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Home My WebLink About09-06 OrdinanceRECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043 Ordinance No. ~~-~~ 20 Passed AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A LICENSE AGREEMENT AND RELATED PURCHASE AND FIBER OPTICAL USE AGREEMENTS FOR WI-FI SERVICES WITH WIRELESS EVENTS, INC., DBA DHB NETWORKS, AND DECLARING AN EMERGENCY WHEREAS, the City of Dublin has determined that the Dublink project should be expanded to include Wi-Fi Technology; and WHEREAS, the City of Dublin intends to use Wi-Fi for providing municipal services; and WHEREAS, the City of Dublin requested proposals for the provisioning of Wi-Fi within the City of Dublin; and WHEREAS, the proposal of Wireless Events, Inc. dba DHB Networks, Inc. was deemed the best response after careful review. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring that: Section 1. This License Agreement and related Purchase and Fiber Optical Use Agreements for Wi-Fi Services with Wireless Events, Inc., dba DHB Networks attached here to and incorporated herein setting forth the manner in which Wireless Events, Inc. dba DHB Networks shall operate and maintain a Wi-Fi network in portions of the City of Dublin is hereby approved. Section 2. The City Manager is hereby authorized to execute the License Agreement and related Purchase and Fiber Optical Use Agreements for Wi-Fi Services with Wireless Events, Inc., dba DHB Networks attached hereto and incorporated herein and to take all acts necessary and appropriate to implement all of the terms of the License Agreement and related Purchase and Fiber Optical Use Agreements for Wi-Fi Services with Wireless Events, Inc., dba DHB Networks including the execution of all necessary documents. Section 3. This ordinance is hereby declared to be an emergency necessary for the immediate preservation of the public health, safety and welfare. The reason for such necessity is that the prompt execution of this agreement is necessary for the rapid deployment of the Wi-Fi service to the citizens of Dublin. Therefore, this ordinance shall go into im/mediate effect.// ~ ~ Passed this b ~~ day of/'~~e~~~C.(~~- , 2006. . , Mayor -Presiding Officer ATTEST: ~--- Clerk ofCouncil I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. uty Clerk of Council, Dublin, Ohio MEMORANDUM TO: Dublin City Council Jane S. Brautigam ~b FROM: Gregory J. Dunn DATE: March 2, 2006 RE: Ordinance No. 09-06 SUMMARY: Ordinance 09-06 authorizes the City Manager to enter into the three agreements which constitute the city's Wi-Fi agreement with DHB Networks Ltd. The three agreements are: 1. Purchase Agreement For Wi-Fi services and Virtual Private Network Between DHB Networks Ltd. and City of Dublin; 2. License Agreement between the City of Dublin and DHB Networks Ltd.; and 3. City of Dublin Ohio Optical Fiber Use Agreement between the City of Dublin and DHB Networks Ltd. Each of the three agreements is necessary to complete the construction and operation of the Wi- Fi network in Dublin. The License agreement allows DHB to place its equipment of City Right of Way and structures (with City approval). This agreement is non-exclusive, which allows the City to allow other WiFi operators to serve the City should they desire to do so. The Purchase Agreement buys 25% of the bandwidth of the Wi-Fi network for the city to use in its own Virtual Private Network for municipal purposes. Such uses include police communications and surveillance, city employee laptops and cell phones, and other communications needs. The concept is to migrate city communications onto our Wi-Fi network as security, reliability and interoperability issues are resolved. The Fiber Use agreement allows DHB to use 6 of our 96 Dublink fibers to interconnect the Wi-Fi locations. Dublink will still have 76 fibers after this transaction. Some important aspects of this Wi-Fi arrangement: 1. This award is pursuant to an RFP issued last year. DHB was deemed to have the best proposal. The final arrangement is substantially similar to DHB's responses to the RFP. 2. The City will purchase the bandwidth from DHB. The City will pay DHB $261,000 upon receipt of the Engineering Study and then $6041.66 per month for 24 months for a total of $406,000. 3. The City will need to expand Dublink by building laterals (extensions) to connect some of the WiFi locations. The capital cost will be approximately $150,000. 4. In the event DHB fails to deliver the "bandwidth" for the City's use and is in default, the City has the right to take possession of the Wi-Fi network. The City's IT department has asked DHB to use Cisco Wi-Fi gear, and DHB has agreed. IT is comfortable that in the {H0647755.1 } MEMORANDUM March 2, 2006 Page 2 of 2 event the City has to operate the equipment it will be able to do so because of the universality of Cisco equipment. Additionally the Cisco geaz is more operational with our IT equipment than other types. 5. DHB will be free to market the remaining 75% of the bandwidth in any manner it sees fit. DHB will advise us of its plans for the remaining parts of the network. 6. The City of Dublin will not be an Internet Service Provider, a phone company or a Wi-Fi operator. Dublin will have enabled the operation of this Wi-Fi network by allowing its property to be used in anon-exclusive way and by purchasing bandwidth form DHB. Many uses for Wi-Fi networks are becoming available as more and more Wi-Fi networks are built. In addition to the common usage which is for City laptop users to access the internet while outside or in a vehicle, more and more electronic devices are being built with Wi-Fi access cards included in the device. The most exciting new use is cell phones with a wireless switch that when engaged, allows the phone user to make phone calls via Wi-Fi and Voice of Internet Protocol (VoIP) instead of using the cellular network. This will create significant savings for people with these phones. Dublin, which pays for about 200 cellular phones, will have the option to purchase phones with this Wi-Fi switch and will ultimately be able to save significant amounts of money because we will be using our own Wi-Fi network instead of a cellular network. Another application that may have City use is that some of the newer digital cameras and camcorders are being built with Wi-Fi cards in them. This will allow the camera to email any potential recipient a copy of the recently created video or still picture. Initially, I believe the City will be looking at the Wi-Fi phones, laptop usage in the field, replacement of some safety communications gear, video streaming from police cars to the police headquarters and possibly some back up redundant connections for City facilities. As the network comes online, the City will be able to begin testing types of equipment to see what the most cost effective and public service effective utilization of the network are. (H0647755.1 } CITY OF DUBLIN, OHIO LICENSE AGREEMENT Dated , 2006 Between: The City of Dublin, and DHB Networks Ltd. {H0652881] ~ Table of Contents Page I. DEFINITIONS .....................................................................................................................1 II. SCOPE .................................................................................................................................3 III. TERM ..................................................................................................................................4 IV. DHB'S OBLIGATION ........................................................................................................4 V. CITY'S OBLIGATION .......................................................................................................5 VI. RELOCATION/REMOVAL OF EQUIPMENT .................................................................5 VII. RIGHTS IN MATERIALS ..................................................................................................6 VIII. INSURANCE AND INDEMNIFICATION .........................................................................6 IX. TERMINATION ................................................................................................................10 X. CONFIDENTIAL INFORMATION ....................................................................................8 XI. GENERAL PROVISIONS .................................................................................................11 {H0652881.1 } 1 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is executed this _ day of 2006, between the City of Dublin, Ohio ("City"), an Ohio Municipal corporation with a principal place of business located at 5200 Emerald Parkway, Dublin, Ohio 43017 and DHB Networks Ltd., an Ohio Limited Liability Corporation ("DHB") with a principal place of business located at 4338 Bright Road, Dublin, Ohio 43016, (collectively, the "Parties"). WITNESSETH THAT: WHEREAS, the City is interested in finding ways to make the latest communications technology available to its citizens and businesses in the City; and WHEREAS, the City owns certain Right of Way and Municipal Facilities within the geographic limits of the City; and WHEREAS, the City issued a request for proposals, and the City received 12 proposals and DHB's proposal was selected as the best; and WHEREAS, the City, in the interest of advancing the technology available to its citizens, desires to allow DHB to locate WiFi infrastructure in the Right of Way and on certain City owned Municipal Facilities in certain areas of the City ("Service Area"); and WHEREAS, DHB has proposed a WiFi architecture methodology that would make 802.11 WiFi technology and connectivity available to its citizens and businesses within the Service Area; and WHEREAS, for use of the City's property DHB agrees to enter in this Agreement, which, among other things, requires DHB to indemnify, protect and defend the City against any costs or expense associated with the Service, agree to act in accordance with all local, state and federal laws, rules and regulations ("Laws"), and make Service available to anyone who may desire to use it within the Service Area; and NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties hereby agree as follows: I. DEFINITIONS A. For the purposes of this Agreement, the following words and phrases shall have the following meanings ascribed to them respectively, regardless of whether or not the words and phrases are capitalized: B. Agreement means this Service Agreement. (H065288 L 1 ~ C. Service Area means that area described in Section II herein and as illustrated in Exhibit A attached hereto. D. Broadband means a high speed connection of greater than 250k. E. Disclaimer means the informational disclaimer, waiver page and text that automatically appears on the monitor or screen of a User and requires active approval and review of that User, each and every time the System is accessed and the User attempts to use the Service. F. Equipment means all 802.11, 2.4 Ghz WiFi infrastructure, access points, antennas, wireless switching gear, authentication hardware and software as well as service monitoring tools required for construction and operation of the System as is more generally described in Exhibit B attached hereto. G. Internet means the global information system that is logically linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons; is able to support communications using the Transmission Control Protocol/Internet Protocol (TCP/IP) suite or its subsequent extensions/follow-ons, and/or other IP compatible protocols; and provides, uses or makes accessible, either publicly or privately, high level services layered on the communications and related infrastructure. H. Law means any local, state and/or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement, specifically including the Revised Code of the City of Dublin, Ohio. I. Municipal Facilities means property, either real or personal owned by the City including poles, streetlights, traffic signals, signs, buildings, structures, parks, or other City owned property or easements that have not been dedicated for use as Right of Way. J. Ordinance means the Codified Ordinances of the City of Dublin. K. Right of Way means the surface and space in, above, within, over below, under or through any real property in which the City has an interest in Law or equity, whether held in fee, or other estate or interest, or as a trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit, or any other place, area, or real property owned by or under the legal or equitable control of the City that, consistent with the purposes for which it was dedicated, may be used for the purposes of constructing, operating, repairing, or replacing a System. Right of Way may not include buildings, parks, or other public property or easements that have not been dedicated to compatible uses, unless approved for use by City pursuant to this Agreement L. Service means WiFi Broadband Internet access (including any V-LAN provided to the City) that is provided by DHB through the System to the Users within the Service Area. (H0652887.1 ~ 2 M. Splash Pale means the promotional and advertising page and text that automatically appears on the monitor or screen of a User, except for the City and its employees, each time the System is accessed in the Service Area. N. System means the highly scalable, secure and reliable WiFi network, infrastructure and Equipment installed and operated by DHB in the Service Area. O. Users means the City and its employees, a citizen, a business, or a visitor who uses the Service provided over the System in the Service Area. P. V-LAN means the virtual local area network provided to the City by DHB as a condition of this Agreement. Q. WiFi means a wireless local area network operating under a 802.11 standard. II. SCOPE DHB shall build a System that provides Service to Users in the streets, sidewalks and greenspaces of the City in the Service Area as specified in this Agreement for the benefit of the City, its citizens, businesses and visitors. DHB will perform the Service with reasonable diligence in a professional and workmanlike manner, consistent with the generally accepted standards in the industry and in compliance with any and all Laws. It is understood and agreed that the System and Service to be provided by DHB during the Service shall incorporate and provide, with WiFi connectivity, the central business district area of Dublin, Ohio known as the Service Area and described immediately below and further detailed and mapped in Exhibit A attached hereto. DHB shall begin installing the Equipment and System architecture in accordance with the terms herein at anytime following the execution of this Agreement. The Equipment shall be deployed in such a manner as to create a robust and technologically appropriate System that provides the City and Users with performance parameters that meet or exceed industry standards for comparable municipal deployments of WiFi architecture. The System shall be completely installed and Service shall be fully available to Users in the entire Service Area by October 31, 2006. Any and all rights expressly granted to DHB under this Agreement, which shall be exercised at DHB's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Municipal Facilities and Right of Way exclusively or concurrently with any other person or entity and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Municipal Facilities or Right of Way. Nothing in this Agreement shall be deemed to grant, convey, create, or vest in DHB a real property interest in land, {H065?881J ~ 3 including any fee, leasehold interest, or easement. Any work performed pursuant to the rights granted under this Agreement shall be subject to the reasonable prior review and approval of the City in accordance with all Laws. DHB in the performance and exercise of its rights and obligations under this Agreement shall not interfere in any manner with the placement of any and all public and private rights of way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications equipment, utility facilities, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this Agreement. III. TERM This Agreement shall commence upon execution by the City and DHB, and it shall terminate on the St" anniversary of the date the Agreement is fully executed, but in no event later than October 31, 2011. DHB may renew this Agreement for additional one (5) year extensions with 90 days written notice. IV. DHB'S OBLIGATION DHB, with coordinated site approvals from the City, will install a highly scalable, secure System in the Service Area that will allow the Users to access the Internet and related services. DHB, at no cost to the City, will provide all Equipment necessary for the Service to be available within the scope described herein. Equipment updates, maintenance and expansion of the System will all be responsibilities of DHB. DHB will properly maintain and operate the System, its Equipment and the Service in the Service Area. The initial proposed locations of DHB's planned installation of the System and Equipment shall be provided to the City promptly after DHB's review of available maps and prior to deployment of the System. Upon the completion of installation of Equipment, DHB promptly shall furnish to the City a list showing the exact location of the Equipment on Municipal Facilities and in the Right of Way. In addition, DHB shall for the term of this Agreement provide: A. All fixed network access point (AP) hardware necessary to operate the System; and B. Customized, site specific, "Splash" page; and C. Maintenance and updates to "Splash" page; and D. Network Operations -user authentication, network monitoring and management; and E. Advertising sales and billing; and {H06i2881.1 ) 4 F. Appropriate promotion of the Service; and G. Listing of System WiFi sites on international "hot spot" locator web pages; and H. All customer support necessary to properly operate the System and provide the Service required by this Agreement in the Service Area. V. CITY'S OBLIGATION City will for the term of this Agreement: A. Upon DHB's prior written request, authorize and permit DHB to enter upon or m Right of Way and/or Municipal Facilities within the Service Area and use Municipal Facilities where such Municipal Facilities are reasonably, technically and legally accessible and available, to locate, place, attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Equipment for the purposes of operating and providing Service; and B. Subject to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits DHB to enter upon the Right of Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such Equipment in or on poles or other structures owned by public utility companies or other property owners located within the Right of Way as may be permitted by the public utility company or property owner, as the case may be. Upon request, DHB shall furnish to the City documentation of such permission from the individual utility or property owner responsible. City agrees to cooperate with DHB, at no cost or expense to City, in obtaining, where necessary, the consents of third-party owners of property located in Right of Way; and C. Provide the necessary electrical supply for DHB's approved wireless access points located within the Service Area in the Right of Way and/or on Municipal Facilities; and VI. RELOCATION/REMOVAL OF EQUIPMENT DHB understands and hereby acknowledges that City may require DHB to relocate one or more pieces of its Equipment, and DHB shall at City's discretion relocate such Equipment whenever City reasonably determines that the relocation is needed for any of the following purposes: if required for the construction, completion, repair, relocation, or maintenance of a City project; because the Equipment is interfering with or adversely affecting proper operation of Municipal Facilities; or to protect or preserve the public health or safety. If the City approves the site location, then the City shall reimburse DHB the reasonable relocation costs. If the City did not approve the site location, DHB shall bear the entire relocation cost. In any such case, City shall use its best efforts to afford DHB a reasonably equivalent alternate location. If DHB shall fail to relocate any Equipment as requested by the City within ten (10) days, City shall be entitled to relocate the Equipment at DHB's sole cost and expense, without further notice to DHB. To the (H0652881.1 } 5 extent the City has actual knowledge thereof, the City will attempt promptly to inform DHB of the displacement or removal of any Municipal Facility on which any Equipment is located. In the event DHB desires to relocate any Equipment from one Municipal Facility to another, DHB shall so advise City. City will use its best efforts to accommodate DHB by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Agreement. Whenever the removal or relocation of Equipment is required or permitted under this Agreement, and such removal or relocation shall cause the Municipal Facility or Right of Way to be damaged, DHB, at its sole cost and expense, shall promptly repair and return the Municipal Facilities or Right of Way in which the Equipment are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If DHB does not repair the site as just described, then the City shall have the option, upon ten (10) days prior written notice to DHB, to perform or cause to be performed such reasonable and necessary work on behalf of DHB and to charge DHB for the proposed costs to be incurred or the actual costs incurred by the City. Upon the receipt of a demand for payment by the City, DHB shall promptly reimburse the City for such costs. Upon termination or expiration of this Agreement, DHB shall remove, at its own expense, all portions of its System and all Equipment from all the Service Area and restore same to a condition reasonably satisfactory to the City within sixty (60) days from the date of termination. A reasonable extension of such deadline for removal and restoration may be granted to DHB by the City following the receipt of a written request by DHB for such extension, if said request is received by the City within thirty (30) days of the date of termination. If DHB does not remove Equipment as described, then the City shall have the option, upon ten (10) days prior written notice to DHB, to perform or cause to be performed such reasonable and necessary work on behalf of DHB for Equipment removal and to charge DHB for the proposed costs to be incurred or the actual costs incurred by the City. Upon the receipt of a demand for payment by the City, DHB shall promptly reimburse the City for such costs. The removal and restoration requirements of this Article shall survive termination and/or expiration of this Agreement. VII. RIGHTS IN MATERIALS DHB shall maintain ownership to all Equipment and the System, unless DHB fails to remove the Equipment as required in Section VI above. In that event, all Equipment remaining or residing in the streets and green areas of the City (the Rights of Way) and upon Municipal Facilities shall immediately become the property of the City. VIII. INSURANCE AND INDEMNIFICATION DHB agrees to defend, indemnify, protect and hold harmless the City, its elected officials, officers, employees, agents, and volunteers from and against any liability for all actions, claims, losses, damages, costs and/or expenses (including reasonable attorney's fees) to the extent that such actions, claims, losses, damages, costs and/or expenses arise out or are in any way caused by ~ H0652881. I ) 6 the performance or non-performance of this Agreement, either directly or indirectly, irrespective of whether such actions, claims, losses, damages, costs and/or expenses are caused by the acts, omissions or conduct of DHB or its employees, agents and representatives. Such indemnity shall specifically include, but in no way be limited to, any violation or alleged violation of an intellectual property right of the City or any third party, or claims made regarding the substance or control of data, information or content that is distributed over the System. During the term of this Agreement and the period of any performance hereunder, DHB shall maintain, at its sole cost, with an insurance company authorized to do business in the State of Ohio and having at least an "A" rating from A.M. Best (or its equivalent successor), the following levels of insurance written on an occurrence basis: A. Professional Liability Insurance, having the minimum annual aggregate of one million dollars (US $1,000,000.00) each occurrence; and, B. Comprehensive General Liability Insurance, to cover liability, bodily injury, and property damage, having the minimum of one million dollars (US $1,000,000.00) each occurrence and an annual aggregate of three million dollars (US $2,000,000.00). DHB shall also maintain Workers' Compensation Insurance in such amounts as prescribed by law for each of its employees involved in the performance of work required pursuant to this Agreement, and shall require all contractors, subcontractors and other engaged by DHB to perform services hereunder to maintain same. All policies of insurance required herein, excluding Workers' Compensation Insurance, shall name the City, its elected officials, officers, agents and employees as additional insureds) and shall contain the requirement that City be notified thirty (30) days in advance of any termination or diminution of coverage. Upon execution of this Agreement, DHB shall furnish the City with a copy of such certificate(s) of insurance demonstrating compliance with this Article that are satisfactory to the City's Director of Law, and at the City's request, DHB shall permit the inspection of a complete copy of the policy or policies of insurance. It is agreed that all premiums and costs of the insurance required hereunder is not reimbursable or otherwise chargeable to the City. The insurance required hereunder shall not be limited by any limitations expressed in the indemnification language herein or any limitation placed on the indemnity therein given as a matter of law. IX. TERMINATION In addition to all other remedies available to the Parties, this Agreement shall be subject to termination should any one or more of the following events occur or for the following reasons: A. If DHB shall file a voluntary petition of bankruptcy; or if proceedings in bankruptcy shall be instituted against it and it is thereafter adjudicated a bankruptcy pursuant to {H065288 L t ) 7 proceedings; or if a court shall take jurisdiction of DHB and its assets pursuant to proceedings brought under the provisions of any federal reorganization act; or if a receiver for DHB's assets is appointed by a court of competent jurisdiction; or if DHB shall be divested of its rights, powers and privileges under this Agreement by other operation of law; B. If DHB shall default in the performance of any material covenant required to be performed by it herein, and the failure of DHB to remedy such default, or to take prompt action to remedy such default, within a period of fifteen (15) days after receipt from the City of written notice to remedy the same; or if by reason of the nature of such default the same cannot be remedied within said fifteen (15) days, then the City shall have the right to terminate this Agreement if DHB shall have failed to commence the remedying of such default within said fifteen (15) days following such written demand, or having so commenced, shall fail thereafter to complete such remedy within thirty (30) days. C. Violations by DHB, its agents or employees, of applicable Laws, or revocations of permits or licenses required in the performance of this Agreement, if the same shall not be corrected or action taken to correct, within fifteen (15) days after DHB's receipt of written notice, which shall state in detail the violation. X. CONFIDENTIAL INFORMATION The Parties agree, that unless otherwise required by Law, any information concerning the other's price quotes, preliminary concepts, marketing proposals, branding strategies, marks, creative designs and concepts technical data, web designs, trade secrets and know-how, research, product plans, products, customer technical requirements, software, programming techniques, algorithms, services, suppliers, supplier lists, customers, employee lists, customer lists, markets, developments, inventions, processes, technology, designs, drawings, engineering, apparatus, techniques, hardware configuration, information, marketing, forecasts, business strategy, finances or other business information disclosed by the other party as confidential ("Confidential Information") shall not without the disclosing party's authorization be disclosed to any other party or used by the receiving party for its own benefit except as contemplated by this Agreement. The Parties shall protect the confidential information of the other in the same manner that it protects its own confidential information of a similar nature. XI. GENERAL PROVISIONS A. Amendment or Modification: The Parties may amend or modify this Agreement, at any time, provided that such amendment or modification makes specific reference to this Agreement, is executed in writing with a full knowledge and understanding of all facts available and is properly executed by a duly authorized representative of each Party. B. Entire Agreement/Inte ragL tion: This Agreement, the Purchase Agreement and an Indefeasible Right to Use, all dated this even date, represent the entire Agreement {H0652881_I ~ 8 between the Parties. This Agreement, the Indefeasible Right to Use and the Purchase Agreement supersede all prior and contemporaneous communications, representations, understandings, or contracts, whether oral or written, relating to the subject matter of this Agreement. C. Severability: The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void, unenforceable, invalid, or illegal provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if the Agreement did not contain this particular portion or provision. D. Waiver: No waiver by either party of any breach of any provision of this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such breach or as a waiver of any breach of any other provision of this Agreement. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect such party's right to enforce the same at a later time. E. Governing Law/Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to the principles thereof relating to conflicts or choice of laws. All disputes between the Parties shall exclusively attorn to the jurisdiction of the courts of Franklin County, Ohio. F. Relationsh~ of the Parties: The City and DHB are separate, independent and non- affiliated entities. DHB shall perform under this Agreement as an independent entity and not as an agent, joint venturer or employee of the City. Accordingly, DHB's employees and any persons retained or hired by DHB to perform any of the services described herein are also not City employees and not entitled to, nor make a claim for, any of the emoluments of employment with the City of Dublin. Further, DHB shall be responsible to withhold and pay, or cause such agents, contractors and sub-contractors to withhold and pay, all applicable local, state and federal taxes. G. Meetin.~s and Evaluation: DHB shall meet with the City's designees at such times designated by the City to review and discuss performance of this Agreement. DHB shall allow the City to conduct on-site inspections, tests, monitoring and shall cooperate with the City in all respects concerning the review and monitoring of DHB's performance pursuant to this Agreement. {H0652881.7 J 9 H. Notices: Any written notice or other communication required or permitted by this Agreement shall be made in writing and shall be delivered personally, sent by express delivery, certified mail or first class U.S. mail, postage pre-paid, to the address specified herein. Such written communication or notice shall be addressed to: DHB Networks: DHB Networks Ltd. 4338 Bright Road Dublin, Ohio 43016 City: City of Dublin, Ohio City Manager 5200 Emerald Parkway Dublin, Ohio 43017 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of the City and DHB. I. Emerg_enc~ Contact: The Parties each shall each appoint an emergency contact representative who will be available on a 24/7 basis for emergency and crisis management associated with the Service or System. Each Party shall provide its emergency contact information to the other at the time of execution of this Agreement. The emergency contact information provided shall include, at a minimum, a land line telephone contact number, a facsimile (fax) telephone contact number, a wireless telephone contact number, an e-mail contact number, and if available a pager contact number. Each Party shall update emergency contact information with the other should the then currently listed emergency contact representative change or be unavailable. J. Assignment: DHB shall not assign any rights or duties under this Agreement without the prior written consent of the City. Unless otherwise stated in the City's written consent to an assignment, no assignment will release or discharge DHB from any obligation under this Agreement. Nothing contained in this section shall prevent DHB from employing independent consultants, associates, and subconsultants to assist in the performance of the work required under this Agreement. K. Taxes: By execution hereof, the City represents that it is atax-exempt entity. Upon DHB's prior written request, the City will furnish documentation on such tax-exempt status. DHB acknowledges and guarantees that any taxes that are required by any local, state or federal taxing authority to be paid on the Service or Equipment provided or used by DHB under this Agreement, or DHB's use of the City's property (either real or personal) or Right of Way, shall be the sole responsibility of DHB and shall be satisfied in their entirety in a timely manner. L. Force Majeure: Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due {H0652881.1 J 10 care. A party will not be deemed to be in default or in breach of this Agreement if the party is prevented from performing any of the obligations hereunder, by reason of strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of God, acts of the public enemy, weather conditions, riots, rebellion, or sabotage, or any other circumstances for which it is not responsible or which are not within its control. M. Titles/Headings: Titles and headings to paragraphs, sections, exhibits and appendices are used merely for convenience and shall not be taken as an interpretation of the contents of those passages or as an attempt to enlarge, limit or define terms covered by this Agreement. N. Laws: DHB agrees, without limitation, to comply, and to cause its agents, employees and subcontractors to comply, with all applicable requirements of each and every Law pertaining to DHB's activities in connection with this Agreement. O. Promotional Activities: DHB and the City shall work together during the term of this Agreement to publicize and make public disclosure of the details of the Service and the availability of the Services to Users. Any such disclosure shall be jointly approved by the Parties and be of a nature and format that is mutually beneficial to both. Additionally, DHB acknowledges and hereby agrees, due to the unique nature of the City's needs in regards to any public disclosure and/or announcement of terms of this Agreement or the details or content of the Service to be provided, that the City has the right to unilaterally cancel or withdraw any promotional material or public disclosure/marketing material of either Party regarding the details of the Service if the City finds for any reason to be unacceptable or problematic. P. Waiver of Claims. DHB waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Equipment or any loss or degradation of the Service as a result of any event or occurrence. Q. Nonexclusive Agreement. DHB understands that this Agreement does not provide DHB with exclusive use of the Municipal Right of Way or any Municipal Facility and that City shall have the right to permit other providers of communications services to install equipment or devices in the Municipal Right of Way and on Municipal Facilities. R. Equal O~portunitY/Affirmative Action. DHB shall not discriminate against any employee or applicant for employment because of race, color, religion, sex ancestry, national origin, place of birth, age, marital status, or handicap with respect to employment, upgrading, demotion, transfer, recruitment or recruitment advertising, lay-off determination, rates of pay, or other forms of compensation, or selection for training, including apprenticeship. It is expressly agreed and understood that Section 33.09 of the Codified Ordinances of the City of Dublin constitutes a material condition of the Agreement as fully as if specifically rewritten herein and that failure to comply therewith shall constitute a breach thereof entitling the City to immediately terminate this Agreement. (H0652881_I ~ 11 IN WITNESS WHEREOF, the City and DHB, each by a duly authorized representative, have executed this Agreement as of the day and date first set forth above. WITNESSED BY: DHB NETWORKS LTD. Bv: David Haimbaugh, President WITNESSED BY: CITY OF DUBLIN, OHIO APPROVED AS TO FORM: Director of Law APPROVED BY THE DUBLIN CITY COUNCIL: 2006 (H0652881.1 City Manager 12 CITY OF DUBLIN, OHIO OPTICAL FIBER USE AGREEMENT THIS OPTICAL FIBER USE AGREEMENT (hereinafter referred to as the "Agreement") made and entered into as of the day of March, 2006, 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 DHB Networks Ltd., an Ohio limited liability corporation (hereinafter referred to as "User"), having an office at 4338 Bright Road, Dublin, Ohio 43016, 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, the Parties have entered into two agreements simultaneously with the execution of this Agreement, those Agreements being a License Agreement by and between the City of Dublin and DHB Networks Ltd. (hereinafter "License Agreement") and a Purchase Agreement for Wi-Fi Services and Virtual Private Network (hereinafter "Purchase Agreement"); 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, in connection with undertaking one or more projects for which the Owner will provide fibers in the Fiber System to User, the parties have agreed to enter into this Agreement which embodies the mutual covenants and agreements between the Parties hereto and for each such project; and WHEREAS, the Parties may in the future agree to enter into additional separate agreement(s) for additional and/or separate optical fiber uses which will incorporate the covenants and agreements of this Agreement and which will also set forth the terms and provisions unique to each additional or different specific project. `~~~~~~~~~~~' 1 of 17 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 meaning specified: a. Agreement: This Optical Fiber 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 Ninety-Six (96) 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 that is detailed in Exhibit A appended hereto. c. User System: The optical fiber strands, innerduct, conduit, building entrance facilities, Lateral, and associated appurtenances in the Fiber System, to be provided to User under the terms of this Agreement and the associated rights to access such fiber strands at demarcation points as specified and detailed on Exhibit B attached hereto. Exhibit B shall be amended from time to time as laterals and additions are built by Owner for use by User. 2. GRANT. 2.1 The Owner hereby grants to User an Indefeasible Right of Use (IRU) of the following Owner Fiber System components: a. Six (6) strands of fiber optic cable in Owners Fiber System. 3. TERM. 3.1 Unless sooner terminated in accordance with the terms of this Agreement, the term of this Agreement (hereinafter referred to as the "Term") shall commence on the date of this Agreement (hereinafter referred to as the "Commencement Date") and end on October 31, 2011. User may renew this IRU for an additional 5 year term with 90 days written notice to Owner. (H0652767.1 } 2, of 1 / 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 Owners Fiber System (the User System) as described herein, the User hereby agrees: a. To all of the terms and conditions for the License Agreement and the Purchase Agreement. b. That any failure of User to satisfy the terms and conditions of this Agreement, the License Agreement or the Purchase 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. 5. OWNERS 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 specifications provided in Agreement Exhibit C. 6. USER OBLIGATIONS. 6.1 User shall: a. When lateral connectivity is not provided by Owner pursuant to Exhibit B, 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 {HObs2~b~ ~ ~ 3 of 17 rearrangement of a ring or concentrator operation. Owner's management agent's current charges and application rules are identified in Exhibit D 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. 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 Userpursuant to the requirements of Section 8.1(a-c) below. 7. JOINT OBLIGATIONS. 7.1 The Owner and User jointly: a. Agree that within thirty (30) days of final execution of this Agreement the Parties will agree upon an Acceptance Plan for User's initial activation and the "go-live" of User's 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 C. 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 ~HO65z~6~ ~' 4 of 17 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 D 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. 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. The costs and expenses associated with such Emergency Maintenance shall be apportioned between Owner and User in percentages equal to their respective interests of control (based on the terms of this Agreement) over the portions of the User System and/or Fiber System requiring such Emergency Maintenance. The Owner will have such Emergency Maintenance performed on a time-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. 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, SH0652767.1 Sof17 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 a 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 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 jursidictional 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. Users indemnity requirements herein shall also specifically include all claims of intellectual property, copyright or trademark infringement made by third parties against Owner. {HObsz~b, ~ } 6 of 17 10.2 User shall, where lawful, be required as a condition of this Agreement to make Columbus Fibernet, LLC, 1810 Arlingate Lane, Columbus, Ohio 43228, an Ohio limited liability company ("Fibernet") a third party beneficiary of such this Agreement for the limited purpose of User providing Seller specific indemnification as follows: User shall and indemnify, protect, and defend Fibernet against, and hold Fibernet harmless from, any claims, losses, damages, costs or expenses including, without limitation, reasonable attorneys' fees, asserted against, incurred, or suffered by Fibernet resulting from any personal injury or property damage occurring in, on, or about the Fiber System or relating thereto from any cause whatsoever caused by User other than as a consequence of the acts or omissions of Fibernet, its agents, employees, or contractors. 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: 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. 1H0652767.1 f 7 of 17 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 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 {H°~5z'6' ~' 8 of 17 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 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. 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. {H0652767.1) 9 of 1 / 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 to: DHB Networks Ltd. 4338 Bright Road Dublin, Ohio 43016 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: Law Director City of Dublin, Ohio 5200 Emerald Parkway Dublin, OH 43017-1006 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. RH0652767.1 f 10 of 17 21. COMPLIANCE WITH LAW. Each Party hereto agrees that it will perform its respective rights and obligations hereunder in accordance with all applicable laws, rules and regulations. 22. GOVERNING LAW AND VENUE. This Agreement shall be interpreted in accordance with the Charter and Codified Ordinances of the City of Dublin, as amended, the laws of the State of Ohio, and all applicable federal laws, rules and regulations as if this Agreement were executed and performed wholly within the State of Ohio. No conflict of law provisions shall be invoked so as to use the laws of any other jurisdiction. The exclusive venue for all cases or disputes related to or arising out of this Agreement shall be the state and federal courts in Franklin County, Ohio 23. ENTIRE AGREEMENT. This Agreement, including any Exhibit attached hereto, all constitute the entire agreement between the parties with respect to the subject matter. This Agreement cannot be modified except in writing signed by both parties. SIGNATURE PAGE TO IMMEDIATELY FOLLOW `H0G527G7" 11 of 17 IN WITNESS HEREOF the parties have executed and delivered this Agreement effective the day and year first above written: USER: DHB Networks Ltd., an Ohio limited liability corporation. By: Its: OWNER: City of Dublin, Ohio, an Ohio municipal corporation. By: Jane Brautigam Its: City Manager Approved As To Form: Law Director, City of Dublin, Ohio. REST OF PAGE LEFT INTENTIONALLY BLANK ~HO65z~b~, s 12 of 17 Exhibit A OWNERS FIBER SYSTEM DESCRIPTION AND MAP 1 f; i ze ~~~'^'~°""' APPENDIX A~ 4 ~~ ~~e M7 /f ,' ~ ire ~ ~,. ,; p, coven P /"< >w ;, ~; ~' ~~ we.urvnle .. jl ' `_ ~ ~,~~. Streal Atles USA® 2D09 -- ~~ ~ Scat°;~:,~_ .~ __..._. ~ ~~~ a ~ O 4 ~ ~ 1' • 1.97 ne Dela Zoom 1 REST OF PAGE LEFT INTENTIONALLY BLANK ~~_~ 4J :' ~ff' i l4 ~~ L- - ~~ !~ to ~~ F ,~ ~~ tI 4 i9oofA ~ -`_` .__- 1_.. ~~ ®2003 DeLenm. SVM Mae USA® 200x. Tm ____ ~.___ ___ +nnP ~~p - --_ _ ; !/ A ~1n o! ,H0643193.?, 13 of 1~ Exhibit B USER SYSTEM DESCRIPTION AND MAP None at this time, will be amended as user laterals are built. REST OF PAGE LEFT INTENTIONALLY BLANK ~H065276ZI j 14 of 17 Exhibit C FIBER SYSTEM SPECIFICATIONS I. General The Owner shall install and maintain the User System within the Owner's Fiber System in accordance with the criteria and specifications that follows: II. Design Criteria The Owner will endeavor to keep the number of splices in a span to a minimum. III. Optical Fiber Specifications The Owner will meet the optical specifications as detailed below for the cable installed: A. Single Mode Fiber Parameter Specifications Units Maximum attenuation, 1310/1550 .35/.25 dB/Km Cladding diameter 125.0 um Cutoff wavelength 1150-1330 nm Zero dispersion wavelength 1300-1320 nm Maximum dispersion (2.6 - 6.0) .OS ps/ (nm-km) REST OF PAGE LEFT INTENTIONALLY BLANK ;HO~5z,6, ~ } 15 of 17 Exhibit D MAINTENANCE AND REPAIR Charges for Time and Material Service The Owner or Owner's agent may perform maintenance service at the rates established below, which rates are subject to change. Unless specifically authorized by the User, no Scheduled Maintenance will be performed outside of normal working hours, detailed below: Normal Working Hours: 8:00 a.m. to 5:00 p.m., Monday through Friday (Except Owner observed holiday). Expenses Incurred~er 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 Pro'ect Mana er 75.00 112.50 Professional En 'veer 65.00 97.50 Ri ht of Wa A ent 48.50 72.75 Supervisor 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 S licer 42.00 63.00 E ui ment Rates Hourl Rate Picku 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 ump 10.00 Generator 14.50 Cable cart 7.00 Manhole acka e 14.50 Fusions licin acka e 30.00 Charges will be made for travel time to the location where maintenance is to be performed. If maintenance carries over after 5:00 p.m., or maintenance is required on Saturday, Sunday, or { H0652767. I ~ 16 of 17 during holiday hours, charges will also be made for travel time from the said location. Charges will be for a minimum of one (1) hour for normal hours and for a minimum of two (2) hours for overtime holiday hours and special call out. All rates, charges, and holiday schedules are subject to change. REST OF PAGE LEFT INTENTIONALLY BLANK END OF AGREEMENT AND EXHIBITS ,HO~sz~b~ ~ } 17 of 17 PURCHASE AGREEMENT FOR WI-FI SERVICES AND VIRTUAL PRIVATE NETWORK BETWEEN DHB NETWORKS LTD. AND THE CITY OF DUBLIN, OHIO. (Dated , 2006) ~ H0652891.1 } WiFi -VIRTUAL PRIVATE NETWORK SERVICE AGREEMENT THIS SERVICE AGREEMENT and any attachments appended (all referred to as the "Agreement") are made and entered into by and between DHB NETWORKS LTD. ("DHB"), an Ohio limited liability corporation with a business address of 4338 Bright Road, Dublin, Ohio 43016 and THE CITY OF DUBLIN, OHIO ("CITY"), an Ohio municipal corporation with a business address of 5200 Emerald Parkway Dublin, Ohio 43017 on this , 2006 ("Effective Date"). I. Definitions 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. Operational Date: The Operational Date shall mean October 31, 2006. b. Service Level: The Service Level shall be as described in Appendix B, attached hereto. c. Fiber Use Agreement shall be as described in Appendix C. II. Sco e. WHEREAS, DHB agrees to abide by the terms of this Agreement as consideration for CITY's decision to have DHB provide Service to CITY; and NOW, THEREFORE, in consideration of the foregoing representations, agreements, mutual promises and covenants contained herein, it is agreed as follows: Documents Included. The following documents are incorporated into this Agreement: DHB Coverage Map, attached as Appendix A. DHB Service Level, attached as Appendix B. The City of Dublin Optical Fiber Use Agreement between the City of Dublin and DHB Networks Ltd. Should there by any conflicts or inconsistencies between this Agreement and any attached appendices, the terms and conditions of this Agreement shall prevail and control. {H0652891.1 } III. Term. This Service Agreement shall have an effective date when fully executed and shall have an initial term that shall expire five (5) years after the `Operational Date', except that the attached IRU shall be renewed for one additional 5 year term, as described in IRU. IV. Service. DHB's delivery of service will be made to the CITY no later than December 31, 2006. The service provided by DHB is described in Appendix B, attached V. Availability/Interruption/Service Standards. The Service Standards are described in Exhibit B. The Service Standards are a material covenant of this Agreement. VI. Payments/Default/Termination/ Liquidated Damages Payment. A) City shall pay DHB Two Hundred Sixty-One Thousand Dollars ($261,000.00) within thirty (30) days after receipt of an engineering report that is satisfactory in the sole opinion of the City. B) DHB shall bill the City Five Thousand One Hundred Forty-One Dollars and Sixty-Six Cents ($6,041.66) per month for the first two years of the Agreement, beginning on the Operational Date, for a total of One Hundred Forty-Five Thousand Dollars ($145,000.00). Default of CITY/Termination by DHB. If CITY fails to pay any undisputed amount owed to DHB or an affiliate of DHB's within ninety (90) days after the date of the invoice, or if CITY has undisputed amounts still owing to DHB from a prior account, or if CITY breaches any representation to DHB or fails to perform any of the promises CITY made in this Agreement, or if CITY is subject to any proceeding under the Bankruptcy Act or similar laws, CITY will be in default and after CITY receives at least twenty (20) days notice of any such suspension or termination, DHB may suspend Service and/or terminate this Agreement, in addition to all other remedies available. DHB may require reactivation charges to renew Service after termination or suspension. Upon termination, CITY is responsible for paying all undisputed amounts and charges owing under this Agreement. DHB may at any time during the Initial Term and/or any Extended Term terminate this Agreement and DHB's provision of Service and equipment (or any portion thereto) as follows: (a) immediately in the event the CITY fails to remit payment according to the terms of this Agreement; or (b) upon thirty (30) days prior written notice of a material breach, other than nonpayment. Default of DHB/Termination by CITY. If DHB shall file a voluntary petition of bankruptcy; or if proceedings in bankruptcy shall be instituted against it and it is thereafter adjudicated a bankruptcy pursuant to proceedings; or if a court shall take jurisdiction of DHB and its assets pursuant to proceedings brought under the provisions of {H0652891.1 } 2 any federal reorganization act; or if a receiver for DHB's assets is appointed by a court of competent jurisdiction; or if DHB shall be divested of its rights, powers and privileges under this Agreement by other operation of law; If DHB shall default in the performance of any material covenant required to be performed by it herein, and the failure of DHB to remedy such default, or to take prompt action to remedy such default, within a period of fifteen (15) days after receipt from the City of written notice to remedy the same; or if by reason of the nature of such default the same cannot be remedied within said fifteen (15) days, then the City shall have the right to terminate this Agreement if DHB shall have failed to commence the remedying of such default within said fifteen (15) days following such written demand, or having so commenced, shall fail thereafter to complete such remedy within thirty (30) days. Upon termination for any reason, CITY shall remit payment of all undisputed amounts and charges owing for Service and Equipment provided by DHB to CITY prior to date of termination. Default of DHB/Liquidated Damages. In the event DHB defaults and this Agreement is terminated, all DHB equipment utilized to provide the Service Level shall become the property of the CITY as liquidated damages. The Parties agree that the CITY will need to take possession of the DHB equipment for the purpose of providing essential governmental services and that this is the only way to adequately compensate the CITY for loss of the agreed upon Service Level. In the event of the CITY taking possession of the DHB equipment because of termination of DHB pursuant to this Agreement, DHB agrees it will sign all necessary documents to transfer ownership to the CITY. Additionally, DHB will sign all documents giving the CITY a security, interest in the equipment should the CITY so request. VII. Limitations. Indemnification and Warranties. Limitation of Liability. DHB'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 the credit for service interruption for each separate period of interruption as described in the Section on Service Interruption. However, in no event shall CITY be entitled to credits, if any, in excess of an amount equivalent to charges payable by CITY to DHB for Services under this Agreement for the period such failure, delay or nonperformance occur. INDEMINIFICATION. DHB SHALL INDEMNIFY, DEFEND, PROTECT AND HOLD HARMLESS THE CITY AND ITS RESPECTIVE ELECTED OFFICIALS, OFFICERS, EMPLOYEES, AGENTS, AND VOLUNTEERS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES AND EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES) (THE EXPENSES) ARISING IN WHOLE OR IN PART OUT OF ITS NEGLIGENCE OR WILFULL MISCONDUCT OR THAT OF ONE ITS EMPLOYEES OR AGENTS IN CONNECTION WITH THE RESPONSIBILITES CREATED BY THIS AGREEMENT OR A {H0652891.1 ) BREACH OF ANY TERM OR CONDITION OF THIS AGREEMENT, INCLUDING ANY EXPENSES RESULTING FROM ANY THIRD PARTY CLAIM FOR THE INTELLECTUAL PROPERTY INFRINGEMENT, OR A MISAPPROPRIATION OF, SUCH THIRD PARTY'S PROPRIETARY RIGHTS OF INTERESTS. THE FOREGOING INDEMNIFICATION SHALL BE CONTINGENT UPON THE CITY PROVIDING DHB WITH NOTICE OF RECEIPT OF ANY CLAIM RELATING TO THIS AGREEMENT OBLIGATION. ALLOWING DHB TO CONTROL THE DEFENSE, COMPROMISE, OR SETTLEMENT HEREOF AND PROVIDING REASONABLE COOPERATION TO DHB DEFENDING THE CLAIM TO THE EXENT IT DOES NOT MATERIALLY PREDJUDICE DHB' S RIGHTS OR INTERESTS, THE CITY' S FAILURE TO PROVIDE SUCH NOTICE SHALL NOT NEGATE DHB'S INDEMNIFICATION OBLIGATIONS. {H0652891.1 } 4 VIII. Limited Warranties. DHB warrants to the CITY as follows: Services. The Service shall be sufficient for its intended purposes and shall be operated in a workmanlike manner and in conformance with reasonable industry standards. Third Party Warranties. DHB agrees that no item supplied under this Agreement shall be excluded from full warranty coverage on the basis that it was not manufactured by DHB. Furthermore, the CITY shall have the benefit of any warranties for items manufactured by third parties to the extent such warranties are more extensive than those set forth herein. Conditions and Limitations. The warranties set forth herein shall not apply to the extent that the defect or malfunction is directly attributable to (i) misuse or abuse of the Service by CITY, or (ii) the installation, repair or alteration of the Equipment or Service by parties not authorized by DHB. IX. Disclaimer of Warranties -Service. DHB MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, NON-INFRINGEMENT OR PERFORMANCE WITH REGARD TO THE SERVICES PROVIDED HEREUNDER. X. Miscellaneous. 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. {H0652891.1 } S 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: To DHB: DHB Networks Ltd. 4338 Bright Road Dublin, Ohio 43016 And DHB Networks Ltd. 4338 Bright Road Dublin, Ohio 43016 Force Maieure. To CITY: City of Dublin. Attn: City Manager 5200 Emerald Parkway Dublin, OH 43017 City of Dublin Attn: IT Director/Peter Husenitza. 5200 Emerald Parkway Dublin, OH 43017 Notwithstanding anything else 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. Insurance. DHB shall maintain in force during the period of performance and warranty one or more policies of "per occurrence" liability insurance naming the CITY, its elected officials, officers, employees, agents and volunteers as additional insureds) and containing a requirement that the CITY be notified thirty (30) days in advance of any termination or diminution of coverage by the insurance carrier. All relevant terms and limits of said policies shall be subject to review and acceptance by the CITY's Director of Law. Current copies of certificates of insurance showing the essential elements of coverage for each policy required under this provision shall upon request be provided to the CITY's Director of Law. Without limiting the generality of the foregoing, DHB, while services are performed under this Agreement, shall at a minimum maintain insurance in the following types and amounts: (a) Standard workers' compensation as required by law; and (b) Comprehensive general liability insurance (occurrence form), including personal injury liability, broad form property damage, operations liability, contractual liability in the minimum amount of Two Million U.S. Dollars ($2,000,000.00); and (c) Automobile liability insurance insuring owned, non-owned, hired, leased, or borrowed automobiles in the minimum amount of One Million U.S. Dollars ($1,000,000.00); and (d) DHB {H065289L1 6 shall require that any designee or subcontractor maintain like insurance as listed in (a), (b), and (c) above. Lesser liability limits for subcontractors shall be submitted to the CITY for approval on a case by case basis. Public Safety Agency. The parties understand that the Service and Equipment to be provided hereunder are to be used by the CITY for the purposes of general public service and safety, police communications and criminal investigation. The information and data transmitted by the CITY over DHB system via the Service and Equipment provided may at times be highly sensitive, confidential or privileged. Due to the nature of CITY's usage, DHB shall be required to provide the CITY with prior written notice of any known monitoring or recordation of the substance of the CITY's usage of the system or the information carried thereon. DHB, unless otherwise required by law, agrees to protect any information it acquires in providing Service to the CITY with a level of care not less than the level of care DHB exercises over its own information that it considers highly sensitive, confidential or proprietary. Non-Appropriation. DHB recognizes that this Agreement is at all times subject to CITY's ability to lawfully appropriate the funds necessary to participate in this Agreement. Should the CITY be unable to lawfully appropriate the necessary funding required herein, this Agreement shall be terminated as of the date the CITY's funding expires without further obligation. Independent Contractors. In entering into and complying with this Agreement, DHB 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 DHB and CITY. No employee, agent, or representative of DHB shall be considered an employee, agent, or representative of the CITY. Taxes. CITY is a tax exempt entity and will provide evidence of such tax exemption to DHB upon request. On this basis, CITY claims exemption from sales and use taxes imposed by the United States and the State of Ohio with respect to the CITY's purchases of tangible personal property and selected services. 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. {aobsza9~ i } ~ Counterparts. This Agreement may be 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. 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. 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. Entire Agreement. This Agreement, together with the Appendix 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 DHB and CITY. 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. 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. 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. {H065289L1) g 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. Binding Effect. This Agreement will be binding upon and inure to the benefit of each party and their respective successors and assigns. CREST OF PAGE LEFT INTENTIONALLY BLANKI (H0652891.1 } IN WITNESS WHEREOF, the parties hereto have caused this Service Agreement to be duly executed as of the date first above written. CITY: City of Dublin, an Ohio Municipal Corporation. By: Print Name: Title Date APPROVED AS TO FORM: CITY OF DUBLIN LAW DIRECTOR DHB: DHB Networks Ltd. By: Print Name: Title: Date: (H0652891.1 } ~~ APPENDIX A ®° o~ >, °~~ m c a :~ m p7i!`tid`~pp ~. w N o ro ~ _? m ;y as ~.vaocoa ~n j /~° ~~ N O 9 '~ ~ - _ ~~ AVFRYgt) Ao _ ~gXR D '- 1f C:. n O war.~;x Fae W ~ ~ XbaltM i , `_ _ ~:~ ~: i ~ s ~~ a _ . r~ u ~ ~ ~ ~ ~ I 1 ~ ~ ,( 2 ~~. ° ; ° ~ rv DU9CINR0 ~ - :- ,1 O ~ rn e. o .l u ~~ - ,- ,~ ;~ ` oa Nnena - . -` „ a RIVERSIDE x _ ,~ ~ ; * - y ~ q ~, r.4~ ~ < m e ~ - - m ~ ° - ° ~! ~ ~ ~, ~ ~.. i ~ ~ < m n ~ ~ ~-Dublin -draft footprint map (d).map i o SAWMILL RD Received power at remote > -75.0 dBmW Z g ~~ -80.0 to -75.0 dBmW T ?- x J < -80.0 dBmW A ~ w isplay threshold level: -105.0 dBmW o ~ - rn " MILES ~' < ~ ` :~ ~' Z A o ~ ,,,,, ° v x g ~ -0.2 0 1 ~ ~ N 3 Dublin, OH - WiFi `target Footprint ~N ° n pa Moa. N Rough Draft Coverage Footprin! N O ~3 0 b rn ~- 11 APPENDIX B DHB SERVICE LEVEL DHB will provide City of Dublin and its Users access to the Services subject to conditions generally beyond the control of DHB, including, without limitation, the type and condition of the equipment (personal computer, PDA, etc.) of the City of Dublin and/or its Users. NETWORK AVAILABILITY: DHB guarantees that the Service will be available 99.5% as calculated on a calendar month basis. Service may be temporarily unavailable or curtailed due to planned equipment modifications, upgrades, relocations, repairs and similar activities necessary for the proper operation of the Services. Notification of planned outages will be provided to City of Dublin at least seven (7) days in advance. Planned outages are not included in the network availability calculation. If DHB does not achieve the guaranteed network availability level as calculated for a calendar month, DHB will credit the City, upon request, a credit equal to a pro- rata adjustment of the monthly service fee for the time period Service was unavailable, not to exceed the monthly access service fee. No Credit will be given for a Service interruption if evidence of the Service interruption was caused by: (a) City's negligent or willful actions, (b) the failure of Equipment, Software, or Services not provided or maintained by DHB, or (c) Force Maj eure. NETWORK LATENCY: DHB guarantees that when the network is available, the maximum network latency, calculated as the average round trip transmission delay is 150 milliseconds. Network latency measurements are derived from NTP requests sent between routers located within regional network hubs. If DHB does not achieve the guaranteed network latency level as calculated for a calendar month, DHB will credit the City, upon request, 10% of the monthly charge for the affected month. NETWORK PERFORMANCE: DHB will provide the CITY supply a bandwidth of 25% of overall network bandwidth on the wireless network. DHB will also guarantee performance ranging from 3mb to 20mb or above based on worst and best conditions. USER ACCESS: DHB will guarantee that all traffic for the City of Dublin is isolated and not routed outside of the dedicated network allocated for City traffic with a minimum of two (2) VLANs. This will include not having access to general Internet access. All traffic shall only have a route to city owned equipment controlled by the city. Also no other networks shall have access to the City's network for any reason without first getting written permission by the City of Dublin. DHB will not broadcast the S.S.I.D. of the City network and will set security features based on the City's requirements within the ability of equipment used. This may include but is not limited to WEP, Digital Certificates, Mac address Authentication, LEAP, Mac address filtering. RESPONSIBILITY: DHB will not be liable for network service(s) that are past or behind said and noted termination and demarcation. The said "Hand off' demarcation will be determined by DHB and {H06S2891. ~ , I Z agreed upon by City of Dublin. DHB will not be liable for loss of Intellectual Property, Hardware, or any other loss of properties beyond the point of demarcation. RESPONSE TIMES: If a piece of DHB equipment fails, DHB will give an initial report of corrective actions to the CITY within 4 hours. The equipment will be repaired or replaced within 2 business days, unless circumstances beyond the control of DHB have occurred, such as being denied access to equipment locations. A support line phone number will be provided to the city for 24/7 support calls. DHB will return calls within 4 hours. CREDITS: The CITY will provide DHB written request for credits. However, in no event shall CITY be entitled to credits, if any, in excess of an amount equivalent to the monthly charges payable by CITY to DHB for Services under this Agreement. LIMITATION OF LIABILITY: For purposes of this Section, the term "DHB" shall include subcontractors of DHB. DHB shall not be liable for interruptions caused by failure of equipment or services not provided by DHB, failure of communications, power outages, atmospheric conditions or other interruptions not within the reasonable control of DHB, except to the extent that DHB acts in a commercially unreasonable manner, or performance deficiencies caused by or contributed to by the City of Dublin, or any of its Users and/or their equipment or network. DHB shall not be liable for any claim by or against Subscriber or any of its Users arising out of or related to (i) alteration, theft or destruction of any computer programs, information, data files, procedures or other property of Subscriber or any of its Users; (ii) any losses or damages Subscriber or any of its Users may suffer in connection with the use or inability to use the Services; or (iii) any data, materials or other information transmitted to or received by Subscriber or any of its Users, or the intended recipient of Subscriber or any of its Users that are lost or improperly intercepted via the Internet. DHB shall not be liable if changes in operation, procedures, or services require modification or alteration of the equipment or network of Subscriber or any of its Users, which renders the same obsolete or otherwise adversely affects its performance. CREST OF PAGE LEFT INTENTIONALLY BLANKI {xo6szs9~.~ } 13 APPENDIX C The City of Dublin Optical Fiber Use Agreement between the City of Dublin and DHB Networks Ltd. (REST OF PAGE LEFT INTENTIONALLY BLANKI {xobsza9t.i S 14