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132-92 OrdinanceRECORD OF ORDINANCES Dayton Legal Blank Co. Form No. 30043 Ordinance No ----- _1--32_-92__. Passed ------- ------------------------------- ----------19------ - AN ORDINANCE TO AUTHORIZE THE CITY MANAGER TO ENTER INTO AN AMENDED INDUCEMENT AGREEMENT WITH CENTRAL OHIO ICE RINKS, INC. TO ASSIST IN THE CONSTRUCTION OF OUTDOOR ICE FACILITIES, AND DECLARING AN EMERGENCY WHEREAS, the City of Dublin has previously agreed to enter into an Inducement Agreement with Columbus Hockey, Inc. via Ordinance No. 116-92; and WHEREAS, Central Ohio Ice Rinks, Inc. is the new entity which will actually construct and operate the indoor ice facility; and WHEREAS, the facility, as presently proposed, may be larger than originally discussed; and WHEREAS, this Agreement constitutes the next step in the process of finalizing the broad issues set forth in the October 6, 1992 Inducement Agreement. NOW, THEREFORE, HE IT ORDAINE by the Council of the City of Dublin, State of Ohio, ! of the elected members concurring: Section 1. The City Manager is hereby authorized and directed to execute the "Agreement" with Central Ohio Ice Rinks, Inc., a copy of which is attached hereto as Exhibit "An. Section 2. This Ordinance be, and the same hereby is, declared to be an emergency measure necessary for the public health, safety and welfare, in that the proposed ice facility is scheduled for a February, 1993 groundbreaking and will constitute a major economic and recreation benefit to the citizens of Dublin, and therefore, shall take effect and be in force immediately upon its passage. Passed this day of �Z��,,,,(N 1992. or - Pres' ing Officer ATTEST: e � Clerk of Council Sponsor: City Manager I hereby certify that copies of this Ordinances were posted in ith Section 731.25 of the Ohio Revised Co City of Dublin in accordance w Clerk of Covmcil, Dublin. Ohio EXHIBIT "A" AGRZZMM ' This Agreement is entered into effective as of December 1992, by and between Central, Ohio Ice Rinks, Inc., an Ohio corporation. ("COIR'), and the City of Dublin, Ohio (the "City"). COIR is the successor to the inte3:est of Columbus Hockey, Inc. under an Agreement of Intent with the City dated October 6, 1992 (the "Intent Agreement") which sets forthcertain general understandings with respect to the construction of an indoor ice rink facility (the "Facility"). The City is willing to facilitate COIR's conatruetion and operation of the Facility by leasing to COIR a parcel of real property currently under option with Steele Land Co. (the "Developer"), a copy of which option (the "Option") is attached hereto as Exhibit A. The parcel of real property described in the Option together with any additions thereto is sometimes hereinafter referred to as the "Site". The Site and the Facility are sometimes hereinafter referred to collectively as the *Premises". This Agreement formalizes the terms and conditions upon which the parties are willing to consummate the transactions contemplated by the Intent Agreement. STATEMENT OF AGREW 7 In consideration of the mutual covenants contained herein and for other valuable considerations, the receipt and sufficiency of which is hereby acknowledged., the parties hereby agree as follows: 91. Lease. The City and COIR shall promptly proceed to negotiate in good faith the terms of a ground lease (the "Lease°) pursuant to which COIR will lease the Premises.from the City. The Lease shall include the following terms: (a) The Lease will pro'v'ide for an initial term of not less than 25 years, with the lease term beginning as set forth in the Lease. It may also include such renewal and purchase options in favor of COIR as the parties may mutually agree. The Lease will further provide that upon its expiration (subject to the exercise of COIR's purchase option, if any) the entire Premises (including, without limitation, the Facility and any improvements thereon) will revert to the City and COIR will execute any instruments of transfer necessary to reflect the conveyance of its interest in the Premises to the City. (b) The base rent for the Premises will be $1.00 per year during the initial term of the Lease. In addition, COIR will be responsible for utilities, maintenance and real estate taxes (if applicable) with respect to the Premises except as may be otherwise expressly provided in the Lease. (c) COIR will have the obligation to construct the Facility at its own expense. The Facility will include at least one sheet of ice and such office space, common areas and locker facilities as COIR may deem necessary or appropriate, it is anticipated that the Facility, if containing one sheet of ice, will be approximately 40,000 square feet in size although it may be expanded at COIR's election to approximately 60,000 square feet to include an additional sheet of ice and related facilities, - 2 - (d) COIR will be responsible for all costs associated with constructing and furnishing the Facility including all Site work, grading, landscaping, lighting, parking, signage, on-site utility extension, and design. All Dublin utility and building permit fees (including, without limitation, utility tap tees) will be waived by the City. (e) The pacility will be constructed to COIR's specifications provided that (i) it must comply with all applicable zoning requirements of the City and all other applicable laws and governmental regulations and (ii) it is the parties' present intention that the Facility will be adaptable to civic, educational and general recrearcional purposes in addition to its use as an ice rink, although the parties acknowledge that COIR will not be obligated for any ancillary costs associated with any such adaptation. (f) The Lease will contain such other terms and provisions as the parties .mutually agree provided that City recognizes that COIR's lender(s) (including lander(s) under any replacement financing) may impose certain requirements upon COIR with respect to the Lease for purposes of protecting lender's security and the City agrees to reasonably accommodate such requirements. COIR agrees to keep City's City Manager and City's attorney, as identified in §9 herein, informed of all requirements imposed by lender(s) which affect City. 32. Operations Agreement. The City and COIR shall promptly proceed to negotiate in good faith the terms of an agreement respecting the operation and use of the Facility (the "Operations Agreementw). The Operations Agreement shall include the following terms: (a) The Operations Agreement will be coterminous with the Lease and will provide for the operation and management of the Facility by COIR or, at COIR'8 option, an independent manager hired by COIR for such purposes. it will be the responsibility of COIR to eninlre that the Facility is operated and managed in accordance with all applicable - 3 - laws. COIR will develop, at its discretion, suitable operational policies and procedures with respect to the Facility provided that, unless otherwise consented to by the City (which consent shall not be unreasonably withheld), no alcohol will be permitted to be served at the Facility. in this regard, the City agrees to consider, on a case-by-case basis, permitting the serving of alcohol in connection with the grand opening of the Facility, other special events, and in conjunction with restaurant and/or catered food service at special events or other occasions. The operations Agreement may contain other reasonable restrictions on operations mutually agreeable to the parties. COIR agrees that City will serve as a consultant to COIR on the operation and maintenance of Facility and that City will be periodically consulted with for City's input. (b) X7.1 costs directly associated with the operation of the Facility (including, without limitation, liability insurance) will be the responsibility of COIR. All revenues from operations (including, without limitation, admission and usage fees, skate and locker rentals, and food, beverage and other concessions) will, be retained by COIR unless otherwise mutually agreed by the parties. (c) The Operations Agreement will provide for a breakdown of the Facility's operational hours into three classifications: (i) •premium time"; (ii) "regular time"; and •(iii) "off time°. The City will have the exclusive right to schedule the use of the Facility tar up to 20V of each of the foregoing categories (the MReserved Time"). The defined scope of each of the time categories will be negotiated by the parties for inclusion in the Operations Agreement. The fees charged to the City for the Reserved Time will be established in accordance with 13 of the Intent Agreement. The scope of the time categories and the fees charged for Reserved Time will be subject to periodic review and adjustment. (d) The operations Agreement may contain certain restrictions on the City's use of the Reserved Time for public skating. COIR and City agree that final agreement on use of - 4 - Facility dor public skating has not yet been resolved, and further agree to mutually and amicably negotiate resolution of this matter, said resolution which will. be set forth in the Operations Agreement. The City will also agree to refrain frau involvement in providing or participating in any indoor ice facility in competition with the Facility. 53. Closin . (a) Subject to the conditions set forth in 54 and 55 of this Agreement, the parties shall execute and deliver on the Closing Date (as hereinafter defined) : ( i) the Lease; (ii) the operations Agreement; and (iii) such other instruments or documents necessary or appropriate to consummate the transactions Contemplated by this Agreement. (b) Unless the parties shall agree in writing upon a different location, time or date, the closing (the "Closing") shall take place at the offices of Squire, Sanders & Dempsey, hl Soutri High Street, Columbus, Ohio, at 10:00 a.m. on a date (the °Closing Date*) mutually agreed to by COIR and the City which is not earlier than three nor later than six business days following the first day upon which all conditions to the parties' respective obligations have been satisfied or waived. 54. Conditions to colla Obligations. The obligations of COIR to enter into the Lease and the Operations Agreement are subject to fulfillmeat of each of the following conditions, any one or more of which may be waived by COIR: (a,) COIR and the City shall have mutually agreed to the final terms of the Lease. (b) COIR and the City shall have mutually agreed to the final terms of the Operations Agreement. 5 - (c) COIR shall have obtained construction financing for the Facility on terms satisfactory to it in its sole discretion. (d) COIR shall have Conducted such due diligence with respect to the site as it deems necessary in connection with the construction of the Facility including, without limitation, performance of any surveys, title examinations and environmental assessments as CoIR deems necessary or as may be required by its lender, and such due diligence shall not have revealed any condition which materially and adversely affects the site or the benefits to be obtained, by COIR under this Agreement. (e) The City shall have exercised the Option. (f) No party to this Agreement shall be subject to any order, stay, injunction or decree of any court of competent jurisdiction restraining or prohibiting the Consummation of the transactions contemplated hereby. 55. Conditions to the Ci �g Obli atioae. The obligations of the City to enter into the Lease and the operations Agreement are subject to the fulfillment of each of the following Conditions, any one or more of which may be waived by the City: (a) COIR and the City shall have agreed to the final terms of the Lease. (b) COIR and the City shall have agreed to the final terms of the Operations Agreement. (c) COIR has conducted a closing on its construction financing for Facility. COIR and City agree that City shall exercise the Option Pursuant to §4(e) on the same date COIR conducts a closing on its construction financing. (d) No party to this Agreement shall be subject to any order, stay, injunction or decree of any caurC of competent jurisdiction - 6 - restraining or prohibiting the consummation of the transactions contemplated hereby. SS. Additional Covenants. COIR and the City shall use their respective best efforts to fulfill and perfo= all conditions and obligations on their respective parts to be fulfilled and performed under this Agreement and to cause the transactions contemplated by this Agreemezxt to be fully carried out. Without limiting the foregoing: (a) COIR small diligently pursue obtaining financing for the Facility. The parties acknowledge o from such financing may come, in whole or part, m local development bond or other public financing. (b) COIR shall undertake to deliver to the City initial drafts of the Operations Agreement and Lease, prepared by COIR'e counsel, within seven business days following the date of this Agreement. (c) The City Shall use its best efforts to obtain any modification or time extension with respect to the option necessary to Consummate the transactions contemplated by this Agreement including, without limitation, increasing the acreage Of the Site to acconwdate suitable parking requirements•or an additional sheet of ice and related facilities. COIR and City agree that if City requires additional parking beyond that planned by COIR as of the date of this Agreement (approximately 350 spaces), City shall purchase the necessary additional land at no cost to COIR and said land will become part of the Lease pursuant to 91. COIR and City further agree that if COIR unilaterally decides to expand the parking capacity for Facility, it may do so but at no additional cost to City. (d) The city shall work cooperatively with COIR in determining any building and/or zoning requirements necessary with respect to the construction of the Facility and agrees to give high priority in all respects to processing the building and/or zoning permit applications of COIF.. The City shall assign the City Manager to work closely with COIR as a liaison between the parties and to serve as a .coordinator with other agencies and levels of government. - 7 - (e) The City shall provide copies (or, as appropriate, certifications) to COIR of any surveys, title examinations and environmental assessments conducted by or on behalf of the City in connection with the exercise of the Option. 57. Termination. This Agreement may be terminated any time prior to the Closing by the written agreement of the City and COIR. This Agreement may be terminated by either the City or COIR giving notice of termination to the other at any time after April 1, 1993, if the Closing has not occurred by that date. Upon the termination of this Agreement pursuant to this section, this Agreement shall forthwith become null and void and no party hereto shall have any obligations hereunder or with respect hereto) provided, however, that nothing contained in this section shall relieve any party from liability for any willful failure to comply with any covenant or agreement contained herein. 88. MMenses. Each party hereto shall bear all of its own expenses incurred in connection with the transactions contemplated by this Agreement, including, without limitation, accounting and legal fees. 19. Notices. Notices and other communications provided for herein shall be an writing (which shall include notice by telex or facsimile transmission) and shall be delivered or mailed (or if by telex or other facsimile coommnications equipment of the sending party hereto, delivered by such equipment) addressed as follows: If to COIR: David Paitson, President Central Ohio Ice Rinke, Inc. 1460 West Lane Avenue Columbus, Ohio 43321 - 8 with a copy to: Gregory W. Kirstein, Esq. Squire, Sanders & Dempsey 41 South High Street 1300 Huntington Center Columbus, Ohio 43215 Telecopier No. (614)365-2499 If to the City: Timothy gansley ;,,.. city Manager City of Dublin 6665 Coffman Road Dublin, Ohio 43017 with a Copy to: Craig M. Stewart, Esq. Carlile, Patchen & Murphy 366 East Broad Street Columbus, Ohio 43215 Telecopier No. (614) 221-0216 $10. Miscellengous. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Ohio. This Agreement may be executed in several counterparts, and all counterparts executed shall constitute one agreement, binding on the parties hereto. This Agreement constitutes the entire agreement among the parties and supersedes and cancels any and all prior agreements among them relating to the subject matter hereof, including without limitation the Intent Agreement, except as expressly provided herein. CENTRAL 0910 ICE RINKS, INC. By. Name: Title: -s- MTY 4F DUBLIN By: Name: Title: