COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL

MEETING OF SOUTH DUBLIN COUNTY COUNCIL

Monday, October 13, 2008

HEADED ITEM NO. 7(D)

The Council in it’s capacity as Developer of Grange Castle Business Park and having regard to the principles of good estate management in the interest of the Park as a whole has provided a range of infrastructural services to service and facilitate clients locating to the Park.

Among the essential services are Telecommunications Ducts provided and installed around the park serving potential sites. The Ducts have been provided in 2 Phases, Phase 1 having a length of 3,600 metres and Phase 2 having a length of 3,930 metres, giving a total length loop of 7,530 metres.

Microsoft Ireland Operations Ltd has now applied for a lease in respect of Duct number 3. I recommend the Council grant a lease to Microsoft Ireland Operations Ltd, 70 Sir John Rogersons Quay, Dublin 2 in respect of underground telecommunications Duct No.3 at Grange Castle Business Park, Dublin 22 for the purpose of providing telecommunications within the Park in accordance with Section 211 of the Planning and Development Act, 2000 and subject to the provisions of Section 183 of the Local Government Act 2001 subject to the following terms and conditions:-

1.                 To use the  Duct (Duct No.3) (which shall be identified and shown on a drawing) for the transmission and reception of telecommunications signals through fibre optic and other telecommunications cabling (excluding cabling containing copper) and for no other purpose whatsoever.

2.                  The ducts measuring 7,530 metres or thereabouts  comprise of a set of two ducts on each side of the Access Road (as defined in the Lease) including all chambers, manholes, junctions chambers and covers but excluding surrounding soil or the surface, except where the cover of a chamber or junction chamber is on and includes the surface.

3.                  The Lease shall be for a term of 999 years subject to payment of a Capital Premium of €433,200 (i.e. 7,530 metres at €57.53 per metre). The Council will consider, if requested, the question of phased payments.

4.                  The rent reserved in the Lease shall be €100 per annum reviewable every 5 years by reference to the Consumer Price Index.

5.                  In the event of consent being granted to a change of use of the Ducts the Lessee shall pay €150 per metre increased by reference to the Consumer Price Index or the open market value of the Ducts at the date of application for consent whichever is the greater. In the event of dispute the matter will be referred to an independent professional valuer nominated by the President of the Irish Auctioneers and Valuers Institute and his determination shall be final and binding.  For the avoidance of doubt the upgrading of any cabling within the Duct from time to time throughout the term of the Lease to its most technologically advanced equivalent shall not constitute a change of use.

6.                  Any breach in the terms of the Lease not remedied within sixty days of the service of notice or in the event of the liquidation or receivership of the Company the Council shall be entitled to terminate the Lease by written notice.

7.                  Where such opening up is necessary, the Lessee shall obtain the prior written consent of the Council to the opening up of the grounds above the Duct, which consent shall not be unreasonably withheld, for the purpose of repairing, renewing, maintaining, inspecting or replacing the ducts.

8.                  Reinstatement works shall be carried out in accordance with the guidelines for opening, backfilling and reinstatement of trenches in public roads as published by the Department of the Environment and Local Government in, April 2002 or as amended from time to time.

9.                  The Council reserves the right, at its expense, to alter or vary the route of the duct or any part thereof, for the purpose of facilitating any present or future development of the Park subject to the terms of the Lease.

10.              The Lessee shall furnish on demand:-

(i)                  A statement listing any alterations and/or additions to the services in the ducts.

(ii)                Copy of current licence for the use of the Ducts/Services provided through them from the Minister for Communications, Marine and National Resources or other regulatory authority and satisfactory evidence that all fees have been paid up to date.

(iii)               Furnish annually site maps and as built drawings detailing new extensions to the existing infrastructure including drop connection routes.

 11.              The Lessee is to ensure that all parts of the Ducts including the chambers, manholes and covers are permanently and securely covered with covers of sufficient design and strength to withstand the weight of such vehicular, pedestrian and other traffic that may be reasonably expected to pass over them.

12.              The Lessee shall not assign, transfer, mortgage or share the possession or occupation of the ducts or any part thereof (a “transfer”) without the prior written consent of the Council, which consent shall not be unreasonably withheld, but which consent shall not be required for a transfer to an occupier, sub-tenant or assignee of the Lessee’s site.

13.              The Lessee shall acknowledge that it shall be reasonable for the Council to withhold its consent under term 12 if the Council has spare capacity in any services ducts in the Park other than in the circumstances described in term 12.

14.              To keep the ducts insured with a reputable insurer against loss or damage in a sum sufficient to cover the full cost of reinstating the ducts including Architects fees, site clearance costs, allowances for cost and price inflation, VAT, stamp duties and all other incidental expenses in connection with the rebuilding of the ducts.

15.              To indemnify and keep indemnified the Council against all and any expenses, costs, claims, demands, damages and other liabilities, in respect of any claim made out of the occupation of the Council’s lands or the failure by the Lessee to comply with its obligations.  The minimum limit of indemnity required is €10m (Ten Million Euros) for any single event.

16.              At all times during the occupation of the Council’s lands the Lessee shall comply with all statutory requirements and enactments and execute at its own expense any works or arrangements that  may be required.

17.              Each party shall be responsible for its own legal costs in this matter.

18.              The Lease Agreement shall contain such other terms and conditions as are deemed appropriate by the County Solicitor in Leases of this nature.

19.              No agreement enforceable at law is created or intended to be created until exchange of contracts has taken place.

The Ducts being disposed of are in the lands acquired from Bernard Murphy in 1980 for Industrial, housing and open space purposes, Thomas Beattie in 1978 for housing purposes, Alfred Beattie in 1997, Mary T Blaney in 1997, Elizabeth Beattie in 1997, Mervyn Eager in 1999, Robert Beattie in 2000 and Richard J Beattie in 2003 for future development purposes.

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J. Horan

County Manager