HomeMy WebLinkAboutResolution 028-16RECORD OF RESOLUTIONS
Rawlutian Nu.
28 -16
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE INDEFEASIBLE RIGHT TO USE AGREEMENTS
FOR THE PURPOSE OF LEASING DARK FIBER NOT TO
EXCEED A TOTAL NUMBER OF 15 LEASED PAIRS
WHEREAS, the City of Dublin has adopted certain telecommuniation- related goals, including
compliance with the Telecommunications Act of 1996, facilitating the rapid deployment of
bandwidth and associated services /technologles and enhancing economic development; and
WHEREAS, the City of Dublin has determined that available bandwidth is a critical
infrastructure necessary to meet these goals; and
WHEREAS, the City of Dublin owns and manages its own underground optical fiber system,
which provides access to bandwidth and consists of at least 96 dark optical fibers over a 120+/ -
mile route; and
WHEREAS, the City of Dublin promotes the access to Its bandwidth for institutional use; point-
to -point connectivity; and for purposes that promote economic development; and
WHEREAS, the City of Dublin desires to make certain of its own dark/unused optical fiber
available for leasing; and
WHEREAS, leasing certain dark optical fiber would result in creating non -tax revenues for the
City of Dublin; and
WHEREAS, It is necessary to respond quickly to market conditions and demands when leasing
opportunities arise; and
WHEREAS, it is necessary for the City to enter into certain Indefeasible Right of Use
Agreement(s) when leasing dark optical fiber(s); and
WHEREAS, City Council has previously authorized the City Manager to enter into Indefeasible
Right of Use Agreements for up to 18 (9 pair) of the City's 96 (48 pair) fibers.
NOW, TOPREFORE, BE IT RESOLVED by the City Council of the City of Dublin, State of
Ohio, T/ of the elected members concurring:
Section 1. The City Manager is hereby authorized to make available for the purpose of
leasing 30 (15 pair) of the City's optical fibers.
Section 2. The City Manager is hereby authorized to lease said pairs of dark optical fiber via
an Indefeasible Right of Use (IRU) Agreement in accordance with the following:
a. Lease shall be no less than $3,000 per month for one pair of dark optical fiber.
J. The City Manager shall strive to maximize the per month lease rate set forth in Section
2(a) above, whenever possible.
c. The City Manager shall first seek Council's authorization to lease fiber at any monthly
rate less than that set forth in Section 2(a) above.
d. The term for said lease shall be no less than three (3) years.
Section 3. The City Manager is hereby authorized to enter Into Indefeasible Right of Use
Agreements) and other necessary ancillary agreements consistent with this Resolution with
lessee(s) approved by the City Manager and In the form and manner presented to and
approved by Dublin City Council via this Resolution.
Section 4. This Resolution shall take effect upon passage in accordance with Section
4.04(a) of the Revised CI drter.
this
ATTEST:
Clerk of Council
Ciryof Dublin
Office of the City Manager
520q Emerald Parkway o Dublin, pN 43817 -1890
Phone: 614- 410-4400 s Fax 614- 410-4490
Ta; Members of Dublin City Council
From Dana l McDaniel, Ciiy Mana
Dates May S, 2816
Initiated Bye Doug McCollough, Chief Information Officer
Rey Resolution 28.16 — Dark Fiber lease
Summary
Resolution 28 -16 authorizes the City Manager to enter into an Agreement (Enclosure 1) for the
purpose of leasing dark optical fibers considered to be extra capacity within the City's Dublink
optical fiber system, In 2811, Council authorized staff to lease up to 18 (9 pair) of the City's
Dublink optical fibers. Council authorized these leases for the purpose of earning revenues from
"dark fibers" not anticipated to be put into use for the foreseeable future. To date, the City has
leased 10 (5 pair) to private companies and 2 (1 pair) to Washington Township at a reduced rate
for a total of 12 (6 pair) of optical fibers of the 18 (9 pair) authorized. The City has recently
received requests from four private companies to lease 10 (5 pair) of optical fiber, Staff believes
the 100 gigabit project and Dublin's presence in various data centers are driving the interest in
more fiber. Staff requests Council increase the total number of pairs available for leasing from 18
(9 pair) of fibers to 30 (15 pair) of fibers. The lease rate proposed is $3,000 per month as
previously authorized by City Council The following table summarizes the leases to date and
shows the additional revenues that could potentially be earned;
Lessee
Optical
Lease rate per
Total revenue�ILength
of Total Revenue
I
fiber pairs
pair per manth
per pair per ye I
Term per Term
�
j
�
Jti'r Qptlan ��
_��
�
I
E ?xpedient
i x'3,000
$12,000
� 10 yr $720,000
Total fairs
_ G ��
Total �
X201,00(1 ���
Total X2,4 „0
��_������
Annually
Term i
�
Addi�'tional Allocation
Future leases
Total hairs
� 4
I:+
� �3,QOU
Total_ �
�i44,000 �
i $`r2�,000 ._._ -._I
l0yr _ �1,�440,000
Natal �! $S,2fi0,000
�_��
fraud Total
� '5,418 X00
Memo re, Resolution 28 -16 — Dark Fiber leasing
May S, 2016
Page 2 of 2
As in the past, staff has retained a consultant to help identify and attract potential lessees to the
City, Not every lease involves the consultant, The City will pay the consultant $15,000 per pair of
optical fibers leased at $3,000 per month with a 10 -year term, This is equal to a 4 percent
commission an the executed lease, Funding currently exists in the budget for the consultant fees,
and an appropriations ordinance will be brought forward at a later date far any necessary
adjustments,
The Co of Dublin possesses 96 optical fiber (48 pair) throughout the Dublink fiber optic system,
The City possessed more fiber in certain parts of the system. Overall, should Resolution 28 -16 be
passed, the allocation of the City's fiber optic system will look tike the following;
Totals
Allocated
� Actual Usage
Unallocated
Strands
Pairs
Strands
Pairs
Strands
Pairs
Leases
i �0
15
22
11
s
4
City Use
� 80
15
j z2
11
� 8
4
Recommendation
Staff recommends Council approve Resolution 28 -16, potentially earning the City approximately
$5,4 million, Staff will monitor the ongoing availability of its optica! fiber capacity and will make
recommendations to Council as necessary to ensure this resource is not depleted,
Please contact Daug McCollough at 410.441 with any questions,
CITY OF DUBLIN, OHIO
INDEFEASIBLE RIGHT -TO -USE AGREEMENT
THIS INDEFEASABLE RIGHT -TO -USE AGREEMENT is made and entered
into as of the day of May, 2016, 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
(hereinafter referred to as "User "), Owner and User referred to individually as 'Party"
and collectively as 'Parties."
WITNESSETH:
WHEREAS, 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, 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 to 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,
Owner is willing to allow User to use certain other property owned by Owner, including,
but not limited to, innerduct, conduit, building entrance facilities and associated
appurtenances; and
WHEREAS, User has obtained any and all permits or approvals required to
engage in its intended purpose and for the use and occupancy of space in the Rights of
Way and further agrees to adhere to any and all requirements of federal, state and local
laws, rules or regulations (specifically inclusive of, but not limited to, Chapter 98 of the
Codified Ordinances of the City of Dublin, Ohio); and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies
the mutual covenants and agreements between the Parties hereto; and
WHEREAS, the Parties may in the future agree to enter into additional separate
agreement(s) for additional and /or separate optical fiber uses which will incorporate the
covenants and agreements of this Agreement and which will also set forth the terms and
provisions unique to each additional or different specific project.
NOW, THEREFORE, pursuant to the terms of any Right of Way occupancy
requirement and /or Construction Permit required by Chapter 98 of the Codified
Ordinances of the City of Dublin, Ohio, for and in consideration of the mutual covenants
and agreements set forth in this Agreement, the Parties hereto do hereby agree as follows:
C0A5298893.1
1. DEFINITIONS.
1.1 The following terms, whether in the singular or in the plural, when used in
this Agreement and initially capitalized, shall have the meaning specified:
a. Agreement: This Indefeasible Right to Use Agreement between Owner and
User which identifies the specific optical fiber strands and facilities to be as
provided to User by Owner and which sets forth the associated
fees /compensation, terms and conditions for User's use of such optical fiber
strands and facilities.
b. Fiber System: The optical fiber strands, innerduct, conduit, building entrance
facilities, associated appurtenances, and capacity owned by Owner and
located throughout the Rights of Way of the City of Dublin, Ohio and the
greater Columbus, Ohio metropolitan area (a general depiction of which is
attached hereto as Exhibit "A ")
2. GRANT.
2.1 Owner hereby grants to User an IRU of the following Fiber System
components. Owner warrants that it has all rights necessary to make such a grant
to User.
a. Two (2) strands of fiber optic cable in the Fiber System (the "User System ").
User will work with Owner to define connections to facilities within the Fiber
System.
3. TERM.
3.1 Unless sooner terminated in accordance with the terms of this Agreement,
the term of this Agreement is for ten (10) years (hereinafter referred to as the
"Initial Term "). After the Initial Term, User shall have the right, in its sole
discretion, to renew this Agreement for an additional five (5) or ten (10) year
term, at the same pricing set forth in this Agreement. Such renewal shall be
memorialized in writing from User to Owner at least thirty (30) days prior to
termination of the Initial Term. In the event that User does not renew this
Agreement, this Agreement shall terminate. The entire duration this Agreement is
in full force and effect is referred to herein as the "Term ".
4. CONSIDERATION.
4.1 As consideration for, as inducement to, and as a required condition of
Owner granting User the specific rights to use portions of the Fiber System (the
"User System ") as described herein, User hereby agrees:
a. To compensate Owner in the amount of Three Thousand ($3,000) per month.
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b. That any failure of User to satisfy the terms and conditions of this Agreement
shall be considered a material breach of this Agreement and Owner may then
terminate this Agreement upon giving sixty (60) days written notice to User.
5. OWNER'S OBLIGATIONS.
5.1 Owner shall:
a. 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 Owner.
c. Maintain the User System to User's specifications.
6. USER OBLIGATIONS.
6.1 User shall:
a. When lateral connectivity is not provided by Owner, provide and pay for
lateral connectivity from necessary termination points of User's proprietary
fiber and equipment to the necessary demarcation points of Owner's Fiber
System. In this event User shall own the lateral.
b. Pay for any building or external network service connection and disconnection
charges for each building service added or deleted before, during or after the
initial establishment and cutover of a User System fiber segment. User shall
be responsible for any and all costs associated with lateral connectivity to the
Fiber System and shall pay for the costs of all splicing, distribution segment,
service connections, and any ring or concentrator operations.
c. Pay all necessary costs if User requires installation of a new distribution ring
or concentrator in an already established Fiber System or User System
distribution segment, rearrangement of existing service connections, and
rearrangement of a ring or concentrator operation. Owner's management
agent's current charges and application rules are identified in Exhibit C
attached hereto.
d. Agree that it shall not sublease or subdivide the User System unless otherwise
agreed to by Owner. User further agrees to continually meet the requirements
of this Agreement. In the event of any breach of the provisions contained in
this Section, Owner has the right to terminate this Agreement upon giving
thirty (30) days written notice to User.
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e. Agree to pay any and all maintenance costs as may be required to be paid by
User pursuant to the requirements of Section 8.1(a -c) below.
7. JOINT OBLIGATIONS.
7.1 Owner and User jointly:
a. Agree that within sixty (60) days of final execution of this Agreement the
Parties will agree upon an Acceptance Plan for User's initial activation and
the "go- live" of User's System.
b. Shall provide each other a twenty -four (24) hour a day, three hundred sixty -
five (365) days per year, coordination telephone number.
8. MAINTENANCE.
8.1 All maintenance and repair functions on the User System and all facilities
through which the User System passes, including, but not limited to, conduit,
innerduct, poles, and equipment, but specifically excluding all User owned and
controlled opto - electronics, shall be performed by or at the direction of 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 Owner in any
maintenance or repair of the User System. Owner shall maintain User System in
accordance with the technical specifications (hereinafter referred to as the
"Specifications ") attached hereto in Exhibit B.
a. Regular Maintenance: Owner may from time to time undertake and provide
for Regular Maintenance activities in an attempt to keep the Fiber System
and/or User System in good working order and repair so that it performs to a
standard equal to that which is then commonly believed to be acceptable for
systems of similar construction, location, use and type. Such Regular
Maintenance shall be performed at Owner's sole cost, and
b. Scheduled Maintenance: Owner from time to time may schedule and perform
specific periodic maintenance to protect the integrity of the Fiber System
and/or User System and perform changes or modifications to the Fiber System
and /or User System (including but not limited to fiber slicing, etc.) at User's
request. Such User requested Scheduled Maintenance shall be performed at
User's sole cost and expense. User may request such Scheduled Maintenance
by delivering to 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, Owner will provide an estimate of the price and
timing of such Scheduled Maintenance. Following User's acceptance of such
estimate, Owner will schedule and have such Scheduled Maintenance
performed. Owner will have such Scheduled Maintenance performed on a
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time - and - materials basis at the standard rates then in effect at the time services
are performed. Rates in effect will be those identified in Exhibit C with the
understanding that such rates are subject to change at any time.
c. Emergency Maintenance: Owner may undertake and provide for Emergency
Maintenance and repair activities for the Fiber System and /or User System.
Where necessary, 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.
Owner shall use its best efforts to perform maintenance and repair to correct
any failure, interruption or impairment in the operation of the User System
when reported by User in accordance with the procedures set forth in this
Agreement. User shall be responsible for the costs and expenses associated
with such Emergency Maintenance as it relates to User's actual use of the
User System and /or Fiber System requiring such Emergency Maintenance.
Owner will have such Emergency Maintenance performed on a time -and-
materials basis at the emergency maintenance rates then in effect at the time
services are performed
8.2 In the event Owner, or others acting in 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 previous Owner provided maintenance
and repair of the User System, at 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, Owner shall obtain for User, or others
acting in User's behalf, approval for adequate access to the Rights of Way in, on,
across, along or through which the User System is located, for the purpose of
permitting User, or others acting in User's behalf, to undertake such maintenance
and repair of the User System. As an alternate remedy, User may elect to
terminate this Agreement should Owner discontinue maintenance and /or repair of
the User System.
8.3 In the event any failure, interruption or impairment adversely affects both
Owner's Fiber System and User System, restoration of the User System shall at all
times be subordinate to restoration of 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 Owner is unable to provide timely repair service to the User
System, Owner may, following written request, permit User to make repairs to
restore the User System as long as such restoration efforts do not interfere with
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 Owner to work
on Owner's Fiber System. Currently, Columbus Fibemet, LLC is the only
company authorized to perform such repair or maintenance work on the Fiber
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System, although Owner may authorize other entities to perform such work on the
Fiber System from time to time. Prior to User's undertaking Emergency
Maintenance or entering an Owner's facility for repair, User shall first notify
Owner of the contemplated action and receive Owner's concurrence decision, a
decision that 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 User in any repair of the User System.
9. USE OF 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 of this Agreement to provide telecommunications,
video, data, and /or information services within the State of Ohio, the City of
Dublin, Ohio and in such other jurisdictions as the User System may exist, and
that such services can be provided on the Fiber optic cable systems such as the
Fiber System owned and operated by Owner.
9.3 User understands and acknowledges that its use of the Fiber System and
the 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 the User System are located. User represents and
warrants that it shall operate on the Fiber System and the User System subject to,
and in accordance with, all laws, rules and regulations and shall secure all
permits, approvals, and authorizations from all such jurisdictional entities as may
be necessary.
10. INDEMNIFICATION.
10.1 User undertakes and agrees to protect, indemnify, defend, and hold
harmless 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 User, or User's officers, agents, employees, or
subcontractors, except for the active negligence or willful misconduct of Owner,
and its elected officials, officers, employees, agents and volunteers. User's
indemnity requirements herein shall also specifically include all claims of
intellectual property, copyright or trademark infringement made by third parties
against Owner.
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11. INSURANCE.
11.1 During the Term of this Agreement, unless otherwise agreed to in writing
by the authorized representatives, User shall at its own expense, maintain in
effect, insurance coverage with limits not less than those set forth herein.
11.2 User shall furnish Owner's authorized representative within thirty (30)
days after the Commencement Date of the Agreement with insurance
endorsements acceptable to Owner's Director of Law. The endorsements shall be
evidence that the policies providing coverage and limits of insurance are in full
force and effect. Such insurance shall be maintained by User at User's sole cost
and expense.
11.3 User endorsements shall name 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 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 User assumed
under the Agreement. 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 Owner,
which may be applicable, shall be deemed to be excess insurance and User's
insurance is primary for all purposes despite any conflicting provision in 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 User to maintain such insurance, or to provide such
endorsements to Owner when due, shall be an event of default under the
provisions of this Agreement.
11.8 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
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death); and broad form property damage. Such coverage shall provide coverage
for total limits actually arranged by 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
Owner's Director of Law.
11.9 User shall provide Workers' Compensation insurance covering all of
User's employees in accordance with the laws of the state of Ohio.
11.10 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 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
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 Owner, 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, Owner shall not be in
default under this Agreement or in breach of any provision hereof unless and until
User shall have given Owner written notice of such breach and 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 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 Owner to timely cure any such breach after notice thereof from User,
User shall have the right to take such action as it may determine, in its sole
discretion, to be necessary to cure the breach or terminate this Agreement or
pursue other remedies as may be provided at law or in equity.
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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 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. Said consent shall not be unreasonably withheld.
15. WAIVER OF TERMS OR CONSENT TO BREACH.
15.1 No term or provision of this Agreement shall be waived and no breach
excused, unless such waiver or consent shall be in writing and signed by a duly
authorized officer of the Party claimed to have waived or consented to such
breach. Any consent by either Party to, or waiver of, a breach by the other Party
shall not constitute a waiver of or consent to any subsequent or different breach of
this Agreement by the other Party, such failure to enforce shall not be considered
a consent to or a waiver of said breach or any subsequent breach for any purpose
whatsoever.
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16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY.
16.1 The relationship between User and 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 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 teat.
19. NOTICES.
19.1 Any written notice under this Agreement shall be deemed properly given
if sent by registered or certified mail, postage prepaid, or by nationally recognized
overnight delivery service or by facsimile to the address specified below, unless
otherwise provided for in this Agreement:
If to User: If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017 -1006
With a Copy to:
City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 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
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affected thereby, but shall remain in force and effect unless a court holds that the
invalid term, covenant or condition is not separable from all other terms,
covenants and conditions of this Agreement.
21. COMPLIANCE WITH LAW.
21.1 Each Party hereto agrees that it will perform its respective rights and
obligations hereunder in accordance with all applicable laws, rules and
regulations.
22. GOVERNING LAW AND VENUE.
22.1 This Agreement shall be interpreted in accordance with the Charter and
Codified Ordinances of the City of Dublin, as amended, the laws of the State of
Ohio, and all applicable federal laws, rules and regulations as if this Agreement
were executed and performed wholly within the State of Ohio. No conflict of law
provisions shall be invoked so as to use the laws of any other jurisdiction. The
exclusive venue for all cases or disputes related to or arising out of this
Agreement shall be the state and federal courts in Franklin County, Ohio
23. ENTIRE AGREEMENT.
23.1 This Agreement, including any Exhibit attached hereto, all constitute the
entire agreement between the parties with respect to the subject matter. This
Agreement cannot be modified except in writing signed by both parties.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS HEREOF the parties have executed and delivered this Agreement
effective the day and year first above written:
USER:
C
OWNER:
City of Dublin, Ohio
an Ohio municipal corporation.
By: Dana McDaniel
Its: Citv Manager
Approved As To Form:
Law Director, City of Dublin, Ohio.
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C0A5298893.1
Exhibit A
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:.,30 Fishinger Rd m J 9 I n
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Aolingor Rd
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"W Lord Ale
Record Rd! m
I
Arpok Dr
I Inc.
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172 �doiAd SmTn1R•.. "1d. Marble li W w E5ttl
M L a A
Grandview XtlgMd +°
Gbodale Rod
4 Mr Rd' F added S Vallearview Y eve Banner
7 gain A
Main s AD
Columbus
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CC352e8893.i
Exhibit B
FIBER SYSTEM SPECIFICATIONS
1. General
Owner shall install and maintain the User System within Owner's Fiber System in
accordance with the criteria and specifications that follows:
II. Design Criteria
Owner will endeavor to keep the number of splices in a span to a minimum.
III. Optical Fiber Specifications
Owner will meet the optical specifications as detailed below for the cable
installed:
A. Single Mode Fiber
Parameter
Units
Maximum attenuation, 1310/1550
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion (2.6 — 6.0)
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C0A5298893.1
Specifications
.35/.25 dB /Km
125.0
1150 -1330
1300 -1320
.05
um
nm
nm
ps/ (nm -km)
Exhibit C
MAINTENANCE AND REPAIR
Charges for Time and Material Service
Owner or Owner's agent may perform maintenance service at the rates established below,
which rates are subject to change. Unless specifically authorized by User, no Scheduled
Maintenance will be performed outside of normal working hours, detailed below:
Normal Working Hours: Overtime Hours:
8:00 a.m. to 5:00 p.m., 5:01 p.m. to 7:59 a.m., Saturday, Sunday,
Monday through Friday and all Owner observed holidays.
(Except Owner observed holiday).
Expenses Incurred per call out:
Labor Rates
New Hourly Rate
New OT Rate
Project Manager
$
102.52
$
158.71
Professional Engineer
$
88.86
$
137.55
Right of Way Agent
$
66.30
$
102.63
Supervisor
$
65.20
$
100.93
Foreman
$
50.44
$
78.08
Operator
$
42.99
$
66.54
Truck Driver
$
35.54
$
55.02
Laborer
$
29.67
$
45.93
RCDD
$
125.00
$
-
Equipment Rates
New Hourly Rate
Pick Up
$
16.89
1 -Ton
$
18.24
2 -ton
$
20.95
Trailer
$
9.46
Rubber Tire Hoe
$
32.43
Rodder
$
29.39
Winch Truck
$
29.39
A/C
$
15.54
LightPlant
$
20.81
Arrow Board
$
12.16
2" water pump
$
6.76
Generator
$
6.76
Cable Cart
$
9.46
MH Package
$
19.60
Locatiin Crew Rate
Foreman $ 50.44
Truck $ 16.89
Total $ 67.32
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C0A5298893.1