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Home My WebLink About149-01 Ordinance RECORD OF ORDINANCES D on Le al Blank Co. Form N 0043 Ordinance No............149-01 Passed AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A SETTLEMENT AGREEMENT WITH THOMAS A. MCDOWELL TO FINALIZE THE WEST BRANCH SEWER f"'" ~ EXTENSION ACQUISITION AND DAMAGE CLAIMS. WHEREAS, the City of Dublin ("Dublin") required the acquisition of a 0.378 acre, more or less, permanent easement and a combined 0.48 acre, more or less, temporary construction easements, from Thomas A. McDowell ("McDowell") in order to complete the West Branch Sewer Extension Property; and WHEREAS, during the West Branch sewer extension, certain property owned by McDowell was damaged; and WHEREAS, negotiations between Dublin and McDowell ensued to determine the amount of damages; and WHEREAS, during these negotiations, it was ascertained that McDowell was not compensated for certain right-of--way obtained by the City; and WHEREAS, the parties now wish to enter into a settlement agreement to finalize the West Branch Sewer Extension Acquisition and McDowell's damage claims. NOW, THEREFORE, BE IT ORDAINED, by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring, that: Section 1. The City Manager is hereby authorized to execute a settlement agreement with Thomas A. McDowell for the finalization of the West Branch Sewer Extension Acquisition and Mr. McDowell's damage claims; and Section 2. This ordinance shall take effect and be in force from and after the earliest date provided by law. Passed this ~ day of / , 200 ayor -Presiding Officer ATTEST: Clerk of Council h~9Y0~y Cr~ij~i~ 'til'~at COiSf&§ 0~ ~s6~S ~~~1_i`?'t~~t~?~t~CS'~! vil City of DubH» :n accordnnce with Suction 73i.'?5 nY r" 0`.-f~ ;:_f e k of Councii, Dublin, Ohio SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (this "Agreement") is made and entered into on the day of , 2002, by and between THE CITY OF DUBLIN, OHIO, an Ohio municipal corporation, with offices at its City Hall, 5200 Emerald Parkway, Dublin, Ohio 43017 (the "City") and THOMAS A. McDOWELL ("McDowell"). Background Information A. The City required the acquisition of a 0.378 acre, more or less, permanent easement and a combined 0.48 acre, more or less, temporary construction easements, from McDowell in order to complete the West Branch Sewer Extension Property. B. During the West Branch sewer extension, certain property owned by McDowell was damaged. C. Dublin and McDowell began negotiations to determine the amount of damages. D. During these negotiations, it was ascertained that McDowell was not compensated for certain easements obtained by the City. E. The parties now wish to enter into a settlement agreement to finalize the West Branch Sewer Extension Acquisition and McDowell's damage claims. F. The City has agreed to compensate McDowell Forty Nine Thousand Two Hundred Seven Dollars ($49,207.00) (the "Settlement") in consideration of (i) the execution of a Grant of Easement for permanent sewer easement (see attached "Exhibit A"), from McDowell to the City, (ii) the use of a combined 0.48 acre, more or less, temporary construction easements to construct said improvements, and (iii) any and all damages whatsoever incurred by McDowell. G. McDowell desires to fully release the City from any and all liability, actions, causes of action, claims and demands, based on the City's acquisition of the permanent sewer easement and temporary construction easements. Page 1 of 3 AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the foregoing Background Information and as follows: ARTICLE I THE SETTLEMENT 1.01 Settlement. The parties agree that the Settlement includes the consideration paid for the permanent sewer easement and temporary construction easements to the City and any and all damages whatsoever incurred by McDowell. ARTICLE II DOCUMENTS 2.01 Documents. The City and McDowell agree that such other documents as may be legally necessary or appropriate to carry out the terms of this agreement to the City shall be executed and delivered by the appropriate party. ARTICLE III RELEASE The Partnership does hereby fully release the City from any and all liability, actions, causes of actions, claims and demands, direct or indirect, based on the City's acquisition of the permanent sewer easement and temporary construction easements. ARTICLE IV GENERAL PROVISIONS 4.01 Governing Law. This Agreement is being executed and delivered in the State of Ohio and shall be construed and enforced in accordance with the laws of the State of Ohio. For all litigation, disputes and controversies that may arise out of or in connection with this Agreement, the undersigned hereby waive the right to trial by jury and consent to the jurisdiction of the courts in the State of Ohio. 4.02 Entire Agreement. This Agreement constitutes the entire contract between the parties hereto, and may not be modified except by an instrument in writing signed by the parties hereto, and supersedes all previous agreements, written or oral, if any, of the parties. 4.03 Invalidity. In the event that any provision of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. 4.04 Waiver. No waiver of any of the provisions of this Agreement shall be deemed, nor shall the same constitute a waiver of any other provision, whether or not similar, nor shall any such Page 2 of 3 x_.____ waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in writing, by the party making the waiver. 4.05 Survival. The warranties, representations, covenants and agreements set forth in this Agreement shall not be cancelled by the performance or non-performance of the parties under this Agreement, but shall survive the delivery of the deed hereunder. IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day and year first aforesaid. Thomas A. McDowell THE CITY: CITY OF DUBLIN, OHIO, an Ohio municipal corporation By: Marsha Grigsby Acting City Manager Page 3 of 3 w ~.J GRANT OF EASEMENT KNOW ALL MEN BY THESE PRESENTS that Thomas A. McDowell, hereinafter called "Grantor", whose tax mailing address is , for and in consideration of One Dollar ($1.00) and other valuable considerations paid by the City of Dublin, an Ohio municipal corporation, hereinafter called "Grantee", receipt of which is hereby acknowledged, hereby grants to Grantee, their successors and assigns forever, a perpetual easement in, through, over and under the real estate described in "Exhibit A" attached hereto and made a part hereof, for a permanent sewer easement, together with the right of Grantee and its agents, independent contractors, or successors, the right to construct underground lines, conduits, valves, regulators and all other appurtenances (collectively "Facilities"), and the right to add to, operate, maintain, repair, replace or remove any Facilities, through the following described real property: Situated in the City of Dublin, in the County of Franklin, and in the State of Ohio: See "Exhibit A" attached hereto and incorporated therein. Grantee, as soon as practicable after construction of the utilities, including but not limited to alterations and repairs thereto, shall cause the property of Grantor located within the easement herein described to be restored to its former condition as nearly as is reasonably possible. Grantor, his successors and assigns, hereby release the Grantee from any further claims for compensation or claims for damages resulting from this grant, except that Grantee shall not be released from liability for damage caused by their negligence or that of their employees, agents or contractors. The agreements in this Grant of Easement shall run with the land and be binding upon and inure to the benefit of the respective heirs, personal representatives, successors, transferees, and assigns of the Grantor and the Grantee. 1 of 3 IN WITNESS WHEREOF, the said Grantor, Thomas A. McDowell, and the said Grantee, the City of Dublin, have hereunto set their hands this day of , 2002. Signed and acknowledged GRANTOR: in the presence of: Witness Thomas A. McDowell (Print Name) Witness (Print Name) GRANTEE: Signed and acknowledged CITY OF DUBLIN in the presence of: By: Witness Its: (Print Name) Witness (Print Name) 2 of 3 STATE OF OHIO, COiJNTY OF FRANKLIN, ss: I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the state and county aforesaid to take acknowledgments, personally appeared Thomas A. McDowell, to me known and known to be the person described in and who executed the foregoing instrument as the Grantor for the uses and purposes herein described. WITNESS my hand and official seal in the county and state last aforesaid this day of , 2002. Notary Public STATE OF OHIO, COUNTY OF FRANKLIN, ss: I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the state and county aforesaid to take acknowledgments, personally appeared the City of Dublin, by ,its to me known and known to be the person described in and who executed the foregoing instrument as the Grantee for the uses and purposes herein described. WITNESS my hand and official seal in the county and state last aforesaid this day of , 2002. Notary Public This Instrument Prepared By: Schottenstein, Zox & Dunn A Legal Professional Association 41 S. High Street Suite 2600 Columbus, Ohio 4321 S 3 of 3