47-10 ResolutionRECORD OF RESOLUTIONS
Dayton Legal Blank, In- Fa Nc. 30095
Resolution No. 47-10 Passed 20
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO AN INDEFEASIBLE RIGHT TO USE AGREEMENT
WITH US SIGNAL COMPANY, LLC TO ALLOW US SIGNAL
COMPANY TO CONNECT TO DUBLINK FACILITIES
WHEREAS, the City of Dublin has an existing optical fiber system (hereinafter
referred to as the " Dublink Fiber System ") throughout the City of Dublin, Ohio and
the Greater Columbus, Ohio metropolitan area; and
WHEREAS, the City of Dublin has excess fibers within the Dublink Fiber System
and is willing, from time to time, to provide such fibers to interested users for
negotiated consideration; and
WHEREAS, the City of Dublin desires to grant US Signal Company, LLC an
indefeasible right to use two (2) fiber strands within the Dublink Fiber System for
consideration to be paid to Dublin, and the parties must execute an Indefeasible Right
to Use Agreement to memorialize this engagement.
NOW, THE"F RRE, BE IT RESOLVED by the Council of the City of Dublin,
State of Ohio, T of the elected members concurring, that:
Section 1. The City Manager is hereby authorized to execute an Indefeasible Right to
Use Agreement between the City of Dublin and US Signal Company, LLC, said
Agreement authorizing the City of Dublin to provide US Signal Company, LLC
certain use rights to two (2) strands of fiber within the Dublink Fiber System, for
negotiated consideration to be paid to Dublin.
Section 2. This Resolution shall take effect upon passage, in accordance with Section
4.04(a) of the Revised Charter.
Passed this /l- day of OOtD bey 2010.
IRAN Ming Officer
ATTEST:
Clerk of Council
RECORD OF RESOLUTIONS
Forth No. M5
Resolution No
47 -10
Passed 1 2 0
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO AN INDEFEASIBLE RIGHT TO USE AGREEMENT
WITH US SIGNAL COMPANY, LLC TO ALLOW US SIGNAL
COMPANY TO CONNECT TO DUBLINK FACILITIES
WHEREAS, the City of Dublin has an existing optical fiber system (hereinafter
referred to as the " Dublink Fiber System ") throughout the City of Dublin, Ohio and
the Greater Columbus, Ohio metropolitan area; and
WHEREAS, the City of Dublin has excess fibers within the Dublink Fiber System
and is willing, from time to time, to provide such fibers to interested users for
negotiated consideration; and
WHEREAS, the City of Dublin desires to grant US Signal Company, LLC an
indefeasible right to use two (2) fiber strands within the Dublink Fiber System for
consideration to be paid to Dublin, and the parties must execute an Indefeasible Right
to Use Agreement to memorialize this engagement.
NOW, THEREFORE, BE IT RESOLVED 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 execute an Indefeasible Right to
Use Agreement between the City of Dublin and US Signal Company, LLC, said
Agreement authorizing the City of Dublin to provide US Signal Company, LLC
certain use rights to two (2) strands of fiber within the Dublink Fiber System, for
negotiated consideration to be paid to Dublin.
Section 2. This Resolution shall take effect upon passage, in accordance with Section
4.04(a) of the Revised Charter.
Passed this day of 2010.
Mayor - Presiding Officer
ATTEST:
Clerk of Council
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 -410 -4400 • Pax: 614- 410 -4490
To: Dublin City Council
From: Marsha Grigsby, Interim City Manager` 1 \_ \ N
Date: October 7, 2010
Initiated By: Dana McDaniel, Deputy City Manager
Memo
Re: Resolution 47 -10 -Indefeasible Right to Use Agreement with US Signal Company
Summary
Staff recommends Council adoption of Resolution 47 -10, authorizing the City Manager to enter into an
Indefeasible Right to Use and Lease Agreement (Enclosure 1) with US Signal. In 2009, Council
authorized staff to lease up to 12 (or six pair) of the City's Dublink optical fibers. Council authorized
these leases for the propose of earning revenues from "dark fibers" not anticipated to be put into use for
the foreseeable future. The lease rate proposed in the IRU with US Signal is 53,000 per month for one
pair of fiber. Previously, Council authorized lease rates at no less than S3,500 per month. This is a lower
rate than previously authorized by Council. The reason for the lower rate is dictated by the market. At
this time, staff is seeing an increase in demand for dark fiber. However, additional dark fiber is being
made available throughout Central Ohio. The net result is a more saturated market and declining lease
rates. Staff is negotiating several potential leases for its 12/6 pair of fiber and is experiencing first hand
the competitiveness of the market. Staff recommends Council authorize the lower lease rate to take
advantage of this and other opportunities in order to maximize revenue from the available dark fiber.
Staff estimates that if the 12/6 pair of fiber is leased for at least 53,000 per month, these 12/6 pair of
Fiber could earn the City at least S2,160,000 over a ten (10) year period.
Background
The City of Dublin possesses 96 or 48 pair of optical fibers within its Dublink conduit system.
Attached is a pamphlet explaining the City -owned broadband infrastructure. The following shows
the amount of optical fiber owned by the City and its current allocation:
City Owned Fiber
( 96 or 48 pair)
i tser
Sublease
36.18 pair
City of Dublin
4.2 pair
Central Ohio Research Network
4% pair
Battelle
i pair
Ohio Health
6/3 pair
High Speed Air /Wifi
12/6 air
p
Authorized for sublease
Scherer -2/I pair
US Signal - 2/1 pai
30!15 pair
Unallocated — reserve for
economic development or as
maintenance fiber
Memo re. Resolution 47 -10 - Agreement with US Signal Co.
October 7, 2010
Page 2 of 2
Enclosure 2 provides a Broadband Usage Report provided by the City's IT staff earlier this year. This
report provides a good understanding of how the City has leveraged its own use of the City -owned
optical fiber and Wifi systems. Please take particular note of the cost savings at the end of the report. As
a result of using these broadband systems, the City has been realizing a savings of 5426,000 per year
and will begin to avoid S450,000 per year in typical costs. Even after applying the City's costs and
overhead to run its own system, it is safe to say that over the past ten (10) years, the City has by far
recovered its initial investments in both the optical fiber and Wifi systems. This does not account for the
job attraction, value -added service and national and international recognition the City has received for
building this infrastructure. The opportunity to sublease some of this fiber continues to add to the cost
recovery of the optical fiber.
Recommendation
Staff recommends approval of Resolution 47 -10. Please contact Dana McDaniel with any questions you
may have.
Enclosure 1
CITY OF DUBLIN, OHIO
INDEFEASIBLE RIGHT -TO -USE AGREEMENT
THIS INDEFEASIBLE RIGHT -TO -USE AGREEMENT is made and entered into as of
the day of , 2010, 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 RVP Fiber Company, LLC, a Michigan Corporation doing
business in Ohio as US Signal Company, LLC, with an office located at 201 Ionia Ave SW,
Grand Rapids, Michigan 49503 (hereinafter referred to as "User "), Owner and User referred to
individually as 'Party" and collectively as "Parties."
WITNESSETH:
WHEREAS, Owner has an existing optical fiber system (hereinafter referred to as the
"Fiber System ") throughout the City of Dublin, Ohio and the greater Columbus, Ohio
metropolitan area, and
WHEREAS, Owner has excess fibers in the Fiber System and is willing, from time to
time, to provide such fibers to User and to grant User an Indefeasible Right 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, Owner
is willing to allow User to use certain other property owned by Owner, including, but not limited
to, innerduct, conduit, building entrance facilities and associated appurtenances; and
WHEREAS, User has obtained any and all permits or approvals required to engage in its
intended purpose and for the use and occupancy of space in the Rights of Way and further agrees
to adhere to any and all requirements of federal, state and local laws, rules or regulations
(specifically inclusive of, but not limited to, Chapter 98 of the Codified Ordinances of the City of
Dublin, Ohio); and
WHEREAS, the Parties have agreed to enter into this Agreement which embodies the
mutual covenants and agreements between the Parties hereto; and
WHEREAS, the Parties may in the future agree to enter into additional separate
agreement(s) for additional and /or separate optical fiber uses which will incorporate the
covenants and agreements of this Agreement and which will also set forth the terms and
provisions unique to each additional or different specific project.
NOW, THEREFORE, pursuant to the terms of any Right of Way occupancy requirement
and /or Construction Permit required by Chapter 98 of the Codified Ordinances of the City of
Dublin, Ohio, for and in consideration of the mutual covenants and agreements set forth in this
Agreement, the Parties hereto do hereby agree as follows:
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1. DEFINITIONS
1.1 The following terms, whether in the singular or in the plural, when used in this
Agreement and initially capitalized, shall have the meaning specified:
a. Agreement: This Indefeasible Right -to- Use Agreement between Owner and User
which identify the specific optical fiber strands and facilities to be as provided to
User by Owner and which set forth the associated fees /compensation, terms and
conditions for User's use of such optical fiber strands and facilities.
b. Fiber System: The optical fiber strands, innerduct, conduit, building entrance
facilities, associated appurtenances, and capacity owned by Owner and located
throughout the Rights of Way of the City of Dublin, Ohio and the greater
Columbus, Ohio metropolitan area (a general depiction of which is attached
hereto as Exhibit "A ")
2. GRANT.
2.1 Owner hereby grants to User an Indefeasible Right of Use (IRU) of the following
Fiber System components. Owner warrants that it has all rights necessary to make such a
grant to User.
a. Two (2) strands of fiber optic cable in the Fiber System. User will work with
Owner to define connections to facilities within the Fiber System.
3. TERM
3.1 Unless sooner terminated in accordance with the terms of this Agreement, the
term of this Agreement is for ten (10) years (hereinafter referred to as the "Initial Term ").
After the Initial Term, User shall have the right, in its sole discretion, to renew this
Agreement for an additional five (5) or ten (10) year term, at the same pricing set forth in
this Agreement. Such renewal shall be memorialized in writing from User to Owner at
least thirty (30) days prior to termination of the Initial Term. In the event that User does
not renew this Agreement, this Agreement shall terminate. The entire duration this
Agreement is in full force and effect is referred to herein as the "Term ".
4. CONSIDERATION.
As consideration for, as inducement to, and as a required condition of Owner
granting User the specific rights to use portions of the Fiber System (the "User System ")
as described herein, User hereby agrees:
a. To compensate Owner in the amount of Three Thousand Dollars ($3,000.00) per
month.
b. That any failure of User to satisfy the terms and conditions of this Agreement
shall be considered a material breach of this Agreement and Owner may then
terminate this Agreement upon giving sixty (60) days written notice to User.
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5. OWNERS OBLIGATIONS.
5.1 Owner shall:
a. Provide the User System for User's use in accordance with the terms of this
Agreement.
b. Provide and/or control maintenance and repair functions on the User System and
all facilities in the Fiber System through which the User System passes, including,
but not limited to, conduit, innerduct, poles and equipment, shall be performed
under the direction of Owner.
C. Maintain the User System to User's specifications.
6. USER OBLIGATIONS.
6.1 User shall:
a. When lateral connectivity is not provided by Owner, provide and pay for lateral
connectivity from necessary termination points of User's proprietary fiber and
equipment to the necessary demarcation points of Owner's Fiber System. In this
event User shall own the lateral.
b. Pay for any building or external network service connection and disconnection
charges for each building service added or deleted before, during or after the
initial establishment and cutover of a User System fiber segment. User shall be
responsible for any and all costs associated with lateral connectivity to the Fiber
System and shall pay for the costs of all splicing, distribution segment, service
connections, and any ring or concentrator operations.
C. Pay all necessary costs if User requires installation of a new distribution ring or
concentrator in an already established Fiber System or User System distribution
segment, rearrangement of existing service connections, and rearrangement of a
ring or concentrator operation. Owner's management agent's current charges and
application rules are identified in Exhibit C attached hereto.
d. User agrees that it shall not sublease or subdivide the User System unless
otherwise agreed to by Owner. User further agrees to continually meet the
requirements of this Agreement. In the event of any breach of the provisions
contained in this Section, Owner has the right to terminate this Agreement upon
giving thirty (30) days written notice to User.
e. Agree to pay any and all maintenance costs as may be required to be paid by User
pursuant to the requirements of Section 8.1(a -c) below.
7. JOINT OBLIGATIONS.
7.1 Owner and User jointly:
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a. Agree that within sixty (60) days of final execution of this Agreement the Parties
will agree upon an Acceptance Plan for User's initial activation and the "go- live"
of User's System.
b. Shall provide each other a twenty -four (24) hour a day, three hundred sixty -five
(365) days per year, coordination telephone number.
8. MAINTENANCE
8.1 All maintenance and repair functions on the User System and all facilities through
which the User System passes, including, but not limited to, conduit, innerduct, poles,
and equipment, but specifically excluding all User owned and controlled opto - electronics,
shall be performed by or at the direction of Owner or Owner's appointed agent with
reasonable notice to User. Except as otherwise may be agreed to by the parties, User is
prohibited from performing any maintenance or repair on the Fiber System or User
System. User shall have the right to have an employee or representative available to
assist Owner in any maintenance or repair of the User System. Owner shall maintain
User System in accordance with the technical specifications (hereinafter referred to as the
"Specifications ") attached hereto in Exhibit B.
a. Regular Maintenance: Owner may from time to time undertake and provide for
Regular Maintenance activities in an attempt to keep the Fiber System and /or
User System in good working order and repair so that it performs to a standard
equal to that which is then commonly believed to be acceptable for systems of
similar construction, location, use and type. Such Regular Maintenance shall be
performed at Owner's sole cost, and
b. Scheduled Maintenance: Owner from time to time may schedule and perform
specific periodic maintenance to protect the integrity of the Fiber System and /or
User System and perform changes or modifications to the Fiber System and /or
User System (including but not limited to fiber slicing, etc.) at User's request.
Such User requested Scheduled Maintenance shall be performed at User's sole
cost and expense. User may request such Scheduled Maintenance by delivering to
Owner a Statement of Work detailing the service User desires to be performed,
including the time schedule for such services. Upon receipt of such a Statement
of Work, Owner will provide an estimate of the price and timing of such
Scheduled Maintenance. Following User's acceptance of such estimate, Owner
will schedule and have such Scheduled Maintenance performed. Owner will have
such Scheduled Maintenance performed on a time - and - materials basis at the
standard rates in then effect at the time services are performed. Rates in effect will
be those identified in Exhibit C with the understanding that such rates are subject
to change at any time.
C. Emergency Maintenance: Owner may undertake and provide for Emergency
Maintenance and repair activities for the Fiber System and /or User System.
Where necessary, Owner shall attempt to respond to any failure, interruption or
impairment in the operation of the User System within Twenty -Four (24) hours
after receiving a report of any such failure, interruption or impairment. Owner
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shall use its best efforts to perform maintenance and repair to correct any failure,
interruption or impairment in the operation of the User System when reported by
User in accordance with the procedures set forth in this Agreement. User shall be
responsible for the costs and expenses associated with such Emergency
Maintenance as it relates to User's actual use of the User System and/or Fiber
System requiring such Emergency Maintenance. Owner will have such
Emergency Maintenance performed on a time - and - materials basis at the
emergency maintenance rates in then effect at the time services are performed
8.2 In the event Owner, or others acting in Owner's behalf, at any time during the
Term of this Agreement, discontinues maintenance and /or repair of the User Systems,
User, or others acting in User's behalf, shall have the right, but not the obligation, to
thereafter provide for the previously Owner provided maintenance and repair of the User
System, at User's sole cost and expense. Any such discontinuance shall be upon not less
than six (6) months prior written notice to User. In the event of such discontinuance,
Owner shall obtain for User, or others acting in User's behalf, approval for adequate
access to the Rights of Way in, on, across, along or through which the User System is
located, for the purpose of permitting User, or others acting in User's behalf, to undertake
such maintenance and repair of the User System. As an alternate remedy, User may
elect to terminate this Agreement, as well as the above referenced Lease Agreement
should Owner discontinue maintenance and/or repair of the User System.
8.3 In the event any failure, interruption or impairment adversely affects both
Owner's Fiber System and User System, restoration of the User System shall at all times
be subordinate to restoration of Owner's Fiber System with special priority for Owner's
public safety and municipal infrastructure functions carried over the Fiber System, unless
otherwise agreed to in advance by the parties hereto. In such event or in the event Owner
is unable to provide timely repair service to the User System, Owner may, following
written request, permit User to make repairs to restore the User System as long as such
restoration efforts do not interfere with Owner's restoration activities.
8.4 Any User subcontractors or employees who undertake repair or maintenance work
on the User System shall first be approved by Owner to work on Owner's Fiber System.
Currently, Columbus Fibemet, LLC is the only company authorized to perform such
repair or maintenance work on the Fiber System, although Owner may authorize other
entities to perform such work on the Fiber System from time to time. Prior to User's
undertaking Emergency Maintenance or entering an Owner's facility for repair, User shall
first notify Owner of the contemplated action and receive Owner's concurrence decision,
a decision that Owner shall provide to User no later than twelve (12) hours from User's
notification to Owner of contemplated action. When User undertakes Emergency
Maintenance of the User System, User shall have an Owner employee or representative
available to assist User in any repair of the User System.
9. USE OF USER SYSTEM
9.1 User shall have exclusive control over its provision of telecommunications, video,
data, and/or information services.
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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 Owner.
9.3 User understands and acknowledges that its use of the Fiber System and the User
System are subject to all applicable local, state and federal laws, rules and regulations, as
enacted, either currently or in the future, in the jurisdictions in which the Fiber System
and the User System are located. User represents and warrants that it shall operate on the
Fiber System and the User System subject to, and in accordance with, all laws, rules and
regulations and shall secure all permits, approvals, and authorizations from all such
jursidictional entities as may be necessary.
10. I NDEMNIFICATION .
10.1 User undertakes and agrees to protect, indemnify, defend, and hold harmless
Owner and all of its elected officials, officers and employees, agents and volunteers from
and against any and all suits and causes of action, claims, charges, damages, demands,
judgments, civil fines, penalties, costs, attorneys fees and costs, expenses or losses of any
kind or nature whatsoever, for death, bodily injury or personal injury to any person,
including User's employees and agents, or damage or destruction to any property of
either party hereto, or third persons in any manner arising by reason of the negligent acts,
errors, omissions or willful misconduct incident to the performance of this Agreement or
use of the Fiber System on the part of User, or User's officers, agents, employees, or
subcontractors, except for the active negligence or willful misconduct of Owner, and its
elected officials, officers, employees, agents and volunteers. Users indemnity
requirements herein shall also specifically include all claims of intellectual property,
copyright or trademark infringement made by third parties against Owner.
11. INSURANCE
11.1 During the Term of this Agreement, unless otherwise agreed to in writing by the
authorized representatives, User shall at its own expense, maintain in effect, insurance
coverage with limits not less than those set forth herein.
11.2 User shall furnish Owner's authorized representative within thirty (30) days after
the Commencement Date of the Agreement with insurance endorsements acceptable to
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 User at User's sole cost and expense.
11.3 User endorsements shall name Owner and all of its elected officials, officers and
employees, agents and volunteers as additional insureds. The endorsements shall also
contain a provision that the policy cannot be canceled or reduced in coverage or amount
without first giving thirty (30) calendar days written notice thereof by registered mail to
Owner at the following address:
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City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 43017 -1006
11.4 Such insurance shall not limit or qualify the obligations User assumed under the
Agreement. Owner shall not by reason of its inclusion under these policies incur liability
to the insurance carrier for payment of the premium for these policies.
11.5 Any insurance or other liability protection carried or possessed by Owner, which
may be applicable, shall be deemed to be excess insurance and User's insurance is
primary for all purposes despite any conflicting provision in User's policies to the
contrary.
11.6 User shall be responsible for all User contractors' or subcontractors' compliance
with the insurance requirements.
11.7 Failure of User to maintain such insurance, or to provide such endorsements to
Owner when due, shall be an event of default under the provisions of this Agreement.
11.8 User shall obtain and maintain Commercial General Liability Insurance, including
the following coverages: Product liability hazard of User's premises /operations
(including explosion, collapse and underground coverages); independent contractors;
products and completed operations (extending for one (1) year after the termination of
this Agreement); blanket contractual liability (covering the liability assumed in this
Agreement); personal injury (including death); and broad form property damage. Such
coverage shall provide coverage for total limits actually arranged by User but not less
than Two Million Dollars and No Cents (US$2,000,000.00) combined single limit.
Should the policy have an aggregate limit, such aggregate limits should not be less than
double the combined single limit and be specific for this Agreement. Umbrella or Excess
Liability coverages may be used to supplement primary coverages to meet the required
limits. Evidence of such coverage shall be in a form acceptable to Owner's Director of
Law.
11.9 User shall provide Workers' Compensation insurance covering all of User's
employees in accordance with the laws of the state of Ohio.
11.10 User may use an Umbrella or Excess Liability coverage to net coverage limits
specified in the Agreement. Evidence of Excess Liability shall be in a form acceptable to
Owners Director of Law.
11.11 The foregoing insurance requirements are not intended to and shall not in any
manner limit or qualify the liabilities and obligations assumed by User under this
Agreement.
12. DEFAULT
12.1 Unless otherwise specified in this Agreement, User shall not be in default under
this Agreement, or in breach of any provision hereof unless and until Owner shall have
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given User written notice of a breach and User shall have failed to cure the same within
thirty (30) days after receipt of a notice; provided, however, that where such breach
cannot reasonably be cured within such thirty (30) day period, if User shall proceed
promptly to cure the same and prosecute such curing with due diligence, the time for
curing such breach shall be extended for a reasonable period of time to complete such
curing. Upon the failure by User to timely cure any such breach after notice thereof from
Owner, Owner shall have the right to take such action as it may determine, in its sole
discretion, to be necessary to cure the breach or terminate this Agreement or pursue such
other remedies as may be provided at law or in equity.
12.2 Unless otherwise specified in this Agreement, Owner shall not be in default under
this Agreement or in breach of any provision hereof unless and until User shall have
given Owner written notice of such breach and Owner shall have failed to cure the same
within thirty (30) days after receipt of such notice; provided, however, that where such
breach cannot be reasonably be cured within such thirty (30) day period, if Owner shall
proceed promptly to cure the same and prosecute such curing with due diligence, the time
for curing such breach shall be extended for a reasonable period of time to complete such
curing. Upon the failure by Owner to timely cure any such breach after notice thereof
from User, User shall have the right to take such action as it may determine, in its sole
discretion, to be necessary to cure the breach or terminate this Agreement or pursue other
remedies as may be provided at law or in equity.
12.3 If User, shall file a petition in bankruptcy or for reorganization or for an
arrangement pursuant to any present or future federal or state bankruptcy law or under
any similar federal or state law, or shall be adjudicated a bankrupt or insolvent, or shall
make a general assignment for the benefit of its creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or if any involuntary petition
proposing the adjudication of User, as a bankrupt or its reorganization under any present
or future federal or state bankruptcy law or any similar federal or state law shall be filed
in any court and such petition shall not be discharged or denied within ninety (90) days
after the filing thereof, or if a receiver, trustee or liquidator of all or substantially all of
the assets of User shall be appointed then Owner may, at its sole option, immediately
terminate this Agreement.
13. FORCE MAJEURE
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 ").
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14. ASSIGNMENT
14.1 This Agreement shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors or assigns; provided, however, that no assignment
hereof or sublease, assignment or licensing (hereinafter collectively referred to as a
"Transfer ") of any rights or obligations hereunder shall be valid for any purpose without
the prior written consent of each Party hereto. Said consent shall not be unreasonably
withheld.
15. WAIVER OF TERMS OR CONSENT TO BREACH
15.1 No term or provision of this Agreement shall be waived and no breach excused,
unless such waiver or consent shall be in writing and signed by a duly authorized officer
of the Party claimed to have waived or consented to such breach. Any consent by either
Party to, or waiver of, a breach by the other Party shall not constitute a waiver of or
consent to any subsequent or different breach of this Agreement by the other Party, such
failure to enforce shall not be considered a consent to or a waiver of said breach or any
subsequent breach for any purpose whatsoever.
16. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY
16.1 The relationship between User and Owner shall not be that of partners or agents
for one another and nothing contained in this Agreement shall be deemed to constitute a
partnership, joint venture or agency Agreement between the Parties hereto.
17. NO THIRD -PARTY BENEFICIARIES
17.1 This Agreement is for the sole benefit of the Parties hereto and their respective
permitted successors and assigns, and 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: If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017 -1006
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With a Copy to:
Mr. Gregory Dunn
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
19.2 Either Party may, by written notice to the other Party, change the name or address
of the person to receive notices pursuant to this Agreement.
20. SEVERABILITY
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.
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.
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IN WITNESS HEREOF the parties have executed and delivered this Agreement effective
the day and year first above written:
USER:
RVP Fiber Company, LLC
d /b /a US Signal Company, LLC
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Marsha Grigsby
Its: Interim Citv Manager
Approved As To Form:
Law Director, City of Dublin, Ohio.
REST OF PAGE LEFT INTENTIONALLY BLANK
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Exhibit A
DubLink Fiber Route
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Exhibit B
FIBER SYSTEM SPECIFICATIONS
1. General
Owner shall install and maintain the User System within Owner's Fiber System in
accordance with the criteria and specifications that follows:
II. Design Criteria
Owner will endeavor to keep the number of splices in a span to a minimum.
III. Optical Fiber Specifications
Owner will meet the optical specifications as detailed below for the cable installed:
A. Single Mode Fiber
Parameter Specifications
Maximum attenuation, 1310/1550
.35/.25
Cladding diameter
125.0
Cutoff wavelength
1150 -1330
Zero dispersion wavelength
1300 -1320
Maximum dispersion (2.6 — 6.0)
.05
Units
dB /Km
um
nm
nm
ps/ (nm
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Exhibit C
MAINTENANCE AND REPAIR
Charges for Time and Material Service
Owner or Owner's agent may perform maintenance service at the rates established below, which
rates are subject to change. Unless specifically authorized by User, no Scheduled Maintenance
will be performed outside of normal working hours, detailed below:
Normal Working Hours
8:00 a.m. to 5:00 p.m.,
Monday through Friday
(Except Owner observed holiday).
Expenses Incurred per call out:
Overtime Hours
5:01 p.m. to 7:59 a.m., Saturday, Sunday,
and all Owner observed holidays.
Labor Rates
Hourly Rate
Overtime Rate
Project Manager
75.00
112.50
Professional Engineer
65.00
97.50
Right of Way Agent
48.50
72.75
Supervisor
47.70
71.55
Foreman
36.90
55.35
Operator
31.50
47.25
Truck Driver
26.00
39.00
Laborer
21.70
32.55
Fiber Splicer
42.00
63.00
Equipment Rates
Hourly Rate
Pickup
16.00
1- ton /flat bed
17.60
2 -ton dump
24.00
Trailer
16.50
Rubber tired backhoe
36.20
Rodding machine
21.75
Winch truck
21.75
Air compressor
16.00
Light plant
17.45
Arrow board
9.00
2" water pump
10.00
Generator
14.50
Cable cart
7.00
Manhole package
14.50
Fusionsplicing package
1 30.00
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