HomeMy WebLinkAboutOrdinance 18-10RECORD OF ORDINANCES
1s -10
Ordinance No.
Passed 20
AN ORDINANCE AMENDING ORDINANCE NO. 60 -09 TO
(A) CLARIFY THE TERMS OF CERTAIN ECONOMIC
DEVELOPMENT INCENTIVES HERETOFORE
PROVIDED TO DELTA ENERGY HOLDINGS, LLC, (B)
AUTHORIZE THE EXECUTION OF AMENDMENTS TO
THE RELATED REAL ESTATE PURCHASE CONTRACT
AND ECONOMIC DEVELOPMENT AND TAX
INCREMENT FINANCING AGREEMENT, AND (C)
MODIFY THE REAL PROPERTY SUBJECT TO THE TAX
INCREMENT FINANCING PROVISIONS OF ORDINANCE
NO. 60 -09, AND DECLARING AN EMERGENCY.
WHEREAS, consistent with its Economic Development Strategy (the "Strategy ") approved
by Dublin City Council Resolution No. 07 -94 adopted on June 20, 1994, and the updated
strategy approved by Dublin City Council Resolution No. 30 -04 adopted on July 6, 2004,
the City desires to encourage commercial office development and provide for the creation of
employment opportunities within the City; and
WHEREAS, the City currently owns a certain parcel of real property located within the
City known as parcel 273 - 010591 -00 located at the southwest corner of Emerald Parkway
and Perimeter Drive (hereinafter referred to as the "Property"); and
WHEREAS, Delta Energy Holding, LLC (the "Company ") has completed an examination
of its workforce needs, and induced by and in reliance on economic development incentives
provided for in Ordinance No. 60 -09, the Company is desirous of constructing a new
corporate headquarters in the City and relocating its workforce and operations to the City;
and
WHEREAS, this City Council previously passed Ordinance No. 60 -09 authorizing the
provision of certain incentives for the purposes of encouraging the location of the Company
within the City and authorized the City Manager to execute certain Agreements, including a
Real Estate Purchase Contract and an Economic Development and Tax Increment Financing
Agreement; and
WHEREAS, the Company desires to amend certain of the terms and conditions of those
Agreements to provide for a reduction in the amount of real property to be purchased by the
Company (such real property being referred to herein as the "Property" and a depiction of
such Property is attached hereto as Exhibit A -1) and a reduction in the corresponding
amount of real property to be subject to the TIF Statutes as described in Ordinance No. 60-
09; and
WHEREAS, this City Council has determined to authorize such amendments and to
provide for the execution and delivery of an Extension and Amendment of Real Estate
Purchase Contract and an Amendment of Economic Development and Tax Increment
Financing Agreement, all to provide for the sale and development of the Property; and
WHEREAS, this City Council has determined that the City shall comply with all
requirements identified in Ordinance No. 60 -09 Sections 1 through 12 and authorize the
necessary amendments thereto to insure the Company's desired changes are reflected and all
other requirements are met in accordance with the law.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio, --7— of the elected members concurring, that:
Section 1 . The Extension and Amendment of Real Estate Purchase Contract and the
Amendment of Economic Development and Tax Increment Financing Agreement by and
between the City and the Company, in the form presently on file with the Clerk of Council,
providing for, among other things, the sale and conveyance of the Property, the payment of
Service Payments by the owners of any portion of the Property and the provision of certain
economic development incentives to the Company, is hereby approved and authorized with
RECORD OF ORDINANCES
Dayton Legal Blank. Inc.
Ordinance No
18 -10
Page 2 of 3
Passed 20
changes therein not inconsistent with this Ordinance and not substantially adverse to this
City and which shall be approved by the City Manager. The City Manager, for and in the
name of this City, is hereby authorized to execute the Extension and Amendment of Real
Estate Purchase Contract and Amendment of Economic Development and Tax Increment
Financing Agreement provided fii ther that the approval of changes thereto by that official,
and their character as not being substantially adverse to the City, shall be evidenced
conclusively by the execution thereof. This Council further authorizes the City Manager,
for and in the name of the City, to execute any amendments to the Extension and
Amendment of Real Estate Purchase Contract and Amendment of Economic Development
and Tax Increment Financing Agreement, which amendments are not inconsistent with this
Ordinance and not substantially adverse to this City.
Section 2 . The depiction of the property originally attached as Exhibit A to Ordinance No.
60 -09 is hereby deleted and shall be replaced with the depiction of the Property attached
hereto as Exhibit A -1.
Section 3 . All capitalized terms used herein without definition shall have the same
meaning and effect as those terms may be given pursuant to Ordinance No. 60 -09 unless the
same are expanded, limited or otherwise defined herein. All of the terms and conditions of
Ordinance No. 60 -09 shall remain in full force and effect except as expressly modified
herein. In the event of a conflict between the terms and conditions of this Ordinance and the
terms and conditions of Ordinance No. 60 -09, the terms and conditions of this Ordinance
shall control
Section 4 . This Council further hereby authorizes and directs the City Manager, the
Director of Law, the Director of Finance, the Clerk of Council, or other appropriate officers
of the City to prepare and sign all agreements and instruments and to take any other actions
as may be appropriate to implement this Ordinance.
Section 5 . This Council finds and determines that all formal actions of this Council and any
of its committees concerning and relating to the passage of this Ordinance were taken in open
meetings of this Council or committees, and that all deliberations of this Council and any of
its committees that resulted in those formal actions were in meetings open to the public, all in
compliance with the law including Section 121.22 of the Revised Code.
Section 6 . This Ordinance is declared to be an emergency Ordinance necessary for the
immediate preservation of the public peace, health, safety or welfare and therefore shall be
effective upon passage.
Signed:
Mayor - �djfi: O fficer
At
Clerk of Council
Passed: JQ 2010
Effective: 2010
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 -410 -4400 • Fax: 614 - 410 -4490
To: All Members Dublin City Council
From: Terry Foegler, City Manager
Date: May 3, 2010
Memo
Initiated By: Dana L. McDanieI, Deputy City Manager /Director of Economic Development
Re: Ordinance 18 -10, Delta Energy —Ordinance 60 -09 Terms and Conditions Be Clarified
Summary
As presented at the first reading of Ordinance 18 -10 on April 26, 2010, certain amendments to
Ordinance 60 -09 are necessary to attract Delta Energy operations and workforce to the City of Dublin.
Specifically, Ordinance 18 -10 would authorize amendments to the Real Estate Purchase Contract, the
Economic Development Agreement and Tax Increment Finance Agreement as authorized by Ordinance
60 -09. The Extension and Amendment of the Real Estate Purchase Contract, which includes the
Economic Development Agreement and Tax Increment Finance Agreement, is attached to this staff
report. The necessary changes to the contract and agreements are summarized in the following:
REAL ESTATE PURCHASE CONTRACT
- The acreage of the property is being reduced from 4.442 acres to approximately 2.9 acres
- The purchase price will remain the same at $225,000 per acre (subject to confirmation of the
actual acreage by survey)
- Delta's remaining contingencies are being clarified as well as the time they have to satisfy them
(60 days)
- The contract includes an obligation to enter into a Declaration of Covenants and Easements,
which will establish the framework for the interconnected development of the site now that it has
been divided into two commercially developable tracts. The Declaration addresses matters such
as the following:
- Access easements to Delta over the property retained by the City
- Easement to the City for public infrastructure
- Cross access easements for access to the residual property
- Easements to Delta for use of the retention/detention pond on the property retained by the City
(including construction obligations and a mechanism for the sharing of the costs to repair and
maintain same by the property owner's benefitting from the use thereofl
- Future utility and signage easements to the owners of each developable tract
The relocation of easements to the extent they interfere with the development of any tract
- The contract includes an obligation to enter into a Right of First Refusal and Option Agreement
for the benefit of Delta. The Right of First Refusal and Option Agreement addresses matters such
as the following
- Delta has a period of 3 years within which it may exercise an option to purchase the property
retained by the City
Memo re: Ordinance No. 18 -10 Delta Energy, Terms and Conditions Be Clarified
May 3, 2010
Page 2 of 2
- The purchase price will remain the same at $225,000 per acre
- Delta will be required to commence development of the property within one year after the
purchase and complete same within two years
- If the City receives a bona fide offer to purchase the property within Delta's option period that it
desires to accept, it must present same to Delta. Delta has 10 days to make a decision as to
whether or not it will buy the property on the terms set forth in such offer. If it does not elect to
proceed with the purchase, then its Right of First Refusal and Option expire. If Delta elects to
purchase the property, then it must close within 30 days.
ECONOMIC DEVELOPMENT AND TAX INCREMENT FINANCING AGREEMENT:
- The acreage of the property is being reduced from 4.442 acres to approximately 2.9 acres
Exhibits and minor information relative to these Agreements are subject to modification as surveys are
finalized and finite engineering is completed.
At the first reading on April 26` a question was asked regarding the breakdown of acreage on the site.
Attachment 2 provides this breakdown.
Staff will provide an Administrative Report to Planning and Zoning Commission at its May 20, 2010
meeting for update and input.
Recommendation
Staff recommends Council pass Ordinance 18 -10 in an effort to attract Delta Energy operations and
workforce and allow the opportunity for additional square footage to be developed on the site with the
potential to attract additional jobs. Staff further recommends the Ordinance be passed as an emergency
at the second readingipublic hearing on May 10` and that the 30 day waiting period be waived. Please
address any questions you may have to Dana McDaniel.
&A
M M BI 1\
EXTENSION AND AMENDMENT OF
REAL ESTATE PURCHASE CONTRACT
THIS EXTENSION AND AMENDMENT OF REAL ESTATE PURCHASE
CONTRACT (this "Amendment ") is entered into as of this day of , 2010 (the
"Effective Date ") by and between the City of Dublin, Ohio ( "Seller ") and Delta Energy
Holdings, LLC ('Buyer ")(Seller and Buyer are sometimes hereafter collectively referred to as
the "Parties ").
RECITALS
WHEREAS, Seller and Buyer entered into that certain Real Estate Purchase Contract
dated December 28, 2009 ( "Purchase Contract ") for the sale of approximately 4.0 — 5.08 acres as
generally shown on Exhibit A attached thereto (the "Property "), which Property is part of a
larger tract of real property owned by Seller known as Franklin County Parcel # 273 - 010591 -00
and legally described on Exhibit B attached to said Purchase Contract (the "Parent Parcel");
WHEREAS, Seller and Buyer entered into that certain Contingency Extension
Agreement dated March 26, 2010 (the "Extension Agreement'), pursuant to which Buyer was
given additional time to satisfy certain contingencies under the Purchase Contract. The Purchase
Contract, Extension Agreement and this Amendment are collectively referred to herein as the
"Agreement";
WHEREAS, Buyer has requested, and Seller has agreed, to modify the Purchase Contract
to adjust the acreage of the real property being purchased by Buyer and address certain other
terms and conditions in connection therewith; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of which the
Parties hereby acknowledge, the Parties do hereby agree as follows:
AGREEMENT
1. SURVEYS. Seller shall, within 30 days after the date hereof, deliver to Buyer for
approval, (a) a boundary survey and legal description (the "Survey ") of the real property
identified as the "Delta Site" on Exhibit A -1 attached hereto and hereby made a part hereof (the
"Delta Site "), and (b) a boundary survey and legal description of the real property identified as
the "Development Site" on Exhibit A -1 attached hereto (the "Development Site ").
The Survey shall be prepared by a surveyor, registered in the State of Ohio. Seller shall obtain
all approvals necessary to split the Delta Site from the Parent Parcel, with such split occurring
upon recording the Deed. If the dimensions and boundaries of the Delta Site are not agreed upon
on by the Parties on or before the expiration of the Contingency Period (as defined below), then
either Party may terminate this Agreement by providing written notice thereof to the other at any
time prior to the expiration thereof. Upon delivery of such notice, this Agreement shall
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terminate, both Parties shall be released from all further liability and obligations hereunder. If
either Party fails to timely provide such written notice to the other, then the Survey as last
delivered by Seller to Buyer shall be deemed approved.
After the Survey is approved or deemed approved, Exhibit A attached to the Agreement shall be
deleted and replaced by the Survey approved by the Parties. Buyer shall reimburse Seller for all
reasonable surveying costs incurred by Seller in connection with this Agreement.
All references to the term "Property" and "Project" as used in the Agreement shall hereinafter
respectively refer to and mean the Delta Site and Buyer's proposed development thereon,
respectively, which proposed development is generally shown on Exhibit A -1 attached hereto
and shall include an office building comprising approximately 20,000 gross square feet of
building area (nor more than permitted by the approved zoning of the Delta Site), together with
associated parking lots, retention ponds, water features, landscaping and other improvements
typically found in a first -class office complex.
2. CONTINGENCIES. Section 3 of the Purchase Contract is hereby deleted in its
entirety and replaced by the following:
This Agreement is contingent upon Buyer's satisfaction or waiver of the following
"Contingencies" within 60 days after the Effective Date (the "Contingency Period "). The date
upon which all Contingencies are either satisfied or waived is referred to as the "Contingency
Date ". The Contingencies are:
(a) Buyer being satisfied that it can obtain all applicable governmental
approvals reasonably satisfactory to Buyer to allow Buyer to use the
Delta Site for the Project;
(b) Buyer being satisfied that it can obtain acceptable financing;
(c) Dublin City Council approving the terms of the Agreement; and
(d) The Parties agreeing upon the Survey.
The Contingencies above shall be deemed to have been satisfied or waived, unless on or before
the expiration of the Contingency Period, Buyer gives to Seller notice of Buyer's failure to
satisfy the Contingencies. Upon delivery of such notice, this Agreement shall terminate, in
which case both parties shall be fully released from all further liability and obligations
hereunder. Buyer shall proceed in good faith and with due diligence to undertake and complete
the activities identified in Section 3, and, upon request by Seller, shall keep Seller generally
advised of developments with respect thereto at all times, including, without limitation, by
providing oral and written progress reports and by making available to Seller such documents as
Seller may reasonably request from time to time.
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3. USE AGREEMENT. The Delta Site is currently subject to that certain Use
Agreement dated January 11, 2001 between Seller, as licensor, and Dorothy L. Thomas, Marian
D. Thomas, Robert Thomas, William Thomas and Andrew Thomas, as licensees (the "Use
Agreement "), a copy of which Use Agreement is attached to the Agreement as Exhibit D . Upon
the satisfaction or waiver of the Contingencies hereunder, Seller shall promptly terminate the
Use Agreement. Buyer acknowledges that the termination of Use Agreement will take effect 30
days after licensee's receipt of Seller's termination notice. Buyer agrees that Buyer's
investigations and surveying of the Delta Site shall not unreasonably interfere with the use
thereof by the licensees under the Use Agreement and that Buyer shall indemnify Seller from
and against any damages caused to the crops, if any, damaged during such inspections or
surveys. The indemnification herein shall survive the termination of this Agreement.
4. TITLE. Buyer acknowledges and agrees that (i) Seller has satisfied its obligation
to provide to Buyer a commitment for title insurance as required by Section 9 of the Agreement;
and (ii) Buyer has waived its right to object to any Defects shown therein.
5. DEVELOPMENT AND OTHER MATTERS. The last sentence of Section 17
of the Agreement and Exhibit F attached thereto are hereby deleted and replaced by the
following:
At the closing, Seller and Buyer shall execute (a) a Declaration of Covenants and Easements in
substantially the form attached hereto as Exhibit F -1, and (b) an amendment to that certain
Economic Development and Tax Increment Financing Agreement dated December 28, 2009
between Seller and Buyer, in substantially the form attached hereto as Exhibit F -2 .
6. RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT. At the
Closing, Seller and Buyer shall execute the Right of First Refusal and Option Agreement with
respect to the Development Site in substantially the form attached hereto as Exhibit G (the
"ROFR and Option "). At the Closing, the acreage of the Development Site and purchase price
thereof shall be inserted into the ROFR and Option based upon the survey of the Development
Site performed by Seller.
7. EFFECT ON PURCHASE CONTRACT. All capitalized terms used herein
without definition shall have the same meaning and effect as those terms may be given under the
Agreement unless the same are expanded, limited or otherwise defined herein. All of the terms
and conditions of the Agreement shall remain in full force and effect except as expressly
modified herein. In the event of a conflict between the terms and conditions of this Amendment
and the terms and conditions of the Agreement, the terms and conditions of this Amendment
shall control.
IN WITNESS WHEREOF, the Parties have executed this Extension and Amendment of
Agreement of Purchase and Sale on the date first above written.
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SELLER:
City of Dublin, Ohio
Terry D. Foegler, City Manager
BUYER:
Delta Energy Holdings, LLC
Sheri Tackett, President
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SCHEDULE OF EXHIBITS
A -1 Site Plan Depicting Delta Site
F -1 Declaration of Covenants and Easements
F -2 Amendment to Economic Development and Tax Increment
Financing Agreement
G Right of First Refusal and Option Agreement
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EXHIBIT A -1
Site Plan
{H1860650 2 }
EXHIBIT F -1
DECLARATION OF COVENANTS AND EASEMENTS
This Declaration of Covenants and Easements (this "Declaration ") is made and executed
this day of , 2010 by and between the City of Dublin, Ohio (the "City ") and
Delta Energy Holdings, LLC ( "Delta ")(the City and Delta are sometimes hereafter collectively
referred to as the "Parties ").
WITNESSETH:
The City, as the Owner of the real property legally described on Exhibit A attached
hereto (the "Development Site ") and Exhibit B attached hereto (the "Pond Site "), and Delta, as
the Owner of the real property legally described in Exhibit C attached hereto (the "Delta Site "),
which Development Site, Pond Site and Delta Site (collectively, the "Site ") are graphically
depicted on the site plan attached hereto as Exhibit D (the "Site Plan "), intend by this
Declaration to establish and create certain easements and covenants designed to facilitate the
development and use of the Site. The Parties hereby declare the Site is and shall be owned, used,
held, transferred, sold, conveyed, encumbered, leased, improved and occupied subject to the
covenants, easements and other provisions hereinafter set forth in this Declaration, as this
Declaration may be amended from time to time as more particularly set forth herein.
ARTICLE I
Definitions
In addition to terms defined elsewhere in this Declaration, the following terms, as used in
this Declaration, shall have the following meanings:
(A) "Pond" means the retention/detention pond to be constructed within the Pond Site.
(B) "Driveway" means the paved driveway to be constructed within the Driveway
Easement Area.
(C) "Driveway Easement Area" means that portion of the Development Site within
which the Driveway is to be constructed, which area is designated as "Driveway
Easement Area" on the Site Plan and is legally described on Exhibit E attached
hereto.
(D) "Delta Site Owner" means the owner, from time to time, of fee simple title to the
Delta Site.
(E) "Development Site Owner" means the owner, from time to time, of fee simple
title to the Development Site.
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(F) "Owner" means the owner of fee simple title to any portion of the Site.
(G) "Permittee" means the employees, agents, customers, tenants, subtenants,
contractors, licensees, guests and invitees of each Owner.
(H) "Person" means any natural person or any artificial entity, including, without
limitation, corporations, partnerships, limited liability companies and joint
ventures.
ARTICLE II
Easements
Section 2.01. Driveway Easement to Delta Site Owner. The City hereby grants to the
Delta Site Owner, as an easement appurtenant to the Delta Site, (a) a non - exclusive permanent
easement and right -of -way (the "Driveway Easement ") on, over, across and through the
Driveway Easement Area for the purpose of providing a means of pedestrian and vehicular
ingress to and egress (but not parking) from the Delta Site to and from Commerce Parkway, and
(b) a nonexclusive, temporary easement and right -of -way on, over, across and through a 10'
wide area located adjacent to and on each side of the Driveway Easement Area (the
"Construction Easement Area ") for the purpose of constructing the Driveway (the "Construction
Easement "). The Construction Easement Area is shown on the Site Plan.
The Development Site Owner agrees that no barriers or obstructions shall be constructed
or placed within the Driveway Easement Area, except temporarily as reasonably necessary for
maintenance and repair of the same.
The Construction Easement is granted to the Delta Site Owner upon the following terms
and conditions: (i) the Construction Easement shall terminate upon the completion of
construction of the Driveway, (ii) the Delta Site Owner Delta shall, promptly after completion of
construction of the Driveway, cause the Construction Easement Area to be restored to as near its
original condition as is possible; and (iii) to the Delta Site Owner shall use commercially
reasonable efforts to cause such construction to be completed as expeditiously as is possible.
The Development Site Owner shall have the right to use the Driveway, Driveway
Easement Area and Construction Easement Area for the purpose of providing a means of
pedestrian and vehicular ingress to and egress (but not parking) from the Development Site to
and from Commerce Parkway and for any other purposes that are not inconsistent with the Delta
Site Owner's rights hereunder, specifically including, without limitation, the installation of curb
cut(s) serving the Development Site and the development to be constructed thereon.
Section 2.02. Pond Easement to Delta Site Owner and Development Site Owner. To the
extent that the development of the Delta Site and /or Development Site require off -site facilities
to satisfy applicable governmental requirements with respect to storm water management for
such site, the City hereby grants to the Delta Site Owner and Development Site Owner, as
applicable, as easements appurtenant to the Delta Site and Development Site, respectively, a non-
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exclusive permanent easement to use the Pond to be constructed on the Pond Site for the purpose
of satisfying any applicable governmental requirements with respect to storm water management,
together with the right to landscape the area surrounding the Pond and located within the Pond
Site (the "Pond Easement "). The general location of the Pond is shown on the Site Plan_
Section 2.03. Public Infrastructure Easements to Citv. The Delta Site Owner hereby
grants to the City a non - exclusive permanent easement and right -of -way on, over, across and
through the portion of the Delta Site designated as the "Guardrail Area" on the Site Plan,
together with the right of access on, over, across and through such portions of the Delta Site as
are reasonably necessary for the City to use, install, maintain, repair, replace and relocate same.
Further, at no cost to the City, the Delta Site Owner and Development Site Owner shall grant to
the City such easements and rights -of -way on, over, across and through the Delta Site and
Development Site, at such times and in such form, as the City determines are reasonably
necessary for the use, construction, installation, maintenance, repair, replacement and relocation
of any storm water retention/detention improvements, improvements to Perimeter Drive,
Commerce Parkway and Emerald Parkway, including, without limitation, constructing and
installing curbs and gutters, public utilities, which include water mains, fire hydrants, sanitary
sewer, and storm sewer, stormwater improvements, burial of utility lines, gas, electric and
communications service facilities (including fiber optics), street lighting and signs, sidewalks,
bikeways, and landscaping (including scenic fencing and irrigation), traffic signs and
signalization, erosion and sediment control measures, grading, drainage and other related
improvements. The City shall, promptly after exercising its rights hereunder, cause the Delta
Site and Development Site to be restored to as near their original condition as is possible. The
Owner(s) of any areas affected by the foregoing easements shall have the right to use same for
any purposes which are not inconsistent with the City's use thereof, including, without
limitation, the right to install additional utility lines in utility easements; provided, however, no
buildings or other structures or improvements (other than driveways, paved parking areas and
landscaping) shall be constructed within such easement areas.
Section 2.04.
(a) The locations and dimensions of the Future Utility Easements shall not
unreasonably or materially interfere with the then current use or future
development of the Development Site or Delta Site, it being agreed that Future
Utility Easements running through driveways, paved parking areas and
landscaping shall be deemed not to interfere with then current uses or future
development;
(b) The cost of preparing the Future Utility Easements, as well as the cost of
construction and installation of such utility lines, shall be borne solely by the
Owner requesting same, and upon completion of such installation, such Owner
shall, at its cost, restore the disturbed areas of the other Owner's property to its
original condition as nearly as reasonably possible;
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(c) The form and content of the documents that create the Future Utility Easements
must be approved by the Owner of property burdened thereby; and
(d) The Owner(s) of the areas encumbered by the Future Utility Easements shall have
the right to use same for any purposes which are not inconsistent with the other
Owner's use thereof.
Section 2.05. Future Signage Easements to Development Site Owner and Delta Site
Owner. It is contemplated that the Development Site Owner and Delta Site Owner may, in the
future, need to place way - finding and /or ground signs on portions of the Delta Site identifying
the business conducted on the Development Site and on portions of the Development Site
identifying the business conducted on the Delta Site. Therefore, upon written request by an
Owner, the Development Site Owner or Delta Site Owner, as applicable, shall, at no cost, grant
to the other Owner (for the benefit of the Development Site or Delta Site, as applicable) such
signage easements and related temporary construction easements as are reasonably necessary to
enable the Development Site Owner or Delta Site Owner, as applicable, to accomplish the
foregoing (the "Future Signage Easements "). The Future Signage Easements are subject to the
following terms and conditions:
(a) The locations and dimensions of the Future Signage Easements shall not
unreasonably or materially interfere with the then current use, visibility or future
development of the Development Site or Delta Site;
(b) To the extent the Future Signage Easement exclusively benefits only one Owner,
the cost of preparing the Future Signage Easements, as well as the cost of
construction, installation, maintenance and repair, and operation of such signs,
shall be borne solely by the Owner exclusively benefitted by same, and upon
completion of such installation, such Owner shall, at its cost, restore the disturbed
areas of the other Owner's property to its original condition as nearly as
reasonably possible;
(c) To the extent the Future Signage Easement benefits more than one Owner, the
cost of preparing the Future Signage Easements, as well as the cost of
construction, installation, maintenance and repair, and operation of such signs
shall be as set forth in Article III below;
(d) The form and content of the documents that create the Future Signage Easements
must be approved by the Owner of property burdened thereby;
(e) All signage shall be subject to all applicable signage regulations and the process
for obtaining approval of same; and
(f) The Parties shall, at no cost, cooperate with each other in obtaining the issuance
of any signage permits, approvals, licenses and satisfaction of any other
governmental requirements necessary for the installation of such signage or other
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work in connection therewith. The cooperation shall include, without limitation,
the execution of such applications or other documents as the other party
reasonably requests, and appearances at hearings or meetings or governmental or
quasi - governmental bodies or agencies.
Section 2.06. Easement Relocations. The Owner of the property burdened by any
easement set forth in Section 2.01, 2.02, 2.04, and 2.05 above (the "Relocating Party ") shall have
the right to relocate such easements and improvements located therein to different locations on
such property (the "Burdened Property ") in accordance with the following procedure:
(a) The Relocating Party shall first notify the Owner of the benefitted property of the
proposed relocation by mailing notice thereof to such Owner, which notice shall specify the
areas to which the easements and improvements located therein are to be relocated (the "New
Easement Areas ") and the probable commencement and completion dates of the relocation work;
(b) The Relocating Party shall install new improvements in the New Easement Areas
at its sole expense, and such new improvements shall be of a quality and /or capacity at least
equal to that of the existing improvements. If the relocation involves utilities, the cut over to
new utility lines shall be accomplished without interruption of utility service, or if interruption is
to occur, then the Relocating Party shall give at least five (5) business days prior notice of such
interruption to the Owner of the benefitted property and cause such interruption to occur outside
of normal business hours for a period not to exceed two (2) hours. If the relocation involves the
Driveway Easement Areas, access shall not be materially diminished, impaired or obstructed;
(c) Upon completion of the relocation work the Relocating Party shall record an
easement granting to the Owner of the benefitted property, as an easement appurtenant to such
Owner's property, and otherwise in form reasonably acceptable to such Owner, non - exclusive
easements and rights -of -way (the "New Easements ") on, over, across and through the New
Easement Areas for the purpose for which they were originally intended. The Relocating Party
shall deliver a copy of the recorded New Easements to the Owner of the benefitted property and
shall furnish such Owner with evidence of title satisfactory to such Owner showing
unencumbered New Easements in such Owner; whereupon the change in location shall become
effective and appropriate releases of the prior location shall be executed in recordable form and
exchanged between the Relocating Party and Owner of the benefitted property.
ARTICLE III
Development and Repair and Maintenance Covenants
Section 3.01. Construction of Driveway. The Delta Site Owner shall, at its sole cost and
expense, as soon as is reasonably possible following its acquisition of the Delta Site, commence
construction of the Driveway and continuously and with due diligence prosecute such
construction to completion. Such construction shall include, without limitation, the installation
of a curb cut on to Commerce Parkway.
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Section 3.02. Construction of Pond Improvements To the extent that the development
of the Delta Site and/or Development Site require off -site facilities to satisfy applicable
governmental requirements with respect to storm water management for such site, the first
Owner to commence development of their respective site which requires same shall, as soon as is
reasonably possible following its acquisition of its respective site, commence construction of the
Pond Improvements (as hereinafter defined) and continuously and with due diligence prosecute
such construction to completion. For purposes hereof, the term "Pond Improvements" shall
mean the improvements shown on plans and specifications prepared by the City and provided to
the Owner of the site to be first developed (the "Plans "), which may include, without limitation,
the following: (a) the Pond, (b) fountain(s), (b) lighting in and on the Pond, (c) water quality
equipment, including aeration systems, and (d) landscaping in areas surrounding the Pond on the
Pond Site. Notwithstanding anything to the contrary contained herein or in the Plans, the City
and the Owner responsible for constructing the Pond hereunder agree that such Owner may
construct landscaping improvements that exceed the standards required by the City so long as the
same are approved by the City and such Owner is solely responsible for any excess costs
associated with the construction, maintenance, repair and replacement thereof (the "Excess
Costs ").
Section 3.03. Maintenance Responsibilitv for Driveway. The Delta Site Owner shall
have responsibility for the maintenance, repair and replacement of the Driveway, subject to
reimbursement as set forth in Section 3.05 below. The Delta Site Owner shall perform all
maintenance, repairs and replacements of the Driveway necessary to keep the same in a good and
clean condition consistent with a first -class office complex. The Delta Site Owner shall (i) carry
on any construction, maintenance, replacement and repair activity in a good and workmanlike
manner and with diligence and dispatch and shall use its best efforts to complete the same in the
shortest time practical under the circumstances; and (ii) carry on any construction, maintenance,
repair or replacement activity in such a manner as to not unreasonably interfere with the
Development Site Owner's use and enjoyment of the easements reserved and/or granted herein.
Section 3.04. Maintenance Responsibilitv for Pond Improvements. If the Pond
Improvements are required to be constructed by the Delta Site Owner and /or Development Site
Owner, then the first Owner to commence development of their respective site, which requires
such improvements shall have responsibility for the maintenance, repair and replacement thereof,
subject to reimbursement as set forth in Section 3.06 below. Such Owner shall perform all
maintenance, repairs and replacements of the Pond Improvements necessary to keep the same in
a good working order and condition consistent with ponds located in first -class office complexes.
Such Owner shall (i) carry on any construction, maintenance, replacement and repair activity in a
good and workmanlike manner and with diligence and dispatch and shall use its best efforts to
complete the same in the shortest time practical under the circumstances; and (ii) carry on any
construction, maintenance, repair or replacement activity in such a manner as to not
unreasonably interfere with the use of the Site by other Owners.
Section 3.05. Reimbursement for Driveway. Upon completion of a building on the
Development Site, the Development Site Owner shall reimburse the Delta Site Owner for the
(H,8606502) 6
Development Site Owner's pro rata share of all reasonable maintenance and repairs performed
by the Delta Site Owner pursuant to Section 3.03 above. For purposes of this Section, the
Development Site Owner's pro rata share shall be determined by a fraction, the numerator of
which shall be the number of parking spaces located on the Development Site and the
denominator of which shall be the sum of the number of parking spaces located on the
Development Site and Delta Site. In no event shall the Development Site Owner's obligation to
reimburse the Delta Site Owner commence until after the Development Site Owner has
constructed a building on the Development Site.
Section 3.06. Reimbursement for Pond Improvements. Within thirty (30) days following
completion of the Pond Improvements and approval thereof by the City Engineer, the City shall
reimburse the Owner constructing same for a portion of the reasonable documented costs to
construct same in an amount equal to the product of (1) the percentage of the total capacity of the
storm water retention/detention pond reasonably estimated by the City to be used by real
property other than the Delta Site multiplied by (2) the total cost of the Pond Improvements
(excluding any Excess Costs), and subtracting from such product one -half of the reasonable out -
of- pocket costs incurred by the City in preparing the Plans.
Upon completion of the Pond Improvements and approval thereof by the City Engineer,
the City shall reimburse the Owner maintaining same for the City's pro rata share of all
reasonable ensuing maintenance and repairs performed by such Owner pursuant to Section 3.04
above. For purposes of this Section, the City's pro rata share shall be an amount equal to the
product of (1) the percentage of the total capacity of the storm water retention/detention pond
reasonably estimated by the City to be used by real property owned by the City (which amount is
estimated to be approximately % after the Development Site is no longer owned by the City),
multiplied by (2) the total cost of such maintenance, repairs and replacements (excluding any
Excess Costs). Upon completion of a building on adjacent site which requires use of the Pond
Improvements, such Owner shall reimburse the Owner maintaining the Pond Improvements for
its pro rata share of all reasonable maintenance and repairs performed by the Owner maintaining
the Pond Improvements pursuant to Section 3.04 above. For purposes of this Section, such
Owner's pro rata share shall be determined by a fraction, the numerator of which shall be (1) the
percentage of the total capacity of the storm water retention/detention pond reasonably estimated
by the City to be used by the real property owned by such party multiplied by (2) the total cost of
such maintenance, repairs and replacements (excluding any Excess Costs).
Section 3.07. Start of Maintenance Contributions. Until an initial permanent structure is
built on the Development Site, the Delta Site Owner shall be solely responsible, without
reimbursement, for the costs of maintenance, repair and replacement of the Driveway pursuant to
Section 3.02 above. If the Pond Improvements are required to be constructed in connection with
the development of the Development Site and /or Delta Site, then the first Owner to commence
development of their respective site, which requires same shall have sole responsibility for the
initial maintenance, repair and replacement thereof and the costs associated therewith shall be
initially shared by such Owner and the City (as set forth in Section 3.06 above) and thereafter
with the Owner of the adjacent site at such time as an initial permanent structure is built on the
(H,8606502) 7
adjacent site which also requires the use of the Pond Improvements to satisfy applicable
governmental requirements (as set forth in Section 3.06 above).
Section 3.08. Billing. The Owner responsible for the maintenance hereunder shall bill
on a quarterly basis for the reasonable expenses incurred pursuant to Section 3.03 and Section
3.04 above, as applicable. The billing shall reasonably itemize the types of expenses and shall
state the calculations used to compute the sum assessed to the City and Development Site Owner,
as applicable. The billing Owner shall, upon request, furnish written evidence of payment of an
expense and shall make such records available for audit during regular business hours upon thirty
(30) days' notice. The party responsible for reimbursing the Owner responsible for performing
such maintenance shall reimburse such Owner for its respective share of expenses within thirty
(30) business days from the date of receipt of the billing. Owners shall be released from liability
for payment of any expense not billed within eighteen (18) months from the date that it was
incurred by the Owner performing such maintenance.
Section 3.09. Approval. Except in the event of a bona fide emergency, the Owner
responsible for performing such maintenance shall not carry on any major construction, major
maintenance, major replacement or major repair activity in excess of Ten Thousand Dollars
($10,000.00) unless the approval of the other Owner(s) has been obtained, which approval shall
not be unreasonably withheld, conditioned or delayed. If such other Owner(s) dispute such an
expenditure, then the parties shall work in good faith to obtain the work for a price both can
accept. If the parties fail to agree, then the Owner responsible for performing such maintenance
may perform, in a workmanlike, diligent and efficient manner, the repair or upkeep covered by
the proposed expenditure and shall bill the other party(ies) in accordance with this Article III,
provided that the Owner responsible for performing such maintenance shall first notify the other
party(ies) of its intention to perform the work within ten (10) business days prior to the
commencement thereof.
Section 3.10. Code Compliance. The Driveway and Pond Improvements shall be
constructed, maintained, repaired and replaced in full compliance with all building codes and
other applicable laws and governmental rules and regulations of any nature whatsoever whether
now or hereafter, including but not limited to the prevailing wage requirements of Chapter 4115
of the Ohio Revised Code, and all permits, licenses and authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances of record.
Section 3.11. Maintenance Definition. For purposes of this section, the term
"Maintenance" shall include, without limitation, maintenance of paved surfaces in a level and
smooth condition, free of potholes, with the type of material originally used or a substitute of
equal quality and economy and removal of snow and ice from paved surfaces as conditions
require. The Owner responsible for the maintenance of the Pond Improvements shall
continuously maintain same in a first class condition and state of repair, including, without
limitation, mowing of grass, trimming, weeding and maintaining landscaped areas, regular
clearing of debris, installing, repairing, maintaining and replacing (as necessary) fountain(s),
(H18606502j 8
lighting, aeration, electrical and other equipment and mechanical systems and regular monitoring
and maintaining of the water quality.
Section 3.12. Noncompliance. Should the Delta Site Owner fail to maintain, repair or
replace the Driveway as required hereunder, the Development Site Owner shall be entitled but
shall not be required to perform such obligations, and the Delta Site Owner shall reimburse the
Development Site Owner for its pro rata share in accordance with this Article III, provided that,
except in the case of an emergency, the Development Site Owner shall first notify the Delta Site
Owner of the failure to maintain, repair and replace and shall permit the Delta Site Owner to
perform the obligation within thirty (30) days after receipt of notice. If the Delta Site Owner
repeatedly fails to perform its obligations in this Article III, the Development Site Owner shall be
entitled to delegate such obligations to a third party who shall be deemed to be an agent of the
Delta Site Owner and the Development Site Owner, provided that the Delta Site Owner is
furnished thirty (30) days' prior notice thereof.
ARTICLE IV
Insurance and Indemnification
Section 4.01. The Development Site Owner's Insurance. Commencing upon the date the
Development Site Owner commences construction of an initial permanent structure on the
Development Site, the Development Site Owner shall, at its own expense, obtain, carry and keep
in force comprehensive general public liability insurance against any liability or claim for
personal injury, wrongful death or property damage arising from or in connection with its
exercise of any easement rights granted to it herein (including, without limitation, its entry upon
any easement areas and/or its use, construction, installation, maintenance, repair, replacement
and relocation of any of its improvements therein), with financially responsible insurers
authorized to transact insurance business in the State of Ohio, with a combined single limit of not
less than One Million Dollars ($1,000,000.00) per occurrence. Such insurance may be written by
additional premises endorsement on any master policy of insurance which may cover other
property, in addition to the Development Site; provided that the insurer shall, upon request,
provide a schedule to the Delta Site Owner showing that the coverage provided by such policy
shall (a) meet the requirements herein; (b) not be reduced by any claims made with respect to
other properties; and (c) be in such amount as will preclude the insureds from being held to be
co- insurers. The policy shall name the Delta Site Owner as an additional insured and shall
provide that it may not be canceled without 30 days' prior written notice to the Delta Site Owner.
If requested by the Delta Site Owner, the Development Site Owner shall provide to the Delta Site
Owner a certificate of insurance evidencing such coverage.
Section 4.02. The Delta Site Owner's Insurance. The Delta Site Owner shall, at its own
expense, obtain, carry and keep in force comprehensive general public liability insurance against
any liability or claim for personal injury, wrongful death or property damage arising from or in
connection with its exercise of any easement rights granted to it herein (including, without
limitation, its entry upon any easement areas and /or its use, construction, installation,
maintenance, repair, replacement and relocation of any of its improvements therein), with
(H,8606502) 9
financially responsible insurers authorized to transact insurance business in the State of Ohio,
with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence.
Such insurance may be written by additional premises endorsement on any master policy of
insurance which may cover other property, in addition to the Delta Site; provided that the insurer
shall, upon request, provide a schedule to the Development Site Owner showing that the
coverage provided by such policy shall (a) meet the requirements herein; (b) not be reduced by
any claims made with respect to other properties; and (c) be in such amount as will preclude the
insureds from being held to be co- insurers. The policy shall name the Development Site Owner
as an additional insured and shall provide that it may not be canceled without 30 days' prior
written notice to the Development Site Owner. If requested by the Development Site Owner, the
Delta Site Owner shall provide to the Development Site Owner a certificate of insurance
evidencing such coverage.
Section 4.03. Indemnification.
(a) By the Development Site Owner Except for injuries, deaths, losses, damages, or
other matters resulting from the acts or omissions of the Delta Site Owner or of the agents or
employees thereof, the Development Site Owner shall indemnify the Delta Site Owner and save
it harmless from and against all loss, liability, damage, actions, causes of action, or claims for
injury, death, loss or damage of whatever nature to any person, property or business interest
caused by or resulting from an act or omission of the Development Site Owner or its agents or
employees occurring in connection with its exercise of any easement rights granted to it herein
(including, without limitation, its entry upon any easement areas and/or its use, construction,
installation, maintenance, repair, replacement and relocation of any of its improvements therein),
and from and against any and all costs, expenses or liabilities (including reasonable fees of
attorneys, paralegals, experts, court reporters and others) incurred by the Delta Site Owner in
connection with (i) any claim, action or proceeding in respect of any such loss, liability, damage
or claim or (ii) the enforcement of the indemnity obligation created by this Section 4.03(a).
(b) By the Delta Site Owner Except for injuries, deaths, losses, damages, or other
matters resulting from the acts or omissions of the Development Site Owner or of the agents or
employees thereof, the Delta Site Owner shall indemnify the Development Site Owner and save
it harmless from and against all loss, liability, damage, actions, causes of action, or claims for
injury, death, loss or damage of whatever nature to any person, property or business interest
caused by or resulting from an act or omission of the Delta Site Owner or its agents or employees
occurring in connection with its exercise of any easement rights granted to it herein (including,
without limitation, its entry upon any easement areas and /or its use, construction, installation,
maintenance, repair, replacement and relocation of any of its improvements therein), and from
and against any and all costs, expenses or liabilities (including reasonable fees of attorneys,
paralegals, experts, court reporters and others) incurred by the Development Site Owner in
connection with (i) any claim, action or proceeding in respect of any such loss, liability, damage
or claim or (ii) the enforcement of the indemnity obligation created by this Section 4.03(b).
(H,8606502 j 10
ARTICLE V
Defaults and Remedies
Section 5.01. Defaults. If an Owner (the "Defaulting Party ") should fail to observe any
of the terms, conditions, restrictions or provisions of, or should fail to perform any of its
covenants or obligations under this Declaration within a period of 30 days after any other Owner
(the "Non- Defaulting Party ") has given to the Defaulting Party written notice thereof, then the
Defaulting Party shall be in default under this Declaration; provided, that if the obligation is of
such a nature that the same cannot, with due diligence, be reasonably performed within such 30-
day period, then such default shall be deemed to have been cured if the Defaulting Party
commences such performance within such 30 -day period and thereafter undertakes and proceeds
continuously and with due diligence to complete the same and does complete the same within a
reasonable time. If a default has occurred and is not cured within the time period specified in
this Section 5.01, then the Non - Defaulting Party shall have all of the rights and remedies
afforded to it by law and also all of the rights and remedies set forth in Section 5.02 hereof
(whether or not they are expressly provided by statute or recognized by judicial precedent),
anyone or more of which may be exercised and enforced independently or concurrently at any
time after such default, without further notice to the Defaulting Party and without waiving any of
the Non - Defaulting Party's other rights and remedies, and all of which shall, to the extent
applicable, survive the termination of any right granted in this Declaration.
Section 5.02. Cure. The Non - Defaulting Party may cure any default of the Defaulting
Party under this Declaration; and if the Non - Defaulting Party should do so, then it shall be
entitled to be reimbursed for all reasonable costs and expenses incurred by it in connection
therewith (together with interest at the rate of eight percent (8 %) per annum calculated from the
date the expense or cost was incurred until reimbursed hereunder), from either the Defaulting
Party, its contractors, or its insurance carriers.
Section 5.03. Civil Actions The Non - Defaulting Party may sue the Defaulting Party for
the specific performance of any obligation undertaken by the Defaulting Party in this
Declaration, for injunctive or other equitable relief, or for damages, in the Common Pleas Court
of Franklin County, Ohio, in order to recover any such amount as may be due and payable to the
Non - Defaulting Party.
ARTICLE VI
Notices: Notice of Transfer
Section 6.01. Notices. Any notice or other communication required or permitted to be
given to an Owner under this Declaration shall be in writing and shall be given by one of the
following methods to such party at the tax mailing address listed for such Owner on the books of
the Treasurer of Franklin County, Ohio; (i) it may be sent by registered or certified United States
(U.S.) mail, return receipt requested and postage prepaid, or (ii) it may be sent by ordinary U.S.
mail or delivered in person or by reputable overnight carrier. Any such notice shall be deemed to
have been given upon receipt or refusal of receipt. Any Owner may change its address for notice
by giving written notice thereof to the other Owners.
(H18606502j 11
Section 6.02. Notice of Transfer. If an Owner should transfer its entire interest in its
property or any portion thereof to another Person, it shall immediately notify the other Owners of
such transfer in the manner provided in Section 6.01 hereof. Such notice shall contain the name
of the transferee and the address of such transferee for purposes of receiving notices hereunder.
If an Owner fails to notify the others of a transfer of its interest in its property or any portion
thereof, or fails to include the address of the transferee in a transfer notice, the other Owners may
send notices hereunder to such transferee, at the tax mailing address listed for such transferee on
the books of the Treasurer of Franklin County, Ohio, until such time as the transferee has
notified the other Owners of a different notice address in the manner provided in Section 6.01
hereof.
Section 6.03. Notices to Mortgagees. Should any Owner encumber its Parcel with a
mortgage, then, so long as the mortgagee of any such mortgage shall have notified the other
Owners, in writing, of the existence of such mortgage, and shall have provided such Owners with
the name and mailing address of such mortgagee, then each such Owner shall send to such
mortgagee a copy of any notice it sends to the other Owners pursuant to Sections 6.01 and 6.02
hereof.
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Successors and Assigns. This Declaration shall inure to the benefit of and
be binding upon the respective successors and assigns (including successive, as well as
immediate, successors and assigns) of the Owners.
Section 7.02. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
Section 7.03. Remedies Cumulative. All rights and remedies of the Owners enumerated
in this Declaration shall be cumulative and, except as specifically contemplated otherwise by this
Agreement, none shall exclude any other right or remedy allowed at law or in equity, and said
rights or remedies may be exercised and enforced concurrently. No waiver by an Owner of any
covenant or condition of this Declaration, to be kept or performed by the other Owners, shall
constitute a waiver by the waiving Owner of any subsequent breach of such covenant or
condition, or authorize the breach or non - observance on any other occasion of the same or any
other covenant or condition of this Declaration.
Section 7.04. Article and Section Captions. The Article and Section captions contained
in this Declaration are included only for convenience of reference and do not define, limit,
explain or modify this Declaration or its interpretation, construction or meaning and are in no
way to be construed as a part of this Declaration.
Section 7.05. Severability. If any provision of this Declaration or the application of any
provision to any Person or any circumstance shall be determined to be invalid or unenforceable,
then such determination shall not affect any other provision of this Declaration or the application
(H,8606502 j 12
of said provision to any other Person or circumstance, all of which other provisions shall remain
in full force and effect.
Section 7.06. Amendments in Writing. No change, amendment, termination or
attempted waiver of any of the provisions of this Declaration shall be binding unless in writing
and signed by all of the then Owners.
Section 7.07. Aueement for Exclusive Benefit of Owners. The provisions of this
Declaration are for the exclusive benefit of the Owners and not for the benefit of any other
Person, nor shall this Declaration be deemed to have conferred any rights, express or implied,
upon any third Person.
Section 7.08. Covenants Run With the Land. It is intended that the covenants,
easements, agreements, promises and duties of each Owner, as set forth in this Declaration, shall
be construed as covenants and not as conditions and that, to the fullest extent legally possible, all
such covenants shall run with and be enforceable against both the covenantor and the land or
constitute equitable servitudes as between the Parcel of the respective covenantor, as the servient
tenement, and the Parcel of the respective covenantee, as the dominant tenement. Any Owner
may grant the benefit of, or allow the use of, any right, easement or interest hereunder to any
Permittee of any Owner from time to time; provided that any such Permittee shall look solely to
its permittor, in each case, for the enforcement of the provisions of this Declaration.
Section 7.09. No Merger. All of the provisions of this Declaration are for the mutual
benefit and protection of the present and all future Owners; and if there should at any time be
common ownership of any of said Parcels (or any estate therein), then it is the intention of the
Declarant that there be no merger into the respective fee simple estates of the rights and benefits
and the obligations and burdens of this Declaration, but rather that such rights and benefits and
such obligations and burdens shall be separately preserved for the benefit of all future Owners of
the fee simple estates in said Parcels. Notwithstanding the foregoing, the provisions of Article
IV, Sections 4.01 and 4.02 shall require the owner to maintain only one insurance policy for
general public liability insurance or one single additional premises endorsement on any master
insurance policy. Further, should there at any time be common ownership of the Delta Site and
the Development Site,the provisions of Article IV, Section 4.03 shall not apply.
Section 7.10. No Dedication. Nothing in this Declaration shall be deemed to constitute a
gift, grant or dedication of any portion of the Property to the general public or for any public
purpose; provided that any Owner shall have the right to extend the benefit of any of the
easements granted herein to any governmental unit, public body and /or utility company for the
purpose of the construction, installation, operation, maintenance, repair, relocation, modification,
extension or alteration of utility lines and related facilities, but such grant shall be subject to the
terms and conditions hereof.
Section 7.11. Termination of Liability Upon Transfer. If an Owner should transfer its
fee simple interest in and ownership of its Parcel, or any portion thereof, then the liability of the
transferor for the breach of any covenant or provision contained in this Declaration, occurring
(H18606502j 13
after the date of such transfer, shall automatically be terminated as to the portion of the Parcel so
transferred; and the transferee, by the acceptance of a conveyance of such fee simple interest,
shall automatically be deemed to have accepted, assumed and agreed to observe or perform such
covenant or provision after the date of such transfer.
Section 7.12. Restoration. If, as a result of the exercise of any easement rights created
under this Declaration, an Owner shall damage or disturb the improvements of another Owner,
the Owner causing such damage or disturbance shall promptly repair or restore the property of
such other Owner to, as near as possible, the condition existing prior to such damage or
disturbance.
Section 7.13. Mechanic's Liens. All work performed hereunder on the property of
another Owner shall be performed lien free, in a good and workmanlike manner (employing
materials of good quality) and in compliance with all governmental requirements. If a
mechanic's lien is filed against an Owner's property by virtue of work performed thereon by
another Owner, then the Owner of such property may discharge or bond off same within ten (10)
days from the filing thereof. If the Owner performing such work fails to discharge said lien, the
other Owner may bond off or pay same without inquiring into the validity or merits of such lien,
and all sums so advanced shall be paid on demand by such Owner to the other Owner.
[Remainder of this page intentionally left blank.]
[Signature appears on following page.]
(H,8606502 j 14
IN WITNESS WHEREOF, the City and Delta have caused this Declaration of Covenants
and Easements to be executed by their duly authorized representatives, to be effective as of the
date first above written.
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
City of Dublin, Ohio
Terry D. Foegler, City Manager
The foregoing instrument was acknowledged before me this day of
2010 by Terry D. Foegler, City Manager of the City of Dublin, Ohio, an Ohio municipal
corporation, for and behalf of said municipal corporation.
Notary Public
My Commission Expires:
(H,8606502 j 15
Delta Energy Holdings, LLC
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
Sheri Tackett, President
The foregoing instrument was acknowledged before me this day of
2010 by Sheri Tackett, the President of Delta Energy Holdings, LLC, an limited
liability company, for and behalf of said limited liability company.
Notary Public
My Commission Expires:
Upon recording return to:
Gregory S. Baker, Esq.
Schottenstein, Zox & Dunn, LPA
250 West Street
Columbus, Ohio 43215
(H,8606502 j 16
EXHIBIT F -2
AMENDMENT TO ECONOMIC DEVELOPMENT AND
TAX INCREMENT FINANCING AGREEMENT
THIS AMENDMENT To ECONOMIC DEVELOPMENT AGREEMENT (this `Amendment") is
made and entered into this day of , 2010 (the "Effective Date "), by and
between the CITY OF DUBLIN, OHIO (the "City"), a municipal corporation duly organized and
validly existing under the Constitution and the laws of the State of Ohio (the "State ") and its
Charter, and DELTA ENERGY HOLDINGS, LLC (the "Company and collectively with the City.
the "Parties "), an Ohio limited liability company with its main office currently located at 2674
Federated Boulevard, Columbus, Ohio 43235, under the circumstances summarized in the
following recitals.
RECITALS:
WHEREAS, the City and the Company entered into that certain Economic Development
and Tax Increment Financing Agreement dated December 28, 2009 (the "EDA'); and
WHEREAS the Company has determined that the Project will be constructed upon
the real property generally depicted on EXHIBIT A -1 attached hereto and incorporated
herein by reference in lieu of the real property generally depicted on Exhibit A attached to
the EDA: and
WHEREAS the Real Estate Purchase Contract between the City and Company has
been or will be amended to reflect that the real property to be purchased by the Comnanv
is the real property generally depicted on EXHIBIT A -1 attached hereto in lieu of the real
property generally depicted on Exhibit A attached thereto the "Contract Amendment"
and
Now THEREFORE, the City and the Company covenant, agree and obligate
themselves as follows:
1. Exhibit A attached to the EDA is hereby deleted and replaced by Exhibit
A -1 attached hereto. All references to the term "Property" or "Exhibit A" in the EDA shall refer
to the real property generally depicted on Exhibit A -1 attached hereto. All references to the
Real Estate Purchase Contract in the EDA shall refer to same, as amended by the Contract
Amendment.
2. Subsection (A) of Section 2(b)(ii), is hereby deleted and replaced by the
following:
(A) the Company completes construction of the Building with an aggregate square
footage of at least 20,000 square feet of building area (but not more than permitted by the
approved zoning of the Delta Site).
(H18601 61 }
3. All capitalized terms used herein without definition shall have the same meaning
and effect as those terms may be given under the EDA unless the same are expanded, limited or
otherwise defined herein. All of the terms and conditions of the EDA shall remain in full force
and effect except as expressly modified herein. In the event of a conflict between the terms and
conditions of this Amendment and the terms and conditions of the EDA, the terms and
conditions of this Amendment shall control.
IN WITNESS WHEREOF, the City and the Company 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
Printed: Terry D. Foegler
Title: Citv Manager
Approved as to Form:
C
Printed: Stephen J. Smith
Title: Director of Law
DELTA ENERGY HOLDINGS, I_,I_,C
MM
Printed: Sharon S. Tackett
Title: President
-2-
(H18601 61 }
i
FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing
Amendment, certifies hereby that the moneys required to meet the obligations of the City under
the foregoing Amendment have been appropriated lawfully for that purpose, and are in the
Treasury of the City or in the process of collection to the credit of an appropriate fund, free from
any previous encumbrances. This Certificate is given in compliance with Sections 5705.41 and
5705.44, Ohio Revised Code.
Dated: 1 20
Marsha I. Grigsby
Deputy City Manager /Director of
Finance
City of Dublin, Ohio
-4-
(H18601 61 }
EXHIBIT A
DEPICTION OF THE PROPERTY
To be attached
EXHIBIT G
IN[asoN 610WIt4a0NDIKO IW10 fNDIDILIIWINI
This RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT (hereinafter the
"Agreement ") is made and entered into this day of , 2010, by and between
DELTA ENERGY HOLDINGS, LLC, an Ohio limited liability company (`Buyer ") and the
CITY OF DUBLIN, OHIO ( "Seller ")(Seller and Buyer are sometimes hereafter collectively
referred to as the "Parties ").
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of an approximate parcel of real
property legally described on Exhibit "A " , attached hereto and made a part hereof (the
"Premises "); and
WHEREAS, Seller desires to grant to Buyer an exclusive right of first refusal and option
to purchase said Premises, and Buyer desires to obtain the same from Seller, in accordance with
and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants, warranties,
terms and conditions hereinafter set forth, Buyer and Seller (collectively herein referred to as the
"Parties ") agree as follows:
1. Purchase and Sale of the Premises Seller hereby grants to Buyer an exclusive
option and right to purchase the Premises upon the terms and conditions as hereinafter set forth,
and Buyer hereby agrees, upon exercise of its option to purchase, to obtain from Seller, subject
to the terms and conditions herein, the Premises (the "Option "). The total purchase price for the
Premises shall be (based upon $225,000.00 per acre of the
Premises), payable by Buyer to Seller at the Closing (as defined in Section 7 hereof), in
immediately available funds or by cashier's check, adjusted by all prorations, credits, allowances
and other adjustments specifically provided for herein (the "Purchase Price ").
2. Option Period and Option Consideration If Buyer elects to exercise its option to
purchase the Premises, then such election shall be made within 1,095 days after the full
execution hereof ( "Option Period "). Seller acknowledges receipt of One Dollar ($1.00) for such
Option Period. The Option Period shall automatically renew for two consecutive 365 periods,
unless Buyer or Seller provide notice in writing to the other party within 60 days of the renewal
date that the Option Period will be withdrawn.
3. Buyer's Investigation For and during the entire period that this Agreement is in
effect, Buyer shall, without cost or expense to Seller, have the right through Buyer's associates,
employees and /or contractors and agents, to enter upon the Premises upon twenty -four (24) hours
prior notice prior to entrance and upon Seller's consent thereto for the purpose of surveying,
(H18606502j 1
inspecting, making contour surveys, temporary excavations (to be refilled by Buyer as promptly
as practicable), test borings and other purposes reasonably required by Buyer.
4. Evidence of Title
(a) Buyer may, at Seller's sole cost and expense, within fifteen (15) days after
Buyer's election to exercise the Option, obtain a commitment from a title insurance agent
approved by Seller ( "Escrow Agent ") to issue to Buyer an American Land Title Association
Owner's Title Insurance Policy, certified to at least the day and date of this Agreement, in the full
amount of the Purchase Price, showing in Seller good and marketable title to the Premises, free
and clear of the standard printed exceptions contained in Schedule B of said Policy, free and
clear of all liens and encumbrances except:
(i) Those created or assumed by Buyer, including those specifically set forth in this
Agreement;
(ii) Zoning ordinances, legal highways and public rights -of -way which do not
interfere with Buyer's proposed development and operation of the Premises;
(iii) Real estate taxes which are a lien on the Premises but which are not yet due and
payable;
(iv) Easements and restrictions of record acceptable to Buyer which do not interfere
with Buyer's proposed development and operation of the Premises (excluding
easements and restrictions of record existing as of the Closing); and
(v) The Survey of the Premises provided by Seller to Buyer.
(b) If an examination of either the title insurance commitment discloses that Seller
does not have good and marketable title to the Premises and /or shows exceptions to title other
than those permitted herein and if Seller is unable to correct such defects or remove such
exceptions within thirty (30) days after receiving notice thereof from Buyer, Buyer may take one
of the following actions: (a) waive such exceptions and proceed with the transaction; or (b) by
written notice to Seller, rescind Buyer's exercise of the Option, in which event the Option shall
terminate and the Premises shall no longer be subject to same.
5. Closing Documents Seller shall convey to Buyer, at the time of closing, good
and marketable title in fee simple to the Premises by transferable and recordable limited warranty
deed (the "Deed "), signed by all parties necessary or required by the title insurance commitment,
free and clear of all defects, mortgages, easements, restrictions, reservations, conditions,
agreements, liens and encumbrances, except those excepted in Section 4(a) hereof.
Upon closing, Seller shall execute and deliver to Buyer and Escrow Agent an affidavit
certifying that (i) there are no mortgages, judgment liens or other encumbrances affecting the
Premises except as set forth in said Owner's Title Insurance Commitment; (ii) that there are no
(H,8606502) 2
rights of parties in possession, use or otherwise, outstanding in third persons by reasons of
unrecorded leases, land contracts, sales contracts, options or other documents; and (iii) no
unpaid -for improvements have been made, or materials, machinery or fuel delivered to the
Premises which might form the basis of a mechanic's lien upon the Premises. Buyer and Seller
agree that such other documents as may be legally necessary or appropriate to carry out the terms
of this Agreement shall be executed and delivered by the appropriate party at closing.
6. Closing and Possession Subject to the provisions of Section 4(b), Seller and
Buyer agree that the purchase and sale of the Premises (the "Closing ") shall be closed upon
request by Buyer within sixty (60) days after notice from Buyer to Seller of Buyer's election to
exercise the Option (the "Closing Date "), unless the parties mutually agree to extend the date of
the closing. Said Closing shall be held at atime and place as shall be selected by the Parties. At
closing, Seller shall deliver to Buyer the closing documents and exclusive possession of the
Premises.
7. Adjustments at Closing On the Closing Date, Buyer and Seller shall apportion,
adjust, prorate and pay the following items in the manner hereinafter set forth:
(a) Real Estate Taxes and Assessments Seller shall pay or credit against the
Purchase Price all delinquent real estate taxes, together with penalties and interest thereon, all
assessments which are a lien against the Premises as of the Closing Date (both current and
reassessed, whether due or to become due and not yet payable), all real estate taxes for years
prior to closing, real estate taxes for the year of Closing, prorated through the Closing Date and
all agricultural use tax recoupments for years through the year of Closing. The proration of
undetermined taxes shall be based upon a three hundred sixty -five (365) day year and on the last
available tax rate, giving due regard to applicable exemptions, recently voted millage, change in
tax rate or valuation (as a result of this transaction or otherwise), etc., whether or not the same
have been certified. Upon making the proration provided for herein, Seller and Buyer agree that
the amount so computed shall be final;
(b) Seller's Expenses Seller shall, at the Closing (unless previously paid), pay by
credit against the purchase price the following:
(i) The cost of furnishing the title commitment and policy referred to in
Section 5 hereof;
(ii) The cost of any transfer or conveyance fee required to be paid in
connection with the recording of the General Warranty Deed from Seller
to Buyer; and
(iii) One -half (1/2) the fee, if any, charged by the title insurance company for
closing the transaction contemplated herein.
(H18606502j 3
(c) Buyer's Expenses Buyer shall, at the Closing (unless previously paid), pay the
following:
(i) The recording fees required for recording the limited warranty deed; and
(ii) One -half (1/2) the fee, if any, charged by the title insurance company for
closing the transaction contemplated herein.
(d) Brokers Seller hereby warrants and represents to Buyer that Seller has not dealt
with any broker or agent in regard to this Agreement. Seller hereby agrees to indemnify Buyer
and hold Buyer harmless against any liability, loss, cost, damage, claim and expense (including,
but not limited to, attorneys' fees and costs of litigation) which Buyer shall ever incur or be
threatened with because of any claim of any broker or agent claiming through Seller, whether or
not meritorious, for any such fee or commission. Buyer hereby represents and warrants to Seller
that Buyer has not engaged or dealt with any broker or agent in regard to this Agreement. Buyer
agrees to indemnify Seller and hold Seller harmless against any liability, loss, cost, damage,
claims and expense (including, but not limited to, attorneys' fees and cost of litigation) which
Seller may ever suffer, incur, or be threatened with because of any claim by any broker or agent
claiming by, through or under Buyer, whether or not meritorious, for any such fee or
commission.
8. Taking By Eminent Domain If, prior to the Closing, eminent domain
proceedings shall be threatened or commenced against the Premises, or any part or portion
thereof, Buyer shall proceed with this transaction and any compensation award paid or payable
as a result of such eminent domain proceedings shall be the sole property of Buyer.
9. Right of First Refusal. If, during the Option Period, Seller receives and desires to
accept or desires to make any bona fide offer (an "Offer ") for the sale of the Premises, Seller
shall notify Buyer in writing of each Offer. This notice (the "Notice of Offer ") shall contain a
copy of the Offer (with the identity of the prospective buyer thereunder redacted) and all other
terms an conditions applicable to the Offer. Buyer shall have the right to purchase ( "Right of
First Refusal ") the Real Property or applicable portion thereof at the purchase price set forth in
the Offer and otherwise on the terms and conditions set forth in this Agreement. Buyer shall
exercise its Right of First Refusal, if at all, by giving written notice to Seller no later than ten
(10) days after Buyer's receipt of the Notice of Offer. If Buyer exercises its Right of First
Refusal, the closing shall take place within 30 days after Buyer's exercise thereof at such
location as Seller shall designate. If Buyer does not exercise the Right of First Refusal in regard
to an Offer of which it has been given notice, then Buyer's Option and Right of First Refusal
shall terminate with respect to the Premises. In such event, Buyer agrees to execute a recordable
release of the Option and Right of First Refusal in form and substance satisfactory to Seller.
10. CONDITION OF PROPERTY. BUYER IS RELYING SOLELY UPON ITS
OWN EXAMINATION OF THE PREMISES FOR ITS PHYSICAL CONDITION,
CHARACTER, AND SUITABILITY FOR BUYER'S INTENDED USE AND IS NOT
(H18606502j 4
RELYING UPON ANY REPRESENTATIONS BY SELLER. THE SALE OF THE
PREMISES AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE IS"
BASIS AND WITH ALL FAULTS, AND BUYER EXPRESSLY ACKNOWLEDGES
THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN,
EXCEPT AS OTHERWISE SPECIFIED HEREIN OR THE LIMITED WARRANTY
DEED, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, SUITABILITY, TENANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, IN RESPECT OF THE PREMISES.
11. DEVELOPMENT MATTERS The Deed shall contain (a) an obligation for
Buyer to commence construction of the Buyer's proposed development of the Premises
(hereinafter "Phase II ") within twelve (12) months after the date of the closing, or such later date
as may be mutually agreed upon by Seller and Buyer (the "Build Requirement Date "), (b) an
obligation for Buyer to complete construction of Phase II within twenty -four (24) months after
the commencement thereof, or such later date as may be mutually agreed upon by Seller and
Buyer (the "Completion Requirement Date "), and (c) a restriction that the party taking title to the
Premises shall not, without the prior written consent of Seller, sell or transfer the Premises, nor
shall there be any material transfer in the ownership of the party taking title to the Premises, until
such time as Phase II is complete and open for business.
The Deed shall also provide that if Buyer has not commenced construction of Phase II
within 12 months after the date of the closing, then Seller shall have the option to repurchase the
Premises for the purchase price originally paid by Buyer to Seller hereunder. Such option may
be exercised at any time after the twelve month anniversary date of the closing and prior to the
Buyer's commencement of construction of Phase IL If Seller exercises the option to repurchase
the Property, the closing of such repurchase shall take place within 30 days after Seller's exercise
thereof at such location as Seller shall designate. At such closing, good and marketable title in
fee simple to the Premises shall be conveyed to Seller by limited warranty deed with release of
dower, free and clear of all liens and encumbrances except those which affected title to the
Premises when originally conveyed to Buyer (provided that such deed shall not contain the
restrictions set forth herein). Real estate taxes and assessments shall be prorated as of the date of
resale and Seller shall be reimbursed for any CAUV recoupments paid by Seller and possession
shall pass to Seller at such closing. At such closing, Seller shall be reimbursed for all reasonable
costs and expenses incurred by Seller in connection with the transaction contemplated herein
such that Seller is in the same position as if the initial sale to Buyer had not taken place,
including, without limitation, title expenses and, to the extent Buyer failed to pursue its
construction obligations herein in good faith, Seller's legal costs incurred in negotiating this
Agreement and closing the transaction contemplated herein.
To secure Buyer's obligations hereunder, upon Seller's request, Buyer shall deliver to the
Title Company to hold in escrow, a duly and properly executed limited warranty deed in
accordance with the above paragraph (the "Re- Conveyance Deed "), and if, in Seller's good faith
(H18606502j 5
opinion, Buyer fails to commence construction of Phase II within 12 months after the date of the
closing, then upon notice from Seller to the Title Company and Buyer, the Title Company shall
be authorized to release the Re- Conveyance Deed from escrow and record same in the Franklin
County, Ohio records. Simultaneously therewith, Seller shall repay Buyer the amount of the
purchase price paid to Seller for the Premises set forth herein. Such price shall be reduced by any
real estate taxes and assessments prorated as of the date such Re- Conveyance Deed is recorded,
Seller shall be reimbursed for any CAUV recoupments paid by Seller and all reasonable costs
and expenses incurred by Seller in connection with the transaction contemplated herein such that
Seller is in the same position as if the initial sale to Buyer had not taken place, including, without
limitation, title expenses and, to the extent Buyer failed to pursue its construction obligations
herein in good faith, Seller's legal costs incurred in negotiating this Agreement and closing the
transaction contemplated herein. Upon recording the Re- Conveyance Deed, possession of the
Premises shall pass to Seller. Seller and Buyer acknowledge and agrees that the provisions of
this Section 17 are a material inducement to Seller for the execution of this Agreement.
12. Notice Procedure Any notices required hereunder shall be in writing, shall be
transmitted by certified mail, postage prepaid, return receipt requested, hand delivery, or by a
nationally recognized overnight courier, and shall be deemed given when received or when
receipt is refused, and shall be addressed to the parties as follows:
(a) If intended for Seller, to:
5200 Emerald Parkway
Dublin, Ohio 43017
Attn: City Manager
(b) If intended for Buyer, to:
Delta Holdings, LLC
Attn: Sheri Tackett, President
2674 Federated Boulevard
Columbus, Ohio 43235
13. Governing Law This Agreement is being executed and delivered in the State of
Ohio and shall be construed and enforced in accordance with the laws of the State of Ohio. For
all litigation, disputes and controversies which may arise out of or in connection with this
Agreement, the undersigned hereby waive the right to trial by jury and consent to the jurisdiction
of the courts in the State of Ohio.
14. Entire Agreement This Agreement constitutes the entire contract between the
parties hereto, and may not be modified except by an instrument in writing signed by the parties
hereto, and supersedes all previous agreements, written or oral, if any, of the parties.
(H,8606502) 6
15. Time of Essence Time is of the essence of this Agreement in all respects.
16. Assignment This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and assigns.
17. Invaliditv In the event that any provision of this Agreement shall be held to be
invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this
Agreement.
18. Waiver No waiver of any of the provisions of this Agreement shall be deemed, nor
shall the same constitute a waiver of any other provision, whether or not similar, nor shall any
such waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in
writing, by the party making the waiver.
19. Headings The section headings contained in this Agreement are for convenience
only and shall not be considered for any purpose in construing this Agreement. As used in this
Agreement, the masculine, feminine and neuter genders, and the singular and plural numbers
shall be each deemed to include the other whenever the context so requires.
20. Memorandum Upon request of either party hereto, Buyer and Seller shall execute a
recordable memorandum of the terms hereof, which memorandum may be placed of record in
any public office within the county wherein the Premises is situated.
(H,8606502) 7
IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day
and year first aforesaid.
SELLER:
City of Dublin, Ohio
Terry D. Foegler, City Manager
BUYER:
Delta Energy Holdings, LLC
Sheri Tackett, President
(H18606502j
EXHIBIT "A"
Legal description
{x1860650.2 }
EXHIBIT "B"
Graphical depiction
<H18606502> 10
18 -10 Page 3 of 3
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A -1
CITY OF DUBLIN_
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017 -1090
Phone: 614 - 410 -4400 • Fax: 614 -410 -4490
To: All Members Dublin City Council
From: Terry Foegler, City Manager
Date: April 22, 2010
Memo
Initiated By: Dana L. McDaniel, Deputy City Manager/Director of Economic Development
Re: Ordinance 18 -10, Delta Energy
Summary
In November 2009, City Council approved Ordinance 60 -09 authorizing the City Manager to enter
into a Real Estate Purchase Agreement, Economic Development Agreement and Tax Increment
Financing Agreement relative to the Delta Energy, LLC ( "Delta ") project. As Council may recall,
Delta intends to construct a new headquarters facility on the City owned property located at the
southwest corner of Emerald Parkway and Perimeter Drive. The construction of a new corporate
headquarters facility demonstrates Delta's long -term commitment to Dublin. Delta is expected to
locate its operations and workforce in Dublin starting with 75 employees and expanding to at least
100 employees by 2015.
Delta Energy and the City executed the necessary contract documents in accordance with Ordinance
60 -09. As is standard with commercial real estate purchase agreements, several contingencies are
included in the Real Estate Purchase Agreement. Delta and the City have been working diligently
through those contingencies and the project remains feasible. However, Delta desires to seek a
modification to the project.
Delta is requesting to modify their original plan. Delta still intends to locate its corporate
headquarters operations and workforce in accordance with the previous Economic
Development Agreement. Delta still desires to construct a 20,000 square foot facility with the
potential for a two story 8,000 square foot expansion. However, Delta desires to purchase
approximately 2.9 acres (subject to final survey) instead of 4.44 acres and split the lot as depicted in
Exhibit A -1 to Ordinance 18 -10. Staff is advancing Ordinance 18 -10 to Council in order to make
Council aware of this desired change and to seek authorization to amend the Agreements authorized
by Ordinance 60 -09. Amendments to the Real Estate Purchase Agreement, Economic Development
Agreement and Tax Increment Finance Agreement are necessary and are summarized in the
following:
REAL ESTATE PURCHASE CONTRACT
-The acreage of the property is being reduced from 4.442 acres to approximately 2.9 acres)
-The purchase price will remain the same at $225,000 per acre (subject to confirmation of the actual
acreage by survey)
- Delta's remaining contingencies are being clarified as well as the time they have to satisfy them (60
days)
-The contract includes an obligation to enter into a Declaration of Covenants and Easements, which
will establish the framework for the interconnected development of the site now that it has been
Memo re: Ordinance No. 18 -10
April 22, 2010
Page 2 of 2
divided into two commercially developable tracts. The Declaration addresses matters such as the
following:
• Access easements to Delta over the property retained by the City
• Easement to the City for public infrastructure
• Cross access easements for access to the residual property
• Easements to Delta for use of the retention/detention pond on the property retained by the
City (including construction obligations and a mechanism for the sharing of the costs to repair and maintain
same by the property owner's benefztting from the use thereoJ)
• Future utility and signage easements to the owners of each developable tract
• The relocation of easements to the extent they interfere with the development of any tract
-The contract includes an obligation to enter into a Right of First Refusal and Option Agreement for
the benefit of Delta. The Right of First Refusal and Option Agreement addresses matters such as
the following:
• Delta has a period of 3 years within which it may exercise an option to purchase the property
retained by the City
The purchase price will remain the same at $225,000 per acre
Delta will be required to commence development of the property within one year after the
purchase and complete same within two years
If the City receives a bona fide offer to purchase the property within Delta's option period
that it desires to accept, it must present same to Delta. Delta has 10 days to make a decision
as to whether or not it will buy the property on the terms set forth in such offer. If it does
not elect to proceed with the purchase, then its Right of First Refusal and Option expire. If
Delta elects to purchase the property, then it must close within 30 days.
ECONOMIC DEVELOPMENT AND TAX INCREMENT FINANCING AGREEMENT:
-The acreage of the property is being reduced from 4.442 acres to approximately 2.9 acres
Splitting the site, as proposed, would now allow for a second building. Planning staff applied the
surrounding Future Land Use designation of 'Standard Office, which cites a maximum density
of ±12,500 square feet per acre. On ±5.0 acres, this results in a maximum of 62,500 square feet of
office. However, this number is extremely aggressive, and assumes an extremely efficient layout
that is not very realistic given the site factors of an oddly shaped parcel such as the one under
consideration [i.e. right -of -way on three (all) sides, and the City's objective to minimize views of
parking and maximize views of architecture and green space]. Therefore, it is staff's opinion that
the site can yield up to ±52,000 square feet of office, for a density of just over 10,000 square
feet /acre. The additional office space on the residual land could yield up to 17,000 square feet. This
would create additional opportunity for more jobs in the future.
Recommendation
Staff recommends Council approves Ordinance 18 -10 in an effort to attract Delta Energy, its
operations and workforce and allow the opportunity for additional square footage to be developed
on the site with the potential to attract additional jobs. Staff further recommends the Ordinance be
passed as an emergency at the second reading/public hearing on May 10th, waiving the 30 -day
waiting period. Please address any questions you may have to Dana McDaniel.
