Resolution 12-12RECORD OF RESOLUTIONS
ial Bla I Farm No. 3o 5
Resolution No.
12 -12
Passed
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
AMEND THE 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 been cooperatively
designing and acquiring right -of -way for the identified transportation improvement
project per the approved Agreement; and
WHEREAS, the City of Dublin and the City of Columbus have agreed to certain
amendments to the approved Agreement.
NOW, THORE, 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 an Addendum to the
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 Construction 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 (CGLG 2012.
Mayor - Prer g Officer
Attest:
Clerk of Council
Office of the City Manager
City of Dublin Pho 614-410-4400 y Faax:b614 --410 -4490 1090
Memo
To: Members of Dublin City Council
From: Marsha I. Grigsby, City Manager
Date: February 9, 2012
Initiated By: Paul A. Hammersmith, P.E., Director of Engineering /City Engineer
Barbara A. Cox, P.E., Engineering Manager — Development
Re: Resolution No. 12 -12 - Authorizing the City Manager to Amend the 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
For the past several years, City of Dublin (Dublin) Engineering and Legal staff have been diligently
coordinating with City of Columbus (Columbus) staff regarding the improvements to Emerald
Parkway between Tuttle Crossing Boulevard and Rings Road. Both worked jointly to select a
design consultant for the project through a competitive Request for Proposal process in early 2009.
While the design work progressed thereafter, Columbus worked to secure an Ohio Public Works
Commission (OPWC) grant for the project, which was applied for jointly in October 2009.
The OPWC application was successful and a $4,373,647 project grant was awarded in July 2010.
The grant award, which includes reimbursement for project costs related to design, right -of -way
acquisition, construction, contingencies and inspection services, will provide approximately 56% of
the $7,755,155 budgeted in for project costs. The proportionate share of the project construction
costs, as determined from the construction plans and associated engineer's cost estimate, is 63%
for Columbus and 37% for Dublin. As a result, the remaining 44% of the project's costs not
reimbursed by the OPWC grant were to be shared proportionately by Columbus and Dublin. All
other project- related cost would be proportioned based on the portion of roadway length in each
jurisdiction, resulting in a 60% share for Columbus and a 40% share for Dublin.
As authorized by City Council in February 2010, a "Cooperative Design and Right -of -Way
Acquisition Agreement" was entered into with Columbus on May 19, 2010. The Agreement states
Dublin will be responsible for the management of the consultant during design and traffic
operation analysis, and that Dublin and Columbus will work cooperatively on the acquisition of
necessary right -of -way.
Initially, Columbus only wished to execute an agreement for design and right -of -way acquisition.
As the project design progressed, a separate agreement would then be developed for the
cooperative construction addressing each agency's responsibilities during the project construction.
The project team, consisting of staff from Dublin and Columbus, created the Cooperative
Construction Agreement, and as authorized by City Council on December 12, 2011, the agreement
is presently being routed for signatures.
The project design has been complete since August of last year. Presently, the estimated
construction cost for this project, including all anticipated inspection services during construction,
Memo re. Resolution No. 12 -12
February 9, 2012
Page 2 of 3
is $6,011,445. Of this amount, the OPWC grant will reimburse $3,253,176, of which the Columbus
share will be $1,731,564 and the Dublin share will be $1,026,705. Within the adopted 2012 -2016
Capital Improvements Program, $1,800,000 is programmed in 2012 for the Dublin share to
construct this project. The construction of the project is to commence by April 30, 2012, with an
anticipated completion date of July 15, 2013.
The acquisition of right -of -way and utility easements has been ongoing for several months. As
authorized by City Council on January 23, 2012, the acquisitions related to the United States Post
Office located along the east side of Emerald Parkway, north of Glendon Court, have been
completed. The only remaining acquisitions are those from three properties now owned by
BRE /COH OH (Blackstone). As previously reported to City Council, Blackstone purchased the
properties previously owned by Duke Realty Ohio (Duke) in December of 2011. While Duke had
been agreeable to the donation of right -of -way and easements for this project, Blackstone has not
yet agreed to a similar arrangement with Dublin and Columbus.
Summary
Originally, the design for the improvement of this segment of Emerald Parkway incorporated traffic
signals for intersection control at Lakehurst Drive and Glendon Court. As the project developed
and right -of -way acquisition commenced, it became apparent that restricting access to adjacent
properties (a result of the raised median in the design) would have potentially compensable
impacts. To mitigate the impacts and better accommodate access along the corridor, the design
was modified to incorporate roundabouts at the two previously signalized intersections. This
design modification resulted in additional fees for both Columbus and Dublin. As stipulated in the
original Cooperative Design and Right of Way Acquisition Agreement, Dublin has been responsible
for management of the design consultant, with Columbus reimbursing Dublin their proportionate
share of the design costs. This addendum to the original agreement increases Columbus'
contribution toward the design, thus allowing them to reimburse Dublin for their share of the
added design fees.
The project was advertised for bids on February 2, 2012, and the need to obtain all of the right -of-
way for the project has become immediate. Additionally, utility relocations by those companies
providing service to the area, and having their infrastructure within the area impacted by the
project, has commenced and needs to be substantially complete before the beginning of the
project construction. Although the utility providers will be responsible for the cost of relocating
their facilities from within the existing right -of -way, Dublin and Columbus are responsible for the
costs of relocations from previously established utility easements.
As this project has developed over the past several years, Columbus budgeted $575,000 for the
acquisition of right -of -way and easements within their jurisdiction, and $250,000 for the relocation
of existing utilities. Currently, Columbus has expended $881,061 on right -of -way and easement
acquisitions and $146,923 on utility relocations. Columbus anticipates the continued right -of -way
negotiations with affected property owners will result in added costs beyond those incurred to
date. Likewise, additional utility relocation costs may be incurred as work progresses by several
utility companies.
These added costs for right -of -way acquisitions and utility relocations are a concern for Columbus
as this project continues to advance towards construction. Funding limitations within Columbus
Memo re. Resolution No. 12 -12
February 9, 2012
Page 3 of 3
have caused them to ask Dublin for financial assistance toward these additional costs. Columbus
is requesting $350,000 from Dublin within the next thirty (30) days for documented right -of -way,
easement and utility relocation costs associated with this project. Secondarily, Dublin would agree
to provide Columbus an amount not to exceed $650,000 for additional right -of -way and utility
relocation costs, if needed. [The additional costs will be paid from the Thomas /Kohler TIF Fund.]
In recognition of this financial assistance from Dublin, Columbus would consider funding a larger
portion of the future improvements at the Sawmill Road /Hard Road intersection, a project
currently being pursued jointly by Columbus and Dublin.
Recommendation
Staff recommends approval of Resolution 12-12, authorizing the City Manager to enter into an
Addendum to the Cooperative Design and Right -of -Way Agreement with the City of Columbus for
the improvement of Emerald Parkway between Tuttle Crossing Boulevard and Rings Road.
ADDENDUM TO THE 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 ADDENDUM TO COOPERATIVE DESIGN AND RIGHT -OF -WAY
ACQUISITION AGREEMENT (the Agreement") is executed on , 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 previously executed a Cooperative Design and Right -of -Way
Acquisition Agreement ( "the Agreement ") on May 19, 2010 for the widening and improvement
of Emerald Parkway from Rings Road in Dublin south to Tuttle Crossing Boulevard in
Columbus (the "Infrastructure Improvements ");
WHEREAS, pursuant to the Agreement, in the event Columbus' amount for the costs of
designing the Infrastructure Improvements exceeded $350,000, the Parties agreed to execute a
written addendum to outline the additional required items;
WHEREAS, the Parties have determined that redesigning the Infrastructure
Improvements to incorporate roundabouts requires funding from Columbus above the original
$350,000 commitment;
WHEREAS, Dublin has agreed to compensate Columbus for certain Right -of -Way
acquisition and utility relocation expenses related to the Infrastructure Improvements; and
WHEREAS, the Parties desire to execute this Addendum to the Cooperative Design and
Right -of -Way Acquisition Agreement, to provide for the modifications of certain design, Right -
of -Way acquisition, and utility relocation costs necessary for the construction the Infrastructure
Improvements;
NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows:
• The maximum reimbursable amount for designing the Infrastructure Improvements is
hereby increased and Section 2.1 of the Cooperative Design and Right -of -Way
Acquisition Agreement is revised as follows:
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 $410,000
S350,000. 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 $410,000 $350,009, 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.
• Dublin agrees to pay Columbus, within thirty (30) days of execution of this
Addendum, three hundred fifty thousand dollars and no cents ($350,000.00) for
documented Right -of -Way acquisition and utility relocation costs associated with the
Infrastructure Improvements.
• Dublin agrees to make available to Columbus a sum not to exceed six hundred fifty
thousand dollars and no cents ($650,000.00) for additional Right -of -Way acquisition
and utility relocation costs associated with the Infrastructure Improvements.
Columbus will provide to Dublin invoices of expenses incurred pursuant to this
clause and Dublin will determine, in its sole discretion, whether and in what amount
to compensate Columbus for those expenses.
• In the event of a conflict between the terms and conditions of this Addendum and the
terms and conditions of the Cooperative Design and Right -of -Way Acquisition
Agreement Between City of Columbus, Ohio and City of Dublin, Ohio for Roadway
Improvements, the terms and conditions of this Addendum shall prevail. All other
terms, covenants and conditions of the Agreement shall remain in full force and
effect.
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
Approved as to Form:
C
Marsha Grigsby
City Manager
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)
* ** City of Columbus, Ohio Page 1 of 1
Duplicate Purchase Order
EL0 10311 000000
Supplier Information
Contact:
Vendor #: 316400452 001
Phone #: (999) 999 - 9999 Fax
CITY OF DUBLIN
6665 COFFMAN RD
DUBLIN OH 43017-
Ship Prepaid To
See Delivery Schedule
Date: May 13,2010
F.O.B.:
FOB Destination, Freight Prepaid &Allowed
Invoice in Triplicate To
Sarah Marie Parker -Allen
90 West Broad Street, Room 301
Public Service, Office of the Director
COLUMBUS OH 43215-
Discount Terms:
Solicitation No #:
Delivery Days ARO:
Item
Description
Quantity
UOM
Unit Price
Total Cost
1
SPECIFICATION:
1
EA
350,000.0000
$350,000.00
To enter into a Guaranteed Maximum Reimbursement
Agreement with the City of Dublin for.
Emerald Parkway (Tuttle Crossing Blvd. - Rings Road)
Project No 530161/100003
Ordinance No 1366 -2009
The total amount of the purchase order is: $350,000.00
Delivery Address:
Mark Williams
Office of Support Services
109 N. Front St., Ground Floor
Columbus OH 43215 -
Phone: (61 645 -6812 _ Ext. 0
Purchase
Order'Total:
$35
Department Authorization EBOCO Certification City Attorney Approval City Auditor's Certification
Mark Kelsey /tar I Certify Compliance With The Purchase Order has been reviewed Certified as to appropriation only Expenditure
Name Title 39 As of by the Attorney's Office as to its form of monies are contingent upon receipt of prop
04/30/2010 and legality only documentation and audit
„ Richard C Pfeiffer /ihs 05/12/2010 Hu h J Dorrian/ P h
Position Authorized By
Authorized By Date
g .
Authorized By
Pd #: 90 2010 EL010311
Suffix Account Amt Dept
Appn. Year
OCA
PCA Obj Lvl 3
Grant No Grant Det Project No
Project Det
Fund
Sub Fund Ref. Doc No. / Suffix
1 $350,000,00 44
2010
440735
44901 6631
590415
100000
735
ACO30378/1
THIS COOPERATIVE DESI N AND RIGHT OF WAY ACQUISITION
AGREEMENT (the "Agreement ") date , 2010, by and between the CITY
OF DUBLIN, OHIO ( "Dublin "), a municip 1 corporation duly organized and validly existing
under tt e Cons�rtution and laws of the State of Ohio (the "State ") and its Charter as authorized
5o��rie
by axrce /3 / , passed, 2 oio and the CITY OF COLUMBUS,
OHIO ( "Columbus ", and collectively with Dublin, the "Parties "), also a municipal corporation
duly organized and validly existing under the Constitution and laws of the State of Ohio and its
Charter, as authorized by ordinance 1366 -2009 passed on November 11, 2009.
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 of Default" means an Event of Default under Section 4.1 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.
"Infrastructure hnprovements" 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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3
"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
(H17914413 )
4
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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5
limits within thirty (30) calendar days of Dublin submission, unless
otherwise agreed to by the Parties in writing;
(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 - $5,208
c) Detail design - $157,647
d) Right of way plan - $25,093
c) Waterline relocation design - $10,836
This is a total of $236,039.00
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 Comp letion.
(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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6
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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7
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 La w. 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 Harmles 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 C ounterparts . This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute but
one and the same agreement. It shall not be necessary in proving this Agreement to produce or
account for more than one of those counterparts.
Section 4.6 Severability In case any section or provision of this Agreement, or any
covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken,
or any application thereof, is held to be illegal or invalid for any reason,
(a) that illegality or invalidity shall not affect the remainder hereof or thereof, any
other section or provision hereof, or any other covenant, agreement, obligation or
action, 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 Go verning Law and Choice of Forum
by and construed in accordance with the laws of the State.
and other matters in question between Dublin, its agents
This Agreement shall be governed
All claims, counterclaims, disputes
and employees, and Columbus, its
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9
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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10
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 D
By:
Approved as to Form:
By:
Stephen J. Smith
Law Director
A4�akt , J
Rid-d C Pfeiffer, 7r.
Richard C. Pfeiffer, Jr.
City of Columbus Attorney
City Cohunbus Equal Business Opportunity Commission Office
I ce fy co %% // with applicable sections of Title 39 as of f Ile) (date)
f H 1 791441 3 }
I I