Resolution 65-12RECORD OF RESOLUTIONS
Dayton Legal Blank, Inc.. Fan No 300x5
65 -12
Resolution No. Passed ,20
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO ENTER INTO AN INDEFEASIBLE RIGHT TO USE
AGREEMENT WITH NESTLE USA, INC. TO UTILIZE FIBERS
WITHIN AND 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 Nestle USA, Inc. an
indefeasible right to use two (2) fiber strands within the DubLink Fiber
System, and the parties must execute an Indefeasible Right to Use Agreement
to memorialize this engagement.
NOW, THEREFOJtE, BE IT RESOLVED by the Council, of the City of Dublin,
State of Ohio, � 0 9_ 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 Nestle USA, Inc., said
Agreement authorizing the City of Dublin to give Nestle USA, Inc. certain use
rights to two (2) strands of fiber within the DubLink Fiber System.
Section 2. This Resolution shall take effect and be in force from and after
the earliest date permitted by law.
Passed this J+A day of X O OPAth ""� , 2012.
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• - • . O fficer
ATTEST:
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Clerk of Council
Office of the City Manager
City of Dublin Pho 614 - 1 410.4400- Faax:b614 -0410 -4490 1090
Memo
To: Dublin City Council
From: Marsha I. Grigsby, City Managerva�--
Date. November 15, 2012
Initiated By: Dana McDaniel, Deputy City Manager
Greg Dunn, Ice Miller LLP
Re: Resolution 65 -12 - Indefeasible Right to Use Agreement with Nestle USA, Inc.
Summary
Staff recommends Council adoption of Resolution 65 -12, authorizing the City Manager to enter
into an Indefeasible Right to Use Agreement (Enclosure 1) with Nestle USA, Inc. ( "Nestle").
Nestle desires to use the City's optical fiber system for the purpose of operating and managing
its own data service needs. Nestle recognizes the significant value that this unique
infrastructure provides and the manner in which it will enhance its own operations -- not only
for data, voice and video services, but also for off -site data storage and access to cloud
computing.
Staff recommends a two (2) year Indefeasible Right to Use for DubLink fiber. Council may
recall that the Nestle site may potentially have an additional corporate office building adjacent
to its new headquarters. Access to this fiber will be considered toward any future incentives
and enhance the potential to connect multiple facilities within Dublin.
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
User
Sublease
36/18 Pair
City of Dublin
Central Ohio Research Network
4/2 Pair
Battelle
4/2 Pair
Ohio Health
2/1 Pair
Wend 's
6/3 Pair
High Speed Air /Wi -Fi
18/9 Pair
Authorized for Lease
Mercury 2/1 pair
Scherer -2/1 pair
US Signal 4/2 pair
Expedient 4/2 pair
IGS — 2/1 pair
24/12 Pair
Unallocated — reserved for economic
development or as maintenance fiber
Resolution 65 -12 — Indefeasible Right to Use — Nestle
November 15, 2012
Page 2 of 2
The fiber that would be provided to Nestle is from Dublin's unallocated reserve. The fiber is
being leased for a short period (2 years), and therefore this IRU will not adversely impact
Dublin's capability to utilize its fiber asset.
Recommendation
Staff recommends approval of Resolution 65 -12. Please contact Dana McDaniel with any
questions you may have.
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 , 2012, 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 Nestle USA, Inc. a Delaware corporation with an office located at
6625 Eiterman Road, Dublin, OH 43016 (hereinafter referred to as "User "), Owner and User
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" and further defined in Section 1.1(b)) throughout the City of Dublin, Ohio and
the greater Columbus, Ohio metropolitan area,
WHEREAS, the Owner is willing to grant User an indefeasible right of use (hereinafter
referred to as "IRU ") in and to fibers within the Fiber System to allow User to provide
telecommunications, video, data, and/or information services;
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);
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 shall incorporate the
covenants and agreements of this Agreement and which shall also set forth the terms and
provisions unique to each additional or different specific project.
NOW, THEREFORE, pursuant to the terms of any right of way occupancy requirement
and /or Construction Permit required by Chapter 98 of the Codified Ordinances of the City of
Dublin, Ohio, for and in consideration of the mutual covenants and agreements set forth in this
Agreement, the Parties hereto do hereby agree as follows:
1. DEFINITIONS
1.1 The following terms, whether in the singular or in the plural, when used in this
Agreement and initially capitalized, shall have the meanings specified:
a. Agreement: This Indefeasible Right -to -Use Agreement between the Owner and
User, which identifies the specific optical fiber strands and facilities to be
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provided to User by Owner, and which set forth the 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 the Owner and located
throughout the rights of way of the City of Dublin, Ohio and the greater
Columbus, Ohio metropolitan area (a map of the fiber route attached hereto as
Exhibit "A ").
2. GRANT
2.1 The Owner hereby grants to User an IRU of the following Fiber System
components. Owner warrants that it has all rights necessary to make such a grant to User.
a. Two (2) strands of fiber optic cable in the Fiber System, along the route described
in Exhibit A.
3. TERM.
3.1 Unless changed in accordance with the terms of this Agreement, the term of this
Agreement is for two (2) years (hereinafter referred to as the "Term "). The Term shall
commence on (hereinafter referred to as the "Commencement Date ") and
shall expire on (hereinafter referred to as the "Expiration Date "). The term
of this Agreement may be renewed for an additional one year period with the mutual
written consent of both parties.
3.2 At any time during this Agreement, User may elect to lease additional fiber from
Owner for $3,000 per month for up to ten (10) years, pursuant to Owner's standard
agreement for fiber leasing.
4. CONSIDERATION
4.1 As consideration for, as inducement to, and as a required condition of Owner
granting User the specific rights to use portions of the Fiber System (hereinafter referred
to as the "User System ") as described herein, the User hereby agrees that any failure of
User to satisfy the terms and conditions of this Agreement shall be considered a material
breach of this Agreement and Owner may then terminate this Agreement upon giving
sixty (60) days written notice to User.
5. OWNERS OBLIGATIONS
5.1 Owner shall:
a. Grant the User an IRU 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,
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but not limited to, conduit, innerduct, poles and equipment, shall be performed
under the direction of the Owner.
6. USER OBLIGATIONS
6.1 User shall:
a. Provide and pay for lateral connectivity from necessary termination points of
User's proprietary fiber and equipment to the necessary demarcation points of the
Fiber System.
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, head end equipment, and any ring or concentrator operations.
C. If performing any splicing in the User System, utilize the services of Columbus
Fibemet, LLC (Fishel) to perform the splicing.
d. 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 C attached hereto.
e. Not 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.
f 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.
g. Pay any costs associated with disconnecting from the Fiber System, and shall
ensure that the User System, including the strands of fiber and any associated
appurtenances, are left in the condition that existed prior to the User connecting to
the Fiber System. User agrees that should the Owner determine, in the Owner's
sole discretion, that upon disconnection User has not left the User System in the
condition that existed prior to the User connecting to the Fiber System, the Owner
shall restore and repair the User System at the sole cost and expense of User.
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7. JOINT OBLIGATIONS
7.1 The Owner and User jointly:
a. Agree that within sixty (60) days of final execution of this Agreement the Parties
shall 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 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 "B ".
a. Regular Maintenance: Owner may from time to time undertake and provide for
regular maintenance activities ( "Regular Maintenance ") 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 expense.
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 ( "Scheduled Maintenance "). 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 shall 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 shall have such Scheduled
Maintenance performed on a time - and - materials basis at the standard rates in then
effect at the time services are performed. Rates in effect shall be those identified
in Exhibit "C ", attached hereto, with the understanding that such rates are subject
to change at any time.
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C. Emergency Maintenance: The Owner may undertake and provide for emergency
maintenance and repair activities for the Fiber System and /or User System
( "Emergency Maintenance "). 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. 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. The Owner shall have such Emergency Maintenance performed on
a time - and - materials basis at the emergency maintenance rates then in effect at the
time services are performed
8.2 In the event 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 any party acting in User's behalf, shall have the right, but not the obligation, to
thereafter provide for any maintenance and repair of the User System, at the User's sole
cost and expense. Any such discontinuance by the Owner 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, 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.
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, 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 an 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.
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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 shall 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 for its conduct herein shall also specifically
include all claims of intellectual property, copyright or trademark infringement, or any
other breach of this Agreement 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 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 Owner's Director of Law. The endorsements shall be evidence that the
policies providing coverage and limits of insurance are in full force and effect. Such
insurance shall be maintained by the User at the User's sole cost and expense.
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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
Ice Miller LLP
250 West Street
Columbus, Ohio 43215
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.
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.
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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 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 should 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 should be adjudicated bankrupt or insolvent, or should
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 should 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
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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. User shall not assign, sublease, or
license (hereinafter collectively referred to as a "Transfer ") any rights or obligations
hereunder without the prior written consent of the Owner.
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 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 shall be for the sole benefit of the Parties hereto and their
respective permitted successors and assigns, and except as otherwise stated 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:
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If to User to:
If to Owner to:
?
City Manager
[Title]
City of Dublin, Ohio
[Address]
5200 Emerald Parkway
[Phone]
Dublin, OH 43017 -1006
With a Copy to:
Mr. Gregory Dunn
Ice Miller LLP
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 shall 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:
Approved As To Form:
Law Director, City of Dublin, Ohio.
USER:
Nestle USA, Inc.
By:
Its:
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Marsha I. Grigsbv
Its: City Manager
REST OF PAGE LEFT INTENTIONALLY BLANK
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ExhibitA
4030230)
Nestle Fiber Route
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Exhibit B
FIBER SYSTEM SPECIFICATIONS
1. 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 shall endeavor to keep the number of splices in a span to a minimum.
III. Optical Fiber Specifications
The Owner shall meet the optical specifications as detailed below for the cable installed:
A. Single Mode Fiber
Parameter Specifications Units
Maximum attenuation, 1310/1550
Cladding diameter
Cutoff wavelength
Zero dispersion wavelength
Maximum dispersion (2.6 — 6.0)
.35/.25 dB /Km
125.0 um
1150 -1330 nm
1300 -1320 nm
.05 ps/ (= -km)
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Exhibit C
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 shall 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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