09-06 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
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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.
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CITY OF DUBLIN, OHIO
LICENSE AGREEMENT
Dated , 2006
Between:
The City of Dublin, and
DHB Networks Ltd.
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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
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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.
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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.
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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,
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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
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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
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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
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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
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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
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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.
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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.
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~HO65z~b~, s 12 of 17
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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)
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;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.
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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
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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