Lease would be for a period less than, but usually no longer than ten (10) years (the
"Lease Period").
<xisososai >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc 1
a The lease amounts would be for a fee of not less than Seven Thousand
Dollars ($7,000) per fiber pair per month for the entire CFN and Three Thousand Five
Hundred Dollars ($3,500) per pair per month for apoint-to-point connection. The Parties
could agree to lesser or greater amounts, but any amount for a City lease less than $6,000
per pair per month for the entire CFN or $3,000 per pair per month for point to point
would require the concurrence of City Council.
d. When Company arranges the lease of City fiber pursuant to this
Agreement, Company shall obtain a ten percent (10%) representation fee. The 10% fee
shall be calculated as 10% of the lease payments set forth in (c) above.
e. Regarding payments by Fiber Lessees, each Fiber Lessee shall make its
lease payment directly to the City. During the entire term of the Lease Period, the City
shall pay Company its fee (as set forth in Section l.d. above) (hereafter the "Fee") within
twenty (20) days of receipt of each fiber lease payment.
2. Term. This Agreement shall have a term of three (3) years from the date of execution of
this Agreement. This Agreement will automatically renew for one year on the
anniversary date of the Agreement unless either party notifies the other of non-renewal
ninety (90) days prior to the anniversary date. The City may suspend further leasing of
the City's fiber by providing Company with thirty (30) days' written notice if the City, in
its sole discretion, determines that it no longer has spare fiber to lease, and the City may
allow additional leasing of City fiber with thirty (30) days' written notice if the City in its
sole discretion determines it again has additional fibers to lease. Upon any termination of
this Agreement whether by City or by Company for any reason or by expiration of the
term of this Agreement, City shall continue to make to Company the Fee payment during
the term of any Lease(s) and any renewal thereof. However, in no event shall City be
required to pay Company if City has not been paid its lease payment pursuant to
paragraphs 1(a) through 1(e).
3. Termination, Default and Right to Cure. If either party shall default in the
performance of any obligation or material covenant required to be performed under this
Agreement, and the defaulting party fails to remedy such default within a period of thirty
(30) days after receipt from the non-defaulting party of written notice to remedy the
same, or if such default may not be remedied within such thirty (30) day period, fails to
commence and diligently pursue completion of such remedy, then the non-defaulting
party shall have the right to terminate this Agreement. Notwithstanding the foregoing, the
City all obligations of the parties under this Agreement shall survive any such
termination, including the City's obligation to support, maintain and lease fiber to
contracted third party lessees.
4. Third Party Limitation of Liability. Each party shall include, in its contracts with
customers, a limitation of liability provision stating that each Party's sole liability, if any,
for any loss or damage (exclusive of property damage, personal injury or death) arising
out of mistakes, omissions, interruptions, errors or any other causes, shall be limited to
<xieosossi >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc 2
the credit for service interruption for each separate period of interruption as set forth in an
applicable service contract.
5. Confidentiality. By virtue of this Agreement, a Party may have access to information
that is confidential to the other Party ("Confidential Information"). A Party's
Confidential Information shall not include information that: (i) is or becomes a part of the
public domain through no act or omission of the other Party; (ii) was in the other Party's
lawful possession prior to the disclosure and had not been obtained by the other Party
either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the
other Party by a third party without restriction on disclosure; or (iv) is independently
developed by the other Party. The Parties agree, unless required by law, not to make
each other's Confidential Information available in any form to any third party for any
purpose other than the implementation of this Agreement. Neither Party shall be
prohibited by this Section from making disclosures to the extent required by law, prior
written notice for such disclosure shall be given to the other party prior to such
disclosure.
6. Miscellaneous.
a. Assignment/Transfer. Unless otherwise specified herein, neither Party may
assign/transfer all or part of this Agreement without obtaining the prior written
consent of the other Party. Such consent shall not be unreasonably withheld or
delayed. Consent shall not be required in the case of a sale of all or substantially
all the assets of the assigning/transferring Party or an assignment/transfer to an
entity directly or indirectly owning or controlling, owned or controlled by, or
under common control with the assigning/transferring Party.
b. Cost and Ownership of Laterals. The Company shall be building laterals to the
Columbus FiberNet LLC ("CFN") duct bank to connect the customer to the leased
City fiber. These laterals shall use the CFN man holes and the CFN system. These
lateral builds and their associated maintenance shall be at the expense of the
Company and shall remain the Company's sole asset during and after the term of
this Agreement.
c. Company agrees: (i) to use CFN when using Columbus FiberNet manholes,
conduit or other facilities; (ii) all splicing of City fiber shall be done by CFN,
contact Mr. Ian Smith at 614-274-8100. In the event CFN is not in existence or
otherwise unable to perform, within forty-eight (48) hours of Company's request,
City shall name another company for the uses set forth above.
d. Notices. Any notices permitted or required by this Agreement shall be in writing
and shall be given or made by hand delivery, certified mail, return receipt
requested or by overnight express with written receipt, addressed to the respective
Parties as follows:
<xisososai >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc 3
If to City: City Manager
City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
With a copy to: Law Director/Telecommunications
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
If to Company:
With a copy to:
d. Force Majeure. Notwithstanding any other provisions in this Agreement, no
default, delay or failure to perform on the part of either party shall be considered a
breach of this Agreement if such default, delay or failure to perform is shown to
be due to causes beyond the reasonable control of the defaulting Party, including
but not limited to, causes such as riots, civil disturbances, actions or inactions of
governmental authorities or suppliers, epidemics, war, embargoes, severe
weather, fire, earthquakes, acts of God or the public enemy, or nuclear disasters.
e. Insurance. City shall insure the System, its associated fibers, and any other
associated parts provided by City in this transaction. Company shall insure its
own equipment. City shall require Fiber Lessee to maintain insurance for their
equipment.
f. Maintenance. City shall be responsible for maintaining the fiber leased pursuant
to the Leases, including 100% of any maintenance, repair or associated operating
costs.
g. Independent Contractors. In entering into and complying with this Agreement,
Company is at all times performing as an independent contractor. Nothing in this
Agreement shall constitute or be construed as a creation of an employee/employer
relationship, a partnership, or a joint venture between Company and the City. No
employee, agent, or representative of Company shall be considered an employee,
agent, or representative of the City.
h. Captions. The subject headings of the various sections of this Agreement are
included for purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
i. Counterparts. This Agreement maybe executed in one or more counterparts, all
of which shall be considered one and the same agreement, binding on all parties
hereto, notwithstanding that all parties are not signatories to the same counterpart.
<xisososai >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc 4
j. Further Acts. Consistent with the terms and conditions hereof, each Party hereto
shall execute and deliver all instruments, certificates and other documents and
shall perform all other acts which the other party may reasonably request in order
to carry out this Agreement and the transactions contemplated hereby.
k. Third Party Beneficiaries. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give any person other than the Parties hereto,
and their permitted successors and assigns, any rights or remedies under or by
reason of this Agreement.
1. Entire Agreement. This Agreement, together with the Exhibits referenced
herein, constitutes the entire Agreement and understanding of the Parties and
supersedes all prior discussions and agreements relating to the subject matter
hereof. This Agreement may be amended or modified only in writing signed by
the Parties.
m. No Waiver. No term or provision hereof shall be deemed waived and no breach
excused, unless such waiver or consent shall be in writing and signed by the Party
claimed to have waived or consented. Any consent by either Party to, or waiver
of, a breach by the other, whether express or implied, shall not constitute a
consent to, waiver of, or excuse for any other different or subsequent breach.
n. Governing Laws; Limitations. This Agreement is subject to applicable federal
laws, federal or state tariffs, if any, and will be governed by the laws of the State
of Ohio. Any inconsistency between this Agreement and those regulations, this
Agreement shall be deemed amended as necessary to conform to such regulations.
o. Venue. The Parties hereto hereby consent to the exclusive jurisdiction of the
courts of the State of Ohio in Franklin County, and the United States District
Court for the Southern District of Ohio and waive any contention that any such
court is an improper venue for enforcement of this Agreement.
p. Partial Invalidity. If any term or provision of this Agreement operates or would
prospectively operate to invalidate this Agreement in whole or in part, then such
term or provision only will be void to the extent of such invalidity, and the
remainder of this Agreement shall remain in full force and effect; provided,
however, that if such term or provision constitutes the essence of this Agreement
then this Agreement shall be deemed terminated without such termination
constituting a breach hereof.
q. Binding Effect. This Agreement will be binding upon and inure to the benefit of
each party and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed
as of the Effective Date.
<xisososai >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc 5
The City of Dublin
an Ohio municipal corparation
Sign:
Print Name:
Its: City Manager
Date:
Sign:
Print Name:
Its:
Date:
<xisososai >res 37-09 lease dark optical fiber - exhibitl-conduit-fiber agreement. doc
EXHIBIT A
CITY OF DUBLIN, OHIO
INDEFEASIBLE RIGHT OF USE AGREEMENT
THIS INDEFEASIBLE RIGHT OF USE AGREEMENT (hereinafter referred to as the
"Agreement") made and entered into as of the day of
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 43017-1090, and
(hereinafter referred to as "User"), 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, from time to
time, to provide such fibers to User and to grant User an Indefeasible Right of Use or IRU
(hereinafter referred to as "IRU") 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
(specifically inclusive of, but not limited to, Chapter 98 of the Codified Ordinances of the City of
Dublin, Ohio); and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies the
mutual covenants and agreements between the Parties hereto; 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, pursuant to 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, for and in consideration of the mutual covenants and agreements set forth in this
Agreement, the Parties hereto do hereby agree as follows:
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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 Indefeasible Right of Use Agreement between the Owner and
User which identify 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 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 (a general depiction of which is attached
hereto as Exhibit "A")
2. GRANT.
2.1 The Owner hereby grants to User an Indefeasible Right of Use (IRU) of the
following Owner Fiber System components. Owner warrants that it has all rights
necessary to make such a grant to User.
a. Two (2) strands of fiber optic cable in Owner's Fiber System as described in
Exhibit A. User will work with Owner to define connections to facilities in the
User's system. Further, User may use the portions of the Owner's Fiber System
granted herein to connect to other facilities inside and outside the City of Dublin.
Ohio.
3. TERM.
3.1 Unless sooner terminated in accordance with the terms of this Agreement, the
term of this Agreement is for Ten (10) 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 on
(hereinafter referred to as the "Expiration Date'. The terms of this Agreement may be
renewed with the mutual consent of both parties.
4. CONSIDERATION.
As consideration for, as inducement to, and as a required condition of Owner
granting User the specific rights to use portions of Owner's Fiber System (the User
System) as described herein, the User hereby agrees:
a. To all of the terms and conditions for the Lease Agreement .
b. That any failure of User to satisfy the terms and conditions of this Agreement or
the Lease Agreement shall be considered a material breach of this Agreement and
Owner may then terminate this Agreement upon giving sixty (60) days written
notice to User.
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5. OWNER'S OBLIGATIONS.
5.1 Owner shall:
a. Owner will provide the User System for User's use in accordance with the terms
of this Agreement.
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, shall be performed
under the direction of the Owner.
c. Maintain the User System to the User's specifications.
6. USER OBLIGATIONS.
6.1 User shall:
a. When lateral connectivity is not provided by Owner, provide and pay for lateral
connectivity from necessary termination points of User's proprietary fiber and
equipment to the necessary demarcation points of Owner's Fiber System. In this
event User shall own the lateral.
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 C attached hereto.
d. User agrees not to use the User System provided in this Agreement to provide
services to other carriers or service providers without the prior written consent of
the Owner, which shall not be unreasonably withheld. User also agrees that it
shall not sublease or subdivide the User System. 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 may be 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 sixty (60) 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 User System and all facilities through
which the User System passes, including, but not limited to, conduit, innerduct, poles,
and equipment, but specifically excluding all User owned and controlled opto-electronics,
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 B.
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, and
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 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. 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 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 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 Fiber System and/or User System.
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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. 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.
User shall be responsible for the costs and expenses associated with such
Emergency Maintenance as it relates to User's actual use of the User System
and/or Fiber System requiring such Emergency Maintenance. The Owner will
have such Emergency Maintenance performed on atime-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 in the Owner's behalf, at any time during
the Term of this Agreement, discontinues maintenance and/or repair of the User Systems,
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. As an alternate remedy, User may
elect to terminate this Agreement, as well as the above referenced Lease Agreement
should Owner discontinue maintenance and/or repair of the User Systems.
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. 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.
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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 active negligence 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.
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, insurance
coverage with limits not less than those set forth herein.
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
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 shall name the Owner and all of its elected officials,
officers and employees, agents and volunteers as additional insureds. 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:
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City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 43017-1006
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 despite any conflicting provision in the User's
policies to the contrary.
11.6 User shall be responsible for all User contractors' or subcontractors' compliance
with the insurance requirements.
11.7 Failure of the User to maintain such insurance, or to provide such endorsements 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 after the termination of
this Agreement); blanket contractual liability (covering the liability assumed in this
Agreement); personal injury (including death); and broad form 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.
Should the policy have an aggregate limit, such aggregate limits should not be less than
double the combined single limit and be specific for this Agreement. Umbrella or Excess
Liability coverages may be 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.
11.9 The User shall provide Workers' Compensation 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
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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 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.
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
therefor; lack of transportation; national emergencies; insurrections; riots, wars; or
strikes, lockouts, work stoppages or other labor difficulties (collectively, "Force Majeure
Events").
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
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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. Said consent shall not be unreasonably
withheld.
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: If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017-1006
With a Copy to: With a Copy to:
Mr. Gregory Dunn
Schottenstein, Zox & Dunn, LPA
250 West Street
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Columbus, Ohio 43215
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.
21.1 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.
22.1 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.
23.1 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:
USER:
By:
Its:
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OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Terry Foeeler
Its: City Manager
Approved As To Form:
Law Director, City of Dublin, Ohio.
REST OF PAGE LEFT INTENTIONALLY BLANK
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E~ttibit. A
DubLink Fiber Route
Exhibit S
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FIBER SYSTEM SPECIFICATIONS
L 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:
IL 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
Maximum attenuation, 1310/1550 .35/.25
Cladding diameter 125.0
Cutoff wavelength 1150-1330
Zero dispersion wavelength 1300-1320
Maximum dispersion (2.6 - 6.0) .05
Units
dB/Km
um
nm
nm
psi ~~-~)
Exhibit C
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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 am. to 5:00 p.m.,
Monday through Friday
(Except Owner observed holiday).
Expenses Incurred per call out:
Overtime Hours:
5:01 p.m. to 7:59 a.m., Saturday, Sunday,
and all Owner observed holidays.
Labor Rates Hourl Rate Overtime Rate
Project Manager 75.00 112.50
Professional En eer 65.00 97.50
Ri ht of Wa A ent 48.50 72.75
Su ervisor 47.70 71.55
Foreman 36.90 55.35
O erator 31.50 47.25
Truck Driver 26.00 39.00
Laborer 21.70 32.55
Fiber Splicer 42.00 63.00
E ui ment Rates Hourl Rate
Pickup 16.00
1-ton/flat bed 17.60
2-ton dum 24.00
Trailer 16.50
Rubber tired backhoe 36.20
Roddin machine 21.75
Winch truck 21.75
Air com ressor 16.00
Li ht lant 17.45
Arrow board 9.00
2" water um 10.00
Generator 14.50
Cable cart 7.00
Manhole acka e 14.50
Fusion splicing package 30.00
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