Ordinance 30-21
To: Members of Dublin City Council
From: Dana McDaniel, City Manager
Date: June 18, 2021
Initiated By: Colleen Gilger, CEcD, Director of Economic Development
Re: Ordinance 30-21 – Authorizing the City Manager to Enter into a Real Estate
Transfer Agreement for Certain City Owned Property on Crosby Court and
Certain Property Owned By Tuttle Emerald LLC on Parkwood Place, and
Authorizing the Execution of Related Agreements and Documents
Background
Economic Development staff has been in discussions with VanTrust Real Estate regarding a
speculative development opportunity on a parcel owned by the City of Dublin. To facilitate this
project and create future economic development opportunities, the City and VanTrust have
negotiated terms for a real estate transfer agreement tied to this speculative development
opportunity, involving an exchange of two parcels:
The City of Dublin owns a 9.338-acre parcel of vacant land located on the south side of Post
Road/S.R. 161, east of Houchard Road, and accessed from Crosby Court in the West Innovation
District (“Crosby Court site”). The City of Dublin periodically acquires strategic parcels of land
throughout the City’s seven business districts to leverage as a unique economic development
incentive. This 9.338-acre parcel was part of an original 100-acre tract that was certified by the
State of Ohio as a Job-Ready Site in 2012, and is the only vacant lot remaining out of the original
tract after development of other projects including the new Command Alkon facility (opened in
2016), Vadata data centers, and a new AEP substation.
Office of the City Manager
5555 Perimeter Drive • Dublin, OH 43017-1090
Phone: 614-410-4400 • Fax: 614-410-4490 Memo
Crosby Court Site
Memo re. Ord. 30-21 – Authorizing the City Manager to Enter into a Real Estate Transfer Agreement for
Certain City Owned Property on Crosby Court and Certain Property Owned by Tuttle Emerald LLC on
Parkwood Place, and Authorizing the Execution of Related Agreements and Documents
June 18, 2021
Page 2 of 3
The developer, VanTrust Real Estate (“Tuttle Emerald Development, LLC”), owns a 16.594-acre
parcel of vacant land located east of Parkwood Place, north of Rings Road/Woerner-Temple Road,
with frontage on I-270 (“Tuttle Emerald property”). The site is zoned PCD, Planned Commerce
District, and is south of the United Healthcare offices at 5900 Parkwood Place.
Summary
The key terms in the proposed real estate purchase agreement are summarized below:
Land Transfer: Both sites will be valued equally at $100,000 per acre, with repurchase rights and
the payment of a “Development Fee,” described below, due upon the fulfillment of certain conditions.
• The 16.594-acre Tuttle Emerald site will be valued at $1,659,400.
• The Crosby Court site will be valued at $933,800.
Conveyance: The properties will be conveyed following the specified due diligence period and upon
the developer successfully receiving approvals for a speculative flex building for the Crosby Court
site. No monetary payments will be made at this time. If the developer fails to secure development
approvals, the properties will not be transferred, and the City will retain ownership of the Crosby
Court site and the developer will retain ownership of the Tuttle Emerald site.
Development Fee: The City will issue the “development fee” payment of $725,600 to the developer,
equal to the difference in total land value ($100,000/acre) between the Tuttle Emerald and Crosby
Court sites once there is an immediate development opportunity/economic development project for
the Tuttle Emerald site.
Tuttle Emerald
(Parkwood Place) Site
Memo re. Ord. 30-21 – Authorizing the City Manager to Enter into a Real Estate Transfer Agreement for
Certain City Owned Property on Crosby Court and Certain Property Owned by Tuttle Emerald LLC on
Parkwood Place, and Authorizing the Execution of Related Agreements and Documents
June 18, 2021
Page 3 of 3
Repurchase Rights: For a period of three (3) years from and after the Closing Date, VanTrust Real
Estate will have the right to repurchase the Tuttle Emerald site for an amount equal to 120% of the
agreed upon land value. For the 16.594-acre site, the repurchase price would be $1,991,280.
Repurchasing is contingent on two conditions:
• VanTrust Real Estate shall have an “immediate development opportunity,” defined as the
execution of a written agreement with an unaffiliated entity or person to develop all or any
portion of the Tuttle Emerald site, and the filing of a preliminary development plan or zoning
application with the City that is consistent with existing zoning within 90 days of the execution
of the agreement.
• The City shall not have advanced an economic development project involving any portion of
the Tuttle Emerald site. An “advanced economic development project” is defined as the City
entering into a real estate agreement to transfer or lease all or any portion of the Tuttle
Emerald site for its development subject to an Economic Development Agreement or other
agreement that has been placed on the City Council’s agenda for a first or second reading,
or the City issuing an unexpired incentive offer letter involving the property.
Any development project on either parcel will be subject to applicable zoning and development
approval processes prior to building permitting. Van Trust is required to retain specialty brokers to
market the site and pursue tenants that are in alignment with the City’s industry strengths as outlined
in the 2019 Strategic Plan. Additionally, the City is required to pursue incentive approvals to certain
tenants that meet a series of requirements in job creation, payroll growth and industry sector.
Following City Council approval of the proposed real estate purchase agreement, the City and the
developer will have effectively exchanged these two parcels of land.
• The developer expects to move forward with pursuing the construction of a speculative flex
building for the Crosby Court site, with zoning and building permitting to move forward as
soon as Q4 2021.
• Economic Development staff will work to ensure the Tuttle Emerald site is “shovel-ready”
and marketable for economic development projects consistent with the recommendations of
the Dublin Corporate Area Plan. Given the site’s prominent visibility on I-270, access to the
regional transportation network, and proximity to nearby amenities and residential
neighborhoods, Economic Development believes this site will be attractive to companies in
Dublin’s target industries seeking relocation and/or expansion opportunities.
Recommendation
Staff recommends approval of Ordinance 30-21, authorizing the City Manager to enter into a real
estate transfer agreement and authorizing the execution of related agreements and documents, at
the second reading/public hearing on July 26, 2021. Please contact Colleen Gilger 614-410-4615 or
cgilger@dublin.oh.us with questions.
Real Estate Transfer Agreement
This Real Estate Transfer Agreement (“Agreement”) is made and entered as of the ___ day of ______, 2021,
by and between Tuttle Emerald Development, LLC, an Ohio limited liability company (“Tuttle Emerald”), and the
City of Dublin, Ohio, an Ohio municipal corporation (“City”). Each of Tuttle Emerald and the City is also sometimes
herein called a “Party,” or together as the “Parties.” The “Effective Date” will mean the date on which this
Agreement has been executed and delivered by both of the Parties.
Recitals
A. Tuttle Emerald is the fee owner of that certain parcel of vacant property (parcel no. 273-012234-00)
containing approximately 16.594 gross acres and abutting Parkwood Place, Woerner Temple Road and Interstate
Route 270, in the City of Dublin, Franklin County, Ohio (“Tuttle Emerald Land”). The Tuttle Emerald Land is
legally described on Exhibit A-1 attached hereto and made a part hereof, and is generally depicted on the copy of the
survey set forth on Exhibit B-1 attached hereto and made a part hereof. The Tuttle Emerald Land, and all of the
easements and appurtenances, and all of the estates and rights of Tuttle Emerald from time to time, in, to and with
respect to the Tuttle Emerald Land and any and all improvements thereon, are herein collectively called the “Tuttle
Emerald Property.”
B. The City is the fee owner of that certain parcel of vacant property (parcel no. 275-000008-00)
containing approximately 9.338 gross acres and commonly known as 6777 Crosby Court, in the City of Dublin,
Franklin County, Ohio (“City Land”). The City Land is legally described on Exhibit A-2 attached hereto and made
a part hereof and is generally depicted on the copy of the existing land use map set forth on Exhibit B-2 attached
hereto and made a part hereof. The City Land, and all of the easements and appurtenances, and all of the estates and
rights of the City from time to time, in, to and with respect to the City Land and any and all improvements thereon,
are herein collectively called the “City Property.”
C. Each of the Tuttle Emerald Land and the City Land is also sometimes herein called the “Land,” and
each of the Tuttle Emerald Property and the City Property is also sometimes herein called the “Property.”
D. Upon and subject to all of the terms and conditions of this Agreement, (i) Tuttle Emerald desires to
sell all of the Tuttle Emerald Property to the City, and the City desires to purchase all of the Tuttle Emerald Property
from Tuttle Emerald; (ii) the City desires to sell all of the City Property to Tuttle Emerald, and Tuttle Emerald desires
to purchase all of the City Property from the City. Upon the occurrence of certain events, Tuttle Emerald and the City
also desire that the City pay a so-called development fee to Tuttle Emerald; and (iii) Tuttle Emerald desires to obtain,
and the City desires to grant, certain repurchase rights with respect to the Tuttle Emerald Property as set forth in this
Agreement.
E. In addition to the foregoing, the Parties have reached certain agreements with respect to Tuttle
Emerald’s efforts to develop the City Property as also set forth in this Agreement.
Agreements
Now, therefore, for and in consideration of the foregoing Recitals and the mutual covenants and agreements
herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Tuttle Emerald and the City agree as follows:
1. Incorporation of Recitals; Effective Date. The foregoing Recitals are hereby incorporated into and
made a part of this Agreement, as if fully set forth herein.
2. Agreement to Sell and Purchase; Conveyance Consideration; Development Fee.
(a) Agreement to Sell and Purchase. Simultaneously at the Closing (as such term is defined in Section
6 hereof), (i) Tuttle Emerald will sell the Tuttle Emerald Property to the City, and the City will purchase the Tuttle
Emerald Property from Tuttle Emerald, on the terms and conditions hereinafter set forth; and (ii) the City will sell the
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City Property to Tuttle Emerald, and Tuttle Emerald will purchase the City Property from the City, also on the terms
and conditions hereinafter set forth.
(b) Consideration for Conveyance. Neither Tuttle Emerald nor the City will make any monetary
payment to the other Party for the conveyance of the City Property or the Tuttle Emerald Property, as the case may
be. Rather, the consideration to be paid to each conveying Party will be the other Party’s conveyance of the other
Party’s Property hereunder.
(c) Development Fee Payment. In addition to the consideration for the Tuttle Emerald Property
described in Section 2(b) hereof (and also in addition to Tuttle Emerald’s rights under Section 4 hereof), the City will
pay to Tuttle Emerald (or to another person or entity designated by Tuttle Emerald) a fee (“Development Fee”) equal
to $725,600.00 (being $100,000.00 times the difference between the aforesaid approximate gross acreage of the Tuttle
Emerald Land and the aforesaid approximate gross acreage of the City Land) upon the earlier to occur of the following
events:
(i) the City’s transfer or conveyance of fee title or any other ownership or leasehold interest
(other than a mortgage or similar collateral interest solely for the purpose of securing debt
or an easement or right of way for utilities or other uses granted in the City’s normal course
of operations) in, to or with respect to the Tuttle Emerald Property, or any portion thereof;
or
(ii) the issuance of a development, building or similar permit (“Permit”) and the
commencement of any construction activities following the issuance of a Permit on the
Tuttle Emerald Property, or any portion thereof, in connection with the development
thereof, by, for or on behalf of the City or any division, department, agency or body thereof
or related thereto.
The Parties’ respective rights and obligations with respect to the Development Fee under this Section 2(c) will run
with the Tuttle Emerald Property, be binding upon the City’s successors and assigns, and be set forth in, and evidenced
by, a memorandum (“Development Fee/Repurchase Memorandum”) in the form set forth on Exhibit C attached
hereto and made a part hereof. The Development Fee/Repurchase Memorandum will be recorded against all of the
Tuttle Emerald Property at the Closing.
3. Due Diligence; Investigations; Due Diligence Date; Termination Rights.
(a) Delivery of Due Diligence Materials. Subject to this Section 3(a), within five business days after
the Effective Date, each Party will deliver to the other Party (or will make reasonably available to other Party for
review) copies of all reports, documents and other information regarding each respective Property that a sophisticated
purchaser would reasonably deem to be material, including, without limitation, environmental site assessment reports
and test boring reports (collectively, “Due Diligence Materials”), if and to the extent the Due Diligence Materials are
within the delivering Party’s possession or control. If and when additional documents and information that constitute
Due Diligence Materials thereafter come into a Party’s possession or control, such Party will promptly deliver the
same to other Party (or make the same reasonably available to the other Party for review).
(b) Investigations. From the Effective Date to the Closing Date (as such term is defined in Section 6
hereof), and subject to this Section 3(b), each Party will grant the other Party commercially reasonable access to the
Tuttle Emerald Property or the City Property, as the case may be, for the purpose of, and will cooperate fully in all
reasonable respects in connection with, the other Party’s conducting (either itself or through its consultants, agents
and other representatives) such tests, inspections and investigations with regard to the applicable Property as such
other Party deems appropriate in its sole and absolute discretion (collectively, “Investigations”). Among other things,
the Investigations for each Property may include, without limitation, (i) determinations regarding any required
alterations to existing flood plains, floodways, streams or wetlands areas, (ii) verifications that all title encumbrances
and survey matters are acceptable, (iii) the review of all leases, easement agreements, maintenance agreements and
other agreements, if any, (iv) “Phase I,” “Phase II” or other environmental studies to determine the extent to which
any Hazardous Materials (as such term is defined in Section 8(h) hereof) are located on any portion of such Property,
(v) soil, boring, percolation, traffic, parking and other similar tests and studies, (vi) topographic, engineering and other
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feasibility and physical surveys and studies, (vii) determinations regarding utilities, access, storm water detention,
curb cuts, drives and other improvements or installations, (viii) the availability of all necessary governmental and
quasi-governmental permits and approvals, and (ix) investigations as to zoning and other entitlement matters;
provided, however, that neither Party will not be obligated to conduct any particular Investigations, and further
provided that any invasive testing of any kind on either Property shall be subject to the prior approval of the owner of
that Property, not to be unreasonably withheld, conditioned or delayed. Each Party, at no out-of-pocket cost or
expense, will reasonably cooperate and assist the other Party in connection with the other Party’s conduct of the
Investigations. In the event that the transaction contemplated by this Agreement is not consummated, then each Party
will promptly repair any physical damage to the applicable Land resulting from the conduct of its Investigations. The
terms of this Section 3(b) shall survive the termination of this Agreement.
(c) Due Diligence Date. The “Due Diligence Date” will be the date that is 90 days after the Effective
Date. If the Due Diligence Date does not fall on a business day, then the Due Diligence Date will be the next business
day thereafter.
(d) Mutual Termination Rights. Anything in this Agreement to the contrary notwithstanding, either
Party, in its sole and absolute discretion, and for any reason or reasons or for no reason whatsoever, may terminate
this Agreement by delivering written notice of such termination to the other Party at any time on or before the Due
Diligence Date, and upon such termination, the Parties will have no further rights or obligations hereunder, except as
expressly provided herein.
4. Tuttle Emerald’s Repurchase Rights.
(a) Price and Terms. For a period of three years from and after the Closing Date (“Repurchase
Period”), Tuttle Emerald will have the sole, exclusive and superior (over any and all third parties) right to repurchase
all (and not less than all) of the Tuttle Emerald Property for a purchase price in the amount of $1,991,280.00 (being
$120,000.00 times the aforesaid approximate gross acreage of the Tuttle Emerald Land) to be paid in full to the City
at the closing of such repurchase. This repurchase is contingent on the follow two precedent conditions: (i) Tuttle
Emerald has an immediate development opportunity (as such term is defined in Section 4(b)(i) hereof), and (ii) the
City does not then have an advanced economic development project (as such term is defined in Section 4(b)(ii) hereof).
Tuttle Emerald, in its sole and absolute discretion, may exercise its repurchase right subject to the two precedent
conditions under this Section 4 by delivering a 30-day written notice thereof to the City at any time during the
Repurchase Period. Following any such exercise, and subject to this Section 4, Tuttle Emerald’s repurchase (and the
City’s resale) of the Tuttle Emerald Property will be consummated on the date set forth in Tuttle Emerald’s written
election notice (which date will be not less than 30 days or more than 60 days after Tuttle Emerald’s delivery of such
notice). Tuttle Emerald will be entitled to (1) a due diligence period with a duration as set forth in its written election
notice (not longer than 30 days) and otherwise on the same terms and conditions as set forth in Section 3(b) hereof,
and (2) the right to terminate its repurchase election on or before the expiration of such due diligence period in its sole
and absolute discretion. If it does not exercise such termination option, then Tuttle Emerald will pay the foregoing
repurchase price to the City at the closing of the repurchase, and such closing will be conducted in the same manner
(to the extent reasonably applicable) as the Closing. The Parties’ respective rights and obligations under this Section
4 will run with the Tuttle Emerald Property, be binding upon the City and its successors and assigns having an interest
in the Tuttle Emerald Property, and be set forth in, and evidenced by, the Development Fee/Repurchase Memorandum
to be recorded against all of the Tuttle Emerald Property at the Closing.
(b) Definitions. For purposes of this Section 4, the following terms will have the respective definitions
set forth below:
(i) Immediate Development Opportunity. The term “immediate development opportunity”
is defined as the execution of a written agreement with an unaffiliated entity or person to
develop all or any portion of the Tuttle Emerald Property and the filing of a preliminary
development plan or zoning application with the City that is consistent with existing zoning
within 90 days of the execution of the aforesaid written agreement.
(ii) Advanced Economic Development Project. The term “advanced economic development
project” is defined as the City entering into a real estate agreement to transfer or lease all
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or any portion of the Tuttle Emerald Property, or any interest therein, for its development
pursuant to an economic development agreement or other agreement that has been placed
on the City Council’s agenda for a first or second reading or the City issuing an unexpired
(for not more than 90 days from its initial issuance) incentive offer letter involving the
Tuttle Emerald Property.
5. Tuttle Emerald’s Efforts to Develop City Property.
(a) Background; Visions; Goals. The Parties hereby acknowledge and agree as follows with respect to
the development and use of the City Property by Tuttle Emerald:
(i) The City Property is (A) located in the City-designated “West Innovation District,” which
is over 1,100 acres of mostly undeveloped land intended to provide multiple opportunities
for walkable, mixed use, research and innovation development sites; and (B) designated as
part of the “Advanced Manufacturing” subdistrict of the West Innovation District, which
is an area dedicated to the support and production of sustainable technologies for the future
(where the City desires for major employers to locate, including, without limitation,
prototype development, light and advanced manufacturing, data centers, mission critical
operations and “clean tech” manufacturing, with both large- and small-scale footprint
buildings being appropriate).
(ii) The City has heretofore adopted an Economic Development Strategic Plan (“Strategic
Plan”). One of the visions of the Strategic Plan is to create distinctive development nodes
to meet 21st century industrial demand for vibrant physical space while maintaining the
City’s high quality of place standards. One of the actions set forth in the Strategic Plan
that is designed to accomplish the aforesaid vision is to move the West Innovation District
forward by setting conditions for development attractive to targeted industry clusters.
(iii) The Strategic Plan recommends a primary and secondary focus (respectively as indicated
below) on the following key industry clusters (collectively, “Strategic Plan Uses”):
(A) IT and Computer Services (primary);
(B) Medical Biosciences and Healthcare Services (primary);
(C) Mobility Technologies (primary);
(D) Automotive Manufacturing (secondary);
(E) Business Support Services (secondary);
(F) Corporate HQs/Managing Offices (secondary);
(G) Creative & Design Industries (secondary);
(H) Finance & Insurance (secondary);
(I) Logistics (secondary); and
(J) R&D and Engineering Services (secondary).
(iv) The City Property and the West Innovation District are also part of the so-called “Beta
District,” which is an innovation area located in and around a 35-mile span along the so-
called “Northwest 33 Corridor” and includes three local municipalities (Dublin, Ohio,
Marysville, Ohio, and Union County, Ohio). The Beta District is an ecosystem that the
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City desires to provide an ideal platform for innovative companies of all shapes and sizes,
particularly those in the following industry clusters (collectively, “Beta District Uses”):
(A) Advanced Air Mobility;
(B) Transportation;
(C) Technology;
(D) Smart Cities;
(E) Healthcare;
(F) Logistics;
(G) Insurance;
(H) Finance; and
(I) Automotive Manufacturing.
(v) The City anticipates that certain synergies in support of the West Innovation District vision
and the Beta District goals may be realized between future tenants of a speculative
flex/industrial building to be developed on the City Property, and the aforesaid industry
clusters.
(vi) The Parties desire to attempt (if and to the extent practicable in light of the realities, from
time to time, of the private commercial real estate market) to realize these synergies
through the development on the City Property of a speculative flex/industrial building and
the pursuit of a marketing strategy that targets prospective tenants in the aforesaid industry
clusters. Such marketing strategy could include, by way of example only, the following
actions by Tuttle Emerald or its representatives:
(A) Meet with economic development officials, including JobsOhio and One
Columbus, to make them aware of the proposed project;
(B) Meet with existing companies that are currently located in the Columbus, Ohio
region and fit the targeted profile to see if they have need for expansion or are
aware of vendors or customers that may want to locate near their operations;
(C) Reach out directly to potential companies that fit the targeted profile;
(D) Attend conferences and/or events that may be attended by companies that fit
the targeted profile;
(E) Connect with real estate brokerage firms that may be representing companies
looking for space that fit the targeted profile;
(F) Develop attractive marketing collateral materials;
(G) Schedule regular calls in order for Tuttle Emerald to share updates with the
City; and
(H) Develop an incentive package customized for the subject project.
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(b) Undertakings. In an effort to implement the visions and goals described in Section 5(a) hereof, the
Parties agree as follows in connection with Tuttle Emerald’s intended development of a speculative facility (“City
Property Building”) on the City Property:
(i) Tuttle Emerald will retain brokers who, among other things, specialize or otherwise have
expertise in leasing space for one or more of the Strategic Plan Uses and the Beta District
Uses.
(ii) Upon request by Tuttle Emerald, and although Tuttle Emerald’s brokers will be primarily
responsible for generating tenant leads for the City Property Building, the City will assist
with outreach and lead generation to existing business located within the City that may
have expansion needs.
(iii) Upon request by the City, Tuttle Emerald will cause its brokers to provide the City with
copies of regular activity reports indicating such brokers’ efforts to lease space in the City
Property Building.
(iv) Upon request by Tuttle Emerald, the City will provide an incentive package to tenants of
the City Property Building, which package will consist of (and be subject to) the following:
(A) A minimum five-year, 15% performance incentive on withholdings, net of
refunds, for net new jobs (the City will not incentivize the relocation of
already-existing jobs in the Columbus, Ohio region);
(B) Eligible tenants must be willing to commit to a minimum of 50 net new jobs,
or jobs retained within the City, with an average $50,000 annual salary
within five years, with a minimum 10-year lease commitment;
(C) Eligible tenants must be within an approved industry cluster, as described in
Section 5(a) hereof, with warehousing and distribution being clearly
accessor and subordinate to the principal use (i.e., less than 50% of the gross
floor area of the leased tenant space); and
(D) Final incentive approvals will be subject to City Council approval.
(c) Applicability and Duration. Tuttle Emerald’s obligations under this Section 5 will remain in full
force and effect for the lesser of (i) one year after the Closing Date, or (ii) the date by which Tuttle Emerald has
executed leases with tenants for space in the City Property Building consisting, in the aggregate, of not less than 95%
of the rentable square feet of tenant space in the City Property Building. Further, anything in this Agreement to the
contrary notwithstanding, (1) all of Tuttle Emerald’s obligations under this Section 5 will be personal to Tuttle
Emerald, and will not run with the land or otherwise be binding on Tuttle Emerald’s successors or assigns; (2) Tuttle
Emerald will not be liable for money damages (whether direct, indirect, consequential or punitive) in the event of any
breach of any of its obligations under this Section 5; and (3) for so long as Tuttle Emerald or its affiliate holds fee title
to the City Property, the City will not commence or effect any change in the zoning of the City Property from the
Zoning Classification (as such term is defined in Section 9(j) hereof) without Tuttle Emerald’s prior written consent.
6. Closing; Closing Date. The consummation of the simultaneous purchase and sale (“Closing”) of
the Tuttle Emerald Property and the City Property will occur on the date (“Closing Date”) that is 15 business days
after Tuttle Emerald has obtained all necessary City approvals for the preliminary development plan for the City
Property or applicable zoning application consistent with the existing zoning of the City Property, or on such other
date as Tuttle Emerald and the City may mutually agree in writing in each Party’s sole and absolute discretion. If the
initially scheduled Closing Date does not fall on a business day, then the Closing Date will be the next business day
thereafter.
7. Title Insurance; Survey.
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(a) Title Commitment; Title Policy. Within 10 business days after the Effective Date, Tuttle Emerald
will obtain and deliver to the City a title commitment (each, “Title Commitment”) for a 2006 ALTA owners title
insurance policy (each, “Title Policy”) for each Property, issued by the downtown Chicago, Illinois office of First
American Title Insurance Company (“Title Company”), showing fee simple absolute title to the Tuttle Emerald
Property in Tuttle Emerald, and fee simple absolute title to the City Property in the City, and with (or ultimately with)
the commitment of the Title Company to delete the general exceptions that can be deleted with the execution and
delivery of the Title Company’s standard owner’s affidavit and to issue the title endorsements described in Section
7(b) hereof. Each Title Commitment may initially be in a nominal amount, which each applicable selling Party will
cause to be increased upon the issuance of the corresponding Title Policy to an amount equal to $1,659,400.00 in the
case of the Tuttle Emerald Property and $933,800.00 in the case of the City Property. In addition, Tuttle Emerald will
order copies of all documents to which reference is made in each Title Commitment (other than any financing
documents encumbering each Property). The Parties will reasonably cooperate with each other in connection with the
ordering of each Title Commitment and the documents to which reference is made therein.
(b) Title Endorsements. Prior to each Closing Date, each selling Party (albeit at the purchasing Party’s
sole cost and expense, except as provided in this Agreement) will cause the applicable Title Commitment to be
amended to provide for extended coverage over all general exceptions contained in the policy and insuring as separate
parcels any easements included as part of the applicable Property, and also to include the following endorsements if
the purchasing Party desires such endorsements in its sole discretion:
(i) restrictions or comprehensive endorsement insuring against any loss or diminution of title
to or interest in the applicable Property by reason of a violation of a covenant, condition or
restriction of record affecting the applicable Property;
(ii) an ALTA Form 3.0 zoning endorsement (or, if the purchasing Party has delivered
appropriate plans and specifications to the Title Company, an ALTA Form 3.2 zoning
endorsement with parking based on such plans and specifications);
(iii) an “access” or “contiguity” endorsement insuring access from the applicable Property to
such roads, streets or thoroughfares as the purchasing Party may designate;
(iv) a location endorsement 5 (i.e., “a survey endorsement”) insuring that the legal descriptions
in the Title Commitment and the applicable Survey (as such term is defined in Section 7(c)
hereof) describe and cover the same real property); and
(v) a tax parcel endorsement.
Notwithstanding anything to the contrary herein, a purchasing Party may elect in its sole discretion to alter the title
insurance coverage of the Property it is acquiring, and each purchasing Party shall be solely responsible for any and
all title insurance costs related to the Property it is acquiring.
(c) Survey. Within five business days after the Effective Date, each Party will deliver to the other Party
true and correct copies, if any, of all surveys pertaining to the Property that the selling Party is to sell hereunder, which
are in such selling Party’s possession or control. Each purchasing Party, at its sole cost and expense, will order a
separate plat of survey (each, “Survey”) of the Land that it is purchasing, which has been (i) prepared by a registered
land surveyor duly licensed in the State of Ohio, and (ii) certified to such purchasing Party, the Title Company and
such purchasing Party’s lender, if any, as having been prepared in compliance with the Minimum Standard Detail
Requirements for Class A Land Title Surveys (jointly established by ALTA/NSPS, as adopted in 2016) and sufficient
for the deletion of all survey-related general exceptions under the applicable Title Commitment. Each Survey will
include such Table A Items as the purchasing Party or its lender (if any) may require.
(d) Unpermitted Encumbrances. If a Title Commitment shows, or a Survey discloses, any matters that
are objectionable to the purchasing Party, in its sole and absolute discretion, then such purchasing Party will notify
the selling Party thereof, in writing, on or before the date that is 10 business days before the Due Diligence Date,
specifying the matters to which such purchasing Party objects (collectively for each applicable Property,
“Objectionable Matters”). In such event, prior to the Due Diligence Date, such purchasing Party must have received
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adequate assurances (in such purchasing Party’s sole and absolute discretion) that the Objectionable Matters will be
removed or otherwise addressed to the purchasing Party’s satisfaction on or before the Closing. Any Objectionable
Matters that have been removed or otherwise addressed to the purchasing Party’s satisfaction on or before the Due
Diligence Date (or that such purchasing Party has been informed or assured, in writing from either the selling Party
or the Title Company, will be removed or otherwise addressed to the purchasing Party’s satisfaction on or before the
Closing) will be “Unpermitted Encumbrances” for the applicable Property. Any matters that are shown on a Title
Commitment or disclosed on a Survey, and in each case to which a purchasing Party does not object as provided in
this Section 7(d), will be “Permitted Encumbrances” for the applicable Property. Anything in this Section 7(d) or
elsewhere in this Agreement to the contrary notwithstanding, all mortgages, deeds of trust, deeds to secure debt,
assignments of leases and rents, security agreements, financing statements, other financing-related or construction-
related liens on the Property, and tax liens (other than the lien of real property taxes not yet due and payable), will
conclusively be deemed to be Unpermitted Encumbrances and will be removed by the selling Party, at its sole cost
and expense, at or before the Closing. If any update to the Title Commitment or Survey for a Property discloses
additional title or survey matters after the Due Diligence Date, any objections to such matters must be made, in writing,
within 10 business days after disclosure of such matters. The non-objecting Party shall have 10 business days after
the delivery of such written notification to respond, in writing, to such Objectionable Matters, and such Objectionable
Matters will be classified as Unpermitted Encumbrances or Permitted Encumbrances pursuant to the process described
above. If an objecting Party does not receive adequate assurances (in such purchasing Party’s sole and absolute
discretion) that the Objectionable Matters disclosed after the Due Diligence Date will be removed or otherwise
addressed to the purchasing Party’s satisfaction on or before the Closing Date, then the objecting Party may terminate
this Agreement by delivering written notice of such termination to the other Party within 10 business days after the
non-objecting Party’s response to the Objectionable Matters (or the expiration of the 10-business day period if the
non-objecting Party does not respond). In the event of such termination, the Parties shall have no further rights or
obligations hereunder, except as expressly provided herein.
8. Representations and Warranties of Tuttle Emerald. Tuttle Emerald hereby represents and warrants
to the City that all of the following are true and correct on and as of the Effective Date, will continue to be true and
correct as of the Closing Date, and will survive the Closing and the delivery of the Deed (as such term is defined in
Section 11(a) hereof) for the Tuttle Emerald Property for a period of three months:
(a) Tuttle Emerald is a limited liability company duly organized and validly existing and in
good standing under the laws of the State of Ohio. All requisite action (as required under
its organizational governance documents, or by applicable law) has been taken (or with
respect to the instruments referenced herein, by the Closing Date, will be) by Tuttle
Emerald in connection with entering into this Agreement and the instruments referenced
herein, and the consummation of the transactions contemplated hereby. No consent of any
creditors, partners, members, managers, directors, officers or shareholders, judicial or
administrative bodies, governmental or quasi-governmental authorities, or other parties is
required for the performance of Tuttle Emerald’s obligations hereunder. Each of the
individuals executing this Agreement and the instruments referenced herein on behalf of
Tuttle Emerald has the legal power, right and actual authority to bind Tuttle Emerald to the
terms and conditions hereof and thereof. This Agreement and all instruments that Tuttle
Emerald is required to execute hereunder are (or with respect to such instruments, by the
Closing Date, will be) valid, legally binding obligations of and enforceable against Tuttle
Emerald in accordance with their respective terms, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium laws or similar laws or equitable principles
affecting or limiting the rights of contracting parties generally.
(b) Tuttle Emerald has not received and, to the Tuttle Emerald’s Knowledge (as such term is
defined below in this Section 8), no predecessor of Tuttle Emerald has received written
notice of any violation of any law, municipal ordinance or other governmental requirement
affecting the Tuttle Emerald Property or any portion thereof. To Tuttle Emerald’s
Knowledge, no such violation exists.
(c) Tuttle Emerald has not received written notice of any condemnation or eminent domain
proceedings, or of negotiations for purchase in lieu of condemnation, relating to the Tuttle
9
Emerald Property, or any portion thereof. To Tuttle Emerald’s Knowledge, no
condemnation or eminent domain proceedings have been commenced or threatened in
connection with the Tuttle Emerald Property or any portion thereof.
(d) Tuttle Emerald is not a party to any agreement, contract or commitment to sell, convey, let,
assign, transfer, provide rights of first refusal or other similar rights with respect to, or
otherwise dispose of, all or any portion of the Tuttle Emerald Property, or any interest
therein or occupancy right thereto, other than this Agreement. Except for this Agreement
and any matters of record, neither Tuttle Emerald nor any person or entity claiming by,
through or under Tuttle Emerald has done, suffered or permitted anything whereby any
lien, claim or right of another has been created against the Tuttle Emerald Property, any
portion thereof or any interest therein.
(e) To Tuttle Emerald’s Knowledge, there are no so-called recapture agreements with respect
to the Tuttle Emerald Property or any portion thereof.
(f) To Tuttle Emerald’s Knowledge, there is no action, proceeding or investigation pending or
threatened against Tuttle Emerald or with respect to the Tuttle Emerald Property or any
portion thereof, before any court or governmental department, commission, board, agency
or instrumentality.
(g) To the best of Tuttle Emerald’s Knowledge, Tuttle Emerald has not received written notice
of any contemplated special assessments relating to the Tuttle Emerald Property or any
portion thereof.
(h) To Tuttle Emerald’s Knowledge and except as disclosed by that certain Phase I
Environmental Site Assessment (Parkwood Place Development/Parkwood Place/Dublin,
Franklin County, Ohio -- Terracon Project No. N4157087), dated December 1, 2015, and
prepared by Terracon Consultants, Inc., a copy of which has heretofore been delivered to
the City, no Hazardous Materials have been stored, transported, discharged or released on
the Tuttle Emerald Property or any portion thereof. For purposes of this Agreement, the
term “Hazardous Materials” will mean any hazardous substances or hazardous materials,
including, without limitation, all substances, the presence of which could subject the owner
or occupant of property to civil or criminal penalties or damages, or responsibility for
clean-up of such substances, including, without limitation, any material or substance that
is:
(i) a “hazardous waste,” a “toxic waste,” a “hazardous substance,” a “toxic
substance,” an “extremely hazardous waste,” a “restricted hazardous waste,”
a “chemical substance,” or a “hazardous chemical,” as such terms are defined
under any environmental laws, ordinances or regulations governing or
controlling the applicable Property or any portion thereof;
(ii) petroleum or petroleum waste, including, without limitation, crude oil or any
petroleum derived substance or constituent of any such petroleum substance
or waste;
(iii) asbestos or asbestos containing materials;
(iv) polychlorinated biphenyl;
(v) radioactive material; or
(vi) pesticides.
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(i) To Tuttle Emerald’s Knowledge, there are no (i) orders from or agreements with any
governmental authority or private party or any judicial or administrative proceedings or
investigations, whether pending or threatened, respecting any environmental, health or
safety requirements under federal, state or local laws or regulations relating to the Tuttle
Emerald Property or any portion thereof, or (ii) pending, asserted or threatened claims or
matters involving material liabilities, obligations or costs arising from the existence, release
or threatened release of any Hazardous Materials at, on or beneath the Tuttle Emerald
Property or any portion thereof.
For all purposes of this Agreement the term “Tuttle Emerald’s Knowledge” will mean the actual knowledge of either
Andrew R. Weeks or Brice Harrison, both employees of VanTrust Real Estate, LLC, a Delaware limited liability
company that is affiliated with Tuttle Emerald, without any duty of inquiry or investigation. The accuracy of the
foregoing representations and warranties will be a condition precedent to the City’s obligations under this Agreement.
If any of the foregoing representations or warranties is untrue, and is not cured (at no cost to the City) prior to the
Closing Date, then Tuttle Emerald will be allowed a period of five business days after the scheduled Closing Date in
order to cause such representations and warranties to be true, and will use commercially reasonable efforts to do so
(and Tuttle Emerald will notify the City promptly if Tuttle Emerald determines that it will not be able to do so).
Subject to this Section 8, if Tuttle Emerald fails to cause such representations and warranties to conform to the
requirements of this Agreement within such five-business day period, then the City may elect (y) to purchase the
Tuttle Emerald Property as it then is, thereby waiving and releasing any and all claims with respect to such non-
conforming representations and warranties; or (z) to terminate this Agreement. Further, if the representations or
warranties were untrue when made, or if the matter that causes the representations or warranties to fail to conform to
the requirements of this Agreement is a matter that was caused or permitted by Tuttle Emerald, then the City’s rights
set forth in the immediately preceding sentence will be in addition to, and not in lieu of, any other rights and remedies
available to the City for default by Tuttle Emerald and will include, without limitation, any and all damages that the
City may suffer as a result of the failure of the representations or warranties to conform to the requirements of this
Agreement.
9. Representations and Warranties of the City. The City hereby represents and warrants to Tuttle
Emerald that all of the following are true and correct on and as of the Effective Date, will continue to be true and
correct as of the Closing Date, and will survive the Closing and the delivery of the Deed for the City Property for a
period of three months:
(a) The City is a municipal corporation duly organized and validly existing and in good
standing under the laws of the State of Ohio. All requisite action (as required under its
organizational governance documents, or by applicable law) has been taken (or with
respect to the instruments referenced herein, by the Closing Date, will be) by the City in
connection with entering into this Agreement and the instruments referenced herein, and
the consummation of the transactions contemplated hereby. No consent of any creditors,
judicial or administrative bodies, governmental or quasi-governmental authorities, or other
parties is required for the performance of the City’s obligations hereunder. Each of the
individuals executing this Agreement and the instruments referenced herein on behalf of
the City has the legal power, right and actual authority to bind the City to the terms and
conditions hereof and thereof. This Agreement and all instruments that the City is required
to execute hereunder are (or with respect to such instruments, by the Closing Date, will be)
valid, legally binding obligations of and enforceable against the City in accordance with
their respective terms, subject only to applicable bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting or limiting the rights of
contracting parties generally.
(b) The City has not received and, to the City’s Knowledge (as such term is defined below in
this Section 9), no predecessor of the City has received written notice of any violation of
any law, municipal ordinance or other governmental requirement affecting the City
Property or any portion thereof. To the City’s Knowledge, no such violation exists.
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(c) The City has not received written notice of, nor has the City instituted, any condemnation
or eminent domain proceedings, or of negotiations for purchase in lieu of condemnation,
relating to the City Property, or any portion thereof. To the City’s Knowledge, no
condemnation or eminent domain proceedings have been commenced or threatened in
connection with the City Property or any portion thereof.
(d) The City is not a party to any agreement, contract or commitment to sell, convey, let,
assign, transfer, provide rights of first refusal or other similar rights with respect to, or
otherwise dispose of, all or any portion of the City Property, or any interest therein or
occupancy right thereto, other than this Agreement. Except for this Agreement and any
matters of record, neither the City nor any person or entity claiming by, through or under
the City has done, suffered or permitted anything whereby any lien, claim or right of
another has been created against the City Property, any portion thereof or any interest
therein.
(e) To the City’s Knowledge, there are no so-called recapture agreements with respect to the
City Property or any portion thereof.
(f) To the City’s Knowledge, there is no action, proceeding or investigation pending or
threatened with respect to the City Property or any portion thereof, before any court or
governmental department, commission, board, agency or instrumentality.
(g) To the best of the City’s Knowledge, the City has not received written notice of any
contemplated special assessments relating to the City Property or any portion thereof.
(h) To the City’s Knowledge, no Hazardous Materials have been stored, transported,
discharged or released on the City Property or any portion thereof.
(i) To the City’s Knowledge, there are no (i) orders from or agreements with any governmental
authority or private party or any judicial or administrative proceedings or investigations,
whether pending or threatened, respecting any environmental, health or safety
requirements under federal, state or local laws or regulations relating to the City Property
or any portion thereof, or (ii) pending, asserted or threatened claims or matters involving
material liabilities, obligations or costs arising from the existence, release or threatened
release of any Hazardous Materials at, on or beneath the City Property or any portion
thereof.
(j) The zoning classification of the City Property will permit the unconditional (other than the
necessity of customary building permits, business licenses and the like) use thereof for all
warehouse, distribution and e-commerce purposes, as well as the uses described in Section
5(a) hereof (collectively, “Zoning Classification”). If and to the extent necessary, the City
hereby covenants to cause the Zoning Classification to be effected prior to the Closing.
For all purposes of this Agreement the term “City’s Knowledge” will mean the actual knowledge of either Dana
McDaniel or Colleen Gilger, both employees of the City, without any duty of inquiry or investigation. The accuracy
of the foregoing representations and warranties will be a condition precedent to Tuttle Emerald’s obligations under
this Agreement. If any of the foregoing representations or warranties is untrue, and is not cured (at no cost to Tuttle
Emerald) prior to the Closing Date, then the City will be allowed a period of five business days after the scheduled
Closing Date in order to cause such representations and warranties to be true, and will use commercially reasonable
efforts to do so (and the City will notify Tuttle Emerald promptly if the City determines that it will not be able to do
so). Subject to this Section 9, if the City fails to cause such representations and warranties to conform to the
requirements of this Agreement within such five-business day period, then Tuttle Emerald may elect (y) to purchase
the City Property as it then is, thereby waiving and releasing any and all claims with respect to such non-conforming
representations and warranties; or (z) to terminate this Agreement. Further, if the representations or warranties were
untrue when made, or if the matter that causes the representations or warranties to fail to conform to the requirements
of this Agreement is a matter that was caused or permitted by the City, then Tuttle Emerald’s rights set forth in the
12
immediately preceding sentence will be in addition to, and not in lieu of, any other rights and remedies available to
Tuttle Emerald for default by the City and will include, without limitation, any and all damages that Tuttle Emerald
may suffer as a result of the failure of the representations or warranties to conform to the requirements of this
Agreement.
10. Escrow; Gap Closing. The Closing hereunder will be a “New York Style” or “gap” closing with the
Title Company as escrowee, in accordance with the general provisions of the usual form of “New York Style” or
“gap” escrow agreement then in use by the Title Company, with such special provisions inserted in the escrow
agreement as may be required to conform with this Agreement (“Closing Escrow”). Each Party hereby authorizes its
respective attorneys to sign the Closing Escrow agreement on behalf of its client. Any payments required under this
Agreement and the delivery of each Deed will be made through the Closing Escrow. The Closing will be concluded
by use of “gap undertakings” furnished by the Title Company and executed by each selling Party with respect to the
Property that it is selling hereunder, so that the Title Company is prepared, at the Closing, to issue each Title Policy,
insuring the purchasing Party’s fee simple absolute title to the applicable Property in the amount of $1,659,400.00 in
the case of the Tuttle Emerald Property and $933,800.00 in the case of the City Property, and subject only to the
applicable Permitted Encumbrances. The cost of the Closing Escrow will be divided equally between the Parties.
11. Closing. Provided that all conditions of closing hereunder have occurred, the Closing will occur
through the downtown Chicago, Illinois offices of the Title Company on the Closing Date; provided, however, that
the Closing may be effected by the delivery of documents without the necessity of the Parties being present in person.
On the Closing Date (or earlier as required by the Closing Escrow agreement):
(a) Selling Party’s Deliveries. Each selling Party, with respect to the Property that it is selling
under this Agreement, will execute and deliver to the Title Company for delivery to the
applicable purchasing Party on the Closing Date, the following:
(i) Such selling Party will provide a limited warranty deed (“Deed”) compliant
with Ohio Revised Code Section 5302.07 and in a commercially reasonable
and recordable form sufficient to convey to the purchasing Party fee simple
absolute title to the applicable Property, subject only to the applicable
Permitted Encumbrances, signed by such selling Party or its agent (in the case
of the Deed for the City Property, Tuttle Emerald may elect to name a designee
that is under common ownership with Tuttle Emerald or otherwise affiliated
to the City’s reasonable satisfaction with VanTrust Real Estate, LLC, to take
title thereto, by delivering written notice of such election to the City at least
five days prior to the Closing Date);
(ii) Appropriate transfer tax or other similar declarations, executed by such selling
Party or its agent in the form required pursuant to applicable law, and such
selling Party will pay the amount of all transfer, deed, stamp and similar taxes
imposed by governmental authorities having jurisdiction;
(iii) A counterpart of a closing statement signed by such selling Party or its agent;
(iv) An original counterpart of the Development Fee/Repurchase Memorandum in
recordable form and signed by such selling Party or its agent, to be recorded
against all of the Tuttle Emerald Property at the Closing;
(v) If required by the Title Company, an owner’s affidavit duly executed and
acknowledged by such selling Party in form and content required by the Title
Company;
(vi) If required by applicable law, a “FIRPTA” affidavit conforming to the
requirements of Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations applicable thereto, and if such selling Party fails
to furnish any such required FIRPTA affidavit, such selling Party will deposit
13
any required sums of money into a commercially reasonable escrow with the
Title Company; and
(vii) Such other documents as may be reasonably necessary or appropriate to
comply with this Agreement or reasonably required of such selling Party (by
the Title Company or otherwise) to carry out the terms of this Agreement.
(b) Purchasing Party’s Deliveries. Each purchasing Party, with respect to the Property that it
is purchasing under this Agreement, will execute and deliver to the Title Company for
delivery to the applicable selling Party on the Closing Date, the following:
(i) Appropriate transfer tax or other similar declarations, executed by such
purchasing Party or its agent in the form required pursuant to applicable law;
(ii) A counterpart of a closing statement signed by such purchasing Party or its
agent;
(iii) An original counterpart of the Development Fee/Repurchase Memorandum in
recordable form and signed by such purchasing Party or its agent, to be
recorded against all of the Tuttle Emerald Property at the Closing; and
(iv) Such other documents as may be reasonably necessary or appropriate to
comply with this Agreement or reasonably required of such purchasing Party
(by the Title Company or otherwise) to carry out the terms of this Agreement.
12. General Real Estate Taxes; Other Payments. General real estate taxes and general and special
assessments for the years prior to Closing shall be paid by the selling Party on or prior to the Closing Date. General
real estate taxes and general and special assessments for the year of Closing will be prorated on a per diem basis as of
the Closing Date based on the most recently available tax rate and valuation for the Property, and the purchasing Party
will receive a credit for such amount at Closing. Any other payments with respect to either Property applicable to the
selling Party’s period of ownership shall be paid by the applicable selling Party when due. Any service contracts or
other agreements with respect to a Property shall be terminated prior to Closing at no cost to the purchasing Party
unless the purchasing Party elects prior to Closing to accept an assignment of any such service contracts or other
agreements. The Parties’ respective rights and obligations under this Section 12 will survive the Closing and delivery
of each Deed.
13. Conditions of Closing.
(a) Purchasing Party’s Closing Conditions. The obligation of each purchasing Party (in such capacity)
to consummate each transaction contemplated under this Agreement is expressly subject to and contingent upon the
occurrence of each and every one of the following conditions precedent:
(i) Such purchasing Party or the Title Company, as applicable, will have received the items
set forth in Section 11(a) hereof.
(ii) The Title Company will have issued the applicable Title Policy, dated as of the Closing
Date and showing fee simple title in such purchasing Party, subject only to the applicable
Permitted Encumbrances, and otherwise in accordance with the provisions of and
containing the extended coverage and the endorsements specified in Sections 7(a) and 7(b)
hereof.
(iii) All representations and warranties of the applicable selling Party will be true and correct
as of the Closing Date.
(iv) Since the Due Diligence Date, such purchasing Party will not have received any notice that
(A) the applicable Property, or any portion thereof, was ever used for the treatment,
14
transportation, storage, handling or disposal of any Hazardous Materials, (B) the applicable
Property, or any portion thereof, has ever appeared on any federal or state registry of
inactive hazardous waste site, or (C) there has been any notice or claim concerning the
presence, release or alleged release of Hazardous Materials at the applicable Property or
any portion thereof.
(v) Since the Due Diligence Date, there will not have been any material adverse change in the
physical condition or characteristics of, or otherwise with respect to, the applicable
Property, or any portion thereof.
(vi) The applicable selling Party (in such capacity) will have complied with all terms,
provisions and conditions of this Agreement.
(b) Purchasing Party’s Right to Terminate. In the event any of the foregoing conditions has not been
fulfilled or expressly waived in writing by the applicable purchasing Party, then in addition to any other remedy
available to such purchasing Party, it may terminate this Agreement by delivering written notice to the selling Party
on or before the Closing Date, without limiting such purchasing Party’s remedies under this Agreement and otherwise
at law or in equity.
(c) Selling Party’s Closing Conditions. The obligation of each selling Party (in such capacity) to
consummate the transaction hereunder is expressly subject to and contingent upon the occurrence of each and every
one of the following:
(i) Such selling Party or the Title Company, as applicable, will have received the items set
forth in Section 11(b) hereof.
(ii) All representations and warranties of the applicable purchasing Party will be true and
correct as of the applicable Closing Date.
(iii) The applicable purchasing Party will have complied with all terms and conditions of this
Agreement.
(d) Selling Party’s Right to Terminate. In the event any of the foregoing conditions has not been
fulfilled or expressly waived in writing by the applicable selling Party, then in addition to any other remedy available
to such selling Party, it may terminate this Agreement by delivering written notice to the purchasing Party on or before
the Closing Date, without limiting such selling Party’s remedies under this Agreement and otherwise at law or in
equity.
14. DISCLAIMERS. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT,
(A) IT IS UNDERSTOOD AND AGREED THAT NEITHER PARTY IS MAKING, AND NEITHER PARTY HAS
MADE, AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY IT IS SELLING,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ZONING, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES,
VALUATION, GOVERNMENTAL APPROVALS, COMPLIANCE OF SUCH PROPERTY WITH
GOVERNMENTAL LAWS, OR ANY OTHER MATTER OR THING REGARDING SUCH PROPERTY; (B)
EACH PARTY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO THE PROPERTY IT IS SELLING; (C) EACH PARTY ACKNOWLEDGES AND AGREES THAT IT IS
PURCHASING THE CITY PROPERTY OR THE TUTTLE EMERALD PROPERTY (AS THE CASE MAY BE)
“AS IS, WHERE IS, WITH ALL FAULTS;” AND (D) EACH PARTY ACKNOWLEDGES AND AGREES THAT
IT WILL CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY IT IS PURCHASING, INCLUDING, BUT
NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS SUCH PARTY
DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF SUCH PROPERTY, AND WILL
RELY SOLELY UPON THE SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF
OF THE SELLING PARTY OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO.
15
15. Default. IF EITHER PARTY BREACHES ITS OBLIGATION TO COMPLETE THE SALE AND
CONVEYANCE OF ITS PROPERTY AS PROVIDED IN THIS AGREEMENT AND SUCH BREACH
CONTINUES FOR TWO BUSINESS DAYS AFTER THE PURCHASING PARTY’S DELIVERY TO SUCH
SELLING PARTY OF WRITTEN NOTICE THEREOF, THEN THE PURCHASING PARTY WILL BE ENTITLED
TO THE REMEDY OF SPECIFIC PERFORMANCE. EACH PARTY ACKNOWLEDGES AND AGREES THAT
EACH PROPERTY IS UNIQUE IN NATURE AND A FAILURE BY A SELLING PARTY TO PERFORM THE
TERMS OF THIS AGREEMENT WILL MATERIALLY AND IRREPARABLY INJURE, AND RESULT IN THE
SUFFERING OF A MATERIAL LOSS BY, THE PURCHASING PARTY, AND THAT SUCH INJURY AND
LOSS CANNOT BE FULLY OR ADEQUATELY COMPENSATED BY THE PAYMENT OF MONEY OR BY
AN AWARD OF DAMAGES. EACH PARTY THEREFORE FURTHER ACKNOWLEDGES AND AGREES
THAT IF A SELLING PARTY SHOULD BREACH ITS OBLIGATIONS TO COMPLETE THE SALE AND
CONVEYANCE OF ITS PROPERTY HEREUNDER, THE PURCHASING PARTY SHALL BE ENTITLED TO
THE SPECIFIC PERFORMANCE OF THIS AGREEMENT. THE APPLICABLE SELLING PARTY (IN SUCH
CAPACITY) WILL NOT OBJECT TO AND WILL NOT HINDER OR DELAY THE ENTRY OF A DECREE OF
SPECIFIC PERFORMANCE IN ANY ACTION BROUGHT UNDER OR IN RESPECT TO THIS AGREEMENT.
IN ADDITION, IN THE EVENT THAT EITHER PARTY TERMINATES THIS AGREEMENT DUE TO (I) A
DEFAULT OR BREACH OF COVENANT BY THE OTHER PARTY (OTHER THAN AS SET FORTH ABOVE
IN THIS SECTION 13), (II) A REPRESENTATION OR WARRANTY OF THE OTHER PARTY BEING UNTRUE
WHEN MADE AS OF THE EFFECTIVE DATE (TAKING INTO ACCOUNT, AS APPLICABLE, ANY
“KNOWLEDGE” QUALIFIERS PERTAINING TO SUCH REPRESENTATION AND WARRANTY), OR (III) A
REPRESENTATION OR WARRANTY OF THE OTHER PARTY BECOMING UNTRUE (TAKING INTO
ACCOUNT, AS APPLICABLE, ANY “KNOWLEDGE” QUALIFIERS PERTAINING TO SUCH
REPRESENTATION AND WARRANTY) DUE TO SUCH OTHER’S ACTION, THEN SUCH DEFAULTING
PARTY SHALL REIMBURSE THE NON-DEFAULTING PARTY FOR ALL THIRD-PARTY OUT-OF-POCKET
COSTS AND EXPENSES AND ALL OTHER DAMAGES INCURRED BY SUCH NON-DEFAULTING AS A
RESULT THEREOF.
16. Condemnation. In the event that, between the Effective Date and the Closing Date, any
condemnation or eminent domain proceedings are instituted that might result in the taking of all or any portion of an
applicable Property, the selling Party will immediately notify the purchasing Party in writing of such occurrence, and
thereupon such purchasing Party may elect (in its sole and absolute discretion) to:
(a) terminate this Agreement, in which event all rights and obligations of the Parties hereunder
will cease; or
(b) elect to consummate the transaction with respect to the applicable Property and require the
selling Party to deliver to the purchasing Party a duly executed assignment, in form and
substance reasonably satisfactory to the purchasing Party, of proceeds payable as a result
of the selling Party’s right to receive any condemnation award.
A purchasing Party will have 30 days after the date of its receipt of written notice of such institution of proceedings
within which to exercise its rights under this Section 16. If the Closing is scheduled to occur within such 30-day
period, then the Closing will be delayed until the purchasing Party makes such election, and if the purchasing Party
elects to consummate the transaction, the Closing Date will be adjusted accordingly.
17. Covenants of Selling Parties. Between the Effective Date and the Closing Date, each selling Party
will (with respect to the Property that it is selling):
(a) not, without first obtaining the written consent of the purchasing Party (which consent may
be given or withheld in such purchasing Party’s sole and absolute discretion), promote,
solicit, entertain or negotiate with respect to any offers for the sale of, or enter into any
contracts, leases or other agreements pertaining to, the applicable Property or any portion
thereof;
16
(b) comply with all laws, ordinances, regulations and restrictions affecting the applicable
Property or any portion thereof (including, without limitation, the use thereof);
(c) comply with the terms of all mortgages, liens, pledges, leases, licenses, easements and
other similar encumbrances affecting the applicable Property or any portion thereof;
(d) not create or permit to be created any mortgage (or amendment to any existing mortgage),
lien, pledge, lease, license, easement or other similar encumbrance in any way affecting
the applicable Property or any portion thereof;
(e) not knowingly permit the physical condition of the applicable Property, or any portion
thereof, to change materially from the physical condition thereof as of the Due Diligence
Date;
(f) not knowingly permit (i) the applicable Property, or any portion thereof, to be used for the
treatment, transportation, storage, handling or disposal of any Hazardous Materials, (ii) the
applicable Property, or any portion thereof, to appear on any federal or state registry of
inactive hazardous waste site, or (iii) any notice or claim to be made by the federal or any
state government concerning the release or alleged release of Hazardous Materials at the
applicable Property, or any portion thereof; and
(g) comply with all requirements of the Title Company in connection with its insurance
hereunder.
18. Notices. Any notice or other communication in connection with this Agreement will be in writing
and will be sent by United States certified mail, return receipt requested, postage prepaid, by a nationally recognized
overnight courier guaranteeing next day delivery, by electronic transmission, or by personal delivery, properly
addressed as follows:
If to Tuttle Emerald: Tuttle Emerald Development, LLC
c/o VanTrust Real Estate, LLC
Suite 100
950 Goodale Boulevard
Columbus, Ohio 43212
Attention: Andrew R. Weeks
E-Mail: andy.weeks@vantrustre.com
with a copy to: VanTrust Real Estate, LLC
Suite 400
4900 Main Street
Kansas City, Missouri 64112
Attention: David M. Harrison
E-Mail: dave.harrison@vantrustre.com
and with a copy to: O’Rourke, Hogan, Fowler & Dwyer
Suite 3700
10 South LaSalle Street
Chicago, Illinois 60603
Attention.: W. Craig Fowler
E-Mail: wcfowler@ohfdlaw.com
If to City: City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: Dana McDaniel, City Manager
E-Mail: dmcdaniel@dublin.oh.us
17
with a copy to: Frost Brown Todd LLC
Suite 2300
10 West Broad Street
Columbus, Ohio 43215
Attention.: Jennifer Readler, Law Director
E-Mail: jreadler@fbtlaw.com
All notices will be deemed given, delivered and received three business days following deposit in the United States
mail with respect to certified or registered letters, one business day following deposit if delivered to an overnight
courier guaranteeing next day delivery, and on the same day if sent by personal delivery or by electronic transmission
(with proof of transmission). Attorneys for each Party will be authorized to give notices for each such Party. Any
Party may change its address for the service of notice by giving written notice of such change to the other Party, in
any manner above specified.
19. Miscellaneous.
(a) Intentionally Deleted.
(b) Counterpart; Electronic Transmission. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which together will constitute one and the same
instrument. To facilitate execution of this Agreement, the Parties may execute and deliver counterparts hereof (or
counterparts of the signature page or pages hereof) by facsimile or electronic transmission, and such facsimile or
electronically transmitted counterparts will be binding and enforceable to the same extent as originals thereof.
(c) Section Headings. The Section headings or captions appearing in this Agreement are for
convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement.
(d) Entire Agreement; No Waiver. This written Agreement constitutes the entire agreement between
the Parties and supersedes any prior oral or written agreements between the Parties regarding the Property. There are
no verbal agreements that can or will modify this Agreement, and no waiver of any of its terms will be effective unless
in a writing executed by the Parties.
(e) Severability. The unenforceability or invalidity of any provisions hereof will not render any other
provisions herein contained unenforceable or invalid.
(f) Assignment. Neither party may assign this Agreement or any of its rights hereunder without the
other Party’s prior written consent, which may be withheld, conditioned or delayed in such other Party’s sole and
absolute discretion.
(g) Brokers. With respect to real estate brokers:
(i) Tuttle Emerald represents and warrants to the City that, other than The Robert Weiler
Company (“Broker”), Tuttle Emerald has not engaged or dealt with any broker or other
person or entity who would be entitled to any brokerage fee or commission with respect to
the finding, negotiation or execution of this Agreement or the consummation of the
transactions contemplated hereby. Tuttle Emerald will be solely responsible for all
commissions due to Broker pursuant to one or more separate agreements. Tuttle Emerald
will indemnify, defend and hold harmless the City, and its successors and assigns, with
respect to any claim by Broker and any other person or entity claiming to have been
engaged by Tuttle Emerald, or claiming by, through or under Tuttle Emerald, so as to
become entitled to any such fee or commission.
(ii) The City represents and warrants to Tuttle Emerald that the City has not engaged or dealt
with any broker or other person or entity, other than Broker, who would be entitled to any
18
brokerage fee or commission with respect to the finding, negotiation or execution of this
Agreement or the consummation of the transactions contemplated hereby.
(h) Governing Law. This Agreement will be construed and enforceable in accordance with the laws of
the State of Ohio, without application of its choice of law rules.
(i) Binding Nature. This Agreement will be binding upon and inure to the benefit of the Parties, and
their respective successors and permitted assigns.
(j) Time of Essence. Time is of the essence of this Agreement.
[Signatures on following page]
19
In witness whereof, the Parties hereto have caused this Agreement to be executed and delivered the day and
the date first above written.
Tuttle Emerald:
Tuttle Emerald Development, LLC, an Ohio limited
liability company
By:
Name:
Its:
Date: ___________ ____, 2021
City:
City of Dublin, Ohio, an Ohio municipal corporation
By:
Dana McDaniel, City Manager
Date: ___________ ____, 2021
APPROVAL AS TO FORM:
By:
Jennifer D. Readler, City Attorney
A-1-1
Exhibit A-1 -- Legal Description of Tuttle Emerald Land
Situated in the City of Dublin, County of Franklin, and State of Ohio and known as being Lot 2 of the Duke Parkwood
Plat recorded in Plat Book 111, Page 100 of Franklin County records
Tax Parcel: 273-012234-00
A-2-1
Exhibit A-2 -- Legal Description of City Land
Situated in the City of Dublin, County of Franklin, and State of Ohio and known as being Lot 1 of the Crosby Business
Park Plat recorded in Plat Book 118, Page 41 of Franklin County records (recording information to be inserted when
provided by the City as promptly as practicable after the Effective Date)
Tax Parcel: 275-000008-00
B-1-1
Exhibit B-1 -- Site Plan of Tuttle Emerald Land
B-2-1
Exhibit B-2 -- Site Plan of City Land (Lot 1)
2
C-1
Exhibit C -- Form of Development Fee/Repurchase Memorandum
Memorandum of Development Fee and Repurchase Right
This Memorandum of Development Fee and Repurchase Right (“Memorandum”) is entered into as of June
____, 2021, by and between Tuttle Emerald Development, LLC, an Ohio limited liability company (“Tuttle
Emerald”), and the City of Dublin, Ohio, an Ohio municipal corporation (“City”). Each of Tuttle Emerald and the
City is also sometimes herein called a “Party,” or together as the “Parties.”
Recitals
A. The City and Tuttle Emerald are parties to that certain Real Estate Transfer Agreement approved by
Dublin City Council on ______________, 2021, with an Effective Date (as defined therein) of ______________, 2021
(“Agreement”). Pursuant to the Agreement, among other things, (i) Tuttle Emerald has conveyed to the City fee title
to that certain parcel of vacant property containing approximately 16.594 gross acres, abutting Parkwood Place,
Woerner Temple Road and Interstate Route 270, in the City of Dublin, Franklin County, Ohio, and legally described
on Exhibit A attached hereto (“Tuttle Emerald Land”), together with all of the easements and appurtenances, and
all of the estates and rights from time to time, in, to and with respect to the Tuttle Emerald Land and any and all
improvements thereon (collectively, “Tuttle Emerald Property”); and (ii) the City (on behalf of itself and its
successors and assigns) has agreed to pay a certain fee (“Development Fee”) to Tuttle Emerald in connection with
Tuttle Emerald’s conveyance of the Tuttle Emerald Property to the City, and also to grant to Tuttle Emerald a certain
sole, exclusive and superior (over any and all third parties) right (“Repurchase Right”) to repurchase all of the Tuttle
Emerald Property.
B. The Parties now desire to record this Memorandum in order to notify third parties of the
Development Fee and the Repurchase Right with respect to the Tuttle Emerald Property.
Agreements
Now, therefore, for and in consideration of the foregoing Recitals and the covenants and agreements herein
set forth, and for other good and valuable consideration, the receipt and sufficiency of all of which are hereby
acknowledged, the Parties agree as follows:
1. Incorporation of Recitals; Definitions. The Recitals set forth above are hereby incorporated into
this Memorandum and are hereby made a part hereof, as if fully set forth herein. All capitalized terms used in this
Memorandum and not otherwise defined herein will have the respective meanings given them in the Agreement.
2. Notice of Development Fee. Under the Agreement, the City has agreed to pay the Development
Fee (in the amount set forth in the Agreement) to Tuttle Emerald upon the earlier to occur of the following events:
(a) the City’s transfer or conveyance of fee title or any other ownership or leasehold interest
(other than a mortgage or similar collateral interest solely for the purpose of securing debt
or an easement or right of way for utilities or other uses granted in the City’s normal course
of operations) in, to or with respect to the Tuttle Emerald Property, or any portion thereof;
or
(b) the issuance of a development, building or similar permit (“Permit”) and the
commencement of any construction activities within one month of the issuance of a Permit
on the Tuttle Emerald Property, or any portion thereof, in connection with the development
thereof, by, for or on behalf of the City or any division, department, agency or body thereof
or related thereto.
3. Notice of Repurchase Right. The City has granted the Repurchase Right to Tuttle Emerald, which
Tuttle Emerald may exercise at any time within three years after the date of the recordation of this Memorandum, at
the price and on the other terms and conditions set forth in the Agreement.
C-2
4. Rights and Obligations Run with the Land. The Parties’ respective rights and obligations with
respect to both the Development Fee and the Repurchase Right run with the Tuttle Emerald Property, and are binding
upon the City and its successors and assigns.
5. Purpose of Memorandum; Superiority of Agreement. This Memorandum is made solely for
purposes of creating record notice of the Development Fee and the Repurchase Right granted to Tuttle Emerald with
respect to the Tuttle Emerald Property. This Memorandum does not in any manner amend or modify the respective
rights and obligations of the Parties under the Agreement. In the event of any conflict or inconsistency between the
terms and conditions of the Agreement and the terms and conditions of this Memorandum, the terms and conditions
of the Agreement will in all cases govern and control.
6. Counterparts. This Memorandum may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
[Signatures on following page]
C-3
In witness whereof, the Parties hereto have caused this Memorandum to be executed and delivered the day
and the date first above written.
Tuttle Emerald:
Tuttle Emerald Development, LLC, an Ohio limited
liability company
By:
Name:
Its:
STATE OF )
) SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of _______________, 2021, by David
M. Harrison, Manager of Tuttle Emerald Development, LLC, an Ohio limited liability company, on behalf of said
company.
(SEAL)
Notary Public
City:
City of Dublin, Ohio, an Ohio municipal corporation
By:
Name:
Its:
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
The foregoing instrument was acknowledged before me this ____ day of _______________, 2021, by Dana
McDaniel, City Manager of the City of Dublin, Ohio, an Ohio municipal corporation, on behalf of said city.
(SEAL)
Notary Public
This instrument prepared by and
after recording should be returned to:
W. Craig Fowler
O’Rourke, Hogan, Fowler & Dwyer, LLC
10 South LaSalle Street, Suite 3700
Chicago, Illinois 60603
C-4
Exhibit A -- Legal Description of Tuttle Emerald Land
Situated in the City of Dublin, County of Franklin, and State of Ohio and known as being Lot 2 of the Duke Parkwood
Plat recorded in Plat Book 111, Page 100 of Franklin County records
Tax Parcel: 273-012234-00