Ordinance 037-17Dayton Legal Blank, Inc.
Ordinance No. 37 -17
RECORD OF ORDINANCES
Form No. 30043
Passed , 20
AN ORDINANCE VACATING 0.418 ACRES, MORE OR LESS,
OF PUBLIC RIGHT OF WAY IN THE CITY OF DUBLIN,
COUNTY OF FRANKLIN, STATE OF OHIO.
WHEREAS, the City of Dublin (the "City's owns the property that was formerly Tuswell
Drive, which was dedicated to the City pursuant to Plat Book 95, Page 15; and
WHEREAS, the County requires a separate City ordinance specific to the vacation in order
to record the vacation; and
WHEREAS, Ohio Revised Code Section 723.04 enables municipalities to vacate streets or
any part thereof where such vacation will not be detrimental to the general interest; and
WHEREAS, the City entered into an agreement with the abutting property owner to the
north to transfer the 0.418 -acre vacated portion to that property owner upon vacation; and
WHEREAS, in order to effectuate a term of the Agreement and for purposes of recording
the vacation with the Franklin County Recorder's Office, the City seeks to pass this
Ordinance; and
WHEREAS, Council is satisfied that there is good cause for the vacation of this portion of
Tuswell Drive, which is now relocated to the South, and hereby determines that the vacation
of the 0.418 -acre portion of Tuswell Drive will not be detrimental to the general public
interest.
NOVIJ,, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, Delaware,
Franklin, and Union Counties, State of Ohio, r7 of the elected members concurring that:
Section 1. Council hereby declares that good cause exists for the vacation of this portion
of Tuswell Drive, and that such vacation will not be detrimental to the public health, safety,
or welfare.
Section Z. The 0.418 acres, more or less, of former Tuswell Drive right -of -way, in the
City of Dublin, County of Franklin, State of Ohio, and more fully described and depicted in
the attached Exhibits A and B is hereby vacated.
Section 3. The 0.418 -acre vacated portion shall be vacated and transferred to the
property to the north, owned by 6055 Avery Road Limited, located at 6055 Avery Road and
identified as Franklin County Parcel No. 274 - 000289.
Section 4. The Clerk of Council is directed to notify the Auditor of Franklin County of said
vacation by forwarding a copy of this Ordinance.
Section S. This Council further hereby authorizes and directs the City Manager, the
Director of Law, the Director of Finance, the Clerk of Council, or other appropriate officers of
the City to take any othE :r actions as may be appropriate to implement this Ordinance.
Section 6. This Ordinance shall take effect in accordance with 4.04(b) of the Dublin
RevisedParter.
1 ICJI.
Clerk of Council
2017.
City
Office of the City Manager
500 Emerald Parkway o Dublin, OH 43017
of Dublin
-1090
Phone; 614.410,4400 o Fax 614,410.4490
TOE Members of Dublin City Council
From Dana L, McDaniel, City Mana c
Date June 8, 2017
initiated By: Paul k Hammersmith, P.E., Director of Engineering/City Engineer
Michael S. Sweder, P.E., Civil Engineer II
Rey Ordinance No, 37.17
Background
AN QRDINANCE VACATING 0,418 ACRES, MORE OR LESS, OF PUBLIC RIGHT-017-
WAY IN THE CI-IY QF DU6LIN, CQUNTY QF FRANKLIN, STATE QF QHIQ
The City of Dublin (the "City's previously entered into an agreement (the "Agreement" }with The
Stonehenge Company, an Ohio Corporation ('Stonehenge") on September 17, 2008, The
Agreement states the City intends to vacate an approximate 0,42 -acre portion of the originally
existing Tuswell Drive (the "Vacation Area "} as a result of the Avery Raad J Tuswell Drive
Roundabout project (the "Project " ), A component of the Project was the relocation of Tuswell
Drive south in ardor that the new roundabout would align with Innovation Drive on the east side of
Avery Raad The Agreement further states the City will convey the Vacation Area to Stonehenge
The Project was constructed in 2007, but the Vacation Area could not be transferred until after the
relocation of an existing water main, located within the anginal Tuswell Drive right -of -way, was
completed, In 2017, the City installed a new 12•inch water main along the north side of relocated
Tuswell Drives This new water main allows for the abandonment of the original water main that is
located within the original Tuswell Drive right -of -way and the Vacation Area.
Fallowing vacation, the Vacation Area will be transferred to Stonehenge and combined with the
property Stonehenge owns to the north, identified as Franklin County parcel number 274- 000289,
Recommendation
Staff recommends approval of Qrdinance 37 -17 at the second readingJpublic hearing on June 26,
2017,
= Vacation Area
Ordinance 37 -17 0 50 100 200
City of Dublin An ordinance vacating 0.418 Acres, more or less, of public right of
OHIO, USA way in the City of Dublin, County of Franklin, State of Ohio. Feet
AGREEMENT
THIS AGREEMENT (the "Agreement ") is made and entered into this day of
SP", 2006 by and between the Cily of Dublin, Ohio, an Ohio municipal corporation
(the "City ") with a mailing address of 5200 Emerald Parkway, Dublin, Ohio 43017 and The
Stonehenge Company an Ohio corporation ("Stonehenge "), with a mailing address of 141
North High Sweet, Gahanna, Ohio 43230 (collectively, the "Parties ").
W[TNESSETH:
WHEREAS, Stonehenge purchased the property commonly (mown as 6055 Avery Road,
Dublin, Ohio 43016 (the "Property', which Property is outlined in oink on the attached
KjkA, which is incorporated herein; and
WHEREAS, Stonehenge intended to develop a daycare facility on the Property and
incurred $129,180 in expenses in connection therewith (the "Expenses'); and
WHEREAS, the City notified Stonehenge of its intention to widen Avery Road (the
"Project "), which would impact accesses to the Property and those adjoining it, and therefore
requested Stonehenge to forego developing the daycare until the City finalized the configuration
of 16e Project; and
WHEREAS, Stonehenge acquired, at a cost of $222,652,46 per acre, Al property
commonly known as 6035 Avery Road, Dublin, Ohio 43016 (the "Swope Property "), which
Swope Property is outlined m e,� on Exhibit A; and
WHEREAS, the City intends to vacate an approximately 0.42 -acre portion of Tuswell
Drive as part of the Project (the "Vacation Area "), which Vacation Area is shown N o� and
shades of blue on Exhibit A; and
WHEREAS, the City and Stoneheage have agreed that the City will convoy the Vacation
Area to Stonehenge and reimburse Stonehenge for the Expenses, provided that the Expenses are
reduced by $81,210.07, which figure represents the value of a 013 -acre portion of the Vacation
Area using the per acre purchase price that Stonehenge paid for the Swope Property (i.e, 0.23 x
$222,652.46 =$S I,210,01Khereinefler the " Vacaton Ares Value").
NOW THEREFORE, m consideration of the foregoing and the wvenanfs, warranties,
terms, and conditions hereinafter set forth, the Parties agree as follows:
1, Condnaencv.Inteutionallydeleted
2. Reimbursement. Tha City shag, an or before September 30, 2008, reimburse
Stonehenge the sum of $11,969.94, which sum represents the difference between the Expet�es
and the Vacation Area Value (i.e., $ 129,180— $SI,210.01�$17,969,94). Stonehenge
aclumwledges that the payment of such reimbursement to Stonehenge, together with the
conveyance of the Vacation Area to Stonehenge, shall constitute satisfaction is full for any
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expenses, costs Ed/or losses which Stonehenge may incur andlor has incurred as a result of the
Project and in exchange for which Stonehenge hereby relinquishes any and all claims now m
hereafter arising with respect to the Project and the Property. Said reimbursement shall be
payable in cash or wired funds.
J. Conveyance. The City shall convey the Vacation Area to Stonehenge by limited
warranty deed (the "Deed "), Said Deed shall be in substantially the form attached as Exhibit B,
which is incorporated by reference, and shall include:
(a) the gran) of a permanent access easement from the City to Sonehenge for
the benefit of the PropertyNacation Area over and upon the area shown in We on Exhibit A
(the "Access Easement Area!'); and
(b) the reservation of a perraaaent utility/right-of-way easement over the
pardon of the Vacation Area shown in oranie as Exhibit A (the "Ufibty Easement Area ").
The City shall be responsible for all recvrdiag fees for the Deed; the costs to prepare any
necessary legal descriptions incident thereto, including the legal descriptions of the Access
Easement Area and Utility Easement Area, if necessary; the toss of a title insurance binder and
the policy premium for a policy in an amount equal to the Vacation Area Value, if requested by
Stonehenge; and all other closing expenses, including reel estate taxes and assessments, whether
or not a lien, prorated ro date of closing, the City and Stonehenge aclmowledging that there are
no real estate taxes since the City is a governmental enfity.
Further, Stonehenge agrees that the conveyarree of the Vacatio¢ Area to Stonehenge shall
be condifioned upon the Vacation Area being combi¢ed with the Property as of kte Closing such
that f6ey constitute a single tax parcel, all expenses of wNch shall be paid by the City. The City
shall provide Stonehenge with advance written noticc of the date the Deed will be recorded,
Stonehenge shall cooperate with the City in combining tits Vacation Area with the Property,
includung promptly completing any documentatio¢ necessary to effectuate same.
4. rovemertls. Sonehenge shall, prior to commencement of the conshuctian
thereof, submit to fire Ciry and City Engineer complete plans and specifications (the "Plans',
together with a complete cost estimate (the "Estimate', to conshuct the following improvement
in the locations shown on Exldhit A attached hereto: (a) a curb cut onto Tuswell Drive for the
purpose of providing access ro the Vacation Area and Property through the Aaess Easement
Area, and @) an aceess drive over the Access Easement Aura from TusweQ Drive tc the
Vacation Area (collectively, the "Improvements ").
The City shall review the Plans within the standard timeframes typically need to review
simian appbcations. If such Plans are incomplete, inadequate or inconsistent with the City
Engineer's requirement, then Stonehenge shall revise same as directed by the City Engineer and
resubmit revised Plans and an Estimate to the City and City Engineer for approval, and the City
shall review the resubmitted plans within the standard Gmefmmes typically need m review
similar modifications. This process shall be repeated until such time as the Plans and Estimate
are approved by the City and City Engineer
�NIE91dW4 � /�
After the Plans and Estimate are approved by the City and City Engineer, the City shall
promptly notify Stonehenge of its election to either (z) construct the Improvements in
accordance with the approved Plans, in which event such Improvements shall be constructed by
the City (or a contractor selected by the City), at the City's sole cost and expense, in accordance
with a mutually agreed upon construction schedule @ut in no event shall the City be required to
use the contractor that prepared the Estimate), or (y) require Stonehenge to construct the
Improvements in accordance with the approved Plans, in which event such construction shall be
performed by the contactor that prepared the Estimate, at the City's sole cost and expense, in
accordance with a mutually agreed upon construction schedule.
If the City requires Stonehenge to commuct the Improvements, then after such
Improvements are complete and limber provided that the following are satisfied: (i) Stonehenge
provides the City with an affidavit signed by Stonehenge starting that the Improvements have
been completed in strict compliance with the approved Plans, including breakdown of
Stonehenge's final and total construction costs, together with copies of invoices for such work
and proof, satisfactory to the City, of payment thereof; (ii) Stonehenge provides the City with an
affidavit of the wntmctor(s) cansgmcting the Improvements stating that they have been fully
completed in strict compliance with the approved Plans and that all subcontractors, laborers and
materials suppliers, who supplied materials andlor labor for same (whose frames and addresses
shall be recited in the affidavit) have been paid in full, and that all liens therefor that have been
or might be filed have been disoherged of record or waived; (ii, 3toaehenge provides Che City
with a complete release and waivers of lien executed 6y said confractor(s), and releases and
waivers of lien executed by every subcontractor supplying labor and(or materials for such
Improvements; and (iv) the Mprovements have bcerr finally approved ampor inspected by Ore
City andlor City Engineer pursuant to the final approval process required by the City for similar
improvements, TIN the City shall, within thirty (30) days Orereefler, pay to Stonehenge, as
Landlord's contribution towmd the cost to coostnsct the Improvements, the actual documented
costs and expenses incurred by Stonehenge in constructing the Improvements. If the ech>al wsls
and expenses will materially vary from the Estimate (for proposes hereof a material variance
being in excess of Ouee percent (3 %) of the initial estimated cost) then Stonehenge shall consult
with the City prior to undedaking same and upon completion of same provide the City with
documentation evidencing such costs. The PerOes acknowledge and agree that Ore City shall
have w obligation to remove andlor relocate any utility lines located within the Vacation Area
nor shall the City be responsible far any improvements witlwr the Vacation Area andlor
Property. If any mechanic's lien is filed against the Aceess Easement Aria or othm property
owned by the City as a result of any work or act of Stonehenge, Oren Stonehenge, at its expense,
shall discharge or bond off the same within ten (10) days from the filing thereof.
NI Improvements performed hereunder be in accordance with good construction
practices, aO apphcable laws, codes, ordinances and regulations. Na material deviations from the
futal approved Plans shall be permitted unless otherwise approved by Ore parties m writing. The
City's review of the Plans shall not constitute the assumption of any responsibility by Che City
for their accuracy or sufficiency. Upon completion of the hmprovements, the party constructing
same shall, to the exterd practical, promptly restore any affected property in the immediate
vicinity thereof to substantially Ose same condition existing prior to the construction thereof.
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The Parties further acknowledge and agree that, following the completion of the
construction of the Improvements, Stonehenge shall, at its sole cost and expense, be responsible
for the maintenance, repay and replacement thereof. Stonehenge acknowledges and agrees that
until such time as the Improvements are completed, the Property will not have access to Tuswell
Drive,
5. Location of Easements. Notwithstanding the faregoin� the Parties agree that any
reference to or depiction of any easement provided for or contemplated herein represent only the
Parties' approximation as to the location and size of such easements. The Parties agree to
reasonably and in good faith cooperate with each other is granting and locating such easements.
U. no Warranties. The Parties agree that the conveyance by the City to Stonehenge
of the Vacation Area is without any implied or express warranty except as set forth in the deed,
that the City makes no warranties or covenants whatever, including, but not limited to,
warranties of fitness for a particular propose, and that the Vacation Arm shall be transferred in
an "AS IS" condition. Stonehenge hereby agrees to hold the City harmless and to indemnify the
City for any claims brought by, for, against, or on behalf of Stonehenge with respect to the
Vacation Area or the access drive subsequent to date hereof,
7. Successors and Assigns. The taws of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the Paties hereto.
8. Construction of Agreement. This Agreement shall be construed and enforced in
aceordance with the laws of the State of Ohio. For ell litigatiorr, disputes and controversies which
may arise out of or in conrcection with this Agroement, THE UNDERSIGNED WAIVE TEIE
RIGHT TO TRIAL BY 711RY AND CONSBNT TO VENUE AND JURISDICTION IN
FRANKLIN COUNTY, OHIO.
Whenever the singular number is used herein, the scone shall include the plural
where appropriate and the words of any gender shall include any other gender where appropriate.
Time is of the essence in all provisions of this Agreement. Captions contained herein are inserted
only for the purpose of convenient reference, and in no vray define, limit or describe the scope of
this Agreerent or any part herecf.
If any provision of this Agreement is held to be invalid, the same shall not affect
¢r any respect whatsoever the validity of the remainder of this Agreement. No wreiver of any of
the provisions of this Agrcement shall tie deemed, nor shall the same constitute, a waiver of any
other provision, whether ar not similar, nor shall any such waiver constitute a continuing waiver.
No waiver shell be binding, unless executed, in writing, by the patty making the waiver. The
covenants and agreements set forllr io this Agreement shall not be cancelled by performance
undertlris Agreement.
9, Entire Agreement. This Agreement embodies the entire Agreement between the
City and Stonehenge and shell not be modified, changed or altered in any respect, except N a
writing, executed in the same manner as this Agreement by the Parries hereto,
iau9i�ro� i 4
IN W[11VESS WHEREOF, the Patties have executed this Agreement on the date set forth
below their respective signatures.
CITY:
CityofDublin,
an Ohio murdcipel corporation /'
BY
` City Manager J /,/"�ynr
Date
The foregoing is accepted.
STONEHENGE:
The Stonehenge Company,
en Ohio corporation
By
Mo M. Dionn, President
Date
41,1 (���
Attachmenq:
Exhibit A: Graphical Depiction
Exhibit E: Deed
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LIlVHTED WARRANTY DEED AND GRANT OF EASEMENT
KNOW ALL MEN BY TFDiSE PRESENTS, that the CITY OF DUBLIN, OHfO, an
Ohio municipal corporation ( "Grantor"), whose tax mailing address is 5200 Emend Parkway,
Dublin, Ohio 43017, for valuable consideration paid, grants, with limited warranty covenants, to
THE STONEHENGE COMPANY, ao Ohio caryomfion ( "Grantee"), whose tax mailing
address is 141 Nod }Ggh Street, Gehenna, Ohio 43230, the real property situated in the State of
Ohio, County of Franklin, and City of Dublin and being legally described on Exhibk A attached
hereto and incorporated by this reference herein (the "Property ").
The Property conveyed hereby is made subject to: (e) easements, conditions, restrictions,
covenants and provisions of record; (b) real property taxes and assessments which are a Gen on
Ore Properly but not yet due acrd payable; (c) zoning ordinances and building laws; (d) rigMa of
the public to use arty portion of the Property located within any road or public do-of-way; and
(e) the reservation of the easement set forth herein.
Prior Instrument Reference No.; , Franklin County Records
Tax Parcel Number.
Grantor expressly reserves unto itcelf, its successors, and assigns, a naa- exclusive,
pemument utility and right•ofway easement over the portion of the Property legally described
on Exhibit B attached hereto and incorporated by this reference herein and Gmpldcally depicted
on Exhibit C atached hereto and incorporated by this reference herein (the "Easement Area ").
Grantee shall be enGOed to use said Easemem Area in a manner that is not inconsistent with
Grantor's use thereof; provided however, Owt no bu0dings or oOrer improvements may be
constructed therein without Grantor's prior written consent. Grantor shall have the right to access
such Easement Area through Grantee's Properly' (as hereinafter de5ned) fur the construcfioq
installatioq maintenance, repai[s, and repinCemem of any of Grantor's facihties located therein,
and shag, upon completion of suck activities, restore the property of Grantee disturbed thereby to
substantially the condition existing immediately thereto. Otherwise, Grantee shat have sole
responsibility for the maintenance, repair and replacement of the Easement Area, which shat at
aG times be maintained is a fuxt•class condition and state of repair.
Granor is the owner of ao approximate _acre pact of reel property legally described
on Exhibit D attached hereto and incorporated by this reference herein and graphically depicted
on Exhibit E atached hereto and incorporated by this reference herein (Ore "Access Area ").
Grantor grants to Grantee, its successors, and assigns, a permanent access easement over the
Access Area for the benefit of the Property described on Exhibit A and the real property armed
by Grantee commonly (mown as 6055 Avery Road, Dublin Ohio 43016, and legally described on
ExhibitF attached heretc and incorporated by this reference herein (coGecdvely, "Grantee's
Propetry'� and acquirod by Grantee pursuant to Instnunent Number 199807210182017,
Recorder's Office, Franklin County, Ohio. Grantee shall have sole responsibility £or the
maintenance, repair and replacement of Ore Access Area and improvements located thereon.
�NIIDIE�1� 7
Grantee shall, at its own expense, obtain, carry and keep in force liability insurance
against any liability or claim for personal injury, wrongful death or property damage with respect
to the use of the Access Area, with fmanrdalty responsible insurers authorized to transact
insurance business is the state of Ohio, with commercially reasonable limits as may be required
by Grantor from time to time. Such insurance shall include all of the coverages typically
provided by the Broad Form Comprehensive Gerrard Liability Endorsement and a centractual
liability endorsement, The policy shall name Grantor as as additional insured and shall provide
that swh policy may not be canceled without 30 days' prior written notice to both Grantor and
Gurnee. Upon request, Grantee shall provide to Gmntm a certificate of insurance evidencing
such coverage.
Except for injuries, deaths, lasses, damages, or other matters resulting from the gross
negligence or willful conduct of Grantor, or Grantor's agents or employees, Grantee shall
indemnify Grantor, its agents and employees, end save them harmless from and against Al,
liability, damage, actions, causes of acton, or claims for injury, death, loss or damage of
whatever nature to any petsoq prmperty or business interest caused by or resulting from an ad or
omission of Grantee or Grantee's agents, employees, customers, servants, licensees, invitees,
tenants or subtenants of Grantee with regard to use of the Access Area, and from and against any
and all costs, expenses or liabilities (including reasonable fees of asomeys, pardegds, experts,
court reposers and others) incurred by Grantor in connection wish any claim, action or
proceeding in respect of any such loss, liability, dunage or claim.
Grantor is the bane &ciary of a certain lY easement with respect to 60ii Avery Road by
virtue of that certain Kendall ]ridge, Section 3, Final Plat, recorded io Plat Book 95, Pege li,
Recorder's Office, Franklin Ccunty, Ohio (the "Friar Easement "). Grantor shill, at its sole cost
and expense, restore arty paved andlor landscaped areas located on Grantee's Property which was
disnubed by Grantor m its exercise of its rights under the Prior EasemeN to subslantidly the
condifion existing immediately thereto; provided, however, that the foregoing shall not apply to
any buildings, structures, or other improvements located upon any such paved areas other than
Lmdscaping, vegetation, paving, and curbs.
IN WITNESS VJEfEREOF, the said Grantor has caused this insmrment to be executed by
its duly authorized officer this _ day of _, 2008,
CITY OF DIBLDV, OIQO,
an Ohio mumcipd corporation
PrimtName: SAe/C5, 2Auil(,�M
HI816E4.11 g
STATE OF OfQO
FRAN[CLB1COl1NTY :ss,
BE (T REMEMBERED, that on this )� day of 2008, before me, the
subscriber, a Notay Pubhc is and for said state, person y came a f the
(�,' of the City of Dublin, an Oleo municipal carporafion, the r in the
fore ing ed and acknowledged the signing thereof to be his wluntary act and deed for and on
behalf of said limited liability company.
IN TESTIMONY WHEREOF, l have hereunto subscribed my name and affixed my
official seal on the day and year last aforesaid,
c1 GGC
/4ppIAL 9 of Public
/�' LINDA L. GLIGK
m � tlyrAmmulaa�lnl�t4i�
�rE nP e�
This instrument prepared by: Gregory S. Baker, Esq.
Schottenstein, Zoz & Duon
A Legal Professional Association
2SD West Sheet
Columbus, Ohia 43215
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