Resolution 10-11RECORD OF RESOLUTIONS
Dayton Legal Blank, $no. Form No 30045
10 -11
Passed 20
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO AN OPTICAL FIBER LEASE AGREEMENT
WITH MERCURY FIBER AND THE ABILITY TO LEASE
A TOTAL OF 18 (9 PAIR) OPTICAL FIBERS
Resolution No.
WHEREAS, the City of Dublin has adopted certain telecommunication - related goals,
including compliance with the Telecommunications Act of 1996; facilitating the rapid
deployment of bandwidth and associated services /technologies: and enhancing
economic development; and
WHEREAS, the City of Dublin has determined that available bandwidth is a critical
infrastructure necessary to meet these goals; and
WHEREAS, the City of Dublin owns and manages its own underground optical fiber
system, which provides access to bandwidth and consists of at least 96 dark optical
fibers over a 120 - mile route; and
WHEREAS, the City of Dublin promotes the access to its bandwidth for institutional
use; point -to -point connectivity; and for purposes that promote economic
development; and
WHEREAS, the City of Dublin desires to make certain of its own dark optical fiber
available for leasing; and
WHEREAS, leasing certain dark optical fiber would result in creating non -tax
revenues for the City of Dublin; and
WHEREAS, it is necessary to respond quickly to market conditions and demands
when leasing opportunities arise; and
WHEREAS, it is necessary for the City to enter into 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 12 (6 pair) of the City's 96 (48 pair)
fibers.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin,
State of Ohio, _aof the elected members concurring, that:
Section 1. The City Manager is hereby authorized to make available for the purpose
of leasing 18 (9 pair) of the City's 96 (48 pair) 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.
b. 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 Agreement(s) and other necessary ancillary agreements consistent with this
RECORD OF RESOLUTIONS
Inc- Fmm No. 30065
Resolution No.
10 -11
Page 2 of 2
Passed 20
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 and be in force upon passage in
accordance with Section 4.04(a) of the Revised Charter.
Passed this lq day of / [/ I QI/ (.lti/ 2011.
O fficer residing
I:ilYll"s
Clerk of Council
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 -410 -4400 • Fax: 614 -410 -4490
To: Members of Dublin City Council
From: Marsha Grigsby, City Manager t`ra
Date: March 10, 2011
Memo
Initiated By: Dana L. McDaniel, Deputy City Manager /Director of Economic Development
Re: Resolution 10 -11 -Dark Fiber Lease Agreement with Mercury Fiber
Summary
Resolution 10 -11 authorizes the City Manager to enter into an Agreement (Enclosure 1) for the
purpose of leasing dark optical fibers to Mercury Fiber. In 2009, Council authorized staff to lease up
to 12 (6 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. The
lease rate proposed is 53,000 per month as previously authorized by City Council. To date, the City
has leased 10 (5 pair) optical fibers of the 12 (6 pair) authorized. Mercury Fiber desires to lease 2
pair. Leasing these 2 pair will bring the total fibers leased to 14 (7 pair), exceeding Council's
previous limitation of 12 (6 pair) fibers. Therefore, passage of Resolution 10 -11 is necessary to
allow Mercury Fiber to lease 2 pair of optical fibers. Additionally, staff anticipates a future opportunity
to lease one pair of fiber for a total of 18 (9 pair) fibers. This Resolution will also permit that transaction.
The following table summarizes the leases to date and shows the additional revenues to be earned with
passage of Resolution 10 -11:
Lessee
Optical
fiber pairs
Lease rate per
pair per month
Total revenue
per pair per year
Length
of Term
Total Revenue
per Term
Leases to date
Scherer
1
$6,000
$72,000
5 yr
$360,000
US Signal
2
$3,000
$72,000
10 yr
$720,000
Expedient
2
$3,000
$72,000
10 yr
$720,000
Subtotal
5
Total
Annually
$216,000
Total
Term
$1,800,000
Resolution 10 -11
Mercury
2
$3,000
$72,000
10 yr
$720,000
Total Pair
7
Total
Annually
$288,000
Total
Term
$2,520,000
Additional User
Proposed
2
$3,000
$72,000
10 yr
$720,000
Total Pair
9
Total
Annually
$360,000
Total
Term
$3,240,000
Memo re. Resolution 10 -11 - Dark Fiber Lease Agreement with Mercury Fiber
March 10, 2011
Page 2 of 2
Staff has employed a consultant to help identify and attract potential lessees to the City. 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 four percent commission on the executed lease. Funding was not
programmed in the 2011 operating budget for the consultant fees. An appropriations ordinance
will be brought forward at a later date for any necessary adjustments.
Staff is currently evaluating the possibility of electronics to connect to the City's optical fiber
known as dense wave multi - plexing (DWDM). DWDM technology allows a single pair of fiber
to be split into multiple "light waves." This can exponentially increase the capacity of a single
pair of fiber and allow multiple users to use the same fiber. The net result would be to continue
offering fiber for economic development purposes, offer multiple leases over a single pair of
fiber, increase revenues exponentially over the same infrastructure and still have significant
capacity and flexibility with the remaining dark fibers. Staff will update Council on the results of
the evaluation of DWDM technology.
The City of Dublin possesses 96 (48 pair) optical fibers within its Dublink conduit system. The
following shows the amount of optical fiber owned by the City and its current allocation:
City Owned Fiber
96 (48 pair)
User
36 (18 pair)
City of Dublin
4 (2 pair)
Central Ohio Research Network
4 (2 pair)
Battelle
4(2 pair)
Ohio Health
6 (3 pair)
High Speed Air/Wifi
18 (9 pair)
Used for sublease
24 (12 pair)
Unallocated — reserve for economic
development or as maintenance fiber
As a result of using its own broadband systems, the City has realized a savings of $426,000 per
year and projects a cost savings of $450,000 in 2011. Over the past ten (10) years, the City has
by far recovered its initial investments in both the optical fiber and wifi systems -- even with the
City's costs and overhead to run its own system. This does not take into consideration the job
attraction, value added service and national and international recognition the City has received
for building this infrastructure. Subleasing optical fiber, as recommended herein, will potentially
earn the City at least $3.2 million of non -tax revenues and recover the costs of the system a
second time.
Recommendation
Staff recommends Council approval of Resolution 10 -11 at the March 14, 2011 Council meeting.
Please contact Dana McDaniel with any questions you may have. Thank you.
Enclosure 1
CITY OF DUBLIN, OHIO
DARK FIBER LEASE AGREEMENT
THIS DARK FIBER LEASE AGREEMENT is made and entered into as of the day
of , 2011, between the City of Dublin, Ohio, an Ohio municipal corporation
(hereinafter referred to as the "Owner "), having an office at 5200 Emerald Parkway, Dublin,
Ohio 43017 -1006, and Mercury Fiber, with an office located at 1343 Belmont Avenue
Youngstown, Ohio 44504 (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 (defined herein 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 access to such fibers for the purpose of
providing telecommunications, video, data, and/or information services; and
WHEREAS, in connection with the grant to User for access 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:
1. DEFINITIONS
The following terms, whether in the singular or in the plural, when used in this
Agreement and initially capitalized, shall have the meaning specified:
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a. Agreement: This Dark Fiber Lease Agreement between Owner and User which
identify the specific optical fiber strands and facilities to be as provided to User
by Owner and which set forth the associated fees /compensation, terms and
conditions for User's use of such optical fiber strands and facilities.
b. Fiber System: The optical fiber strands, innerduct, conduit, building entrance
facilities, associated appurtenances, and capacity owned by 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.
Owner hereby grants to User access to two (2) pairs of fiber optic cable (total of four (4)
strands) in the Fiber System. User shall work with Owner to define connections to
facilities within the Fiber System.
3. TERM.
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
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 Six Thousand Dollars ($6,000.00) per
month.
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. OWNERS OBLIGATIONS
5.1 Owner shall:
a. Provide the User System for User's use in accordance with the terms of this
Agreement.
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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.
C. Maintain the User System to User's specifications and according to the terms,
herein.
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 the 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 distribution segment,
rearrangement of existing service connections, and rearrangement of a ring or
concentrator operation. Owner's management agent's current charges and
application rules are identified in Exhibit C attached hereto.
d. User agrees that it shall not sublease or subdivide its rights granted herein 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.
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
Owner and User jointly 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,
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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. All service affecting maintenance shall be
conducted during a maintenance window during the hours of 12:00 AM to 6:00 AM local
time.
a. Regular Maintenance: Owner may from time to time undertake and provide for
Regular Maintenance activities in an attempt to keep the Fiber 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.
b. Scheduled Maintenance: Owner from time to time may schedule and perform
specific periodic maintenance to protect the integrity of the Fiber System and
perform changes or modifications to the Fiber System 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 shall provide an
estimate of the price and timing of such Scheduled Maintenance. Following
User's acceptance of such estimate, Owner shall schedule and have such
Scheduled Maintenance performed. Owner shall have such Scheduled
Maintenance performed on a time - and - materials basis at the standard rates in then
effect at the time services are performed. Rates in effect will be those identified in
Exhibit C with the understanding that such rates are subject to change at any time.
Owner shall provide ten (10) days notice if service shall be affected by
Maintenance.
C. Emergency Maintenance: Owner may undertake and provide for Emergency
Maintenance and repair activities for its fibers and connection to the Fiber
System. Where necessary, Owner shall attempt to respond to any failure,
interruption or impairment in the operation of the Fiber System within four (4)
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 User's fiber and connection
when reported by User in accordance with the procedures set forth in this
Agreement within eight (8) hours of detecting a failure, interruption or
impairment. User shall be responsible for its prorata share of the costs and
expenses associated with such Emergency Maintenance. Owner shall 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.
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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 previously 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, as well as the above referenced Lease Agreement
should Owner discontinue maintenance and/or repair of the User System.
8.3 In the event that any failure, interruption or impairment adversely affects the
Fiber System, restoration of User's fibers shall at all times be subordinate to restoration of
the 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 User's fibers, Owner may, following written request, permit User
to make repairs to restore its connection 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 User's fibers shall first be approved by Owner to work on the Fiber System.
Currently, Columbus Fibemet, LLC is the only company authorized to perform such
repair or maintenance work on the Fiber 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 its fibers, User shall have an Owner employee or representative available
to assist User in any repair.
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 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's fibers 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 User's fibers are
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located. User represents and warrants that it shall operate on the Fiber System and the
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. I NDEMNIFICATION .
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.
10.2 To the extent permissible under Ohio law, Owner agrees to protect, indemnify,
defend, and hold harmless User 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.
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:
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City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 43017 -1006
11.4 Such insurance shall not limit or qualify the obligations 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 of any claim arising out of the performance of the terms of the
Agreement, 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 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.
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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.
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
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 ").
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14.
15.
16.
17,
18.
19.
ASSIGNMENT
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.
WAIVER OF TERMS OR CONSENT TO BREACH
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.
RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY
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.
NO THIRD -PARTY BENEFICIARIES
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.
EFFECT OF SECTION HEADINGS
Section headings appearing in this Agreement are inserted for convenience only and shall
not be construed as interpretations of text.
NOTICES
19.1 Any written notice under this Agreement shall be deemed properly given if sent
by registered or certified mail, postage prepaid, or by nationally recognized overnight
delivery service or by facsimile to the address specified below, unless otherwise provided
for in this Agreement:
If to User to:
Mercury Fiber
1343 Belmont Avenue
Youngstown, Ohio 44504
If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017 -1006
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With a Copy to: With a Copy to:
Mr. Gregory Dunn
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
19.2 Either Party may, by written notice to the other Party, change the name or address
of the person to receive notices pursuant to this Agreement.
20. SEVERABILITY
In the event any term, covenant or condition of this Agreement, or the application of such
term, covenant or condition, shall be held invalid as to any person or circumstance by any
court having jurisdiction, all other terms, covenants and conditions of this Agreement and
their application shall not be affected thereby, but shall remain in force and effect unless
a court holds that the invalid term, covenant or condition is not separable from all other
terms, covenants and conditions of this Agreement.
21. COMPLIANCE WITH LAW
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.
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IN WITNESS WHEREOF the parties have executed and delivered this Agreement
effective the day and year first above written:
Approved As To Form:
Law Director, City of Dublin, Ohio.
USER:
Mercury Fiber
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Marsha I. Grigsby
Its: City Manager
REST OF PAGE LEFT INTENTIONALLY BLANK
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Exhibit A
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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 Specifications
Maximum attenuation, 1310/1550
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion (2.6 — 6.0)
.35/.25
125.0
1150 -1330
1300 -1320
.05
Units
dB /Km
um
nm
nm
ps/ ( =
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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
8:00 a.m. to 5:00 p.m.,
Monday through Friday
(Except Owner observed holiday).
Expenses Incurred per call out:
Overtime Hours
5:01 p.m. to 7:59 a.m., Saturday, Sunday,
and all Owner observed holidays.
Labor Rates
Hourly Rate
Overtime Rate
Project Manager
75.00
112.50
Professional Engineer
65.00
97.50
Right of Way Agent
48.50
72.75
Supervisor
47.70
71.55
Foreman
36.90
55.35
Operator
31.50
47.25
Truck Driver
26.00
39.00
Laborer
21.70
32.55
Fiber Splicer
42.00
63.00
Equipment Rates
Hourly Rate
Pickup
16.00
1- ton /flat bed
17.60
2 -ton dump
24.00
Trailer
16.50
Rubber tired backhoe
36.20
Rodding machine
21.75
Winch truck
21.75
Air compressor
16.00
Light plant
17.45
Arrow board
9.00
2" water pump
10.00
Generator
14.50
Cable cart
7.00
Manhole package
14.50
Fusionsplicing package
1 30.00
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