Resolution 71-11RECORD OF RESOLUTIONS
Resolution No.
Forth No 30045
71-11
Passed
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO A COOPERATIVE CONSTRUCTION
AGREEMENT WITH THE CITY OF COLUMBUS FOR THE
IMPROVEMENT OF EMERALD PARKWAY BETWEEN
TUTTLE CROSSING BOULEVARD AND RINGS ROAD
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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 construct the identified transportation improvement project.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Dublin, State
of Ohio, —Y�— of the elected members concurring:
conclusively by their execution thereof.
Section 1. The City Manager is hereby authorized to enter into a Cooperative
Construction 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
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 Construction 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 /14� day of N Oif &,hfVl . 2011.
Mayor - Pre "d g Officer
Attest:
Clerk of Council
Office of the City Manager
City of Dublin Pho 614 - 410.4400- Fax:b614 -410 -4490 43017-1090
Memo
To: Members of Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: December 8, 2011
Initiated By: Paul A. Hammersmith, P.E., Director of Engineering /City Engineer
Barbara A. Cox, P.E., Engineering Manager — Development
Re: Resolution No. 71 -11 - Authorizing the City Manager to Enter into a
Cooperative Construction Agreement with the City of Columbus for the
Improvement of Emerald Parkway between Tuttle Crossing Boulevard
and Rings Road
Summary
For the past several years, City of Dublin (Dublin) Engineering and Legal staff have been diligently
coordinating with City of Columbus (Columbus) staff regarding the improvements to Emerald
Parkway between Tuttle Crossing Boulevard and Rings Road. Both worked jointly to select a
design consultant for the project through a competitive Request for Proposal process in early 2009.
While the design work progressed thereafter, Columbus worked to secure an Ohio Public Works
Commission (OPWC) grant for the project which was applied for jointly in October 2009.
The OPWC application was successful and a $4,373,647 project grant was awarded in July 2010.
The grant award, which includes reimbursement for project costs related to design, right -of -way
acquisition, construction, contingencies and inspection services, will provide approximately 56% of
the $7,755,155 budgeted in for project costs. As a result, the remaining 44% of the projects costs
not reimbursed by the OPWC grant will be shared proportionately by Columbus and Dublin. The
proportionate share of the project construction costs, as determined from the construction plans
and associated engineer's cost estimate, is 63% for Columbus and 37% for Dublin. All other
project related costs will be proportioned based on the portion of roadway length in each
jurisdiction, resulting in a 60% share for Columbus and a 40% share for Dublin.
As authorized by City Council in February 2010, a "Cooperative Design and Right -of -Way
Acquisition Agreement" was entered into with Columbus on May 19, 2010. The Agreement states
that Dublin will be responsible for the management of the consultant during design and traffic
operation analysis, and that Dublin and Columbus will work cooperatively on the acquisition of
necessary right -of -way.
Initially, Columbus only wished to execute an agreement for design and right -of -way acquisition.
As the project design progressed, a separate agreement would then be developed for the
cooperative construction, addressing each agency's responsibilities during the project construction.
The project team consisting of staff from Dublin and Columbus has created the Cooperative
Construction Agreement as attached for your consideration.
Presently, the estimated construction cost for this project, including all anticipated inspection
services during construction, is $6,011,445. Of this amount, the OPWC grant will reimburse
$3,253,176; the Columbus share will be $1,731,564; and the Dublin share will be $1,026,705. The
Memo re. Resolution 71 -11
December 8, 2011
Page 2 of 2
proposed Cooperative Construction Agreement provides that Dublin will deposit with Columbus its
share of the funds before the project is advertised for bids. Within the adopted 2012 -2016 Capital
Improvements Program, $1,800,000 is programmed in 2012 for the Dublin share to construct this
project.
The project design has been complete since August of this year. The acquisition of right -of -way
and utility easements has been ongoing for several months. Recently, with the pending sale of the
Duke -owned parcels to Blackstone (based in Dallas, Texas), the donation of the last portions of
right -of -way and easements has required additional time to complete. As a result, the construction
of the project is now not expected to commence until April 30, 2012. The anticipated completion
date is currently July 15, 2013.
Recommendation
Staff recommends approval of Resolution 71 -11, authorizing the City Manager to enter into a
Cooperative Construction Agreement with the City of Columbus for the improvement of Emerald
Parkway between Tuttle Crossing Boulevard and Rings Road.
COOPERATIVE CONSTRUCTION AGREEMENT
BETWEEN
CITY OF COLUMBUS
AND
CITY OF DUBLIN
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 CONSTRUCTION AGREEMENT (the "Agreemeul'), made and entered
into this day of , 2011, by and between the CITY OF DUBLIN,
OHIO ( ' Dublzrl'), a municipal corporation duly organized and validly existing under the
Constitution and laws of the State of Ohio (the "SWW') and its Charter, and pursuant to Ordinance
, passed the day of , 2011, and the CITY OF
COLUMBUS, OHIO (`Columbus", and collectively with Dublin, the "Parties"), also a municipal
corporation duly organized and validly existing under the Constitution and laws of the State and its
Charter, and pursuant to Ordinance No. 2152 -2011, passed by the City Council of the City of
Columbus, approved by the Mayor of said City, and attested to by the City Clerk on the 8`" day of
December, 2011.
W ITNESSETH
WHEREAS, the Parties have determined that it would be in the best interests of Dublin and
Columbus to construct the improvements (hereinafter the "Project") described in Exhibit A and in
the project location defined in Exhibit B; and
WHEREAS, the Parties have determined that it would be in their best interests to provide
for the efficient and coordinated construction of the Project; and
WHEREAS, the Parties submitted an application for grant funding for the Project from the
Ohio Public Works Commission (hereinafter "OPWC ") on month, date, year attached as Exhibit C,
WHEREAS, OPWC awarded Columbus an OPWC Grant (hereinafter the "OPWC Grant")
for an amount up to $4,373,647 for the Project and Columbus executed an OPWC Project Agreement
for the Project attached as Exhibit D on July 1, 2010;
WHEREAS, the Parties entered into the Cooperative Design and Right of Way Acquisition
Agreement on May 19, 2010 for the Project attached as Exhibit E; and
WHEREAS, the Parties will enter into an Addendum to the Cooperative Design and Right
of Way Acquisition Agreement for the Project for the Project attached as Exhibit F:
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WHEREAS, the Parties desire to enter into a Cooperative Construction Agreement to
provide for the construction of the Project and
WHEREAS, the Parties have agreed that Dublin will make payment to Columbus for the
construction within the Dublin corporation limits as outlined in Article II.
NOW THEREFORE, the Parties covenant, agree, and obligate themselves as follows:
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 Construction Agreement by and between the Parties , as
duly amended or supplemented from time to time in accordance with its terms.
"Agreement Terd' means the period commencing with the execution and delivery of this
Agreement and ending after the final report has been delivered after the one year warranty period.
"Autbori.�ed 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
some authority, duties, and powers as the initial Authorized Dublin Representative.
"Autbori.�ed 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.
"Contract Documents" shall mean collectively: a) this Agreement, including
attachments /exhibits; and b) the approved plans and specifications for the Improvements.
"Contractor" means the Contractor(s) selected by Columbus to perform and complete the
construction of the Infrastructure Improvements.
"Cost of Fork" means the total consideration paid or to be paid for the construction and
inspection of the Infrastructure Improvements pursuant to Article II.
"Event of D fault' means an Event of Default under Section 3.1 of this Agreement.
"Force Majeurd" 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
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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.
"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
Department of Public Service
Office of Support Services
109 N. Front St. — Ground Floor
Columbus, Ohio 43215
Attention: Capital Fiscal Manager
or a different address as to which notice is given pursuant to Section 4.1 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.
"Utiby' 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 Parties. 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 Parties n 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.
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Section 1.2 Certain Words Used Herein: References Any reference herein to the Parties,
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 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. Funding. Through collaborative efforts, the Parties obtained up to
$4,373,647 through the OPWC Grant in Exhibit D. The OPWC Grant includes funding for
design, right- of-way acquisition, and construction. Any project costs not eligible for
reimbursement by the OPWC Grant shall be the sole responsibility of the agency having
jurisdiction over the area where the work is performed..
In the event that additional funding becomes available from the Ohio Public Works
Commission, the Parties shall share those funds with 60% going to Columbus and 40% going to
Dublin.
Section 2.2 Designation of Lead Agency for Construction. Columbus shall be the lead
agency for management and administration of the construction contract for the Project Columbus shall
perform construction services for the entire Project. The executed contract between Columbus and
the Contractor shall be incorporated by reference, as if attached, as Exhibit G.
Section 2.3 Inspection. Columbus shall do and perform all inspection services for the
Project, including the following.
(a) Directly interfacing with the Contractor.
(b) Directly interface with the Consultant as needed.
(c) Manage the change order process and shall seek Dublin's approval of change orders
in their corporate limits.
(d) Invite Dublin to the final punch list and walkthrough of the Project
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(e) Upon final approval and acceptance of the Project, shall notify the Contractor in
writing (with a copy to Dublin).
(f) Perform the one year warranty inspection and provide Dublin a final report Dublin
will be invited to attend the one year inspection walk - through. .
Section 2.4 Pwment for Construction Services. Dublin shall deposit $1,026,705.28 with
Columbus for construction and inspection for the Project before the project is advertised. Dublin's
deposit plus Columbus' share, and the OPWC Grant amount shall cover the full amount of
construction and inspection. Columbus shall pay the Contractor.
If additional construction services are needed that exceed the OPWC Grant amount, or are not eligible
for reimbursement under the OPWC Grant the Parties shall come to agreement on the additional
amount needed by each Party. Each Party shall approve of additional construction services within
their own jurisdiction. For construction work that cannot be assigned to one locality, the cost shall be
split as follows: Columbus shall be responsible for 60% and Dublin shall be responsible for 40 %.
In the event that additional funds are needed for construction, a written addendum to this Agreement
shall be required outlining the additional services and the cost for the additional services for each Party
prior to incurring the additional cost
Columbus City Council and Dublin City Council may need to give approval for the Parties to enter
into any modification that increases the amount of money for this project and to appropriate
additional funds for any cost increase. At such time as Dublin executes the contract modification,
Dublin shall deposit with Columbus the requisite additional funds. Payment to the Contractor for
additional services can be made only after these approvals are received, modification(s) are executed,
and funds deposited.
After Columbus and Dublin accept the project (as outlined in Section 2.6), Columbus shall initiate a
final accounting of project costs. If Dublin's share of the Cost of Work is less than the amount
deposited, Columbus shall process a refund for Dublin within 30 calendar days of the Parties agreeing
on the refund amount If Dublin's share of the Cost of Work is greater than the amount deposited,
Dublin shall process a payment for Columbus within 30 calendar days of Dublin and Columbus
agreeing on the payment amount.
Section 2.5 Project Guaranty. Columbus shall require its Contractor(s) to warrant that
the Work shall be free from defects in materials and workmanship (without regard to the standard
of care exercised in its performance) for a period of one (1) year after final written acceptance of
the Work. Columbus' Contractor(s) shall at its own expense:
(a) Correct or re- execute any of the Work that fails to conform to the requirements of
the Contract Documents and appears during the prosecution of the Work.
(b) Correct any defects in materials and workmanship of the Work (without regard to
the standard of care exercised in its performance) which appear within a period of one (1) year after
final written acceptance of the Work or within such longer period of time as may be set forth in the
Contract Documents, and
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(c) Replace, repair, or restore any parts of the Work or any of the fixtures, equipment, or
other items placed therein that are injured or damaged as a consequence of any such failure or
defect or as a consequence of corrective action taken pursuant hereto.
Section 2.6 Acceptance of Work. Acceptance of the Improvements in the Dublin
corporate limits by Dublin shall not relieve Columbus and its contractor of its responsibility for
defects in material or workmanship as set forth in Section 2.5.
Section 2.7 Specific Responsibilities of Dublin. In connection with the foregoing, Dublin
agrees to undertake the fallowing specific duties and responsibilities with regard to the Project:
(a) Declare the improvement necessary.
(b) Dublin shall modify the design consultant agreement, if necessary, to include
providing services during construction and to instruct the consultant to take
direction from Columbus as needed for construction.
(c) If requested by Columbus, Dublin shall direct the design consultant to provide as -built
drawings for Work in Columbus' jurisdiction. Payment for as -built drawings shall be
made from Columbus' funds already encumbered for the design contract
Section 2.8 Specific Responsibilities of Columbus. In connection with the foregoing sections,
Columbus agrees to undertake the following specific duties and responsibilities with regard to the Project
(a) Declare the improvement necessary.
(b) Publicly bid the project
(c) Enter into a contract for construction with the lowest best most responsible and
responsive, Contractor. Columbus shall manage and administer the Construction
Contract including the administration of Prevailing Wage requirements.
(d) Provide inspection services for the project
(e) Coordinate with OPWC for the release of grant funds for approved construction costs.
(f) Except as otherwise may be provided in this Agreement, Dublin does not authorize
Columbus to incur any liability on behalf of Dublin beyond the amount of Dublin's
initial contribution to the Project fund without approval by Dublin Council and in
accordance with this Agreement
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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.
(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 right,
remedy or power may by exercised from time to time and as often as may be deemed to be
expedient.
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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 in writing thereafter by the Parties, 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 the Parties 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 the Parties : 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 the Parties in an
individual capacity, and to the extent authorized and permitted by applicable law, no official
executing or approving the Parties' 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 including, but not limited to, right of way and easement acquisition, utility
relocation, and design, construction, inspection and maintenance of the Project.
To the extent permitted by law, Columbus shall hold Dublin 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 Columbus, its
employees, agents, or Contractors relating to its responsibilities under this Agreement, including, but
not limited to, right of way and easement acquisition, utility relocation, and design, construction,
inspection and maintenance of the Project.
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 some 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,
(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.
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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.
Section 4.11. Equal Opportunity Clause. Dublin agrees to abide by all of the terms,
conditions and requirements set forth in Columbus City Code Section 3909.01, Equal Opportunity
Clause. Failure or refusal of Dublin or its Contractor or Subcontractor doing work under this contract
to comply with the provisions of Article I, Title 39, may result in cancellation of this Contract.
(Ordinance 2550 -93.)
Section 4.12. Entire Agreement This agreement shall constitute the entire agreement
between the parties and shall supersede all prior representations, negotiations and letters of intent,
whether written or oral, pertaining to the Project
Section 4.13 Additional Documentation. The following document exhibits are hereby
incorporated into and made part of the Agreement as though specifically rewritten herein:
(a) ExhibitA — InfrastructureImprovements
(b) Exhibit B — Project Location Map
(c) Exhibit C — OPWC Grant Application
(d) Exhibit D - Executed OPWC Project Agreement
(e) Exhibit E — Executed Cooperative Design and Right of Way Acquisition Agreement
Between Columbus and Dublin
(1) Exhibit F — Executed Addendum to the Cooperative Design and Right of Way
Acquisition Agreement Between Columbus and Dublin to be included when executed.
(g) Exhibit G — Executed Construction Contract between Columbus and Contractor,
incorporated by reference as if attached.
[Remainder ofpage intentionally left blank.]
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Section 5. Authorizations
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
By
City Manager
Approved as to form
City of Columbus
Mark Kelsey, Director
Department of Public Service
Approved as to form:
Steve Smith Richard C. Pfeiffer, Jr.
Law Director Columbus City Attorney
Columbus EBOCO:
I certify compliance with applicable
sections of Title 39 as of
(date)
(name)
By:
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Exhibit A
Infrastructure Improvements
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 4
lanes and a median between intersections, roundabouts at Lakehurst Court and Glendon Court curb
and gutter, curb ramps, sidewalks, shared used paths, traffic signal work at Tuttle Crossing
Boulevard, 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.
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Exhibit B
Project Location Map
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Exhibit C
OPWC Grant Application
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Exhibit D
Executed OPWC Project Agreement
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Exhibit E
Executed Cooperative Design and Right of Way Acquisition Agreement
Between Columbus and Dublin
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Exhibit F
Executed Addendum to the Cooperative Design and Right of Way Acquisition
Agreement Between Columbus and Dublin
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Exhibit G
Executed Construction Contract between Columbus and Contractor,
incorporated by reference as if attached
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