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Resolution 014-19RECORD OF RESOLUTIONS Dayton Legal Blank, Inc., Form No. 30045 Resolution No. 14-19 Passed A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A COOPERATIVE AGREEMENT WITH CONCORD TOWNSHIP FOR THE CONSTRUCTION OF A SHARED -USE PATH ALONG CONCORD ROAD BETWEEN DEESIDE DRIVE AND THE EXISTING PATH NORTH OF PALMER COURT (THE CONCORD TOWNSHIP HISTORY AND COMMUNITY TRAIL PROJECT) ?0 WHEREAS, Concord Township (hereinafter referred to as "Township's and the City of Dublin have identified the need for a shared -use path along Concord Road between Deeside Drive and the existing path north of Palmer Court (hereinafter referred to as "Project"}; and WHEREAS, the City of Dublin agrees to pay the cost of constructing the portion of the Project within the City of Dublin corporation limits; and WHEREAS, the Township agrees to pay the cost of constructing the portion of the Project outside the City of Dublin corporation limits; and WHEREAS, the Dublin Community Plan promotes working cooperatively with surrounding jurisdictions to promote connectivity; and WHEREAS, the Township and City of Dublin desire to enter into an agreement and cooperate in the construction of the Project. NOW, EREFORE, BE IT RESOLVED 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 enter into a cooperative agreement with Concord Township for the construction of a shared -use path along Concord Road between Deeside Drive and the existing path north of Palmer Court (the Concord Township History and Community Trail Project), in substantially the same form as attached, with changes not inconsistent with this Resolution and not substantially adverse to the 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. ATTEST: Clerk of Council option in accordance with Section 2019. I C Uity of Dublin it Office of the City Manager 5200 Emerald Parkway # Dublin, OH 43017-109 Phone: 614.410.4400 * Fax: 614.410.4490 1 To: City Council Members From: Dana L. McDaniel, City Man 15-490 Initiated By: Megan O'Callaghan, P.E., Director of Public Works Date: February 19, 2019 Re: Resolution 14-19 - Authorizing the City Manager to Enter Into a Cooperative Agreement with Concord Township for the Construction of a Shared -Use Path. Along Concord Road Between Deeside Drive and the Existing Path North of Palmer Court (the Concord Township History and Community Trail Project) The City of Dublin staff has been working with Concord Township (referred to as "Township) and the Delaware County Engineer's Office to provide a safe shared -use path connection along Concord Road from Deeside Drive in the City of Dublin north to the existing path which connects to Eli Pinney Elementary School in Concord Township (referred to as "Project`�. In 2017, Dublin constructed the first phase of the path from the tunnel at Glick Road to St. Boswell Court, Pursuant to the agreement, the Township would use its best efforts to deliver the completei shared -use path connection by July 31, 2019. 70 � Staff recommends Council adoption of Resolution xx.-19, Authorizing the City Manager to Enter Into a Cooperative Agreement with Concord Township for the Construction of a Shared -Use Path Along Concord Road Between Deeside Drive and the Existing Path North of Palmer Court (the Concord Township History And Community Trail Project). COOPERATIVE AGREEMENT BETWEEN THE CITY OF DUBLIN AND CONCORD TOWNSHIP FOR THE CONSTRUCTION OF THE CONCORD TOWNSHIP HISTORY & COMMUNITY TRAIL PROJECT This Cooperative Agreement (the "Agreement") is made and entered into this day of JO -AO 2019 (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") and Concord Township, with its offices at 6385 Home Road, Delaware, Ohio 43015 ("Concord Township") (collectively "the Parties"). WHEREAS, Dublin and Concord Township desire to enter into an Agreement and cooperate in the construction of the Concord Township History & Community Trail 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 Agreement by and between Dublin and Concord Township 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 Concord Township Representative" means initially'ZAR---rJWXXW0, Concord Township 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 Concord Township Representative. "Completion Date" is J ✓ ly 31 2 U 1 "Concord Township History & Community Trail Project" consists of the construction of approximately 930 feet of asphalt path along the west side of Concord Road, 50 feet of asphalt path along the south side of Tartan Fields Drive and 170 feet of asphalt path along the south side of Palmer Court. The project location is Concord Road between Deeside Drive and Tartan Fields Drive/Palmer Court. The project includes a proposed crosswalk south of Tartan Fields Drive. The crosswalk will connect to the existing path north of Palmer Court. This will complete the path connection from Glick Road north to the Eli Penney Elementary School. Page 1 of 8 "Event of Default" means an Event of Default under Section 3.1 of this Agreement. "Force Majeure" 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. "Notice Address" means: (a) As to Dublin: City of Dublin, Ohio 6555 Shier Rings Road Dublin, Ohio 43016 Attention: Director of Engineering/City Engineer (b) As to Concord Township: Concord Township 6385 Home Road Delaware, Ohio 43015 Attention: J; 111DaJ Z.S "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, Concord Township, 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, Page 2 of 8 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 pay the cost of constructing the portion of the Project within the City of Dublin corporation limits. (see Concord Township History & Community Trail Cooperative Agreement Exhibit) (2) To provide funding for construction cost over runs for the portion of the Project within the City of Dublin corporation limits. (b) Concord Township covenants and agrees: (1) To fund the project, with assistance from the City of Dublin pursuant to Section 2.1(a). (2) To provide funding for construction cost over runs for the portion of the Project outside the City of Dublin corporation limits. (3) Make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions hereafter delivered, and do all other things which may be necessary or advisable for the construction of the Project, all in conformity with all applicable governmental laws, rules and regulations. (4) Pursuant to the provisions of this Agreement, provide for the payment of all fees, costs, and expenses incurred in the construction of the Project. (5) To use its, best efforts o deliver the completed asphalt path improvements by 1 i 31 `�� provided, however there shall be no penalty for delays in completing the shared -use path improvements by that date. (c) It is anticipated by the Parties that Delaware County will: (1) Provide construction management and inspection after the contract is awarded. Section 2.2 Payment. The Parties agree that all project costs shall flow through Concord Township. Dublin shall make payment to Concord Township of its contribution amount no Page 3 of 8 later than 60 days after execution of this Agreement. Concord Township shall place this contribution in an escrow account for the project. 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 parry 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. Section 3.2 No Remedy 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 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. Page 4 of 8 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 the City of Dublin or Concord Township, and the breach shall have been waived thereafter by the City of Dublin or Concord Township, 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 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 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 and Concord Township; 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 City of Dublin of Concord Township in an individual capacity, and to the extent authorized and permitted by applicable law, no official executing or approving the City of Dublin or Concord Township'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 4.3 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the Parties, and their respective permitted successors and assigns. Page 5 of 8 The Parties will observe and perform faithfully at all times all covenants, agreements, and obligations under this Agreement. Section 4.4 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 4.5 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 4.6 Ca tions. 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 4.7 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 Delaware within the State of Ohio. Section 4.8 Survival of Representations and Warranties. All representations and warranties of the City of Dublin and Concord Township in this Agreement shall survive the execution and delivery of this Agreement. Section 4.9 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 the City of Dublin or Concord Township 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. Page 6 of 8 Section 4.10 Revised Code (O.R.C.) § 9.24 prohibits the awarding of a contract to any party against whom the Auditor of the State has issued a finding for recovery if the finding for recovery is "unresolved" at the time of the award. By signing this Agreement, each Party warrants for itself that it is not now, and will not become the subject of an "unresolved" finding for recovery under O.R.C. § 9.24. The Parties respectively certify that there are no outstanding findings for recovery pending or issued against the Party by the State of Ohio. Section 4.11 The Parties are authorized to enter this Agreement by, including, but not limited to R.C. § 9.482. Section 4.12 This Agreement may be executed in counterparts. Section 4.13 This Agreement shall constitute the entire understanding and agreement between the Parties, shall supersede all prior understandings and agreements, whether written or oral, between the Parties relating to the subject matter hereof, and may only be amended in writing with the mutual consent and agreement of the Parties. Section 4.14 The Parties acknowledge and agree that this Agreement is not effective until approved by formal action of the governing bodies of the respective Parties and shall only take effect upon such approval. Section 4.15 This Agreement is affirmed by the signatures of the following duly elected, appointed, and/or authorized officials of the Parties. Any person executing this Agreement in a representative capacity hereby warrants that he/she has authority to sign this Agreement or has been duly authorized by his/her principal to execute this Agreement on such principal's behalf and thereby bind the principal. Section 4.16 The Parties are political subdivisions of the State of Ohio and lack authority to indemnify. Therefore, each Party is and shall be responsible for their own actions, and/or the actions of their respective council members, board members, officers, employees, agents, representatives, and/or volunteers resulting from or related to the maintenance of the Pathway and/or the performance of this Agreement. In so doing, and to the extent permitted by law, the Parties agree to hold the other Parties harmless. [Remainder of page intentionally left blank] Page 7 of 9 IN WITNESS WHEREOF, the City of Dublin and Concord Township have caused this Agreement to be executed in their respective names by their duty authorized representatives, all as of the date first written above. CITY OF DUBLIN, OHIO Printed: Title: Approved as to form: Dublin Law Director CONCORD By: )a.5aN Title: ✓ti( rAe ( ciS S Approved as to Form Delaware County Prosecuting Attorney FISCAL OFFICER'S CERTIFICATION (RC 5705.41(D)): The Concord Township Fiscal Officer hereby certifies that the funds required to meet the obligation set forth in this Contract have been lawfully appropriated for such purpose and are in the Township treasury or in the process of collection, free from any other encumbrances. The Concord Township Fiscal Officer also certifies that she has confirmed with the State of Ohio Auditor that City of Dublin has no outstanding findings for recovery issued against it by the State of Ohio. Concord Township Fiscal Officer Page 8 of 9 tray - �a Poo 9060 9050 9040 9070 , 9030 ' 620o Bar_assielPa, rr 7� 6190 � J��`` ��. ,• �cp q6 2d 9045Q 6059 6174 r yt c 9010 6195 \r w, - - jt 6156 6126A 6073 6;181 5816 5830 5842 x!!`5852 aA N �r 6862 5829 5812 5839 A '� ■