09-08 ResolutionRECORD OF RESOLUTIONS
Resolution No. ~9-Og
Passed
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A RESOLUTION AUTHORIZING THE CITY
MANAGER TO ENTER INTO AN INDEFEASIBLE
RIGHT TO USE AGREEMENT WITH OCLC
ONLINE COMPUTER LIBRARY CENTER, INC.
WHEREAS, OCLC Online Computer Library Center, Inc. ("OCLC") is a nonprofit,
membership, computer library service and research organization with an office located at
6565 Kilgour Place, Dublin, Ohio 43017; and
WHEREAS, OCLC desires to access the fiber optics system in the City of Dublin
("City") for the purpose of interconnecting to the OSCnet, Ohio Supercomputer Center
and the Central Ohio Research Network; and
WHEREAS, since the City has constructed and operates an organized system of
underground conduits ("Dublink") containing numerous fiber optic cables that directly
access OSCnet, Ohio Supercomputer Center and CORN, the City has determined that it is
in the best interest of the City to grant OCLC an indefeasible right to use certain fiber
optic cables in Dublink; and
WHEREAS, in exchange for allowing OCLC to access those fibers, the City will be
granted the right to create a point of presence within the building owned by OCLC and the
City will construct said point of presence for use by all accessing the Dublink system; and
WHEREAS, the City and OCLC desire to enter into an Indefeasible Right to Use
Agreement allowing OCLC to use certain fiber optic cables within Dublink;
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 with OCLC in relation to the use of certain fiber optic cables by OCLC.
Section 2. This resolution shall take effect and be in force from and after the earliest
date permitted bylaw.
Passed this _~~ day of l~C~ , 2008
/~ , „
Mayor -Presiding Officer
ATTEST:
~G? ._
Clerk of Council
CITY OF DUBLIN_
Office of the City Manager
X200 Emerald Parkway • Dublin, OH 43017-1006
Phone: 614-410-4400 • Fax: 614-410-4490
TO: Members of Dublin City] Council
FROM: Jane S. Brautigarn, City Manager
DATE: February 14, 2008
Memo
INITIATED BY: Dana L. McDaniel, Deputy City A.Zanager/Director of Economic Development
RE: Resolutions 09-08 and 10-08 - OCLC Agreements
Background
Attached for Council's consideration are Resolution 09-08 and Resolution 1D-~8 authorizing the
City Manager to enter into an Indefeasible Right to Use Agreement and a Construction and
Building Access Agreement «~ith Online Computer Library Center (OCLC).
Should Council pass Resolution 09-08 allowing the City 1Vlanager to enter into an Indefeasible
Right to Use Agreement, OCLC will be given access to the Central Ohio Research Network
(CORN) and OSCnet (Ohio Super Computer Network). By accessing CORN, OCLC will gain
access to OSCnet and its network of colleges, universities and research institutes. OSCnet will
also carry OCLC data to an offsite data center located in another Central Ohio jurisdiction.
Additionally, OCLC will be allocated two additional dark fibers within Dublink to provide
redundant capacity. Given OCLC's nonprofit library and research services, connectivity to
CORN and OSCnet is a natural fit. OCLC's connectivity may foster new collaborations between
OCLC, its members and OSCnet while also providing OCLC the ability to meet critical off-site
storage needs.
Resolution 10-08 authorizes the City Manager to execute a no-cost Constriction and Building
Access Agreement with OCLC to establish a Point of Presence ("POP") and provide access in
and out of the OCLC facility. In exchange for access to CORN and additional optical fiber,
OCLC agrees to provide the City of Dublin with physical space in the OCLC facility for the
establishment of Dublin's own POP. A POP is a physical location where optical fiber systems
come together to interconnect or to access off-site storage capacity. Funding previously received
by the Board of Regents to establish CORN will be used to equip the POP. OCLC will also
provide the City access to sixteen optical fibers between Dublin's Dublink system and the OCLC
facility. These sixteen fibers have redundant routes in and out of the facility. Potential uses for a.
Dublin POP could be: to provide others interconnectivity to CORN; establish intercomlectivity
to the Internet; provide interconnectivity to other fiber owners; provide off-site data storage for
City use or use by others; etc. It is also feasible that data from elsewhere (intrastate or interstate)
could be carried back to OCLC or to other storage facilities in Dublin. While yet unclear, this
could potentially result in new jobs and~'or capital investment related to data storage.
It is important to point out that an Indefeasible Right to Use enables the City to allocate the use
of Dublink's optical fibers without actually giving them away. The optical fibers always remain
the property of the City of Dublin but are in effect borrowed or used by the other party. OCLC
will have use of CORN and two optical fibers for the satne period of time the City will be given
space in the OCLC facility and access to OCLC's sixteen fibers (20 years).
Memo to Council re. Resolutions 49-48 and 14-48 - OCLC Agreements
February 14, 2448
Page 2 of 2
Providing OCLC access to CORN and the use of optical fibers is yet another example of the
"value added" serti~ice that Dublink's optical fibers provide to Dublin businesses. Dublin City
Council understands the need for access to bandwidth. The City currently o~~~ns optical fibers for
governmental purposes. The City operates its own institutional network. The City expanded its
optical fibers beyond Dublin and throughout a large portion of Central Ohio in order to be
connected to multiple points of presence or "POPS". Also, the City came to realize, as the result
of a couple successful economic development projects, that unused bandwidth/fibers could be
used for point-to-point connectivity for economic development purposes. The City has led the
way with establishing CORN and WiFi. As Council knows, these programs have been
instrumental in the City's Smar-t21 designation.
Recommendation
Staff recommends Council approve both Resolution 09-48 and Resolution 14-08. The
Indefeasible Right to Use Agreement is comprehensive and consistent with IRUs previously
approved by Council. The Construction and Building Access Agreement is comprised of
standard lease language. Both Agreements were written and approved by both Dublin and OCLC
legal staff. Optical fibers are currently in place, and OSCnet possesses the funding and
equipment to make the POP operational. The City may incur minor costs to splice the Dublink
fiber to the OCLC fiber and place caging around the City's designated space. Such costs would
be paid out of the existing operating budget. Should you have specific questions about these
Agreements, you can address those to Greg Dunn at 462-2339. You may also address questions
regarding these Resolutions to Dana McDaniel at 414-4619.
CITY OF DUBLIN, OHIO
INDEFENSIBLE RIGHT-TO-LTSE AGREEMENT
THIS INDEFEASIBLE RIGHT-TO-USE AGREEMENT (hereinafter referred to as the
"Agreement") made and entered into as of the day of , 2008, 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 43017-1090, and OCLC Online
Computer Library Center, Inc., an Ohio nonprofit corporation with an office located at 6565
Kilgour Place, Dublin, Ohio 43017 (hereinafter referred to as "User"), and which are sometimes
referred to individually as "Party" and collectively as "Parties."
WITNESSETH:
WHEREAS, the Ot~~ner 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
t~'HEREAS, 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, in conjunction with this Agreement, the Parties have entered into a previous
agreement being a Lease Agreement for a Point of Presence and Building Access (hereinafter
referred to as the "Lease 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, the Parties have agreed to enter into this Agreement which embodies the
mutual covenants and agreements betty-~een the Parties hereto; and
WHEREAS, the Parties may in the future agree to enter into additional separate
agreement(s) for additional andi'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
andfor Construction Permit required by Chapter 98 of the Codified Ordinances of the City of
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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, ~~~hether 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 the Owner and
User which identify the specific optical fiber strands and facilities to be as
provided to User by Owner and which set forth the associated fees/compensation,
terms and conditions for User's use of such optical fiber strands and facilities.
b. Fiber System: The optical fiber strands, innerduct, conduit, building entrance
facilities, associated appurtenances, and capacity o~~med by the Owner and located
throughout the Rights of ~'ay 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 The Owner hereby grants to User an Indefeasible Right of Use {IRU) of the following Owner
Fiber System components:
a. Two (2) strands of fiber optic cable in Owner's Fiber System as described in
Exhibit A. User will t~~ork with Owner to define connections to facilities in the
User's system. Further, User may use the portions of the Owner Fiber System
granted herein to connect to other facilities inside and outside the City of Dublin.
Ohio.
3. TERI~~.
4. Unless sooner terminated in accordance with the terms of this Agreement, the term of
this Agreement is for Twenty (24) years {hereinafter reffered to as the "Term"). The Term shall
commence immediately upon final execution of this Agreement by the Parties {hereinafter
referred to as the "Commencment Date") and shall expire on , 2428 (hereinafter
refereed to as the "Expiration Date") The terms of this Agreement may be renewed with the
mutual consent of both parties.
~. CONSIDERATION.
5.1 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 Lease Agreement .
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b. That any failure of User to satisfy the terms and conditions of this Agreement or
the Lease Agreement shall be considered a material breach of this Agreement and
Owner may then terminate this Agreement upon giving sixty (64) days ~~rritten
notice to User.
6. Oy~~NER'S OBLIGATIONS.
6.1 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 User's specifications.
7. USER OBLIGATIONS.
7.1 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 networlf service connection and disconnection
charges for each building service added or deleted before, during or after the
initial establishment and cutover of a L1ser System fiber segment. L1ser shall be
responsible for any and all costs associated «~ith lateral connectivity to the Fiber
System and shall pay for the costs of all splicing, distribution segment, service
connections, and any ring or concentrator operations.
c. Pay all necessary costs if the User requires installation of a new distribution ring
or concentrator in an already established Fiber System or User System
distribution segment, rearrangement of existing service connections, and
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, «-~hich shall not be unreasonably withheld. 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 (34} days written notice to User.
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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.
8. JOINT OBLIGATIONS.
8.1 The Owner and User jointly:
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 atwenty-four (24) hour a day, three hundred sixty-five
(36~) days per year, coordination telephone number.
9. I1~1.4INTEN:4NCE.
9.1 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 Systetn. User shall have the right to have an
employee or representative available to assist the O~~mer 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 andi'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 lie
performed at the Owner's sole cost and
b. Scheduled Maintenance: The Owner from time to time may schedule and
perform specific periodic maintenance to protect the integrity of the Fiber System
andior 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 perfoi7ned 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 t~'ork, the Owner will provide an estimate of the price and timing
of such Scheduled Maintenance. Following User's acceptance of such estimate,
the Ot~~ner will schedule and have such Scheduled Maintenance performed. The
Owner «~ill have such Scheduled Maintenance performed on atime-and-materials
basis at the standard rates in then etTect at the time services are performed. Rates
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in etTect will be those identified in Exhibit D with the understanding that such
rates are subject to change at any time.
c. Emergency IVlaintenance: The Owner may undertake and provide for Emergency
l~laintenance 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
9.2 In the event the O«~ner, 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 (G) months prior written
notice to User. In the event of such discontinuance, the O«~ner shall obtain for User, or others
acting in User's behalf, approval for adequate access to the Rights of j~'ay 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.
9.3 In the event any failure, interruption or impaii-~nent 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 etTorts do not interfere
«Tith the Owner's restoration activities.
9.4 Any User subcontractors or employees who undertake repair or maintenance work on the User
System shall first be approved by the O«rner 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 ti•om User's
notification to Owner of contemplated action. yA~'hen User undertakes Emergency I~flaintenance 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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10. USE OF THE USER SYSTEI~'I.
10.1 User shall have exclusive control over its provision of telecommunications, video, data, and;`or
information services.
10.2 User hereby certifies that it is authorized or will be authorized, where required, on the effective
date this Agreement to provide telecommunications, vvideo, 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.
10.3 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.
11. INDEMNIFICATION.
11.1 The User undertakes and agrees to protect, indemnify, defend, and hold harmless the Owner and
all of its elected officials, officers and employees, agents and volunteers from and against any
and all suits and causes of action, claims, charges, damages, demands, judgments, civil fines,
penalties, costs, attorneys fees and costs, expenses or losses of any kind or nature whatsoever, for
death, bodily injury or personal injury to any person, including User's employees and agents, or
damage or destruction to any property of either party hereto, or third persons in any manner
arising by reason of the negligent acts, errors, omissions or willful misconduct incident to the
performance of this Agreement or use of the Fiber System on the part of the User, or the User's
officers, agents, employees, or subcontractors, except for the active negligence or willful
misconduct of the Owner, and its elected officials, officers, employees, agents and volunteers.
Users indemnity requirements herein shall also specifically include all claims of intellectual
property, copyright or trademark infringement made by third parties against Owner.
12. INSURANCE.
12.1 During the Term of this Agreement, unless other«~ise 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.
12.2 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.
12.3 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 «~•ithout first
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giving thirty (30) calendar days «~ritten notice thereof by registered mail to the Owner at the
following address:
City of Dublin
Law Director
5200 Emerald Parkway
Dublin, Ohio 43017-1006
12.4 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
cart•ier for payment of the premium for these policies.
12.5 Any insurance or other liability protection carried or possessed by the Owner, l~~hich 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.
12.6 User shall be responsible for all User contractors' or subcontractors' compliance with the
insurance requirements.
12.7 Failure of the User to maintain such insurance, or to provide such endorsements to the Owner
when due, shall he an event of default under the provisions of this Agreement.
12.8 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.
12.9 The User shall provide Workers' Compensation insurance covering all of the User's employees in
accordance with the la~~~s of the state of Ohio.
12.10 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.
12.11 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.
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13. DEFAULT.
13.1 Unless otherwise specified in this :4greement, 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, hot~~ever, 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 ter-rrrinate this Agreement
or pursue such other remedies as may be provided at law or in equity.
13.2 Unless other«~ise 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.
13.3 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 ~~--~riting 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 la«~ shall be filed in any court and such petition shall not be discharged or denied r~~ithin
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.
14. FORCE NIAJEURE
14.1 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 l~lajeure Events").
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15. ASSIGNMENT.
15.1 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 referY•ed 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.
16. WAIVER OF TERI~7S OR CONSENT TO BREACH.
16.1 No term or provision of this Agreement shall be «~aived 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 ti~~aiver of said breach or any subsequent breach for any purpose
whatsoever.
17. RELATIONSHIP NOT A PARTNERSHIP OR AN AGENCY.
17.1 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 ventlu•e or agency Agreement between the Parties hereto.
18. NO THIRD-PARTY BENEFICIARIES.
18.1 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.
19. EFFECT OF SECTION HEADINGS.
19.1 Section headings appearing in this Agreement are inserted for convenience only and shall not be
construed as interpretations of text.
20. NOTICES.
20.1 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 Belo«~, unless otherwise provided for in this Agreement:
If to User to:
OCLC Online computer Library
Center, Inc.
Attn: Gene Oliver
6565 Kilgour Place
Dublin ,OH 43017
With a Copy to:
If to Owner to:
City Manager
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, OH 43017-1006
With a Copy to:
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OCLC Online Computer Library
Center, Inc.
Attn: Legal DepaY-tment
6565 Kilgour Place
Dublin ,OH 43017
Mr. Gregory Dunn
Schottenstein, Zox & Dunn, LPA
250 west Street
Columbus, Ohio 43215
20.2 Either Party may, by written notice to the other Party, change the Warne or address of the person to
receive notices pursuant to this Agreement.
21. SEVERABILITY.
21.1 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.
22. COMPLIANCE WITH L<4«'.
21.1 Each Party hereto agrees that it l~~ill perform its respective rights and obligations
hereunder in accordance with all applicable laws, rules and regulations.
23. GOVERNING LAtiV 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 la~~vs 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
24. ENTIRE AUREE~IENT.
23.1 This Agreement, including any Exhibit attached hereto, all constitute the entire agreement.
between the parties «Tith respect to the subject matter. This Agreement cannot be
modified except in ~~~~riting 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:
By:
Its:
Approved As To Form:
Law Director, City of Dublin, Ohio.
USER:
OCLC Online Computer Library Center, Inc., an Ohio
nonprofit corporation.
Vice President
OWNER:
City of Dublin, Ohio, an Ohio municipal corporation.
By: Jane Brautigam
Its: City I~~Ianager
REST OF PAGE LEFT INTENTIONALLY BLANK
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Exhibit. _~
DubLink Fiber Route
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