Ordinance 48-11RECORD OF ORDINANCES
Dayton Leeal Blank Inc.
48 -11
Ordinance No. Passed
AN ORDINANCE AUTHORIZING THE
PROVISION OF CERTAIN INCENTIVES TO
WENDY'S INTERNATIONAL, INC. AND WENDY'S
SUPPORT CENTER, LLC TO INDUCE THEM TO
RETAIN A MAIN OFFICE AND ASSOCIATED
OPERATIONS AND WORKFORCE WITHIN THE
CITY, AND AUTHORIZING THE EXECUTION OF
AN ECONOMIC DEVELOPMENT AGREEMENT
20
WHEREAS, consistent with its Economic Development Strategy (the "Strategy ")
approved by Dublin City Council Resolution No. 07 -94, adopted on June 20, 1994, and
the updated Strategy approved by Dublin City Council Resolution No. 30 -04, adopted
on July 6, 2004, the City desires to encourage commercial office development and
provide for the retention and creation of employment opportunities within the City; and
WHEREAS, Wendy's International, Inc. and Wendy's Support Center, LLC
(collectively, the "Company") recently performed a comprehensive examination of its
workforce needs, and based on the results of this examination, and induced by and in
reliance on the economic development incentives provided in the proposed Economic
Development Agreement (as described below), the Company is desirous of renovating a
facility within the City to retain a main office and associated operations and workforce
within the City in order to achieve the payroll withholding targets set forth in the
Economic Development Agreement; and
WHEREAS, this Council has determined that it is necessary and appropriate and in the
best interests of the City to provide for certain economic development incentives to the
Company, as described in the proposed Economic Development Agreement; and
WHEREAS, this Council has determined to offer the economic development
incentives, the terms of which are set forth in a substantially final form of Economic
Development Agreement presently on file in the office of the Clerk of Council, to
induce the Company to renovate a facility within the City and retain a main office and
associated operations and workforce within the City, which will result in the creation of
new jobs and the retention of existing jobs, thereby improving the economic welfare of
the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13
of the Ohio Constitution.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State
of Ohio, —7— of the elected members concurring, that:
Section 1 . The Economic Development Agreement by and between the City and the
Company, in the form presently on file with the Clerk of Council, providing for, among
other things, the provision of certain economic development incentives in consideration
for the Company's agreement to renovate a facility within the City for the retention of a
main office and associated operations and workforce within the City, which will result
in the creation of new jobs and the retention of existing jobs, is hereby approved and
authorized with changes therein not inconsistent with this Ordinance and not
substantially adverse to this City and which shall be approved by the City Manager.
The City Manager, for and in the name of this City, is hereby authorized to execute that
Economic Development Agreement, provided further that the approval of changes
thereto by that official, and their character as not being substantially adverse to the City,
shall be evidenced conclusively by the execution thereof. This Council further
authorizes the City Manager, for and in the name of the City, to execute any
amendments to the Economic Development Agreement, which amendments are not
inconsistent with this Ordinance and not substantially adverse to this City.
RECORD OF ORDINANCES
Ordinance No. 48 -11
Page 2 of 2
Passed Page
Section 2 . This Council fiuther hereby authorizes and directs the City Manager, the
Director of Law, the Director of Finance, the Clerk of Council, or other appropriate
officers of the City to prepare and sign all agreements and instruments and to take any
other actions as maybe appropriate to implement this Ordinance.
Section 3. This Council finds and determines that all formal actions of this Council
and any of its committees concerning and relating to the passage of this Ordinance were
taken in open meetings of this Council or committees, and that all deliberations of this
Council and any of its committees that resulted in those formal actions were in meetings
open to the public, all in compliance with the law including Section 121.22 of the
Revised Code.
Section 4 . This Ordinance shall be in full force and effect on the earliest date
permitted by law.
Signed:
&i'�- f'
Mayor - Psi g Officer
Attest:
Clerk of Council
Passed: 2011
Effective: Q P{�l > 2011
S.SD 1802255. / X -X -2UU -2-
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 • Fax: 614- 410 -4490
To: Dublin City Council
From: Marsha I. Grigsby, City Manager �vv�
Date: August 18, 2011
Initiated By: Colleen Gilger, Economic Development Manager
Re: Ordinance 48 -11 - Economic Development Agreement with The Wendy's
Company
Background
Since the recent sell -off of the Arby's brand, staff has been in discussions with The Wendy's
Company executives in Atlanta, Georgia regarding the retention of its Dublin -area workforce, the
relocation of its headquarters, and the addition of approximately 50 executives in Dublin.
The Ohio Department of Development has presented the company with a $3.8 million tax credit
package, redeemable over 12 years, to help retain and grow the jobs in Ohio. On behalf of the City
of Dublin, Economic Development submitted a letter of support urging the agency to assist with the
retention and growth of the company in Ohio.
The City's incentive offer is based on the fact that Wendy's was considering options of relocating
outside of the State of Ohio as well as options within the Central Ohio region. As a result, the City's
incentive package took into account approximately 390 existing jobs, approximately 50 new jobs,
and the potential $11 million reinvestment in the existing facility along State Route 161.
Summary of Incentives Offered
The total 58.2 million incentive offer by Dublin to Wendy's is an estimated maximum value. The
incentive offer is based on existing and projected new jobs. It is projected that the City will net
more than $6.9 million in income tax withholding revenue over the 10 -year incentive term.
Of the total package value, $1.2 million in value relates to providing two dedicated optical
fibers for the purpose of carrying the company's telecommunications and data traffic on
City -owned Dublink. Several years ago, the City invested in acquiring and installing a
redundant fiber optic network. The $1.2 million is based on the asset value of the optical
fibers ($200,000) and the projected savings ($1,000,000) that Wendy's could receive over
the 10 -year period by avoiding monthly costs for traditional services. The City will not pay
Wendy's these actual dollar amounts -- they are the projected value that Wendy's could
receive as a result of the previous investment the City made in acquiring and installing the
fiber optic network.
• Another component of the incentive package is based on actual payroll performance by
Wendy's over the next 10 -year period. The incentive payment will be based on making a
payment equal to 30% of the actual income tax withholding payments that are actually
Memo re. Ordinance 48 -11 - EDA with Wendy's
August 18, 2011
Page 2 of 2
received from all employees. Additionally, there is a "target" withholding amount that has
been established, and if that amount is not received by the City in each year, that year's
incentive payment will not made. The maximum amount projected for this component is
$4,750,000. Based on current projections, staff has estimated that the incentive payments
over the 10 -year period, if the "targets" are met each year will be in the range of $2,934,300
to $4,750,000. The $4,750,000 was established as a maximum amount.
• The third component of the City's incentive is identified as a Retention Grant in the amount
of $2,250,950. This incentive will also be paid out over the next 10 -year period in equal,
annual installments of $225,095.
• The Wendy's site was established as a Tax Increment Financing (TIF) District several years
ago; therefore, any investment in the facility by Wendy's will benefit the City in the form of
receiving additional service payments from the TIF district. As part of Wendy's
headquarters relocation back to Dublin, they are committing to make a significant
investment of more than $11 million in their facility. Based on the additional private
investment, the incentive dollars will be offset by the additional service payments that are
projected to be received over the remaining term of the TIF. The service payments are used
to fund public infrastructure improvements that benefit the Wendy's site and the general
public in the area of the Wendy's campus.
Recommendation
Staff recommends approval of Ordinance 48 -11 at second reading/public hearing on September
12, 2011. Please contact Colleen Gilger at 410 -4615 or cgilgerAdublin.oh.us with any questions.
ECONOMIC DEVELOPMENT AGREEMENT
THIS ECONOMIC DEVELOPMENT AGREEMENT (the `Agreement") is made and entered into
this day of , 2011, by and between the CITY of DUBLIN, OHIO (the "City"), a
municipal corporation duly organized and validly existing under the Constitution and the laws of
the State of Ohio (the "State ") and its Charter, and Wendy's International, Inc., an Ohio
corporation and Wendy's Support Center, LLC, a Delaware limited liability company (collectively,
the "Company" and together with the City, the Parties "), under the circumstances summarized in
the following recitals.
RECITALS:
WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved
by Dublin City Council Resolution No. 07 -94 adopted on June 20, 1994, and the updated Strategy
approved by Dublin City Council Resolution No. 30 -04 adopted on July 6, 2004, the City desires
to encourage commercial office development and provide for the retention and creation of
employment opportunities within the City; and
WHEREAS, based on the results of the Company's recent comprehensive examination of
workforce needs, and induced by and in reliance on the economic development incentives provided
in this Agreement, the Company desires to retain a main office and associated operations and
workforce within the City; and
WHEREAS, pursuant to Ordinance No. -11 passed on , 2011 (the
"Ordinance "), the City has determined to offer the economic development incentives described
herein to induce the Company to renovate a facility within the City for the retention of a main
office and associated operations and workforce within the City, which will result in the creation of
new jobs and the retention of existing jobs to improve the economic welfare of the people of the
State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution;
and
WHEREAS, the City and the Company have determined to enter into this Agreement to
provide these incentives in order to induce the Company to renovate a facility within the City and
retain its operations and workforce within the City;
Now THEREFORE, the City and the Company covenant, agree and obligate themselves as
follows:
Section 1. Companv's Agreement to Renovate a Facilitv and Retain Its Operations and
Workforce Within the City In consideration for the economic development incentives to be
provided by the City herein, the Company agrees that it will renovate a facility within the City for
the retention of an office and associated operations and workforce within the City, all consistent
with the terms of this Agreement. The Company expects to create fifty -three (53) new employee
positions within the City by December 31, 2013. The average annual income subject to the City's
income tax of these employees is estimated to be One Hundred Eighty -Eight Thousand Six Hundred
Seventy -Nine and 00 /100 Dollars ($188,679.00), with total estimated payroll withholdings of
SSD #5001442: 0S- &2011
approximately Two Million and 00 /100 Dollars ($2,000,000.00) over the term of this Agreement.
The Company also expects to retain three hundred eighty -eight (388) existing employee positions
within the City. The average annual income subject to the City's income tax of these employees is
estimated to be One Hundred Thirty -Eight Thousand Five Hundred Eighty -Two and 00 /100 Dollars
($138,582.00), with total estimated payroll withholdings of approximately Ten Million Seven
Hundred Fifty -Four Thousand and 00 /100 Dollars ($10,754,000.00) over the term of this
Agreement.
Section 2. City Agreement to Provide Incentives
(a) General In consideration for the Company's agreement to renovate a facility within
the City for the retention of a main office and associated operations and workforce within the City
which will result in the creation of new jobs and the retention of existing jobs, the City agrees to
provide economic development incentives to the Company in accordance with this Section.
(b) Workforce Creation Incentive
(i) Calculation of Actual Payroll Withholding Taxes On or before March 15 of
each of the years 2013 through 2022, the City shall calculate the actual payroll withholding
taxes collected and received during the preceding calendar year and in respect of that
preceding calendar year by the City from all Employees (as defined below). For purposes of
that calculation, the Company acknowledges and agrees that the total amount of actual
payroll withholding taxes in respect of any calendar year shall be determined based solely
upon the amount of payroll withholding tax payments actually received by the City from the
Company during that calendar year. The Company agrees that the determination of whether
to include in such calculation any amount received by the City in respect of any calendar
year but following the conclusion of that calendar year, shall be solely within the discretion
of the City. For purposes of this Section 2, "Employees" shall include only those individuals
employed by the Company and working within the City.
(ii) Information Relating to Employees The Company agrees that, in
accordance with the Dublin City Code, the annual payroll reconciliation and related W -2
forms relating to its Employees will be provided to the City prior to February 28 of each
calendar year.
(iii) Incentive Payments to the Company If the actual payroll withholding taxes
collected and received by the City during the then preceding calendar year and in respect of
that preceding calendar year from all Employees, net of refunds (such amount being referred
to as the `Actual Withholdings "), equal or exceed the Target Withholdings (as defined in
subsection 2(b)(iv)) for that preceding calendar year, the City shall, on or before April 15 of
the then current calendar year, pay to the Company, solely from nontax revenues (as defined
in subsection 2(e)), an amount equal to the product of (A) an amount equal to the Actual
Withholdings, multiplied by (B) thirty percent (30 %) (with each such product being referred
to as an `Annual Incentive Payment"); provided, however, that (1) the City shall not be
required pursuant to this subsection 2(b) to remit an Annual Incentive Payment to the
Company in excess of the Annual Cap (as defined in subsection 2(b)(iv)) in any calendar
ssD #8001442 : 0a-8-2011 -2-
year, and (2) the aggregate amount of all Annual Incentive Payments remitted pursuant to
this subsection 2(b) by the City to the Company shall not exceed Four Million Seven
Hundred Fifty Thousand and 00 /100 Dollars ($4,750,000.00).
(iv) Target Withholdings and Annual Can The Target Withholdings and Annual
Cap for each of the calendar years 2012 through 2021 shall be:
Calendar Year
Target Withholdings
Annual Cap
2012
$ 1,105,487
$ 450,000
2013
1,225,710
450
2014
1,256,352
450,000
2015
1,281,480
450,000
2016
1,307,109
450,000
2017
1,333,251
500,000
2018
1,359,916
500,000
2019
1,387,115
500,000
2020
1,414,857
500,000
2021
1,443,154
500,000
(v) Forfeiture of Right to Receive Workforce Creation Incentive Payment The
Company agrees and acknowledges that Annual Incentive Payments provided for in
subsection 2(b) are being made by the City to the Company in consideration for the
Company's agreement to renovate a facility within the City for the retention of a main
office and associated operations and workforce within the City and to create additional
employment opportunities and retain existing employment opportunities, all within the City.
The Company further agrees that if the Target Withholdings requirement is not met for any
given calendar year as set forth in subsection 2(b)(iv), the City shall not be obligated to
make an Annual Incentive Payment to the Company for the calendar year in respect of
which the Target Withholdings requirement was not satisfied. Failure to satisfy the Target
Withholdings requirement in respect of any one calendar year does not prohibit the
Company from receiving an Annual Incentive Payment for any subsequent calendar year in
respect of which the Target Withholdings requirement is satisfied.
(c) Retention Incentive
(i) General In consideration of the Company's agreement to retain a main
office and create additional employment opportunities and retain existing employment
opportunities within the City, and subject to satisfaction of the requirements of subsection
2(c)(ii), the City agrees to provide to the Company a retention incentive (the Retention
Incentive ") in the aggregate amount of Two Million Two Hundred Fifty Thousand Nine
Hundred Fifty and 00 /100 Dollars ($2,250,950.00), which shall be payable to the Company
in ten (10) annual installments with each installment being in the amount of Two Hundred
Twenty -Five Thousand Ninety -Five and 00 /100 Dollars ($225,095.00) (with each such
installment payment being referred to as a Retention Incentive Installment Payment').
ssD x8001442: 0a-8-2011 - 3 -
(ii) Incentive Payments to the Company In addition to the determinations to be
made by the City on or before March 15 of each of the years 2013 through 2022 and in
accordance with subsection 2(b)(i), the City shall, at the same time, also determine whether
(A) the Company's Actual Withholdings for the then preceding calendar year were at least
equal to $1,075,400 and (B) the average number of Employees for the then preceding
calendar year were at least equal to three hundred eighty -eight (388). In each calendar year
that the City determines that the Company has satisfied the preceding conditions in this
subsection 2(c)(ii), then the City shall, on or before April 15 of the then current calendar
year, pay to the Company, solely from nontax revenues (as defined in subsection 2(e)), a
Retention Incentive Installment Payment.
(iii) Forfeiture of Right to Receive Incentive Payments The Company agrees
and acknowledges that the Retention Incentive provided for in subsection 2(c) is being made
by the City to the Company in consideration for the Company's agreement to renovate a
facility within the City for the retention of a main office and associated operations and
workforce within the City and to create additional employment opportunities and retain
existing employment opportunities, all within the City. The Company further agrees that if
the requirements of subsection 2(c)(ii) are not met for any given calendar year, the City shall
not be obligated to make a Retention Incentive Installment Payment to the Company for the
calendar year in respect of which the requirements of subsection 2(c)(ii) were not satisfied.
Failure to satisfy the requirements of subsection 2(c)(ii) in respect of any one calendar year
does not prohibit the Company from receiving a Retention Incentive Installment Payment
for any subsequent calendar year in respect of which the requirements of subsection 2(c)(ii)
are satisfied.
(d) Method of Payment The payments to be paid to the Company as provided in this
Section 2 shall be made by the City to the Company by electronic funds transfer or by such other
manner as is mutually agreed to by the City and the Company.
(e) City's Obligation to Make Payments Not Debt: Payments Limited to Non -Tax
Revenues Notwithstanding anything to the contrary herein, the obligations of the City pursuant
to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of
the general credit or taxes levied by the City, and the Company shall have no right to have
excises or taxes levied by the City, the State or any other political subdivision of the State for the
performance of any obligations of the City herein. Consistent with Section 13 of Article VIII,
Ohio Constitution, any payments or advances required to be made by the City pursuant to this
Section 2 shall be payable solely from the City's non -tax revenues. Further, since Ohio law
limits the City to appropriating monies for such expenditures only on an annual basis, the
obligation of the City to make payments pursuant to this Section 2 shall be subject to annual
appropriations by the City Council and certification by the Director of Finance of the City as to
the availability of such non -tax revenues. For purpose of this Agreement, " nontax revenues"
shall mean, all moneys of the City which are not moneys raised by taxation, to the extent
available for such purposes, including, but not limited to the following: (i) grants from the
United States of America and the State; (ii) payments in lieu of taxes now or hereafter authorized
to be used for the purposes by State statute; (iii) fines and forfeitures which are deposited in the
City's General Fund; (iv) fees deposited in the City's General Fund from properly imposed
ssD #8001442 : 0s-8-2011 -4-
licenses and permits; (v) investment earnings on the City's General Fund and which are credited
to the City's General Fund; (vi) investment earnings of other funds of the City that are credited
to the City's General Fund; (vii) proceeds from the sale of assets which are deposited in the
City's General Fund; (viii) rental income which is deposited in the City's General Fund; and (ix)
gifts and donations.
(f) Dublink Fiber Network Dublin will provide to Company two fibers in its Dublink
fiber optic network pursuant to the Fiber Use Agreement attached as EXHIBIT A.
Section 3. Miscellaneous.
(a) Assignment Except to entities controlled by or under common control with the
Company, this Agreement may not be assigned without the prior written consent of all non -
assigning Parties. For purposes of this Agreement, "controlled bjP' or "under common control with"
refers to the possession, directly or indirectly, of the legal power to direct or cause the direction of
the management and policies of an entity, whether through the exercise of, or the ability to exercise,
voting power or by contract.
(b) Binding Effect The provisions of this Agreement shall be binding upon the
successors or assigns of the Parties.
(c) Captions The captions and headings in this Agreement are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
(d) Company's Obligations All obligations of the Company under this Agreement may
be satisfied by any combination of the Company and entities controlled by or under common
control with the Company; provided, however, Actual Withholdings in any calendar year shall not
include those actual payroll withholding taxes collected and received by the City during such
calendar year which are received (net of refunds) in respect of any person if (i) such person was
employed in the City by such entity "controlled by" or "under common control with" the
Company immediately preceding the occurrence of the event resulting in the recognition of such
entity being "controlled by" or "under common control with" the Company or (ii) the actual
withholdings of such person were used in such calendar year in the computation of another
income -tax based incentive similar to the incentives provided for herein. The Company
represents that as of the date of this Agreement, there are no persons currently employed within
the City by any entity which is controlled by or under the common control with the Company for
purposes of the Actual Withholdings computations described in this Agreement.
(e) Day for Performance Wherever herein there is a day or time period established for
performance and such day or the expiration of such time period is a Saturday, Sunday or legal
holiday, then such time for performance shall be automatically extended to the next business day.
(f) Entire Agreement This Agreement embodies the entire agreement and
understanding of the Parties relating to the subject matter herein and therein and may not be
amended, waived or discharged except in an instrument in writing executed by the Parties.
ssD#sootaavz: 0a-8-2011 - 5 -
(g) Events of Default and Remedies Except as otherwise provided in this Agreement,
in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any
Party hereto, such defaulting Party shall, upon written notice from any non - defaulting Party,
proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30)
days after receipt of such notice. In the event such default or breach is of such nature that it cannot
be cured or remedied within said thirty (30) day period, then in such event the defaulting Party shall
upon written notice from any non - defaulting Party commence its actions to cure or remedy said
breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said
breach. In case such action is not taken or not diligently pursued, or the default or breach shall not
be cured or remedied within a reasonable time, the aggrieved non - defaulting Party may institute
such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or
breach, including, but not limited to, proceedings to compel specific performance by the defaulting
Party.
(h) Executed Counterparts This Agreement may be executed in several counterparts,
each of which shall be deemed to constitute an original, but all of which together shall constitute but
one and the same instrument It shall not be necessary in proving this Agreement to produce or
account for more than one of those counterparts.
(i) Extent of Covenants; No Personal Liability All covenants, obligations and
agreements of the Parties contained in this Agreement shall be effective to the extent authorized and
permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a
covenant, obligation or agreement of any present or future member, officer, agent or employee of
the City or the Company other than in his or her official capacity, and neither the members of the
legislative body of the City nor any official executing this Agreement shall be liable personally
under this Agreement or be subject to any personal liability or accountability by reason of the
execution thereof or by reason of the covenants, obligations or agreements of the City and the
Company contained in this Agreement.
0) Governing Law This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio or applicable federal law. All claims, counterclaims, disputes and
other matters in question between the City, its agents and employees, and the Company, its
employees and agents, arising out of or relating to this Agreement or its breach will be decided in a
court of competent jurisdiction within Franklin County, Ohio.
(k) Legal Authority The Parties respectively represent and covenant that each is legally
empowered to execute, deliver and perform this Agreement and to enter into and carry out the
transactions contemplated by this Agreement. The Parties further respectively represent and
covenant that this Agreement has, by proper action, been duly authorized, executed and delivered by
the Parties and all steps necessary to be taken by the Parties have been taken to constitute this
Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and
binding obligation of the Parties, enforceable in accordance with its terms.
(1) Limit on Liability Notwithstanding any clause or provision of this Agreement to
the contrary, in no event shall City or the Company be liable to each other for punitive, special,
ssD #sooiaavz: 0a-8-2011 -6-
consequential, or indirect damages of any type and regardless of whether such damages are claimed
under contract, tort (including negligence and strict liability) or any other theory of law.
(m) Notices Except as otherwise specifically set forth in this Agreement, all notices,
demands, requests, consents or approvals given, required or permitted to be given hereunder shall be
in writing and shall be deemed sufficiently given if actually received or if hand - delivered or sent by
recognized, overnight delivery service or by certified mail, postage prepaid and return receipt
requested, addressed to the other Party at the address set forth in this Agreement or any addendum
to or counterpart of this Agreement, or to such other address as the recipient shall have previously
notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by
certified mail, in which event such notice shall be deemed to have been received when the return
receipt is signed or refused. For purposes of this Agreement, notices shall be addressed to:
(i) the City at: City of Dublin, Ohio
5800 Shier Rings Road
Dublin, Ohio 43016 -7295
Attention: Economic Development Director
(ii) the Company at: Wendy's International, Inc.
One Dave Thomas Blvd.
Dublin, Ohio 43017
Attention: General Counsel
The Parties, by notice given hereunder, may designate any further or different addresses to which
subsequent notices; certificates, requests or other communications shall be sent.
(n) No Waiver No right or remedy herein conferred upon or reserved to any Party is
intended to be exclusive of any other right or remedy, and each and every right or remedy shall be
cumulative and in addition to any other right or remedy given hereunder, or now or hereafter legally
existing upon the occurrence of any event of default hereunder. The failure of any Party to insist at
anytime upon the strict observance or performance of any of the provisions of this Agreement or to
exercise any right or remedy as provided in this Agreement shall not impair any such right or
remedy or be construed as a waiver or relinquishment thereof. Every right and remedy given by this
Agreement to the Parties hereto may be exercised from time to time and as often as may be deemed
expedient by the parties hereto, as the case may be.
(o) Recitals The Parties acknowledge and agree that the facts and circumstances as
described in the Recitals hereto are an integral part of this Agreement and as such are incorporated
herein by reference.
(p) Severability If any provision of this Agreement, or any covenant, obligation or
agreement contained herein is determined by a court to be invalid or unenforceable, that
determination shall not affect any other provision, covenant, obligation or agreement, each of which
shall be construed and enforced as if the invalid or unenforceable portion were not contained herein.
That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and
SSD #800144vz: 08-8 -2011 -7-
each such provision, covenant, obligation or agreement shall be deemed to be effective, operative,
made, entered into or taken in the manner and to the full extent permitted by law.
(c) Survival of Representations and Warranties All representations and warranties of
the Parties in this Agreement shall survive the execution and delivery of this Agreement.
(remainder ofpage intentionally left blank— signature page follows)
ssD x8001442: 0s-8-2011 - 8-
IN WITNESS WHEREOF, the City and the Company have caused this Agreement to be
executed in their respective names by their duly authorized representatives, all as of the date first
written above.
CITY OF DUBLIN, OHIO
MM
Printed: Marshal. Grigsbv
Title: Citv Manager
Approved as to Form:
Printed: Stephen J. Smith
Title: Director of Law
WENDY'S INTERNATIONAL, INC.
Title:
WENDY'S SUPPORT CENTER, LLC
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FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing Agreement, certifies
hereby that the moneys required to meet the obligations of the City under the foregoing Agreement
during Fiscal Year 2011 have been appropriated lawfully for that purpose, and are in the Treasury of
the City or in the process of collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio
Revised Code.
Dated: .2011
Director of Finance
City of Dublin, Ohio
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EXHIBIT A
Dublink Agreement
A -1
SSD #5001442: 0S- &2011
EXHIBIT A
CITY OF DUBLIN, OHIO
INDEFEASABLE RIGHT -TO -USE AGREEMENT
THIS INDEFEASABLE RIGHT -TO -USE AGREEMENT is made and entered into as of
the day of , 2011, between the City of Dublin, Ohio, an Ohio municipal
corporation (hereinafter referred to as the "Owner "), having an office at 5200 Emerald Parkway,
Dublin, Ohio 43017 -1006, and Wendy's International, Inc., an Ohio corporation and Wendy's
Support Center, LLC, a Delaware limited liability company (collectively referred to as "User "),
Owner and User 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" and further defined in Section 1.1(b)) throughout the City of Dublin, Ohio and
the greater Columbus, Ohio metropolitan area,
WHEREAS, the Owner is willing to grant User an indefeasible right of use (hereinafter
referred to as "IRU ") in and to fibers within the Fiber System to allow User to provide
telecommunications, video, data, and/or information services;
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);
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 shall incorporate the
covenants and agreements of this Agreement and which shall 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:
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 meanings specified:
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a. Agreement: This Indefeasable Right -to -Use Agreement between the Owner and
User, which identifies the specific optical fiber strands and facilities to be
provided to User by Owner, and which set forth the 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 map of the fiber route attached hereto as
Exhibit "A ").
2. GRANT
2.1 The Owner hereby grants to User an IRU of the following 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 the Fiber System, along the route described
in Exhibit A.
3. TERM
3.1 The term of this Agreement ( "Term ") shall commence on the date whereby the
final Party has executed the underlying Economic Development Agreement
( "Commencement Date "). The Term of this Agreement shall terminate on the earlier of:
(a) ten (10) years from the Commencement Date; or (b) the date whereby User's
employees employed within the City of Dublin at 1 Dave Thomas Boulevard, Dublin,
Ohio 43017 are less than Three Hundred Fifty (350); or (c) December 31, 2013 if User
has not employed its use of the fibers by this date. The Term of this Agreement may be
amended by mutual agreement of the Parties.
4. CONSIDERATION
4.1 As consideration for, as inducement to, and as a required condition of Owner
granting User the specific rights to use portions of the Fiber System (hereinafter referred
to as the "User System ") as described herein, the User hereby agrees that any failure of
User to satisfy the terms and conditions of this Agreement shall be considered a material
breach of this Agreement and Owner may then terminate this Agreement upon giving
sixty (30) days written notice to User.
5. OWNER'S OBLIGATIONS
5.1 Owner shall:
a. Grant the User an IRU 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.
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6. USER OBLIGATIONS
6.1 User shall:
a. Provide and pay for lateral connectivity from necessary termination points of
User's proprietary fiber and equipment to the necessary demarcation points of the
Fiber System.
b. Pay for any building or external network service connection and disconnection
charges for each building service added or deleted before, during or after the
initial establishment and cutover of a User System fiber segment. User shall be
responsible for any and all costs associated with lateral connectivity to the Fiber
System and shall pay for the costs of all splicing, distribution segment, service
connections, head end equipment, and any ring or concentrator operations.
C. If performing any splicing in the User System, utilize the services of Columbus
Fibemet, LLC (Fishel), or any other contractor approved in advance by Owner, to
perform the splicing.
d. 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.
e. Not 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. User
also agrees that it shall not sublease or subdivide the User System.
f 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.
g. Pay any costs associated with disconnecting from the Fiber System, and shall
ensure that the User System, including the strands of fiber and any associated
appurtenances, are left in the condition that existed prior to the User connecting to
the Fiber System (excluding normal wear and tear). User agrees that should the
Owner determine, in the Owner's sole discretion, that if, upon disconnection, User
has not left the User System in such condition, the Owner may restore the User
System to such condition at the sole cost and expense of User.
6.2 All obligations of the User under this Agreement may be satisfied by any combination of
the User and entities controlled by or under common control with the User. The User represents
that as of the date of this Agreement, there are no persons currently employed within the City of
Dublin by any entity which is controlled by or under the common control with the User. For
purposes of this Agreement, "controlled by" or "under common control with" refers to the
possession, directly or indirectly, of the legal power to direct or cause the direction of the
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management and policies of an entity, whether through the exercise of, or the ability to exercise,
voting power or by contract.
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
shall agree upon an acceptance plan for User's initial activation and the "go- live"
of the User System.
b. Shall provide each other a twenty -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 in the event of an emergency, the Owner will provide
User with at least forty -eight (48) hours advance notice of any maintenance or repair that
will impact User's use of the User System. Except as expressly set forth below in this
Section 8 or 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 ( "Regular Maintenance ") 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 expense.
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 ( "Scheduled Maintenance "). 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 shall provide an
estimate of the price and timing of such Scheduled Maintenance. Following
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User's acceptance of such estimate, the Owner will schedule and have such
Scheduled Maintenance performed. The Owner shall have such Scheduled
Maintenance performed on a time - and - materials basis at the standard rates in
effect at the time services are performed. Rates in effect shall be those identified
in Exhibit "C ", attached hereto, 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
( "Emergency Maintenance "). 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 shall 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.
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 any party acting in User's behalf, shall have the right, but not the obligation, to
thereafter provide for any maintenance and repair of the User System, at the User's sole
cost and expense. Any such discontinuance by the Owner 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, 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 upon notice
to the Owner.
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. The Owner will not unreasonably withhold its consent with respect to any
such request.
8.4 Any User contractors 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, which approval shall not be unreasonably withheld. Prior to User entering an
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Owner's facility for repair, User shall first notify the Owner of the contemplated action
and receive the Owner's concurrence decision, a decision that the Owner shall provide to
User no later than twelve (12) hours from User's notification to Owner of contemplated
action. When User undertakes Emergency Maintenance of the User System, User shall
have an Owner employee or representative available to assist the User in any repair of the
User System.
9. USE OF THE USER SYSTEM
9.1 User shall have exclusive control over its provision of telecommunications, video,
data, and/or information services.
9.2 User hereby certifies that it is authorized or shall be authorized, where required,
on the effective date of 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
jursidictional entities as may be necessary in regard to such operation.
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 User's performance of this
Agreement, or use of the Fiber System on the part of the User, or the User's officers,
agents, employees, or contractors, except for the negligence or willful misconduct of the
Owner, and its elected officials, officers, employees, agents and volunteers. User's
indemnity requirements for its conduct herein shall also specifically include all claims of
intellectual property, copyright or trademark infringement made by third parties against
Owner to the extent that such claims relate to information, data, video or other content
transmitted via the Fiber System in the course of User's use thereof.
10.2 The Owner must promptly notify the User in writing of any claim or other action
which may give rise to a claim for indemnification hereunder.
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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 Owner's 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:
City of Dublin
Law Director
Schottenstein, Zox & Dunn, Co. LPA
250 West Street
Columbus, Ohio 43215
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
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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
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 should 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 should be adjudicated bankrupt or insolvent, or should
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 should be filed
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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. Except to entities controlled by or
under common control with User, User shall not assign, sublease, or license (hereinafter
collectively referred to as a "Transfer ") any rights or obligations hereunder without the
prior written consent of the Owner.
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 shall be for the sole benefit of the Parties hereto and their
respective permitted successors and assigns and 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.
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18.
19.
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.
NOTICES.
19.1 Any written notice under this Agreement shall be deemed properly given if sent
by registered or certified mail, postage prepaid, or by nationally recognized overnight
delivery service or by facsimile to the address specified below, unless otherwise provided
for in this Agreement:
If to User to:
Wendy's International, Inc.
One Dave Thomas Blvd.
Dublin, Ohio 43016 -7925
Attention: General Counsel
If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017 -1006
With a Copy to:
Mr. Gregory Dunn
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
20.
21.
22.
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.
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.
COMPLIANCE WITH LAW
21.1 Each Party hereto agrees that it shall perform its respective rights and obligations
hereunder in accordance with all applicable laws, rules and regulations.
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
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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.
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IN WITNESS WHEREOF the Parties have executed and delivered this Agreement
effective the day and year first above written:
Approved As To Form:
Steve J. Smith
Law Director, City of Dublin, Ohio
USER:
Wendy's International, Inc.
By:
Its:
USER:
Wendy's Support Center, LLC
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Marsha I. Grigsby
Its: City Mana
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Exhibit A
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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 shall endeavor to keep the number of splices in a span to a minimum.
III. Optical Fiber Specifications
The Owner shall meet the optical specifications as detailed below for the cable installed:
A. Single Mode Fiber
Parameter Specifications Units
Maximum attenuation, 1310/1550
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion (2.6 — 6.0)
.35/.25 dB /Km
125.0 um
1150 -1330 nm
1300 -1320 nm
.05 ps/ (= -km)
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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 shall 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 per 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
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