Ordinance 015-16n Y. Lep,l_BImk, I -.
Ali Ordinance No.
RECORD OF ORDINANCES
15 -16 p,,,,< -d
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AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER
INTO A COOPERATIVE CONSTRUCTION AGREEMENT BETWEEN
THE CITY OF DUBLIN, UNION COUNTY AND FRANKLIN COUNTY
FOR THE CONSTRUCTION OF INTERSECTION IMPROVEMENTS
AT STATE ROUTE 161 /POST ROAD AND COSGRAY ROAD
WHEREAS, Dublin, Union County, Franklin County and the Ohio Department of
Transportation have analyzed potential improvements to the intersection at State Route
161 /Post Road and Cosgray Road;
WHEREAS, funding for the intersection improvements will come from a variety of
sources;
WHEREAS, the preliminary funding structure for financing the Intersection
Improvements is as follows:
• Developer
$1,000,000 (contribution is fixed at this value)
• Dublin
$937,500 (contribution is fixed at this value)
• Franklin County
$250,000 (contribution is fixed at this value)
• Union County
$2,012,500 (balance based on a project estimate of $4,200,000)
WHEREAS, Dublin, Franklin County and Union County desire to enter into an Agreement
and cooperate in the design and construction of the identified improvement project;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Franklin,
Delaware and Union Counties, State of Ohio, ,� of the elected members concurring:
Section 1. The City Manager is hereby authorized to enter into a Cooperative
Construction Agreement Between the City of Dublin, Union County and Franklin County
for the Construction of Intersection Improvements at State Route 161 /Post Road and
Cosgray Road, in substantially the same form as attached, with changes not inconsistent
with this Ordinance 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 Ordinance. 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 Ordinance and not substantially adverse to this City.
This Ordinance shall take effect in accordance with Section 4.04(b) of the
Passtthis, _ Ih /bfQ/L� -% 2016.
Attest:
Clerk of Council
Office of the City Manager
�+� � 5200 Emerald Parkway � Dublin, OH 43017.1090
01 IJUUI!n Phone; 614 - 410 -4400 s Fax 614 - 410 -4490
To; Members of Dublin City Council
from; Dana L, McDaniel, City Man r ' MJ ,'-'�
Dates April 7, 2016
Rey Ordinance Na Authorizing the City Manager to Enter into a
Cooperative Construction Agreement with Union County and Franklin
County for the Construction of intersection improvements at State
Route 161/Post Road and Cosgray Road
background
Union County has asked the City of Dublin to participate in a Cooperative Construction Agreement
with both Union County and Franklin County for improvements to the intersection at State Route
161/Post Road and Cosgray Road The need and opportunity to improve the intersection is
directly related to the development of Dublin Green and the inevitable opening of a COSTCO's at
the roundabout at SR 161/Post Road and Industrial parkway (see Attachment A). The proposed
improvement, as a long term solution to this intersection, will be in the form of a roundabout
(generally as shown in Attachment A ) .The agreement will be between Dublin, Union County and
Franklin County, Union County will have a separate agreement with the developer of the Costco
site for the developer's contribution to the project.
Initially, the developer of the COSTCO and Dublin Green sites proposed to install a turn lane to
help alleviate the anticipated traffic impact of their development, However, the various
governmental jurisdictions served by the 5R 16I/Post Road & Cosgray intersection did not agree
this was adequate nor a gaol use of funds. All jurisdictions felt the improvement offered by the
developer would be short lived. Therefore, the jurisdictions worked together to encourage the
developer to put more funding into the long term solution. This also includes the donation of any
necessary ROW and�ar permanent and temporary easements. Each jurisdiction felt now is the
time to put funding forward for a much longer term solutian In that the southwest corner of the
intersectian lies within the Ciry of Dublin and would also help to serve Dublin to the south and to
the west, staff feels it is appropriate and fair to contribute towards the improvement of this
intersection as propased by Ordinance 15.16 and the accompanying Agreement
It is appropriate to paint out that the timing of this intersection has been precipitated by the
decision of Jerome Township Trustees to allow the coning and construction of CQSTCO and Dublin
Green While these retail developments are consistent with their own comprehensive plan, the
timing and lack of transportation planning in conjunction with those decisions have resulted in
Union County, Franklin County and the Ciry of Dublin to react by constructing this intersectian
improvement well in advance of any previous plans. The City of Dublin continues to urge Jerome
Township Trustees to pursue more comprehensive and timely assessments of traffic impacts far
the purpose of understanding infrastructure needs and associated costs, as well as, working
proactively with those, such as the City of Dublin, who will have to fund such improvements PRIOR
TO making such zoning decisions and�ar approvals
Memo re. Ordinance 15 -16 — Cooperative Agmt — Cosgray Intersection Improvement
April 7, 2016
Page 2 of 3
Contract Terms
The preliminary funding structure for financing the Intersection Improvements is as follows:
• Developer $1,000,000 (contribution is fixed at this value)
• Dublin $ 937,500 (contribution is fixed at this value)
• Franklin County $ 250,000 (contribution is fixed at this value)
• Union County $2,012,500 (balance based on a project estimate of $4,200,000)
Under the Agreement, Union County is responsible for collecting each entity's contribution and
making payments for all costs of the project. Dublin's responsibilities include the management
of right -of -way acquisition, design engineering, construction bidding, contractor selection and
management of the project. This is in addition to the $937,500. Franklin County is responsible
for making its $250,000 contribution.
The City will advance its portion of the funds for this project from its General Fund and will
reimburse itself from the West Innovation TIF, established in 2014, will re -pay the City's General
Fund at a later date. Management of the project, to include legal fees, will be absorbed by the
City in the form of soft costs and standing agreements.
Recommendation
Staff recommends that City Council adopt Ordinance No. 15 -16 at the second reading /public
hearing on April 25, 2016.
Memo re 0rdioance No, IS•16— Casgray Intersection Improvem¢nt
April8, 2016
Page 3 of 3
ATTACHMENT A
M I
F I I
YNT YiJYY�I YT F.
CosglayJSR161 Intersection N
COOPERATIVE CONSTRUCTION AGREEMENT
BETWEEN THE CITY OF DUBLIN, UNION COUNTY AND FRANKLIN COUNTY
FOR THE CONSTRUCTION OF INTERSECTION IMPROVEMENTS AT STATE
ROUTE 161 /POST ROAD AND COSGRAY ROAD
This Cooperative Construction Agreement (the "Agreement") is made and entered into this
day of , 2016 (the "Effective Date "), by and between the City of
Dublin, an Ohio municipal corporation, with its offices at 5200 Emerald Parkway, Dublin, Ohio
43017 ( "Dublin "), Union County, with its offices at 233 West Sixth Street, Marysville, Ohio,
43040 ( "Union County "), and Franklin County, with its offices at ( "Franklin
County ") (collectively "the Parties ").
WHEREAS, Union County has consulted with representatives from Dublin, Franklin
County and the Ohio Department of Transportation for input on the potential improvements of the
intersection at State Route 161 /Post Road and Cosgray Road; and
WHEREAS, funding for the intersection improvements will come from a variety of
sources; and
WHEREAS, the preliminary funding structure for financing the Intersection Improvements
is as follows:
• Developer
$1,000,000 (contribution is fixed at this value)
• Dublin
$937,500 (contribution is fixed at this value)
• Franklin County
$250,000 (contribution is fixed at this value)
• Union County
$2,012,500 (balance based on aproject estimate of $4,200,000); and
WHEREAS, Dublin, Franklin County and Union County desire to enter into an Agreement
and cooperate in the design and construction of the identified improvement 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 Construction Agreement by and between Dublin,
Union County and Franklin County, 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 designating an
alternative or alternates who shall have the same authority, duties and powers as the initial
Authorized Dublin Representative.
"Authorized Franklin County Representative" means initially the Franklin County
Engineer . Franklin County may from time to time provide a written certificate
designating an alternative or alternates who shall have the same authority, duties and powers as
the initial Authorized Franklin County Representative.
"Authorized Union County Representative" means initially the Union County Engineer.
Union County may from time to time provide a written certificate designating an alternative or
alternates who shall have the same authority, duties and powers as the initial Authorized Union
County Representative.
Completion Date is August 31, 2017.
"Event ofDefaulf' 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.
"Intersection Improvements" means installation of a hybrid roundabout with the following
configuration:
• Eastbound: Through/left lane, through lane and right turn lane
• Westbound: Through/left lane, through lane and right turn lane
• Northbound: Through/left /right lane and right turn lane
• Southbound: Left turn lane, through/left/right lane and right turn lane
This also includes appropriate merging of a four -lane section to the two -lane section west of the
roundabout, street lights, stormwater drainage facilities and appropriate traffic signage and
striping.
"Notice Address" means:
(a) As to Dublin:
City of Dublin, Ohio
5800 Shier -Rings Road
2
Dublin, Ohio 43016
Attention: Director of Engineering
(b) As to Union County:
Board of County Commissioners
233 West Sixth Street
Marysville, OH 43040
(c) As to Franklin County:
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 construction activities are complete and
the final accounting has occurred.
Section 1.2 Certain Words Used Herein; References. Any reference herein to Dublin,
Union County, or Franklin County, 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
CONSTRUCTION AGREEMENT AND PAYMENT
Section 2.1 General Considerations.
(a) Dublin covenants and agrees:
(1) To work directly with affected property owners and seek the acquisition of
all property /right -of -way within the boundaries of the Intersection
Improvements necessary for completion of the Intersection Improvements.
Dublin's responsibilities regarding right -of -way acquisition include, but are
not limited to, appraisals, negotiations, fair market value determination and
acquisition.
(2) To provide design engineering and select the design engineer and manage
the design and plan development for the Intersection Improvements. Dublin
will involve Franklin County, Union County and ODOT in the review of
the design and project scheduling.
(3) To manage the construction bidding and contractor selection for the
Intersection Improvements.
(4) To manage the construction engineering and inspection after the contract is
awarded.
(5) To coordinate interactions with utility providers affected by the Intersection
Improvements.
(6) To make afinancial contribution of $937,500 (this is afixed contribution).
(7) To use its best efforts to deliver the completed Intersection Improvements
by August 31, 2017, provided, however there shall be no penalty for delays
in completing the Intersection Improvements by that date.
(b) Franklin County covenants and agrees:
(1) To make a cash contribution of $250,000.
(2) To use its best efforts to deliver the completed Intersection Improvements
by August 31, 2017, provided, however there shall be no penalty for delays
in completing the Intersection Improvements by that date.
(c) Union County covenants and agrees
(1) To finance and pay the remaining cost of the Intersection Improvements
after the contributions by Dublin and Franklin County have been made.
(2) To realize any cost savings if the total project cost (including engineering,
design, right -of -way costs, utility relocation, and construction) totals less
than the estimated $4.2 million. Conversely, Union County will absorb any
cost overruns for the total project cost.
(3) To use its best efforts to deliver the completed Intersection Improvements
by August 31, 2017, provided, however there shall be no penalty for delays
in completing the Intersection Improvements by that date.
Section 2.2 Pavment
(a) The Parties agree that all project costs shall flow through Union County. Franklin
County and Dublin shall make payment to Union County of their fixed contribution
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amount no later than 60 days after execution of this Agreement. Union County
shall place these contributions in an escrow account for the project.
(b) Payment requests for contractors and any and all land acquisition costs shall be
approved and submitted by Dublin and Franklin County to Union County. Union
County will make direct payment for all approved services and costs within 30 days
of receipt.
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 any 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.
(c) Dublin may unilaterally terminate this Agreement upon thirty (30) days' written
notice to the other Parties if it cannot obtain all property /rights -of -way necessary
for completion of the Intersection Improvements upon terms acceptable to Dublin.
Section 3.2 No Remedv Exclusive. Unless provided expressly otherwise herein, no
right, remedy and power conferred upon or reserved to any 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
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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 any 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 Dublin, Franklin
County or Union County and the breach shall have been waived thereafter by Dublin, Franklin
County or Union County, 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 any Party to insist upon the strict observance or performance by another 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 awaiver 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 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. 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, Franklin Countv and Union
County: No Personal Liability. No representation, warranty, covenant, agreement, obligation or
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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, Franklin County or Union County in an individual capacity, and to
the extent authorized and permitted by applicable law, no official executing or approving Dublin,
Franklin County and Union County's 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 4.4 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,
(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,
orpartthereof, made, assumed, entered into ortaken, 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 of Ohio. All claims, counterclaims,
disputes and other matters in question arising out of or relating to this Agreement or its breach will
be decided in a court of competent jurisdiction with the County of Union within the State of Ohio.
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Section 4.9 Survival of Representations and Warranties. All representations and
warranties of Dublin, Union County and Franklin County 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, Franklin County,
or Union County, 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.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Dublin, Franklin County and Union County 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
Approved as to form:
Dublin Law Director
Dana L. McDaniel
City Manager
FRANKLIN COUNTY
C
UNION COUNTY
C
Approved as to form:
Thayne D. Gray, Asst. Pros. Arty.
0127206.0607934 4837 - 6159- 0576v1
Steve A. Stolte
President, Board of County Commissioners
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