Loading...
HomeMy WebLinkAbout13-10 ResolutionRECORD OF RESOLUTIONS Dayton Legal Blank. Inc., Fonn No 30 W5 Resolution No. 13 -10 (Amended) Passed A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A COOPERATIVE DESIGN AND RIGHT- OF-WAY ACQUISITION AGREEMENT WITH THE CITY OF COLUMBUS FOR THE IMPROVEMENT OF EMERALD PARKWAY BETWEEN TUTTLE CROSSING BOULEVARD AND RINGS ROAD 20 WHEREAS, the City of Dublin desires to improve traffic safety, operations and efficiencies of Emerald Parkway; and WHEREAS, the Dublin Community Plan promotes working cooperatively with surrounding jurisdictions to promote regional transportation planning and programming; and WHEREAS, the City of Dublin and the City of Columbus have agreed to cooperatively plan, design and acquire the necessary right -of -way for the identified transportation improvement project. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State of Ohio, —?-- of the elected members concurring: Section 1. The City Manager is hereby authorized to enter into a Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road, in substantially the same form as attached, with changes not inconsistent with this Resolution and not substantially adverse to this City and which shall be approved by the City Manager and Director of Finance. The approval of changes thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. Section 2 . This Council hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance, or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as may be appropriate to implement this Resolution. This Council further authorizes the City Manager and the Director of Finance, for and in the name of the City, to execute any amendments to the Cooperative Design and Right of Way Acquisition Agreement, which amendments are not inconsistent with this Resolution and not substantially adverse to this City. Section 3. This Resolution shall take effect upon adoption in accordance with Section 4.04(a) of the Revised Charter. Passed this day of 2010. Mayor - Pre ' ' g Officer Attest: Clerk of Council CITY OF DUBLIN_ Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 -1090 Phone: 6144104400 • Fax: 614 - 410 -4490 To: Members of Dublin City Council From: Terry Foegler, City Manager Date: February 18, 2010 Initiated By: Paul Hammersmith, PE, Director of Engineering/City Engineer Barbara Cox, PE, Engineering Manager — Development Memo Re: Resolution No. 13 -10 - Authorizing a Cooperative Design and Right -of- way Acquisition Agreement with the City of Columbus for the Improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road Update As part of a project status meeting for the Emerald Parkway Improvement (widening) project on February 8, 2010, Columbus staff informed Dublin Engineering staff that the a recent decision had been made by City of Columbus administration to perform their property acquisition for parcels located within Columbus with in -house legal staff reporting to the Columbus City Attorney. This decision by the City of Columbus was an unexpected deviation from the Cooperative Design and Right -of -Way Acquisition Agreement (Agreement) Dublin staff had been discussing with Columbus staff for the past 15 months. As originally drafted, the Agreement stated Dublin was to be responsible for the management of the consultant during the design phase, and for the right -of- way acquisition process. Additionally, the Agreement detailed the acquisition process, including several critical completion dates. As a result of this change in direction by the City of Columbus, several sections of the Agreement required modification to remove any and all references to Dublin leading all property acquisition for this project. Most notably, Section 2.2 (c), "Right -of -Way Acquisition Process." was removed in its entirety from the Agreement and all references to Columbus reimbursing Dublin for its proportionate share of right -of -way acquisition costs associated with property located in the Columbus incorporated area. Columbus will continue to reimburse Dublin for their share of the design costs, and any acquisition costs incurred to date by Dublin for work already performed for the Columbus properties. Any other modifications to the Agreement only were necessary to provide consistency throughout the document with the revision to the right -of -way acquisition responsibilities. Staff understands Council's expressed concern with the timely execution of this project and that previous commitments to performing this project expeditiously be honored by both Dublin and Columbus. Columbus staff is confident their legal staff can complete their right -of -way acquisitions within seven months after commencing the activities. Since the property appraisals are nearly complete, it is fair to expect Columbus will complete their right -of -way acquisition no later than December 31, 2010. Both Dublin and Columbus recognize that construction of this project must begin in March 2011 to adhere to the requirement of the recently secured Ohio Public Works Commission grant. Resolution No. 13 -10 February 18, 2010 Page 2 of 2 Recommendation Staff recommends approval of Resolution 13 -10, authorizing the City Manager to enter into a Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road. Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 -1090 CITY OF DUBLIN. Phone: 614- 410 -4400 • Fax: 614 -410 -4490 Memo To: Members of Dublin City Council From: Terry Foegler, City Manager /t Date: February 4, 2010 (� Initiated By: Paul Hammersmith, PE, Director of Engineering/City Engineer Barbara Cox, PE, Engineering Manager — Development Re: Resolution 13 -10 -Authorizing a Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the Improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road Background Staff (including Legal) has been diligently coordinating with the City of Columbus regarding the improvements to Emerald Parkway between Tuttle Crossing Boulevard and Rings Road. We jointly worked with Columbus to select a design consultant through a Request for Proposal process early in 2009. While the design work has been progressing, staff has been working with them to solidify an agreement regarding the parties' responsibilities for this project. The Cooperative Design and Acquisition Agreement attached has been developed over the past fifteen months. The Agreement states that Dublin will be responsible for the management of the consultant during design and traffic operation analysis and for the right -of -way acquisition process. The City of Columbus will reimburse Dublin their proportionate share of the design costs and right -of -way acquisition costs associated with property in the Columbus incorporated area. Columbus has stipulated a maximum amount ($650,000) for this reimbursement, with any expenditure(s) in excess of this amount requiring the appropriation of additional funds by Columbus. The Agreement also details the acquisition process and indicates several completion dates. Due to budgetary constraints at the City of Columbus in 2009, they requested that this Agreement pertain only to planning, design and right -of -way acquisition. A separate agreement will be needed to address the construction schedule and the parties' responsibilities during the construction of this project. Due to the success of the Ohio Pubic Works Commission application, staff will work on drafting this secondary agreement in the next few months. We anticipate bringing this agreement to Council mid- year for review. Staff anticipates the detailed design of the improvements to be completed in mid -April. The right -of- way acquisition process outlined in the agreement has been initiated, and the completion of this process is dependent on the level of negotiations needed to acquire the property. Recommendation Staff recommends approval of Resolution 13 -10, authorizing the City Manager to enter into a Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road. REDLINED VERSION COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT BETWEEN CITY OF COLUMBUS, OHIO AND CITY OF DUBLIN, OHIO FOR ROADWAY IMPROVEMENTS EMERALD PARKWAY (TUTTLE CROSSING BLVD — RINGS ROAD) Columbus Capital Improvement Project No. 530161- 100003 Dublin Capital Improvement Project No. 09- 005 -CIP THIS COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT (the Agreement') date , 2010, by and between the CITY OF DUBLIN, OHIO ( "Dublin "), a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio (the "State ") and its Charter, and the CITY OF COLUMBUS, OHIO ( "Columbus ", and collectively with Dublin, the "Parries "), also a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio and its Charter. WITNESSETH: WHEREAS, the Parties have determined that it would be in the best interests of Dublin and Columbus to widen and improve Emerald Parkway from Rings Road in Dublin south to Tuttle Crossing Boulevard in Columbus; and WHEREAS, the Parties have determined that it would be in the best interests of Dublin and Columbus to provide for the efficient and coordinated development of the design and right of way acquisition; and WHEREAS, the Parties desire to enter into a Cooperative Design and Right of Way Acquisition Agreement, to provide for the design and acquisition necessary for the construction of various roadway and associated infrastructure improvements; and WHEREAS, the Parties have agreed that Columbus will make payment to Dublin for the design cest costs attributable to the Infrastructure Improvements within the Columbus corporation limits as outlined in Article II. NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows: 1 REDLINED VERSION ARTICLE I DEFINITIONS Section 1.1. Definitions Unless otherwise defined herein, words and terms used in this Agreement with initial capital letters shall have the meanings set forth in this Section 1.1. Agreement' or--means this Cooperative Design and Right of Way Acquisition Agreement by and between Dublin and Columbus, as duly amended or supplemented from time to time in accordance with its terms. "Agreement Term" means the period commencing with the execution and delivery of this Agreement and ending on the Termination Date. "Authorized Dublin Representative" means initially the Director of Engineering/City Engineer of Dublin. Dublin may from time to time provide a written certificate to Columbus signed on behalf of Dublin by the City Manager designating an alternative or alternates who shall have the same authority, duties and powers as the initial Authorized Dublin Representative. "Authorized Columbus Representative" means initially the Director of the Department of Public Service of Columbus. Columbus may from time to time provide a written certificate to Dublin signed on behalf of Columbus by the Director of Public Service designating an alternative or alternates who shall have the same authority, duties and powers as the initial Authorized Columbus Representative. "Completion Date" means the dates given pursuant to Section 2.3 of this Agreement. "Consultant" means the Consultant(s) selected by Dublin to perform and complete the design of the Infrastructure Improvements. "Event ofDefault' means an Event of Default under Section 4.1 of this Agreement. "ForceMajeure" means acts of God, fires, epidemics, landslides, floods, strikes, lockouts or other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or accidents of machinery; transmission piles or canals; partial or entire failures of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive precipitation; or any cause or event (other than financial inability) not reasonably within the control of the Parties. 2 I Nil jj§jjjwjmj�vw� 11 "Event ofDefault' means an Event of Default under Section 4.1 of this Agreement. "ForceMajeure" means acts of God, fires, epidemics, landslides, floods, strikes, lockouts or other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or accidents of machinery; transmission piles or canals; partial or entire failures of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive precipitation; or any cause or event (other than financial inability) not reasonably within the control of the Parties. 2 REDLINED VERSION "Infrastructure Improvements" means those improvements to Emerald Parkway from Rings Road southerly and easterly approximately 2,500 feet to Tuttle Crossing Boulevard. The improvements shall include widening Emerald Parkway to 5 lanes at intersections with 4 lanes and a median between intersections, curb and gutter, sidewalks, bikepaths, traffic signals, street lighting, regulatory road signage, pavement markings, storm drainage, utility location and any necessary relocation, and landscaping, all in compliance with the Americans with Disabilities Act ( "A.D.A. ") criteria. "Notice Address" means: (a) As to Dublin: City of Dublin, Ohio 5800 Shier -Rings Road Dublin, Ohio 43016 Attention: Director of Engineering (b) As to Columbus: City of Columbus 90 West Broad Street, Room 301 Columbus, Ohio 43215 Attention: Director of Public Service Copy to: Office of Support Services Department of Public Service Columbus, Ohio 43215 Attn: Contract Manager or adifferent address as to which notice is given pursuant to Section 5.1 of this Agreement. "Person" shall mean an individual, a corporation, a partnership, an association, a limited liability company, a joint stock company, a joint venture, a trust, an unincorporated organization, or a government or any agency or political subdivision thereof. "Relocation" means the adjustment of utility facilities required by a roadway improvement project. It includes removing and reinstalling the facility, including any necessary temporary adjustments, acquiring necessary right of way, moving, rearranging, or changing the type of existing facilities, and taking any necessary safety and protective measures. It shall also mean constructing a replacement facility that is both functionally equivalent to the existing facility and necessary for continuous operation of utility service. <x � > REDLINED VERSION "State" means the State of Ohio, one of the United States of America. "` "`Termination Date" shall be defined by final approval and signature of construction drawings and final reimbursement for design an d right 4 wa aequis4ion costs from Columbus to Dublin. "Utility" shall mean and include a privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with roadway drainage, or any other similar commodity not owned and operated by the City of Columbus or City of Dublin. The term "utility" shall also mean the utility company inclusive of any substantially owned or controlled subsidiary. This term includes those utility - type facilities that are owned or leased by a governmental agency other than the City of Columbus or City of Dublin for their own use, or otherwise dedicated solely to government use. The term "Utility" includes those facilities used solely by the Utility, which are part of its operating plant. Service lines privately owned and devoted exclusively to supplying the various commodities to the owner and not directly or indirectly serving the public, are not considered to be autility. Section 1.2 Certain Words Used Herein; References Any reference herein to Dublin or Columbus, any members or officers thereof, or other public boards, commissions, departments, institutions, agencies, bodies or other entities, or members or officers thereof, includes without limitation, entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or by operation of law or performing their functions lawfully. Any reference to sections or provisions of the Constitution of the State, the Act, a section, provision or chapter of the Ohio Revised Code, federal or State laws includes without limitation, that section, provision or chapter, or those laws or regulations, as amended, modified, revised, supplemented or superseded from time to time. Words of any gender include the correlative words of any other gender. Unless the context indicates otherwise, words importing the singular number imnort the plural number, and vice versa_ The terms "hereof', "herein ", "hereby ", "hereto ", and "hereunder ", and similar terms, refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before the date of delivery of this Agreement. ARTICLE II DESIGN OF THE INFRASTRUCTURE IMPROVEMENTS Section 2.1 General Considerations In consideration of the commitment of Dublin to design the Infrastructure Improvements, Columbus agrees to finance the portion of s tom. f right of way acquisition for the improvements that are associated with the property within the Columbus corporation limits and reimburse Dublin for the costs of designing the Infrastructure Improvements up to a maximum of $650,000 4 REDLINED VERSION 350.000. The parties will discuss any increases in as�costs and mutually agree whether such costs will be financed by the Parties within th iF4 ( da of fe eipt of th app fa _ epei4s Fe_ the If the Parties agree to a.. :. et4s t4at fesff t' agreement results in a greater cost to Columbus than the maximum amount of $FrS , 350,000 a written addendum to this Agreement will be required outlining the additional items and providing funding for the additional items by the appropriate Party prior to incurring the additional cost. Columbus City Council must give approval for the City to enter into any agreement that increases the amount of money for this project and to appropriate funds for any cost increase. Payment can be made only after these approvals are received and the addendum is executed. Section 2.2 Design of the Infrastructure Improvements Dublin covenants and agrees that it will contract for the engineering and design of the Infrastructure Improvements in its name with a contractor or contractors, and Columbus covenants and agrees to the engineering and design of the Infrastructure Improvements by Dublin. (a) Dublin covenants and agrees: �a�r�s�as nR!ee=einssnsssees��eaee�eese LD (2-)—To hire and manage the consultant designing the Infrastructure Improvements; .�!eess .ararse�e�araess=e�fi - 0)—To make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions hereafter delivered, and do all other things which may be necessary or advisable for the design of the Infrastructure Improvements, all in conformity with all applicable governmental laws, rules and regulations; �3- To finance all costs of right of way acquisition activities associated with the Infrastructure Improvements within the Dublin corporation limits �4- (Pursuant to the provisions of this Agreement, to provide for the payment of all fees, costs and expenses incurred in the design of the Infrastructure Improvements w ithi n th:.,_ (30` d s of ipt of t he ...t �ees; ({}Traffic operation analysis for the Infrastructure Improvements shall be completed and submitted to the Authorized Columbus Representative for 5 REDLINED VERSION review and reasonable approval. Objection and /or revisions shall be provided by the Authorized Columbus Representative to Dublin within fifteen (15) days of delivery of such plans, or such plans shall be deemed approved -} (7}Tbe construction drawings will contain estimates of quantities that specify the quantity of work in each jurisdiction to simplify developing the construction costs in each jurisdiction. (b) Columbus covenants and agrees: (1) To review and provide written approval of the scope, schedule, budgets and design documents associated with the Infrastructure Improvements within thirty (30) days of submission; (2) To review and provide comments or written approval of submitted design plans of the Infrastructure Improvements within the Columbus corporation limits within thirty (30) calendar days of Dublin submission, unless otherwise agreed to by the Parties in writing; (3) To reimburse Dublin ^p to s ° l an d 94 t4,.." and dollars a4qa for those approved design ffia f i g ht of w ay asgxisition osts associated with the Infrastructure Improvements within the Columbus corporation limits C bus °'4°" re i- -burse - Publffi ff (4) Upon execution of the Agreement, Columbus shall reimburse Dublin these actual costs associated with the design of the Infrastructure Improvements: a) Traffic analysis - $37,255 b) Roundabout Simulation - $5,280 c) Detail design - $157,647 d) Right of way plan - $25,093 c) Waterline relocation design - $18,060 This is atotal of $243,335. Also, Columbus shall reimburse Dublin 100% of the costs of any additional work performed within the Columbus corporation limits by the consultant in the designing of the Infrastructure Improvements Dublin shall included copies of itemized invoices - including progress reports - and vouchers with each reimbursement request. To finance all costs of right of way acquisition activities associated with the Infrastructure Improvements within the Columbus corporation limits. 6 REDLINED VERSION kO (4�To reimburse Dublin for costs associated with the right of way acquisition activities associated with the Infrastructure Improvements for this project that have been incurred by Dublin to the date of execution of this Agreement including, but not limited to, legal fees, appraisal fees, negotiator fees, right of way consultant fees, and court fees ..,.E+1,.«.,...f.. .. :4L. s igned .. ,...f.. and 6 8p i es 4 @ RMIN 111 {H-039}44} § ll3]941.1 } 7 ■ ■ ■ ■ Y . Y Y . -111IM11M , 0111111 11 Y ■ lllillIllighl !I iI IN ■ {H-039}44} § ll3]941.1 } 7 REDLINED VERSION e. aesr sRess�eesssas�e�aesr sRess�eesssaecs��ne��neess�ee�e !sasn�nn (4y 4COlumbus- Section 2.3 Completion (a) The Parties agree to exercise their best efforts to complete the design of the construction drawings by 3anuafy 1� Anril 1" 2010. (b) The Parties agree to exercise their best efforts to complete the legal descriptions and exhibits needed for right of way acquisition by 3afmafy 1-5-,- 1 2010. ( p ..1...11 A e :t.. 1 A t,. ,. A 41 r i g ht 4 WR ..,.,.d 4 tt.,. ten The Parties agree that such completion dates may be extended by mutual written agreement of the Authorized Dublin Representative and the Authorized Columbus Representative. ARTICLE III EVENTS OF DEFAULT AND REMEDIES Section 3.1 Events of Default and Remedies (a) Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party hereto, or any successor to such Party, such party of successor shall, upon written notice from the other, proceed promptly to cure or remedy such default or breach. In case such remedial action is not taken or not diligently pursued with in thirty (30) days of such written notice, the Party asserting default or breach may institute such proceedings at law or in equity as may be necessary or desirable in its opinion to remedy such default or breach. (b) Notwithstanding the preceding paragraph, if by reason of Force Majeure any Party fails in the observance or performance of any of its agreements, duties or obligations to be observed or performed under this Agreement, the Party shall not be deemed to be in default under this agreement. The Party will give notice promptly to the others of any event of Force Majeure and will use its best efforts to remedy that event with all reasonable dispatch; provided that a Party will not be required to settle strikes, lockouts or other industrial disturbances by acceding to the demands of any opposing Person, when in that Party's judgment, that course would be unfavorable to it; and no suspension will constitute an Event of Default if that suspension is a result of the application of federal or State wage, price or economic stabilization controls, cost containment requirements, restrictions on rates or charges, which prevents the Party from observing and performing the applicable covenant, agreement or obligation. 8 REDLINED VERSION (a) The declaration of an Event of Default hereunder and the exercise of rights, remedies and powers upon the declaration are subject to any application limitations of federal or bankruptcy law affecting or precluding the declaration or exercise during the pendency of or immediately following any bankruptcy, liquidation or reorganization proceedings. Section 3.2 No Remedv Exclusive Unless provided expressly otherwise herein, no right, remedy and power conferred upon or reserved to either Party under this Agreement is intended to be exclusive of any other available right, remedy or power, but each right, remedy and power shall be cumulative and concurrent and shall be in addition to every other right, remedy and power available under this Agreement or existing at law, in equity or by statute or otherwise now or hereafter. No exercise, beginning of the exercise, or partial exercise by either Party of any one or more rights, remedies or powers preclude the simultaneous or later exercise by that Party of any or all rights, remedies or powers. No delay or omission in the exercise of any right, remedy or power accruing upon any Event of Default hereunder shall impair that or any other right, remedy or power of shall be construed to constitute a waiver of any Event of Default hereunder, but any right, remedy or power may by exercised from time to time and as often as may be deemed to be expedient. Section 3.3 No Additional Waiver Implied by One Waiver In the event that any covenant, agreement or obligation under this Agreement shall be breached by either Columbus or Dublin and the breach shall have been waived thereafter by Columbus or Dublin, as the case may be, the waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other or any subsequent breach thereafter. No failure by either Party to insist upon the strict observance or performance by the other Party of any covenant, agreement or obligation under this Agreement and no failure to exercise any right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any right to strict observance or performance or a waiver of any breach. No express waiver shall be deemed to apply to any other breach or to any existing or subsequent right to remedy the breach. Section 3.4 Provisions Subject to Applicable Law All rights, remedies and powers hereunder may be exercised only to the extent permitted by applicable law. Those rights, remedies and power are intended to be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable or not entitled to be recorded, registered or filed under any applicable law. ARTICLE IV MISCELLANEOUS Section 4.1 Notices Except as otherwise specifically set forth in this Agreement, any notices, demands, requests, consents or approvals given, required or permitted to be given 9 REDLINED VERSION hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand - delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. A duplicate copy of each notice, certificate, request or other communication given hereunder to Dublin or Columbus shall be given also to the others. The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices, certificate, requests or other communications shall be sent. Section 4.2 Extent of Provisions Regarding Dublin and Columbus: No Personal Liability No representation, warranty, covenant, agreement, obligation or stipulation contained in this Agreement shall be deemed to constitute a representation, warranty, covenant, agreement, obligation or stipulation of any present or future trustee, member, officer, agent or employee of Dublin or Columbus in an individual capacity, and to the extent authorized and permitted by applicable law, no official executing or approving Dublin or Columbus' participation in this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. Section 4.3 Hold Harmless To the extent permitted by law, Dublin shall hold Columbus harmless from all suits, actions, or claims arising from any injuries or damages sustained by any person or property in consequence of any neglect or on account of any wrongful act or omission on the part of Dublin, its employees, agents, or contractors relating to its responsibilities under this Agreement inelua:i+rt bt4 not lim4ed t@ r i g ht ,.F WR RH d .,. t Section 4.4 Binding Effect This Agreement shall inure to the benefit of and shall be binding upon the Parties, and their respective permitted successors and assigns. The Parties will observe and perform faithfully at all times all covenants, agreements and obligations under this Agreement. Section 4.5 Execution Counterparts This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same agreement. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Section 4.6 Severability In case any section or provision of this Agreement, or any covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or any application thereof, is held to be illegal or invalid for any reason, 10 REDLINED VERSION (a) that illegality or invalidity shall not affect the remainder hereof or thereof, any other section or provision hereof, or any other covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, all of which shall be construed and enforced as if the illegal or invalid portion were not contained herein or therein, (b) the illegality or invalidity or any application hereof or thereof shall not affect any legal and valid application hereof or thereof, and (c) each section, provision, covenant, agreement, obligation or action, or part thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in the manner and to the full extent permitted by law. Section 4.7 Captions The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. Section 4.8 Governing Law and Choice of Forum This Agreement shall be governed by and construed in accordance with the laws of the State. All claims, counterclaims, disputes and other matters in question between Dublin, its agents and employees, and Columbus, its agents and employees, arising out of or relating to this Agreement or its breach will be decided in court of competent jurisdiction with the County of Franklin within the State of Ohio. Section 4.9 Survival of Representations and Warranties All representations and warranties of Columbus and Dublin in this Agreement shall survive the execution and delivery of this Agreement. Section 4.10 Dispute Resolution In the event a dispute arises regarding any terms and conditions contained in this Agreement, which is not an Event of Default under Article IV, notification of such dispute shall be sent to a designated representative of Dublin or Columbus, in writing, In such notification, the disputing party shall present such evidence as may support its position. Within ten (10) calendar days of receipt of the notification, the designated representatives shall review the facts and circumstances surrounding the dispute for the purpose of determination. If the designated representatives cannot come to agreement on the dispute, each Party may seek any remedies available to it. 11 REDLINED VERSION IN WITNESS WHEREOF, Dublin and Columbus have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO C Terry Foegler City Manager Approved as to Form: C Stephen J. Smith Law Director CITY OF COLUMBUS, OHIO By Mark Kelsey Director of Public Service Approved as to form: Richard C. Pfeiffer, Jr. City Attorney I certify compliance with applicable sections of Title 39 as of (date) (name) 12 COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT BETWEEN CITY OF COLUMBUS, OHIO AND CITY OF DUBLIN, OHIO FOR ROADWAY IMPROVEMENTS EMERALD PARKWAY (TUTTLE CROSSING BLVD — RINGS ROAD) Columbus Capital Improvement Project No. 530161- 100003 Dublin Capital Improvement Project No. 09- 005 -CIP THIS COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT (the Agreement') date , 2010, by and between the CITY OF DUBLIN, OHIO ( "Dublin "), a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio (the "State ") and its Charter, and the CITY OF COLUMBUS, OHIO ( "Columbus ", and collectively with Dublin, the "Parries "), also a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio and its Charter. WITNESSETH: WHEREAS, the Parties have determined that it would be in the best interests of Dublin and Columbus to widen and improve Emerald Parkway from Rings Road in Dublin south to Tuttle Crossing Boulevard in Columbus; and WHEREAS, the Parties have determined that it would be in the best interests of Dublin and Columbus to provide for the efficient and coordinated development of the design and right of way acquisition; and WHEREAS, the Parties desire to enter into a Cooperative Design and Right of Way Acquisition Agreement, to provide for the design and acquisition necessary for the construction of various roadway and associated infrastructure improvements; and WHEREAS, the Parties have agreed that Columbus will make payment to Dublin for the design costs attributable to the Infrastructure Improvements within the Columbus corporation limits as outlined in Article II. NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows: {H14914413 } 1 ARTICLE I DEFINITIONS Section 1.1. Definitions Unless otherwise defined herein, words and terms used in this Agreement with initial capital letters shall have the meanings set forth in this Section 1.1. Agreement' means this Cooperative Design and Right of Way Acquisition Agreement by and between Dublin and Columbus, as duly amended or supplemented from time to time in accordance with its terms. "Agreement Term" means the period commencing with the execution and delivery of this Agreement and ending on the Termination Date. "Authorized Dublin Representative" means initially the Director of Engineering/City Engineer of Dublin. Dublin may from time to time provide a written certificate to Columbus signed on behalf of Dublin by the City Manager designating an alternative or alternates who shall have the same authority, duties and powers as the initial Authorized Dublin Representative. "Authorized Columbus Representative" means initially the Director of the Department of Public Service of Columbus. Columbus may from time to time provide a written certificate to Dublin signed on behalf of Columbus by the Director of Public Service designating an alternative or alternates who shall have the same authority, duties and powers as the initial Authorized Columbus Representative. "Completion Date" means the dates given pursuant to Section 2.3 of this Agreement. "Consultant" means the Consultant(s) selected by Dublin to perform and complete the design of the Infrastructure Improvements. "Event ofDefault' means an Event of Default under Section 4.1 of this Agreement. "ForceMajeure" means acts of God, fires, epidemics, landslides, floods, strikes, lockouts or other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or accidents of machinery; transmission piles or canals; partial or entire failures of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive precipitation; or any cause or event (other than financial inability) not reasonably within the control of the Parties. "Infrastructure Improvements" means those improvements to Emerald Parkway from Rings Road southerly and easterly approximately 2,500 feet to Tuttle Crossing Boulevard. The improvements shall include widening Emerald Parkway to 5 lanes at intersections with 4 lanes and a median between intersections, curb and gutter, sidewalks, bikepaths, traffic signals, street {H17914413 } 2 lighting, regulatory road signage, pavement markings, storm drainage, utility location and any necessary relocation, and landscaping, all in compliance with the Americans with Disabilities Act ( "A.D.A. ") criteria. "Notice Address" means: (a) As to Dublin: City of Dublin, Ohio 5800 Shier -Rings Road Dublin, Ohio 43016 Attention: Director of Engineering (b) As to Columbus: City of Columbus 90 West Broad Street, Room 301 Columbus, Ohio 43215 Attention: Director of Public Service Copy to: Office of Support Services Department of Public Service Columbus, Ohio 43215 Attn: Contract Manager or a different address as to which notice is given pursuant to Section 5.1 of this Agreement. "Person" shall mean an individual, a corporation, a partnership, an association, a limited liability company, a joint stock company, a joint venture, a trust, an unincorporated organization, or a government or any agency or political subdivision thereof. "Relocation" means the adjustment of utility facilities required by a roadway improvement project. It includes removing and reinstalling the facility, including any necessary temporary adjustments, acquiring necessary right of way, moving, rearranging, or changing the type of existing facilities, and taking any necessary safety and protective measures. It shall also mean constructing a replacement facility that is both functionally equivalent to the existing facility and necessary for continuous operation of utility service. "State" means the State of Ohio, one of the United States of America. "Termination Date" shall be defined by final approval and signature of construction drawings and final reimbursement for design costs from Columbus to Dublin. {H17914413 } 3 "Utility" shall mean and include a privately, publicly, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, cable television, power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with roadway drainage, or any other similar commodity not owned and operated by the City of Columbus or City of Dublin. The term "utility" shall also mean the utility company inclusive of any substantially owned or controlled subsidiary. This term includes those utility - type facilities that are owned or leased by a governmental agency other than the City of Columbus or City of Dublin for their own use, or otherwise dedicated solely to government use. The term "Utility" includes those facilities used solely by the Utility, which are part of its operating plant. Service lines privately owned and devoted exclusively to supplying the various commodities to the owner and not directly or indirectly serving the public, are not considered to be a utility. Section 1.2 Certain Words Used Herein; References Any reference herein to Dublin or Columbus, any members or officers thereof, or other public boards, commissions, departments, institutions, agencies, bodies or other entities, or members or officers thereof, includes without limitation, entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or by operation of law or performing their functions lawfully. Any reference to sections or provisions of the Constitution of the State, the Act, a section, provision or chapter of the Ohio Revised Code, federal or State laws includes without limitation, that section, provision or chapter, or those laws or regulations, as amended, modified, revised, supplemented or superseded from time to time. Words of any gender include the correlative words of any other gender. Unless the context indicates otherwise, words importing the singular number import the plural number, and vice versa The terms "hereof', "herein ", "hereby ", "hereto ", and "hereunder ", and similar terms, refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before the date of delivery of this Agreement. ARTICLE II DESIGN OF THE INFRASTRUCTURE IMPROVEMENTS Section 2.1 General Considerations In consideration of the commitment of Dublin to design the Infrastructure Improvements, Columbus agrees to finance the portion of right of way acquisition for the improvements that are associated with the property within the Columbus corporation limits and reimburse Dublin for the costs of designing the Infrastructure Improvements, up to a maximum of $350,000. The parties will discuss any increases in costs and mutually agree whether such costs will be financed by the Parties. If the Parties' agreement results in a greater cost to Columbus than the maximum amount of $350,000, a written addendum to this Agreement will be required outlining the additional items and providing funding for the additional items by the appropriate Party prior to incurring the additional cost. Columbus City Council must give approval for the City to enter into any agreement that {H17914413 } 4 increases the amount of money for this project and to appropriate funds for any cost increase. Payment can be made only after these approvals are received and the addendum is executed. Section 2.2 Design of the Infrastructure Improvements Dublin covenants and agrees that it will contract for the engineering and design of the Infrastructure Improvements in its name with a contractor or contractors, and Columbus covenants and agrees to the engineering and design of the Infrastructure Improvements by Dublin. (a) Dublin covenants and agrees: (1) To hire and manage the consultant designing the Infrastructure Improvements; (2) To make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions hereafter delivered, and do all other things which may be necessary or advisable for the design of the Infrastructure Improvements, all in conformity with all applicable governmental laws, rules and regulations; (3) To finance all costs of right of way acquisition activities associated with the Infrastructure Improvements within the Dublin corporation limits; (4) Pursuant to the provisions of this Agreement, to provide for the payment of all fees, costs and expenses incurred in the design of the Infrastructure Improvements; (5) Traffic operation analysis for the Infrastructure Improvements shall be completed and submitted to the Authorized Columbus Representative for review and reasonable approval. Objection and /or revisions shall be provided by the Authorized Columbus Representative to Dublin within fifteen (15) days of delivery of such plans, or such plans shall be deemed approved; (6) The construction drawings will contain estimates of quantities that specify the quantity of work in each jurisdiction to simplify developing the construction costs in each jurisdiction. (b) Columbus covenants and agrees: (1) To review and provide written approval of the scope, schedule, budgets and design documents associated with the Infrastructure Improvements within thirty (30) days of submission; (2) To review and provide comments or written approval of submitted design plans of the Infrastructure Improvements within the Columbus corporation {H17914413 } 5 (3) To reimburse Dublin for those approved design costs associated with the Infrastructure Improvements within the Columbus corporation limits. (4) Upon execution of the Agreement, Columbus shall reimburse Dublin these actual costs associated with the design of the Infrastructure Improvements: a) Traffic analysis - $37,255 b) Roundabout Simulation - $5,280 c) Detail design - $157,647 d) Right of way plan - $25,093 c) Waterline relocation design - $18,060 This is a total of $243,335. Also, Columbus shall reimburse Dublin 100% of the costs of any additional work performed within the Columbus corporation limits by the consultant in the designing of the Infrastructure Improvements Dublin shall included copies of itemized invoices — including progress reports — and vouchers with each reimbursement request. (5) To finance all costs of right of way acquisition activities associated with the Infrastructure Improvements within the Columbus corporation limits. (6) To reimburse Dublin for costs associated with the right of way acquisition activities associated with the Infrastructure Improvements for this project that have been incurred by Dublin to the date of execution of this Agreement including, but not limited to, legal fees, appraisal fees, negotiator fees, right of way consultant fees, and court fees. Section 2.3 Completion (a) The Parties agree to exercise their best efforts to complete the design of the construction drawings by April 1, 2010. (b) The Parties agree to exercise their best efforts to complete the legal descriptions and exhibits needed for right of way acquisition by March 1, 2010. (c) The Parties agree that such completion dates may be extended by mutual written agreement of the Authorized Dublin Representative and the Authorized Columbus Representative. ARTICLE III {H17914413 } 6 EVENTS OF DEFAULT AND REMEDIES Section 3.1 Events of Default and Remedies (a) Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party hereto, or any successor to such Party, such party of successor shall, upon written notice from the other, proceed promptly to cure or remedy such default or breach. In case such remedial action is not taken or not diligently pursued with in thirty (30) days of such written notice, the Party asserting default or breach may institute such proceedings at law or in equity as may be necessary or desirable in its opinion to remedy such default or breach. (b) Notwithstanding the preceding paragraph, if by reason of Force Majeure any Party fails in the observance or performance of any of its agreements, duties or obligations to be observed or performed under this Agreement, the Party shall not be deemed to be in default under this agreement. The Party will give notice promptly to the others of any event of Force Majeure and will use its best efforts to remedy that event with all reasonable dispatch; provided that a Party will not be required to settle strikes, lockouts or other industrial disturbances by acceding to the demands of any opposing Person, when in that Party's judgment, that course would be unfavorable to it; and no suspension will constitute an Event of Default if that suspension is a result of the application of federal or State wage, price or economic stabilization controls, cost containment requirements, restrictions on rates or charges, which prevents the Party from observing and performing the applicable covenant, agreement or obligation. (a) The declaration of an Event of Default hereunder and the exercise of rights, remedies and powers upon the declaration are subject to any application limitations of federal or bankruptcy law affecting or precluding the declaration or exercise during the pendency of or immediately following any bankruptcy, liquidation or reorganization proceedings. Section 3.2 No Remedy Exclusive Unless provided expressly otherwise herein, no right, remedy and power conferred upon or reserved to either Party under this Agreement is intended to be exclusive of any other available right, remedy or power, but each right, remedy and power shall be cumulative and concurrent and shall be in addition to every other right, remedy and power available under this Agreement or existing at law, in equity or by statute or otherwise now or hereafter. No exercise, beginning of the exercise, or partial exercise by either Party of any one or more rights, remedies or powers preclude the simultaneous or later exercise by that Party of any or all rights, remedies or powers. No delay or omission in the exercise of any right, remedy or power accruing upon any Event of Default hereunder shall impair that or any other right, remedy or power of shall be construed to constitute a waiver of any Event of Default hereunder, but any {H17914413 } 7 right, remedy or power may by exercised from time to time and as often as may be deemed to be expedient. Section 3.3 No Additional Waiver Implied by One Waiver In the event that any covenant, agreement or obligation under this Agreement shall be breached by either Columbus or Dublin and the breach shall have been waived thereafter by Columbus or Dublin, as the case may be, the waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other or any subsequent breach thereafter. No failure by either Party to insist upon the strict observance or performance by the other Party of any covenant, agreement or obligation under this Agreement and no failure to exercise any right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any right to strict observance or performance or a waiver of any breach. No express waiver shall be deemed to apply to any other breach or to any existing or subsequent right to remedy the breach. Section 3.4 Provisions Subject to Applicable Law All rights, remedies and powers hereunder may be exercised only to the extent permitted by applicable law. Those rights, remedies and power are intended to be limited to the extent necessary so that they will not render this Agreement invalid, unenforceable or not entitled to be recorded, registered or filed under any applicable law. ARTICLE IV MISCELLANEOUS Section 4.1 Notices Except as otherwise specifically set forth in this Agreement, any notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand - delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. A duplicate copy of each notice, certificate, request or other communication given hereunder to Dublin or Columbus shall be given also to the others. The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices, certificate, requests or other communications shall be sent. Section 4.2 Extent of Provisions Regarding Dublin and Columbus: No Personal Liability No representation, warranty, covenant, agreement, obligation or stipulation contained in this Agreement shall be deemed to constitute a representation, warranty, covenant, agreement, obligation or stipulation of any present or future trustee, member, officer, agent or employee of Dublin or Columbus in an individual capacity, and to the extent authorized and permitted by applicable law, no official executing or approving Dublin or Columbus' participation in this {H17914413 } 8 Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the issuance thereof. Section 4.3 Hold Harmless To the extent permitted by law, Dublin shall hold Columbus harmless from all suits, actions, or claims arising from any injuries or damages sustained by any person or property in consequence of any neglect or on account of any wrongful act or omission on the part of Dublin, its employees, agents, or contractors relating to its responsibilities under this Agreement. Section 4.4 Binding Effect This Agreement shall inure to the benefit of and shall be binding upon the Parties, and their respective permitted successors and assigns. The Parties will observe and perform faithfully at all times all covenants, agreements and obligations under this Agreement. Section 4.5 Execution Counterparts This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute but one and the same agreement. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Section 4.6 Severabilitv In case any section or provision of this Agreement, or any covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or any application thereof, is held to be illegal or invalid for any reason, (a) that illegality or invalidity shall not affect the remainder hereof or thereof, any other section or provision hereof, or any other covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, all of which shall be construed and enforced as if the illegal or invalid portion were not contained herein or therein, (b) the illegality or invalidity or any application hereof or thereof shall not affect any legal and valid application hereof or thereof, and (c) each section, provision, covenant, agreement, obligation or action, or part thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in the manner and to the full extent permitted by law. Section 4.7 Captions The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. Section 4.8 Governing Law and Choice of Forum This Agreement shall be governed by and construed in accordance with the laws of the State. All claims, counterclaims, disputes and other matters in question between Dublin, its agents and employees, and Columbus, its {H17914413 } 9 agents and employees, arising out of or relating to this Agreement or its breach will be decided in court of competent jurisdiction with the County of Franklin within the State of Ohio. Section 4.9 Survival of Representations and Warranties All representations and warranties of Columbus and Dublin in this Agreement shall survive the execution and delivery of this Agreement. Section 4.10 Dispute Resolution In the event a dispute arises regarding any terms and conditions contained in this Agreement, which is not an Event of Default under Article IV, notification of such dispute shall be sent to a designated representative of Dublin or Columbus, in writing, In such notification, the disputing party shall present such evidence as may support its position. Within ten (10) calendar days of receipt of the notification, the designated representatives shall review the facts and circumstances surrounding the dispute for the purpose of determination. If the designated representatives cannot come to agreement on the dispute, each Party may seek any remedies available to it. {H17914413 } 10 IN WITNESS WHEREOF, Dublin and Columbus have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO C Terry Foegler City Manager Approved as to Form: C Stephen J. Smith Law Director CITY OF COLUMBUS, OHIO By Mark Kelsey Director of Public Service Approved as to form: Richard C. Pfeiffer, Jr. City Attorney I certify compliance with applicable sections of Title 39 as of (date) (name) {H17914413 } 11