HomeMy WebLinkAboutResolution 24-13RECORD OF RESOLUTIONS
Dayton Legal Blank. Inc., Form No. 30045
24 -13
Resolution No. Passed 20
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO ENTER INTO A COOPERATIVE RIGHT -OF -WAY
ACQUISITION AGREEMENT WITH THE CITY OF
COLUMBUS FOR ARTERIAL STREET IMPROVEMENTS
AT HARD AND SAWMILL ROADS (HARD ROAD
PHASE A) (SAWMILL ROAD — SMOKEY ROW ROAD)
WHEREAS, the City of Dublin desires to improve traffic safety, operations and
efficiencies of the intersection of Hard and Sawmill Roads; 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
acquire the necessary right -of -way for the identified transportation improvement project.
NOW, IMEREFORE, 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 Right -of-
Way Acquisition Agreement with the City of Columbus for the improvement of the
intersection of Hard and Sawmill Roads, 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 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 thisday of 2013.
i
• Officer
Attest:
Clerk of Council
Office of the City Manager
City of Dublin Phone: 614 -410- OY Fax:b614- X410 -44gp 43017-1090 Memo
To: Members of Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: May 16, 2013
Initiated By: Paul A. Hammersmith, PE, Director of Engineering /City Engineer
Re: Resolution 24 -13 - Authorizing the City Manager to enter into a
Cooperative Right -of -Way Acquisition Agreement with the City of
Columbus for Arterial Street Improvements at Hard and Sawmill
Roads
Summary
The adopted Dublin 2013 — 2017 Capital Improvements Program includes a project to improve the
Hard Road and Sawmill Road intersection (Project #ET0605) with the addition of right -turn lanes,
additional left -turn lanes and modification to the traffic signal. Dublin staff has been working on
the improvements to the Sawmill Road and Hard Road intersection for the past several years as
development adjacent to the intersection has occurred. The project will be funded by service
payments from the Kroger Centre and Lifetime Fitness tax- increment financing districts.
During that time, the City of Columbus initiated the last phase of improvements to Hard Road
(Project No. 530103 - 100038), which will complete the widening of Hard Road to four lanes from
Smokey Row Road to Sawmill Road. Staff identified the possibility of construction and
coordination efficiencies if these two projects could be implemented at the same time. Staff has
been working with the Columbus Department of Public Services staff to update the intersection
improvement construction drawings to be incorporated into the Columbus construction drawings.
Both the improvement of the Hard Road and Sawmill Road intersection (Dublin) and the widening
of Hard Road (Columbus) will require the acquisition of right -of -way east of the intersection and
adjacent to Hard Road, an area within the Columbus corporation limits. Since the two projects
overlap in this area, three properties are impacted by both projects. In order to simplify and
minimize the property acquisition efforts east of the intersection, it would be more efficient and
effective for only one jurisdiction to acquire the necessary right -of -way.
The attached Cooperative Right -of -Way Acquisition Agreement outlines the responsibilities of
Dublin and Columbus regarding the necessary right -of -way acquisition for the combined
improvement projects. The proposed Agreement provides that Columbus manages the right -of-
way acquisition from the three properties and requires an advance of $135,000 in order to be able
to quickly settle acquisitions if and when possible. The improvements are scheduled to be
advertised for bids in the fall of 2014, with construction commencing in the spring of 2015.
Recommendation
Staff recommends approval of Resolution 24 -13, authorizing the City Manager to enter into a
Cooperative Right -of -Way Acquisition Agreement with the City of Columbus for Arterial Street
Improvements at Hard and Sawmill Roads.
COOPERATIVE RIGHT -OF -WAY ACQUISITION AGREEMENT
BETWEEN
CITY OF COLUMBUS, OHIO
AND
CITY OF DUBLIN, OHIO
FOR ARTERIAL STREET REHABILITATION AND IMPROVEMENTS
AT HARD ROAD AND SAWMILL ROAD
Columbus Capital Improvement Project No. 530103- 100038
Dublin Capital Improvement Project No. ET0605
This Cooperative Right -of -Way Acquisition Agreement (the "AGREEMENT "), made
and entered into this day of , 2013 (the "Effective Date "), by
and between the City of Columbus, Ohio acting through its Director of Public Service,
hereinafter designated as Columbus, pursuant to and under the authority of Ordinance No. 0199-
2013 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 14th day of February 2013, and the City of Dublin, an
Ohio municipal corporation, with its offices at 5200 Emerald Parkway, Dublin, Ohio 43017,
hereafter designated Dublin; and
WHEREAS, the Parties have determined that it would be in the best interests of Dublin
and Columbus to widen and improve Hard Road from Sawmill Road east to Smoky Row Road,
including improvement to the intersection at Hard Road and Sawmill Road; and
WHEREAS, Dublin contracted with URS Corporation to design the intersection
improvements at Hard Road and Sawmill Road while Columbus contracted with URS
Corporation to design the widening and improvements along Hard Road from Sawmill Road east
to Smoky Row Road; 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 right -of -way acquisition; and
WHEREAS, the Parties desire to enter into a Cooperative Right -of -Way Acquisition
Agreement, to provide for the acquisition necessary for the construction of various roadway and
associated infrastructure and intersection improvements; and
WHEREAS, the Parties have agreed that Dublin will acquire the right -of -way attributable
to the intersection improvements within the Dublin corporation limits and Columbus will acquire
the right -of -way attributable to the infrastructure and intersection improvements within the
Columbus corporation limits; and
WHEREAS, the Parties have agreed that Dublin will make payment to Columbus for the right -
of -way acquisition attributable to the intersection improvements within the Columbus
corporation limits as outlined in Article II; and
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WHEREAS, Columbus will enter into contract for the construction of the infrastructure and
intersection improvements as a single project;
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 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.
"Event ofDefault' means an Event of Default under Section 3.1 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 Hard Road (Columbus
Capital Improvement Project No. 530103 - 100038) from Sawmill Road easterly approximately
1.2 miles to 387 feet west of Smoky Row Road. The improvements shall include widening Hard
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Road to 5 lanes, curb and gutter, sidewalks, provisions for bicycle traffic, traffic signals, street
lighting, regulatory road signage, pavement markings, storm drainage, utility location and any
necessary relocation, and landscaping, as per plans for Columbus 2845 Drawer E and Dublin
2351 Drawer E, all in compliance with the Americans with Disabilities Act ( "A.D.A. ") criteria.
"Intersection Improvements" means those improvements to the Hard Road and Sawmill
Road intersection (Dublin Capital Improvement Project No. ET0605) which shall include the
addition of right -turn lanes, additional left -turn lanes and modifications to the traffic signal,
sidewalks, shared -use paths, storm drainage, pavement markings and regulatory signage.
"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:
Office of Support Services
Department of Public Service
109 N. Front St. — Ground Floor
Columbus, Ohio 43215
Attn: Contract 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.
"State" means the State of Ohio, one of the United States of America.
"Termination Date" shall be defined as after all right -of -way attributable to the
intersection improvements within the Columbus corporation limits, as outlined in Article II, has
been acquired, final accounting has occurred, and a refund, if necessary, has been given to
Dublin.
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,
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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
ACQUISITION OF THE RIGHT OF WAY
Section 2.1 General Considerations Dublin agrees to finance the portion of right -of-
way acquisition associated with property located within the Columbus corporation limits
necessary for the Intersection Improvements, up to a maximum of $135,000.00. If costs are
expected to be higher than $135,000.00, the parties will discuss any increases in costs and
mutually agree how the additional costs shall be split between the Parties. If the Parties'
agreement results in a greater cost to Dublin than the maximum amount of $135,000.00, a
written addendum to this Agreement may 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 for additional costs only after these approvals are received
and the addendum is executed. Dublin will acquire right -of -way within the Dublin corporation
limits required for the Intersection Improvements.
Section 2.2 Acquisition of Right- of -Way Dublin covenants and agrees that it will
acquire right -of -way within the Dublin corporation limits and pay Columbus to acquire right -of-
way within the Columbus corporation limits necessary for the Intersection Improvements and
Columbus covenants and agrees to acquire right -of -way within the Columbus corporation limits
necessary for the Intersection Improvements.
(a) Dublin covenants and agrees:
(1) To finance all costs of right -of -way acquisition activities including, but
not limited to, legal fees, appraisal fees, negotiator fees, right -of -way
consultant fees, and court fees associated with the Intersection
Improvements within the Columbus corporation limits;
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(2) To remit payment of $135,000.00 to Columbus upon Dublin's execution
of this agreement;
Payment(s) shall be made out to COLUMBUS CITY TREASURER; and
be delivered to:
Office of Support Services
Department of Public Service
109 N. Front St. — Ground Floor
Columbus, Ohio 43215
Attn: Contract Manager
(3) To remit payment to Columbus upon execution of amendment(s) to this
agreement for agreed upon necessary cost increases;
(4) To submit copies of recorded deeds to Columbus for right -of -way in the
Dublin corporation limit associated with the Intersection Improvements;
(5) To have right -of -way within the Dublin Corporation limits cleared by May
31, 2014, otherwise the two projects, the Intersection Improvements and
Infrastructure Improvements, will be sold separately.
(b) Columbus covenants and agrees:
(1) To acquire right -of -way on behalf of Dublin within the Columbus
corporation limits associated with the Intersection Improvements:
Parcel
Parcel ID No.
Current Owner
Future Owner
8WD
590 - 128611
WEC 98H -38 LLC
Columbus
9WD
590 - 175664
Society Bank
Columbus
1OWD & T
590 - 175665
Robert G. & Jane M. Eickholt
(2) To notify Dublin of any costs above the maximum amount of
$135,000.00, seek agreement for cost increase, and draft amendment(s) to
this agreement;
(3) To refund Dublin for any excess funds after acquisition is complete.
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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 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
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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
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
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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
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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.
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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
Marsha I. Grigsby
City Manager
Approved as to form:
Stephen J. Smith
Dublin Law Director
CITY OF COLUMBUS, OHIO
C
Mark. Kelsey
Director of Public Service
Approved as to form:
Richard C. Pfeiffer, Jr.
Columbus City Attorney
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