13-10 ResolutionRECORD OF RESOLUTIONS
Dayton Legal Blank. Inc., Fonn No 30 W5
Resolution No.
13 -10 (Amended)
Passed
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO ENTER INTO A COOPERATIVE DESIGN AND
RIGHT- OF-WAY ACQUISITION AGREEMENT WITH
THE CITY OF COLUMBUS FOR THE IMPROVEMENT
OF EMERALD PARKWAY BETWEEN TUTTLE
CROSSING BOULEVARD AND RINGS ROAD
20
WHEREAS, the City of Dublin desires to improve traffic safety, operations and
efficiencies of Emerald Parkway; 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 plan, design and acquire the necessary right -of -way for the identified
transportation improvement project.
NOW, THEREFORE, 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
Design and Right -of -Way Acquisition Agreement with the City of Columbus for the
improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings
Road, 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 Design and 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 this day of 2010.
Mayor - Pre ' ' g Officer
Attest:
Clerk of Council
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 6144104400 • Fax: 614 - 410 -4490
To: Members of Dublin City Council
From: Terry Foegler, City Manager
Date: February 18, 2010
Initiated By: Paul Hammersmith, PE, Director of Engineering/City Engineer
Barbara Cox, PE, Engineering Manager — Development
Memo
Re: Resolution No. 13 -10 - Authorizing a Cooperative Design and Right -of-
way Acquisition Agreement with the City of Columbus for the
Improvement of Emerald Parkway between Tuttle Crossing Boulevard
and Rings Road
Update
As part of a project status meeting for the Emerald Parkway Improvement (widening) project on
February 8, 2010, Columbus staff informed Dublin Engineering staff that the a recent decision had
been made by City of Columbus administration to perform their property acquisition for parcels
located within Columbus with in -house legal staff reporting to the Columbus City Attorney. This
decision by the City of Columbus was an unexpected deviation from the Cooperative Design and
Right -of -Way Acquisition Agreement (Agreement) Dublin staff had been discussing with
Columbus staff for the past 15 months. As originally drafted, the Agreement stated Dublin was to
be responsible for the management of the consultant during the design phase, and for the right -of-
way acquisition process. Additionally, the Agreement detailed the acquisition process, including
several critical completion dates.
As a result of this change in direction by the City of Columbus, several sections of the Agreement
required modification to remove any and all references to Dublin leading all property acquisition for
this project. Most notably, Section 2.2 (c), "Right -of -Way Acquisition Process." was removed in its
entirety from the Agreement and all references to Columbus reimbursing Dublin for its
proportionate share of right -of -way acquisition costs associated with property located in the
Columbus incorporated area. Columbus will continue to reimburse Dublin for their share of the
design costs, and any acquisition costs incurred to date by Dublin for work already performed for
the Columbus properties. Any other modifications to the Agreement only were necessary to
provide consistency throughout the document with the revision to the right -of -way acquisition
responsibilities.
Staff understands Council's expressed concern with the timely execution of this project and that
previous commitments to performing this project expeditiously be honored by both Dublin and
Columbus. Columbus staff is confident their legal staff can complete their right -of -way
acquisitions within seven months after commencing the activities. Since the property appraisals are
nearly complete, it is fair to expect Columbus will complete their right -of -way acquisition no later
than December 31, 2010. Both Dublin and Columbus recognize that construction of this project
must begin in March 2011 to adhere to the requirement of the recently secured Ohio Public Works
Commission grant.
Resolution No. 13 -10
February 18, 2010
Page 2 of 2
Recommendation
Staff recommends approval of Resolution 13 -10, authorizing the City Manager to enter into a
Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the
improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road.
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
CITY OF DUBLIN. Phone: 614- 410 -4400 • Fax: 614 -410 -4490 Memo
To: Members of Dublin City Council
From: Terry Foegler, City Manager /t
Date: February 4, 2010 (�
Initiated By: Paul Hammersmith, PE, Director of Engineering/City Engineer
Barbara Cox, PE, Engineering Manager — Development
Re: Resolution 13 -10 -Authorizing a Cooperative Design and Right -of -Way
Acquisition Agreement with the City of Columbus for the Improvement of
Emerald Parkway between Tuttle Crossing Boulevard and Rings Road
Background
Staff (including Legal) has been diligently coordinating with the City of Columbus regarding the
improvements to Emerald Parkway between Tuttle Crossing Boulevard and Rings Road. We jointly
worked with Columbus to select a design consultant through a Request for Proposal process early in
2009. While the design work has been progressing, staff has been working with them to solidify an
agreement regarding the parties' responsibilities for this project.
The Cooperative Design and Acquisition Agreement attached has been developed over the past fifteen
months. The Agreement states that Dublin will be responsible for the management of the consultant
during design and traffic operation analysis and for the right -of -way acquisition process. The City of
Columbus will reimburse Dublin their proportionate share of the design costs and right -of -way
acquisition costs associated with property in the Columbus incorporated area. Columbus has stipulated
a maximum amount ($650,000) for this reimbursement, with any expenditure(s) in excess of this amount
requiring the appropriation of additional funds by Columbus. The Agreement also details the
acquisition process and indicates several completion dates.
Due to budgetary constraints at the City of Columbus in 2009, they requested that this Agreement
pertain only to planning, design and right -of -way acquisition. A separate agreement will be needed to
address the construction schedule and the parties' responsibilities during the construction of this project.
Due to the success of the Ohio Pubic Works Commission application, staff will work on drafting this
secondary agreement in the next few months. We anticipate bringing this agreement to Council mid-
year for review.
Staff anticipates the detailed design of the improvements to be completed in mid -April. The right -of-
way acquisition process outlined in the agreement has been initiated, and the completion of this process
is dependent on the level of negotiations needed to acquire the property.
Recommendation
Staff recommends approval of Resolution 13 -10, authorizing the City Manager to enter into a
Cooperative Design and Right -of -Way Acquisition Agreement with the City of Columbus for the
improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road.
REDLINED VERSION
COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT
BETWEEN
CITY OF COLUMBUS, OHIO
AND
CITY OF DUBLIN, OHIO
FOR ROADWAY IMPROVEMENTS
EMERALD PARKWAY (TUTTLE CROSSING BLVD — RINGS ROAD)
Columbus Capital Improvement Project No. 530161- 100003
Dublin Capital Improvement Project No. 09- 005 -CIP
THIS COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION
AGREEMENT (the Agreement') date , 2010, by and between the CITY
OF DUBLIN, OHIO ( "Dublin "), a municipal corporation duly organized and validly existing
under the Constitution and laws of the State of Ohio (the "State ") and its Charter, and the CITY
OF COLUMBUS, OHIO ( "Columbus ", and collectively with Dublin, the "Parries "), also a
municipal corporation duly organized and validly existing under the Constitution and laws of the
State of Ohio and its Charter.
WITNESSETH:
WHEREAS, the Parties have determined that it would be in the best interests of Dublin
and Columbus to widen and improve Emerald Parkway from Rings Road in Dublin south to
Tuttle Crossing Boulevard in Columbus; 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 development of the design and right
of way acquisition; and
WHEREAS, the Parties desire to enter into a Cooperative Design and Right of Way
Acquisition Agreement, to provide for the design and acquisition necessary for the construction
of various roadway and associated infrastructure improvements; and
WHEREAS, the Parties have agreed that Columbus will make payment to Dublin for the
design cest costs attributable to the Infrastructure Improvements within the Columbus corporation
limits as outlined in Article II.
NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows:
1
REDLINED VERSION
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' or--means this Cooperative Design and 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.
"Consultant" means the Consultant(s) selected by Dublin to perform and complete the
design of the Infrastructure Improvements.
"Event ofDefault' means an Event of Default under Section 4.1 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.
2
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"Event ofDefault' means an Event of Default under Section 4.1 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.
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REDLINED VERSION
"Infrastructure Improvements" means those improvements to Emerald Parkway from
Rings Road southerly and easterly approximately 2,500 feet to Tuttle Crossing Boulevard. The
improvements shall include widening Emerald Parkway to 5 lanes at intersections with 4 lanes
and a median between intersections, curb and gutter, sidewalks, bikepaths, traffic signals, street
lighting, regulatory road signage, pavement markings, storm drainage, utility location and any
necessary relocation, and landscaping, all in compliance with the Americans with Disabilities
Act ( "A.D.A. ") criteria.
"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:
City of Columbus
90 West Broad Street, Room 301
Columbus, Ohio 43215
Attention: Director of Public Service
Copy to:
Office of Support Services
Department of Public Service
Columbus, Ohio 43215
Attn: Contract Manager
or adifferent address as to which notice is given pursuant to Section 5.1 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.
"Relocation" means the adjustment of utility facilities required by a roadway
improvement project. It includes removing and reinstalling the facility, including any necessary
temporary adjustments, acquiring necessary right of way, moving, rearranging, or changing the
type of existing facilities, and taking any necessary safety and protective measures. It shall also
mean constructing a replacement facility that is both functionally equivalent to the existing
facility and necessary for continuous operation of utility service.
<x � >
REDLINED VERSION
"State" means the State of Ohio, one of the United States of America.
"` "`Termination Date" shall be defined by final approval and signature of construction
drawings and final reimbursement for design an d right 4 wa aequis4ion costs from Columbus
to Dublin.
"Utility" shall mean and include a privately, publicly, or cooperatively owned line,
facility, or system for producing, transmitting, or distributing communications, cable television,
power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not
connected with roadway drainage, or any other similar commodity not owned and operated by
the City of Columbus or City of Dublin. The term "utility" shall also mean the utility company
inclusive of any substantially owned or controlled subsidiary. This term includes those utility -
type facilities that are owned or leased by a governmental agency other than the City of
Columbus or City of Dublin for their own use, or otherwise dedicated solely to government use.
The term "Utility" includes those facilities used solely by the Utility, which are part of its
operating plant. Service lines privately owned and devoted exclusively to supplying the various
commodities to the owner and not directly or indirectly serving the public, are not considered to
be autility.
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,
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 imnort 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
DESIGN OF THE INFRASTRUCTURE IMPROVEMENTS
Section 2.1 General Considerations In consideration of the commitment of Dublin to
design the Infrastructure Improvements, Columbus agrees to finance the portion of s tom.
f right of way acquisition for the improvements that are associated with the property within
the Columbus corporation limits and reimburse Dublin for the costs of designing the
Infrastructure Improvements up to a maximum of $650,000
4
REDLINED VERSION
350.000.
The parties will discuss any increases in as�costs and mutually agree whether such costs
will be financed by the Parties within th iF4 ( da of fe eipt of th app fa _ epei4s Fe_ the
If the Parties agree to a.. :. et4s t4at fesff t' agreement results
in a greater cost to Columbus than the maximum amount of $FrS , 350,000 a written
addendum to this Agreement will 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 only after these approvals are received and the addendum is executed.
Section 2.2 Design of the Infrastructure Improvements Dublin covenants and agrees
that it will contract for the engineering and design of the Infrastructure Improvements in its name
with a contractor or contractors, and Columbus covenants and agrees to the engineering and
design of the Infrastructure Improvements by Dublin.
(a) Dublin covenants and agrees:
�a�r�s�as nR!ee=einssnsssees��eaee�eese
LD (2-)—To hire and manage the consultant designing the Infrastructure
Improvements;
.�!eess .ararse�e�araess=e�fi
- 0)—To 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 design of the
Infrastructure Improvements, all in conformity with all applicable
governmental laws, rules and regulations;
�3- To finance all costs of right of way acquisition activities associated with
the Infrastructure Improvements within the Dublin corporation limits
�4- (Pursuant to the provisions of this Agreement, to provide for the
payment of all fees, costs and expenses incurred in the design of the
Infrastructure Improvements w ithi n th:.,_ (30` d s of ipt of t he
...t �ees;
({}Traffic operation analysis for the Infrastructure Improvements shall be
completed and submitted to the Authorized Columbus Representative for
5
REDLINED VERSION
review and reasonable approval. Objection and /or revisions shall be
provided by the Authorized Columbus Representative to Dublin within
fifteen (15) days of delivery of such plans, or such plans shall be deemed
approved -}
(7}Tbe construction drawings will contain estimates of quantities that
specify the quantity of work in each jurisdiction to simplify developing the
construction costs in each jurisdiction.
(b) Columbus covenants and agrees:
(1) To review and provide written approval of the scope, schedule, budgets
and design documents associated with the Infrastructure Improvements
within thirty (30) days of submission;
(2) To review and provide comments or written approval of submitted design
plans of the Infrastructure Improvements within the Columbus corporation
limits within thirty (30) calendar days of Dublin submission, unless
otherwise agreed to by the Parties in writing;
(3) To reimburse Dublin ^p to s ° l an d 94 t4,.." and dollars a4qa
for those approved design ffia f i g ht of w ay
asgxisition osts associated with the Infrastructure Improvements within
the Columbus corporation limits C bus °'4°" re i- -burse - Publffi ff
(4) Upon execution of the Agreement, Columbus shall reimburse Dublin these
actual costs associated with the design of the Infrastructure Improvements:
a) Traffic analysis - $37,255
b) Roundabout Simulation - $5,280
c) Detail design - $157,647
d) Right of way plan - $25,093
c) Waterline relocation design - $18,060
This is atotal of $243,335.
Also, Columbus shall reimburse Dublin 100% of the costs of any
additional work performed within the Columbus corporation limits by the
consultant in the designing of the Infrastructure Improvements
Dublin shall included copies of itemized invoices - including progress
reports - and vouchers with each reimbursement request.
To finance all costs of right of way acquisition activities associated with
the Infrastructure Improvements within the Columbus corporation limits.
6
REDLINED VERSION
kO (4�To reimburse Dublin for costs associated with the right of way
acquisition activities associated with the Infrastructure Improvements for
this project that have been incurred by Dublin to the date of execution of
this Agreement including, but not limited to, legal fees, appraisal fees,
negotiator fees, right of way consultant fees, and court fees
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REDLINED VERSION
e. aesr sRess�eesssas�e�aesr sRess�eesssaecs��ne��neess�ee�e !sasn�nn
(4y 4COlumbus-
Section 2.3 Completion
(a) The Parties agree to exercise their best efforts to complete the design of the
construction drawings by 3anuafy 1� Anril 1" 2010.
(b) The Parties agree to exercise their best efforts to complete the legal descriptions
and exhibits needed for right of way acquisition by 3afmafy 1-5-,- 1 2010.
( p ..1...11 A e :t.. 1 A t,. ,. A 41 r i g ht 4 WR ..,.,.d 4 tt.,.
ten The Parties agree that such completion dates may be extended by
mutual written agreement of the Authorized Dublin Representative and the
Authorized Columbus Representative.
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.
8
REDLINED VERSION
(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
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
9
REDLINED VERSION
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
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 inelua:i+rt bt4 not lim4ed t@ r i g ht ,.F WR RH d .,. t
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,
10
REDLINED VERSION
(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
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.
11
REDLINED VERSION
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
Terry Foegler
City Manager
Approved as to Form:
C
Stephen J. Smith
Law Director
CITY OF COLUMBUS, OHIO
By
Mark Kelsey
Director of Public Service
Approved as to form:
Richard C. Pfeiffer, Jr.
City Attorney
I certify compliance with applicable sections of Title 39 as of (date)
(name)
12
COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION AGREEMENT
BETWEEN
CITY OF COLUMBUS, OHIO
AND
CITY OF DUBLIN, OHIO
FOR ROADWAY IMPROVEMENTS
EMERALD PARKWAY (TUTTLE CROSSING BLVD — RINGS ROAD)
Columbus Capital Improvement Project No. 530161- 100003
Dublin Capital Improvement Project No. 09- 005 -CIP
THIS COOPERATIVE DESIGN AND RIGHT OF WAY ACQUISITION
AGREEMENT (the Agreement') date , 2010, by and between the CITY
OF DUBLIN, OHIO ( "Dublin "), a municipal corporation duly organized and validly existing
under the Constitution and laws of the State of Ohio (the "State ") and its Charter, and the CITY
OF COLUMBUS, OHIO ( "Columbus ", and collectively with Dublin, the "Parries "), also a
municipal corporation duly organized and validly existing under the Constitution and laws of the
State of Ohio and its Charter.
WITNESSETH:
WHEREAS, the Parties have determined that it would be in the best interests of Dublin
and Columbus to widen and improve Emerald Parkway from Rings Road in Dublin south to
Tuttle Crossing Boulevard in Columbus; 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 development of the design and right
of way acquisition; and
WHEREAS, the Parties desire to enter into a Cooperative Design and Right of Way
Acquisition Agreement, to provide for the design and acquisition necessary for the construction
of various roadway and associated infrastructure improvements; and
WHEREAS, the Parties have agreed that Columbus will make payment to Dublin for the
design costs attributable to the Infrastructure Improvements within the Columbus corporation
limits as outlined in Article II.
NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows:
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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 Design and 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.
"Consultant" means the Consultant(s) selected by Dublin to perform and complete the
design of the Infrastructure Improvements.
"Event ofDefault' means an Event of Default under Section 4.1 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 Emerald Parkway from
Rings Road southerly and easterly approximately 2,500 feet to Tuttle Crossing Boulevard. The
improvements shall include widening Emerald Parkway to 5 lanes at intersections with 4 lanes
and a median between intersections, curb and gutter, sidewalks, bikepaths, traffic signals, street
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lighting, regulatory road signage, pavement markings, storm drainage, utility location and any
necessary relocation, and landscaping, all in compliance with the Americans with Disabilities
Act ( "A.D.A. ") criteria.
"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:
City of Columbus
90 West Broad Street, Room 301
Columbus, Ohio 43215
Attention: Director of Public Service
Copy to:
Office of Support Services
Department of Public Service
Columbus, Ohio 43215
Attn: Contract Manager
or a different address as to which notice is given pursuant to Section 5.1 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.
"Relocation" means the adjustment of utility facilities required by a roadway
improvement project. It includes removing and reinstalling the facility, including any necessary
temporary adjustments, acquiring necessary right of way, moving, rearranging, or changing the
type of existing facilities, and taking any necessary safety and protective measures. It shall also
mean constructing a replacement facility that is both functionally equivalent to the existing
facility and necessary for continuous operation of utility service.
"State" means the State of Ohio, one of the United States of America.
"Termination Date" shall be defined by final approval and signature of construction
drawings and final reimbursement for design costs from Columbus to Dublin.
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"Utility" shall mean and include a privately, publicly, or cooperatively owned line,
facility, or system for producing, transmitting, or distributing communications, cable television,
power, electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water not
connected with roadway drainage, or any other similar commodity not owned and operated by
the City of Columbus or City of Dublin. The term "utility" shall also mean the utility company
inclusive of any substantially owned or controlled subsidiary. This term includes those utility -
type facilities that are owned or leased by a governmental agency other than the City of
Columbus or City of Dublin for their own use, or otherwise dedicated solely to government use.
The term "Utility" includes those facilities used solely by the Utility, which are part of its
operating plant. Service lines privately owned and devoted exclusively to supplying the various
commodities to the owner and not directly or indirectly serving the public, are not considered to
be a utility.
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,
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
DESIGN OF THE INFRASTRUCTURE IMPROVEMENTS
Section 2.1 General Considerations In consideration of the commitment of Dublin to
design the Infrastructure Improvements, Columbus agrees to finance the portion of right of way
acquisition for the improvements that are associated with the property within the Columbus
corporation limits and reimburse Dublin for the costs of designing the Infrastructure
Improvements, up to a maximum of $350,000. The parties will discuss any increases in costs
and mutually agree whether such costs will be financed by the Parties. If the Parties' agreement
results in a greater cost to Columbus than the maximum amount of $350,000, a written
addendum to this Agreement will 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
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increases the amount of money for this project and to appropriate funds for any cost increase.
Payment can be made only after these approvals are received and the addendum is executed.
Section 2.2 Design of the Infrastructure Improvements Dublin covenants and agrees
that it will contract for the engineering and design of the Infrastructure Improvements in its name
with a contractor or contractors, and Columbus covenants and agrees to the engineering and
design of the Infrastructure Improvements by Dublin.
(a) Dublin covenants and agrees:
(1) To hire and manage the consultant designing the Infrastructure
Improvements;
(2) To 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 design of the Infrastructure
Improvements, all in conformity with all applicable governmental laws,
rules and regulations;
(3) To finance all costs of right of way acquisition activities associated with
the Infrastructure Improvements within the Dublin corporation limits;
(4) Pursuant to the provisions of this Agreement, to provide for the payment
of all fees, costs and expenses incurred in the design of the Infrastructure
Improvements;
(5) Traffic operation analysis for the Infrastructure Improvements shall be
completed and submitted to the Authorized Columbus Representative for
review and reasonable approval. Objection and /or revisions shall be
provided by the Authorized Columbus Representative to Dublin within
fifteen (15) days of delivery of such plans, or such plans shall be deemed
approved;
(6) The construction drawings will contain estimates of quantities that specify
the quantity of work in each jurisdiction to simplify developing the
construction costs in each jurisdiction.
(b) Columbus covenants and agrees:
(1) To review and provide written approval of the scope, schedule, budgets
and design documents associated with the Infrastructure Improvements
within thirty (30) days of submission;
(2) To review and provide comments or written approval of submitted design
plans of the Infrastructure Improvements within the Columbus corporation
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(3) To reimburse Dublin for those approved design costs associated with the
Infrastructure Improvements within the Columbus corporation limits.
(4) Upon execution of the Agreement, Columbus shall reimburse Dublin these
actual costs associated with the design of the Infrastructure Improvements:
a) Traffic analysis - $37,255
b) Roundabout Simulation - $5,280
c) Detail design - $157,647
d) Right of way plan - $25,093
c) Waterline relocation design - $18,060
This is a total of $243,335.
Also, Columbus shall reimburse Dublin 100% of the costs of any
additional work performed within the Columbus corporation limits by the
consultant in the designing of the Infrastructure Improvements
Dublin shall included copies of itemized invoices — including progress
reports — and vouchers with each reimbursement request.
(5) To finance all costs of right of way acquisition activities associated with
the Infrastructure Improvements within the Columbus corporation limits.
(6) To reimburse Dublin for costs associated with the right of way acquisition
activities associated with the Infrastructure Improvements for this project
that have been incurred by Dublin to the date of execution of this
Agreement including, but not limited to, legal fees, appraisal fees,
negotiator fees, right of way consultant fees, and court fees.
Section 2.3 Completion
(a) The Parties agree to exercise their best efforts to complete the design of the
construction drawings by April 1, 2010.
(b) The Parties agree to exercise their best efforts to complete the legal descriptions
and exhibits needed for right of way acquisition by March 1, 2010.
(c) The Parties agree that such completion dates may be extended by mutual written
agreement of the Authorized Dublin Representative and the Authorized Columbus
Representative.
ARTICLE III
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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 Remedy 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
or power of shall be construed to constitute a waiver of any Event of Default hereunder, but any
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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
Terry Foegler
City Manager
Approved as to Form:
C
Stephen J. Smith
Law Director
CITY OF COLUMBUS, OHIO
By
Mark Kelsey
Director of Public Service
Approved as to form:
Richard C. Pfeiffer, Jr.
City Attorney
I certify compliance with applicable sections of Title 39 as of (date)
(name)
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