69-06 OrdinanceRECORD OF ORDINANCES
Dayton Lega] Blank, Inc. Form No. 30043
Ordinance No. 6906 Passed
20
AUTHORIZING THE CITY MANAGER TO ENTER INTO AN
AGREEMENT 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 has entered into previous agreements with DHB
Networks in order to allow DHB to locate Wi-Fi infrastructure in the City right-
of-way and on certain City-owned municipal facilities in certain areas of the
City; and
WHEREAS, in furtherance of those agreements and to make the Wi-Fi System
more robust to serve Dublin better, DHB wishes to acquire additional fibers in
the City's DubLink infrastructure.
NOW, THEREFORE, BE IT ORDAINED by the Council, of the City of Dublin,
State of Ohio, ~ of the elected members concurring that:
Section 1. The City Manager is hereby authorized to enter into an
Agreement with Wireless Events, Inc., dba DHB Networks, attached hereto as
Exhitit "A", to provide DHB with an Optical Fiber Use Agreement to six (6)
fibers in the DubLink infrastructure and to execute all necessary documents.
Section 2. 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 continued rapid deployment of the Wi-Fi service to the
citizens of Dublin. Therefore, this ordinance shall go into immediate effect.
Passed this _L~ day of ~~~ ~-ei~ , 2006.
Mayor -Presiding Officer
ATTEST:
Clerk of Council
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.
Detafi Clerk of Council, Dublin, Ohio
MEMORANDUM
TO: Dublin City Council
Jane S. Brautigam, City Manager
FROM: Stephen J. Smith, Law Director
Gregory J. Dunn
RE: Ordinance #69-06 -Agreement with Wireless Events, Inc., dba DHB Networks,
and Declaring an Emergency
DATE: October 11, 2006
The City of Dublin previously entered into an agreement with DHB Network, Inc. for DHB to
provide Wi-Fi services for and in the City of Dublin. As part of the Wi-Fi agreement, the City of
Dublin authorized DHB to utilize six (6) of the "Dublink" fibers for the term of the DHB Wi-Fi
agreement.
DHB has utilized the six fibers for purposes of "backhauling" the Wi-Fi traffic. Backhauling, is
the term used to describe taking the Internet protocol traffic that is collected at each Wi-Fi access
point and delivering it to a central location at which point the traffic is sent on to the Internet.
DHB has elected, to the benefit of Dublin, to build more access points than initially planned.
This, in turn, requires more fiber connectivity for backhaul purposes. Therefore, the Law
Department believes it is in the best interest of Dublin to amend our agreement with DHB
Network by allowing them to utilize six additional fibers in the Dublink network.
In return for providing the additional fibers, we have included a concession from DHB and some
protection for the City of Dublin. The concession from DHB is that DHB has agreed to work
with Dublin to make Coffman Park and portions of the Dublin Historic District "hot zones"
where connection to the Internet will be free.
In addition to the concession, DHB's use of our fibers has been limited in the following manner:
1. The permission to use our fibers is granted for only three (3) years. This is to encourage
DHB to either obtain their own fiber connectivity or to utilize the six original fibers in a
more efficient manner by purchasing additional electronics to attach to the fiber.
2. In the event DHB obtains additional fibers, the agreement will terminate because at that
time DHB will have the connectivity it needs.
We recognize that this memorandum was necessarily technical in nature, and we will be
available to answer any questions.
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 , 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 previous agreements, those agreements being a
License Agreement by and between the City of Dublin and DHB Networks Ltd. (hereinafter
"License Agreement"), a Purchase Agreement for Wi-Fi Services and Virtual Private Network
(hereinafter "Purchase Agreement"), and an Optical Fiber Use Agreement (hereinafter "First
Fiber 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.
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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. This is the
second Agreement with the User and at times maybe referred to as such.
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, 2009.
3.2 In the event DHB acquires six or or more additional fibers in the Dublink conduit system
from Dublin L.L.C., or any other third party, ("Subsequent Purchase") then DHB shall
immediately notify Dublin of said purchase. This Agreement shall terminate thirty (30)
days after the Subsequent Purchase.
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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.
c. User agrees to provide free WiFi service in Coffinan Park and a portion of
Historic Dublin for the term of this Agreement. Details regarding the service and
service area will be negotiated in good faith between User and Owner.
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.
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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
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
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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
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
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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,
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 maybe 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
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requirements herein shall also specifically include all claims of intellectual property,
copyright or trademark infringement made by third parties against Owner.
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.
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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.
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
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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
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.
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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.
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21. COMPLIANCE WITH LAW.
21.1 Each Party hereto agrees that it will perform its respective rights and obligations
hereunder in accordance with all applicable laws, rules and regulations.
22. GOVERNING LAW AND VENUE.
22.1 This Agreement shall be interpreted in accordance with the Charter and Codified
Ordinances of the City of Dublin, as amended, the laws of the State of Ohio, and all applicable
federal laws, rules and regulations as if this Agreement were executed and performed wholly
within the State of Ohio. No conflict of law provisions shall be invoked so as to use the laws of
any other jurisdiction. The exclusive venue for all cases or disputes related to or arising out of
this Agreement shall be the state and federal courts in Franklin County, Ohio
23. ENTIRE AGREEMENT.
23.1 This Agreement, including any Exhibit attached hereto, all constitute the entire agreement
between the parties with respect to the subject matter. This Agreement cannot be modified
except in writing signed by both parties.
SIGNATURE PAGE TO IMMEDIATELY FOLLOW
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IN WITNESS HEREOF the parties have executed and delivered this Agreement effective the
day and year first above written:
USER:
DHB Networks Ltd., an Ohio limited liability corporation.
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Jane Brautigam
Its: City Manager
Approved As To Form:
Law Director, City of Dublin, Ohio.
REST OF PAGE LEFT INTENTIONALLY BLANK
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Exhibit B
USER SYSTEM DESCRIPTION AND MAP
None at this time, will be amended as user laterals are built.
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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
Maximum attenuation, 1310/1550
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion (2.6 - 6.0)
Specifications Units
.35/.25 dB/Km
125.0 um
1150-1330 nm
1300-1320 nm
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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 per 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 eer 65.00 97.50
Ri ht of Wa A ent 48.50 72.75
Su ervisor 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 um 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
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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
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