Ordinance 67-23RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
Ordinance No. 67-23 Passed , 20.
AUTHORIZING THE CITY MANAGER TO ENTER INTO A DEVELOPMENT
AGREEMENT AND OTHER RELATED AGREEMENTS FOR THE DEVELOPMENT
OF Y BLOCK WITH CRAWFORD HOYING DEVELOPMENT PARTNERS, LLC
WHEREAS, the City has prepared a strategy for comprehensive development within
an area of the City known as the Bridge Street District and has endeavored to work
collaboratively with public entities, including but not limited to the Dublin City School
District, the Tolles Career and Technical Center, Columbus-Franklin County Finance
Authority, Bridge Street New Community Authority, and private entities to plan for and
facilitate the development of the District; and
WHEREAS, the City’s strategy for development within the Bridge Street District is
primarily focused on creating a new, more urban, walkable core for the City, including
a dynamic mix of commercial and residential development types generally not currently
available within the City; and
WHEREAS, the City has determined that the successful implementation of the City’s
strategy for the Bridge Street District is vital to the long-term economic health of the
City and that the portions of the Bridge Street District located along the Scioto River
should be among the highest priority redevelopment areas; and
WHEREAS, Crawford Hoying Development Partners, LLC (the “Developer”) has
acquired certain real property within the Scioto River Corridor portion of the Bridge
Street District, which property is located on the southeast quadrant of the intersection
of State Route 161 and Riverside Drive and referred to as “Y Block”, and has proposed
to the City a plan to redevelop that real property with private development consistent
with that intended by the City for the Bridge Street District and to provide for the
construction of various related public infrastructure improvements; and
WHEREAS, to facilitate the private development and to provide for the construction
of the various related public infrastructure improvements, the City and the Developer
have proposed to enter into various related agreements; and
WHEREAS, this Council has determined that it is necessary and appropriate and in
the best interests of the City to provide for the execution of various agreements which
will facilitate the private development and provide for the construction of the various
related public infrastructure improvements for Y Block;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, __
of its elected members concurring, that:
Section 1. The following agreements, each of which generally provide for the terms as
described below, each by and between the City and the Developer or the other named
parties thereto, are hereby approved:
(a) the Development Agreement, in substantially the form on file with the
Clerk of Council, which generally provides for the development of the mixed-use project
generally known as “Y Block” as well as supporting public infrastructure improvements
including a parking garage,
(b) a Service Agreement, in substantially the form of existing Service
Agreements to which the City is a party for the Bridge Street District, and which
generally provides for the collection of TIF payments, including minimum service
payments, obligations by the property owners to insure and rebuild the development
in case of casualty, obligations by the property owners to maintain their buildings, and
obligations by the property owners to pay costs of operating and maintaining the public
improvements,
(c) a Community Reinvestment Area Agreement, in substantially the form
of existing Community Reinvestment Area Agreements to which the City is a party for
RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
33 2 67-23 Passed Page 2 of 2 20 Ordinance No.
the Bridge Street District, and which generally provides for an exemption from real
property taxation for the parking garage within the Y Block Development,
(d) a Tax Increment Financing and Cooperative Agreement, which generally
provides for the issuance of debt for the public improvements for Y Block and the
ownership, construction, operation and maintenance of those public improvements by
the Columbus-Franklin County Finance Authority or such other political subdivisions as
are approved by the City Manager on behalf of the City, and
The City Manager, for and in the name of this City, is hereby authorized to
execute each of the foregoing agreements with such changes therein and amendments
thereto that are not inconsistent with this Ordinance and not substantially adverse to
this City and which shall be approved by the City Manager, provided further that the
approval of changes or amendments to any such agreement by the City Manager, and
their character as not being substantially adverse to the City, shall be evidenced
conclusively by the City Manager's execution thereof. In the City Manager’s discretion,
the Service Agreement, the Community Reinvestment Area Agreement and the Tax
Increment Financing and Cooperative Agreement may be entered into in the form of
amendments to existing agreements of the City for the Bridge Street District.
Section 2. The City Manager is hereby authorized to execute any and all agreements
and other instruments necessary to implement the real estate transactions
contemplated in the Development Agreement.
Section 3. This City Council further hereby authorizes and directs the City Manager,
the Director of Finance, the Director of Law, the Director of Development, the Clerk of
Council or other appropriate officers of the City to prepare and sign all documents and
instruments and to take any other actions as may be appropriate to implement this
Ordinance, including, without limitation, assignments of the Community Reinvestment
Area Agreement to owners of the real property subject to that agreement.
Section 4. This City Council finds and determines that all formal actions of this City
Council and any of its committees concerning and relating to the passage of this
Ordinance were taken in an open meeting of this City Council or any of its committees,
and that all deliberations of this City Council and any of its committees that resulted in
those formal actions were in meetings open to the public, all in compliance with the
law including Ohio Revised Code Section 121.22.
Section 5. The Ordinance shall take effect at the earliest date allowed by law.
e Passed this Ll day of Dende , 2023.
Ag
Mayor - Preping Office” 7
ATTEST:
Clerkof Coyficil
To: Members of Dublin City Council
From: Megan D. O’Callaghan, City Manager
Date: November 21, 2023
Initiated By: Matthew L. Stiffler, Chief Financial Officer/Director of Finance
Jennifer M. Rauch, Director of Planning
Mitchell Ament, Management Analyst
Kendel Blake, Management Analyst
Re: Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development
Partners
Background
Staff and Crawford Hoying Development Partners (the “Developer”) have been working together to
negotiate the terms of a Development Agreement (“Agreement”) for “Y Block” at Bridge Park (the
“Y Block Project”). The major purpose of the Agreement is to provide the financial framework by
which the City’s and the Developer’s respective public and private improvement obligations are
established. The Agreement does not substitute for, or supersede, any of the City’s applicable
development review and approval processes. The Developer has made clear that it has a continued
interest in investing in Dublin.
This ordinance authorizes the execution of the proposed Agreement with the Developer for the Y
Block Project, along with related agreements such as a Service Agreement for the proposed tax
increment financing, a Community Reinvestment Area Agreement for the real property tax
abatement for the parking garage and the Tax Increment Financing and Cooperative Agreement for
the proposed TIF bonds.
Project Summary and Development Agreement
The Developer is in the planning stage for the Y Block Project, located at the southeast corner of SR
161 and Riverside Drive in the Bridge Street District. The Developer is planning to construct a
development with approximately 90,000 SF of class A office space, an upscale (e.g. 5-star) 115-key,
full-service hotel with event space, 14,000 SF of retail/restaurant space, 60 residential rental
apartment units, and a 370-space parking garage on approximately 3.8 acres.
The Y Block Project continues the City’s strategy of comprehensive development with the Bridge
Street District by creating a new, more urban, walkable core for the City, including a dynamic mix of
commercial and residential development types generally not previously available within the City.
The following provides an overview of key points of the proposed Agreements and by no means is
all inclusive.
Public Improvements
In order to serve the private development, the City and the Developer have proposed the following
with respect to the Public Improvements:
Section 7.1 – Public Improvements – Community Facilities (means the Parking Facilities)
Office of the City Manager
5555 Perimeter Drive • Dublin, OH 43017
Phone: 614.410.4400 Memo
Memo re. Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development Partners
November 21, 2023
Page 2 of 6
Working cooperatively with the Bridge Street NCA and the Columbus Franklin County Finance
Authority (CFCFA), the Developer agrees to provide for the financing and construction of the
Community Facilities. These facilities, along with the associated Block and the anticipated public
improvement cost are as follows:
Block Community Facility Public Improvement Cost
Block Y Parking Garage $25,244,531
The Community Facilities will be owned by the CFCFA and financed primarily with bonds issued by
the CFCFA.
The operation and maintenance of the parking facility will be governed by an Operation and
Maintenance Agreement. This will be an agreement between the Developer and the Block Owner,
which will be entered into and recorded as a covenant running with the land. This agreement will
include the Developer and Block Owner’s covenants to keep and maintain, or cause to be kept and
maintained, the parking facilities in good, operable, and usable condition and repair, normal wear
and tear excepted, but in any event, consistent with other first class parking facilities in the Central
Ohio area. Additionally, each Operation and Maintenance Agreement shall provide that the non-
reserved parking spaces within the Parking Facilities shall be kept open and available to the general
public at all times, the Developer shall fund any shortfalls between the revenue generated by the
NCA or the Community Facilities and available to pay the cost of operating and maintaining the
Community Facilities and the actual cost of operating and maintaining the Community Facilities.
The City and the Bridge Park NCA will be third party beneficiaries of the Operation and Maintenance
Agreement and will have the right to enforce the obligations of the Developer, Block Owner, Bridge
Park NCA and CFCFA.
Economic Development Tools
To provide the financial framework to facilitate the public improvements (parking facility), the City
and the Developer have agreed to the utilization of the following economic development tools:
Section 6 – Community Reinvestment Area (CRA) – On May 4, 2015, City Council established the
Bridge Street District CRA (Ordinance No. 33-15) which, in part, defined the property tax exemptions
that could be available to property owners within that CRA. The ordinance authorized up to a 100%
real property tax exemption on the construction of multiple unit residential structures and
commercial (including retail) facilities, for a period of up to 15 years.
The Developer has determined that a 15-year, 100% real property tax exemption is needed for the
Community Facility (parking facility) on this block. This is consistent with prior Bridge Park blocks.
No property tax exemption will be provided for commercial improvements (apartments, retail, office,
hotel, etc.)
Section 8 – Tax Increment Financing (TIF) – The City will agree to pass the TIF Ordinances and
create a tax increment financing area within the Y Block Project. The service payments received will
be applied pursuant to the Agreement. These service payments will be secured with a minimum
service payment (MSP) from the Developer. This MSP will total $71.6 million with payments of
Memo re. Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development Partners
November 21, 2023
Page 3 of 6
$2,165,665 in calendar year 2027. This amount will increase with each triennial update or sexennial
reappraisal to a final amount totaling $2,639,933 due in calendar year 2056.
Section 9 – New Community Authority (NCA) - The Bridge Park NCA, which was established by
Council through Ordinance No. 25-15 on March 19, 2015. Pursuant to the NCA Petition, the Bridge
Park NCA shall impose a NCA Charge and collect the charge from owners of real property located
within the Bridge Park NCA. The Bridge Park NCA is expected to levy an additional bed tax on the
hotel to be located on Y Block and an additional sales tax on retail sales within the NCA’s boundaries.
The Developer and City will cooperate as necessary to add Y Block to the Bridge Park NCA district.
Funding for Community Facility
The Community Facility on Y Block (parking facility) will be funded through the NCA Charges and
TIF Service Payments.
As Council is aware, the above mentioned Economic Development Tools will all be utilized to provide
the funding for this Community Facility. The funding sources can best be summarized by the
following:
A TIF will be established for the Y Block Project which will run for a 30 year time period.
If revenue received from the Service Payments is not sufficient to meet the debt service on
the Community Facilities (and other allowable expenditures), the NCA will impose a charge
on owners of real property located within Y Block and from businesses operating within Y
Block. These NCA charges will be used to fund the Community Facilities.
The NCA charges and the Service Payments received over the course of 30 years will be used to
retire the debt on the Community Facilities.
The application of service payments and NCA revenues is detailed in Exhibit E of the Agreement.
Incentive Contingencies
The incentives offered by the City to the Developer are defined collectively as any real property tax
abatement set forth in the CRA agreements (parking facility), the TIF ordinance and Service
Payments collected.
This Agreement sets forth the conditions for the delivery by the City of the Incentives (the “Incentive
Contingencies”). The obligation of the City to provide the incentives is contingent upon the
satisfaction of all the contingencies. These contingencies, referred to as “Incentive Contingencies,”
are defined in Section 10 of the Development Agreement and include the following key provisions:
Public Improvement Plans – The Developer must prepare and submit to the City for review
and approval the detailed final working drawings and specifications for the construction of
the Community Facilities.
Public Improvement Scope and Budget – The Developer shall prepare for the City and the
City shall have approved the Public Improvement Budget for the Community Facility,
including the schedule of values. The Developer must provide evidence that their lender has
approved the Public Improvements Budget.
Disbursement Schedule – The Developer must develop and the City shall have approved a
Memo re. Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development Partners
November 21, 2023
Page 4 of 6
schedule of disbursement of proceeds of the private financing for payment of the commercial
costs and the schedule of disbursements of private financing and public funding for payment
of costs of the public improvements. The City shall have the right to review and request
additional documentation and to further request modifications of the Disbursement Schedule
based on the information submitted by the Developer.
Community Facilities Property – The Developer must provide to the City documents conveying
each portion of the Community Facilities Property to the CFCFA or Bridge Park NCA.
CFCFA/NCA Debt – The Developer must provide to the City the fully executed bond
documents for the CFCFA/NCA Debt providing bond proceeds sufficient to pay all Public
Improvement Costs for the Community Facilitates and evidence that the purchase price for
the CFCFA/NCA debt has been fully paid and deposited with a trustee for the CFCFA/NCA
debt.
Commercial Budget – The Developer shall prepare and submit to the City the Commercial
Budget. Additionally, the Developer must provide to the City evidence that the lender has
approved the commercial budget.
Proforma – The Developer must prepare and submit to the City the proforma, based on the
most current information available to the Developer regarding the budgeted Commercial
Costs, the projected stabilized operating income and expense statement. Additionally, the
Developer must provide to the City evidence that the lender has approved the proforma.
Equity Investment – The Developer shall have provided evidence that the Equity Investment
has been funded for the Commercial Costs not funded with Loans plus the Public
Improvement Costs not anticipated to be paid from the Public Funding. All of the Equity
Investment Documents shall be executed and delivered by the parties thereto, and the Equity
Investment shall otherwise be closed as contemplated by the Equity Investment Documents.
The Developer shall provide to the City (i) then current drafts of the Equity Investment
Documents at least two weeks prior to the scheduled Closing Date, and (ii) copies of the
executed Equity Investment Documents on or about the Closing Date.
Operation and Maintenance Agreement – The Developer and the CFCFA and/or Bridge Park
NCA will have entered into the Operation and Maintenance Agreement for the Community
Facilities.
NCA Declaration – The Developer and Block Owner have executed and recorded the NCA
Declaration providing for collection of the NCA charge.
Environmental Reports – The Developer shall have submitted such environmental reports for
the Development Site to the City as have been requested by the City and evidencing there
are no Hazardous Materials located on the Development Site or violations of Environmental
Laws that would prevent development of the Development Site in accordance with the
Conceptual Development Plan. Developer shall have delivered a reliance letter from the
preparer of the environmental reports authorizing reliance on those reports by City and the
owners of the Community Facilities.
Memo re. Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development Partners
November 21, 2023
Page 5 of 6
Cooperative Agreement – The City, the CFCFA, and the NCA shall have entered into a
Cooperative Agreement providing for the issuance of CFCFA/NCA debt to fund the Community
Facilities, the payment to the CFCFA/NCA of service payments and NCA Revenue as necessary
to make debt service payments on CFCFA/NCA Debt, and the construction, operation and
maintenance of the Community Facilitates.
Completion Guaranty – The Developer and Principals shall have executed and delivered to
the City the Completion Guaranty substantially in the form of the completion guarantees for
Bridge Park, with each Completion Guaranty evidencing guaranty of completion of no less
than the Commercial Improvements and Community Facilities.
Permits and Construction Contracts – The Developer shall have obtained the required permits
necessary for the Commercial Improvements and Community Facilities. The Developer shall
have provided fully executed copies of the guaranteed maximum or fixed price construction
contracts for the construction of the Commercial Improvements and Community Facilities.
Hotel Brand Confirmation – The Developer shall have secured and submitted to the City, and
the City shall have approved, the branding and operator for the hotel that is part of the
Private Improvements. Unless otherwise approved by the City, the hotel shall be branded as
a Marriott Autograph with a minimum development budget of $300,000 per guest room.
Plan for Parcel 273-008269 – The Development Site constitutes a portion of current Franklin
County tax parcel 273-008269. The Developer shall have prepared and submitted a master
plan for reference for the remainder of that parcel in conjunction with the Concept Plan for
the Development Site. This master plan, among other things, shall illustrate the Developer’s
redevelopment plans for that parcel and the functional interrelationships between the Project
and the improvements to be made to that parcel as part of its redevelopment.
Service Agreement. The Service Agreement shall be effective and shall have been recorded
against the real property comprising the Development Site, prior to all mortgages or other
liens or encumbrances except those approved by the City.
Construction Agency Agreement for Community Facilities – CFCFA or Bridge Park NCA and
the Developer shall have entered into the Construction Agency Agreement.
Public Parking Covenant – Block Owner and owner of the Community Facilities have executed
and recorded a covenant running with the land in favor of City for the Parking Facilities. Such
covenant shall provide that all parking spaces in the Parking Facilities, except those reserved
as described in Section 4.5, shall be held open to the public and subject to parking charges,
if any, as provided in the applicable Operation and Maintenance Agreement or as otherwise
approved by City. Such covenant shall be prior to all mortgages or other liens or
encumbrances except those approved by the City.
Closing Opinions - On the Closing Date, the Developer and Block Owner will provide to City
(i) a certificate confirming the representations of the Developer or Block Owner set forth in
this Agreement or in any of the other Project Agreements and (ii) an opinion of Developer’s
and Block Owner’s counsel, subject to customary assumptions, qualifications and limitations,
confirming that the Project Agreements to which the Developer or Block Owner is a party
Memo re. Ordinance No. 67-23 – Y Block Development – Crawford Hoying Development Partners
November 21, 2023
Page 6 of 6
(either as a named party or by acceptance of fee title to all or any of the Development Site)
have been duly authorized, executed and delivered by the Developer and Block Owner and
constitutes the legal, valid and binding obligation of the Developer and Block Owner
enforceable in accordance with its terms and that neither the entry into nor the performance
of and compliance with those Project Agreements have resulted or will result in any violation
of, or a conflict with or a default under, any judgment, decree, order, contract or agreement
by which the Developer or Block Owner is bound and any legal requirement applicable to the
Developer or Block Owner.
Financial Benefits
The redevelopment of this site will confer substantial benefits, including additional jobs and revenues,
upon the City and its constituents, while encouraging continued redevelopment in the surrounding
area. The Y Block Project is anticipated to provide the following financial benefits to the City of Dublin
over the 30-year term of the TIF:
• ~$16 million in projected income taxes from Y Block Office over 30 years (~$540,000 annually)
• >$20 million in projected City bed taxes from Y Block Hotel (6% rate) over 30 years (>$660,000
annually)
• ~$2.1 million in projected income taxes from Y Block Hotel over 30 years ($70,000 annually)
• ~$8 million in excess TIF revenues from Y Block
Recommendation
Staff recommends approval of Ordinance No. 67-23 at the second reading/public hearing on
December 11, 2023.
Draft November 16, 2023
DEVELOPMENT AGREEMENT
by and between
CITY OF DUBLIN, OHIO
and
CRAWFORD HOYING DEVELOPMENT PARTNERS, LLC
relating to
______________________________________________________
Y BLOCK DEVELOPMENT
______________________________________________________
dated as of
___________, 2023
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS AND INTERPRETATION ........................................................ 3
1.1. Definitions.............................................................................................................. 3
1.2. Interpretation ........................................................................................................ 10
SECTION 2. GENERAL AGREEMENT AND TERM ......................................................... 11
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES ................. 11
3.1. City Representations and Warranties ................................................................... 11
3.2. Developer Representations and Warranties ......................................................... 12
SECTION 4. TRANSFERS OF REAL PROPERTY; COMMUNITY
ENTERTAINMENT DISTRICT; OPEN SPACE REQUIREMENTS ............ 14
4.1. Conveyance of Real Property Relating to 5709.41 TIF Ordinance ..................... 14
4.2. Transfer of Community Facilities Property ......................................................... 14
4.3. Community Entertainment Districts .................................................................... 14
4.4. Open Space Requirements ................................................................................... 14
SECTION 5. COMMERCIAL IMPROVEMENTS ............................................................... 14
SECTION 6. COMMUNITY REINVESTMENT AREA AGREEMENTS ........................... 15
SECTION 7. PUBLIC IMPROVEMENTS ............................................................................ 15
7.1. Community Facilities ........................................................................................... 15
7.2. City Financial Obligations ................................................................................... 16
SECTION 8. TAX INCREMENT FINANCING .................................................................... 17
8.1. TIF Ordinances .................................................................................................... 17
8.2. Application of Service Payments ......................................................................... 17
8.3. Minimum Service Payments ................................................................................ 17
SECTION 9. NEW COMMUNITY AUTHORITY ................................................................ 17
9.1. General ................................................................................................................. 17
9.2. NCA Charge......................................................................................................... 17
9.3. Application of NCA Revenues ............................................................................ 18
SECTION 10. INCENTIVE CONTINGENCIES ..................................................................... 18
10.1. Public Improvement Plans ................................................................................... 18
10.2. Public Improvement Scope and Budget ............................................................... 18
10.3. Disbursement Schedule ........................................................................................ 19
10.4. Community Facilities Property ............................................................................ 19
10.5. CFCFA/NCA Debt............................................................................................... 19
10.6. Commercial Budget ............................................................................................. 19
10.7. Proforma .............................................................................................................. 19
10.8. Loan; Loan Funding Contingencies ..................................................................... 19
10.9. Equity Investment ................................................................................................ 19
TABLE OF CONTENTS
(continued)
Page
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10.10. Operation and Maintenance Agreement .............................................................. 20
10.11. NCA Declaration ................................................................................................. 20
10.12. Environmental Reports ........................................................................................ 20
10.13. Cooperative Agreement ....................................................................................... 20
10.14. Completion Guaranty ........................................................................................... 20
10.15. Permits and Construction Contracts..................................................................... 20
10.16. Hotel Brand Confirmation ................................................................................... 20
10.17. Plan for Parcel 273-008269 ................................................................................. 21
10.18. Service Agreement ............................................................................................... 21
10.19. Construction Agency Agreement for Community Facilities ............................... 21
10.20. Public Parking Covenant...................................................................................... 21
10.21. Closing Opinions ................................................................................................. 21
SECTION 11. EVENTS OF DEFAULT AND REMEDIES .................................................... 21
11.1. Developer Default ................................................................................................ 21
11.2. Remedies for Developer Default ......................................................................... 22
11.3. City Default .......................................................................................................... 23
11.4. Remedies for City Default ................................................................................... 23
11.5. Default Notices .................................................................................................... 23
11.6. Enforcement ......................................................................................................... 24
11.7. Self-Help .............................................................................................................. 24
11.8. Interest .................................................................................................................. 24
11.9. Costs of Enforcement ........................................................................................... 24
SECTION 12. INDEMNIFICATION ....................................................................................... 24
SECTION 13. MISCELLANEOUS .......................................................................................... 25
13.1. Estoppel Certificates ............................................................................................ 25
13.2. Administrative Actions ........................................................................................ 26
13.3. Recording ............................................................................................................. 26
13.4. Confidentiality ..................................................................................................... 26
13.5. Authorized Officers ............................................................................................. 26
13.6. Assignment .......................................................................................................... 26
13.7. Binding Effect ...................................................................................................... 26
13.8. Captions ............................................................................................................... 26
13.9. Day for Performance ............................................................................................ 26
13.10. Entire Agreement ................................................................................................. 27
13.11. Executed Counterparts ......................................................................................... 27
13.12. Extent of Covenants; No Personal Liability ........................................................ 27
13.13. Governing Law .................................................................................................... 27
13.14. Notices ................................................................................................................. 27
13.15. No Waiver ............................................................................................................ 28
13.16. Ohio Laws ............................................................................................................ 28
13.17. Recitals ................................................................................................................. 28
TABLE OF CONTENTS
(continued)
Page
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13.18. Severability .......................................................................................................... 28
13.19. Survival of Representations and Warranties ........................................................ 28
13.20. Time of the Essence. Time is of the essence of this Agreement.......................... 28
13.21. Construction ......................................................................................................... 28
13.22. Successors and Assigns........................................................................................ 29
13.23. Exhibits ................................................................................................................ 29
13.24. Diligent Performance ........................................................................................... 29
13.25. No Partnership ..................................................................................................... 29
Exhibits:
Exhibit A – Conceptual Development Plan
Exhibit B – Depiction and Description of the Community Facilities
Exhibit C – [Reserved]
Exhibit D – Disbursement Requirements
Exhibit E – Application of Service Payments and NCA Revenue
- 1 -
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (the “Agreement”) is made and entered into as of
____________, 2023 (the “Effective Date”), by and between the CITY OF DUBLIN, OHIO (the
“City”), a municipal corporation duly organized and validly existing under the Constitution and
the laws of the State of Ohio and its Charter, and CRAWFORD HOYING DEVELOPMENT PARTNERS,
LLC (the “Developer”), an Ohio limited liability company, for itself and its permitted successors
and assigns and any Affiliates (the capitalized terms not defined in the recitals are being used
therein as defined in Section 1).
W I T N E S S E T H:
WHEREAS, the City has prepared a strategy for comprehensive redevelopment within an
area of the City generally known as the Bridge Street District and that strategy was effected by the
approval of the Bridge Street District Area Plan therefor by the City on July 1, 2013; and
WHEREAS, after extensive planning, study and analysis the City has determined that the
successful implementation of the Bridge Street District Area Plan for the Bridge Street District is
essential to the long term economic health and competitiveness of the City, and that
implementation of that Bridge Street District Area Plan along the Scioto River Corridor portion of
the Bridge Street District should be among the City’s highest implementation priorities; and
WHEREAS, in order to encourage the safety and functionality of the Riverside Drive-State
Route 161 intersection, address critical transportation needs of the City, and allow for the
establishment of a park along the east bank of the Scioto River, the City has undertaken substantial
public improvement projects to relocate Riverside Drive and replace the intersection of Riverside
Drive and State Route 161 with a traffic roundabout; and
WHEREAS, the City has completed further substantial public improvement projects within
the Bridge Street District to provide services and facilities to serve all residents of Dublin
including, without limitation, construction of public parks along both sides of the Scioto River and
construction of a pedestrian bridge over the Scioto River, as part of the City’s approved Capital
Improvement Plan; and
WHEREAS, as a result, in part, of the City’s public improvements, including the relocation
of Riverside Drive, the establishment of the public park and construction of the pedestrian bridge,
the Developer has presented to the City its plan to develop a mixed-use development project,
including residential units, commercial and retail spaces, hotel and community events/conference
facilities, and public parking and related public improvements situated on the southeast quadrant
of Riverside Drive and State Route 161 within the Bridge Street District and the City, being more
particularly described in this Agreement as the Project to be constructed upon the Development
Site; and
WHEREAS, the City has determined that the Developer’s proposed development plan is
consistent with the City’s plan for the Bridge Street District and is located within Scioto River
Corridor portion of the Bridge Street District, the highest priority redevelopment area of the
District; and
- 2 -
WHEREAS, the Developer is desirous of the City providing public support for the Project
by including the Development Site within the Bridge Park NCA, granting real property tax
abatements and tax increment financing incentives, and by providing certain financing to support
the Community Facilities, all as further described herein (collectively, the “Incentives”); and
WHEREAS, this Agreement sets forth the conditions precedent to the delivery by the City
of the Incentives (the “Incentive Contingencies”); and
WHEREAS, the Developer shall construct the Project in accordance with all laws with
diligence to completion within 36 months of satisfaction of all Incentive Contingencies with
respect to the Project, except as otherwise provided herein; and
WHEREAS, the redevelopment of the Development Site will confer substantial benefits,
including additional jobs and revenues, upon the City and its constituents, while encouraging
significant redevelopment in the surrounding area; and
WHEREAS, the City desires to facilitate the redevelopment of the Development Site to
provide for new and needed residential housing options, walkable commercial and retail spaces,
new types of urban office environments, larger community event/conference facilities to meet the
growing needs of local residents and Dublin businesses, and public parking and related public
improvements within the Bridge Street District, and has determined to provide for the Incentives,
upon satisfaction of the Incentive Contingencies, to facilitate the construction of the Parking
Facilities as well as the overall redevelopment of the Development Site; and
WHEREAS, the City has endeavored to work collaboratively with public entities, including
but not limited to the Dublin City School District and the Tolles Career and Technical Center, to
plan for and facilitate the development of the Bridge Street District, and in furtherance of that
effort, the City has entered into a Compensation Agreement with each of those school districts
which permits the City to create tax increment financing areas and incentive districts from time to
time and offer real property tax abatements within the Bridge Street District; and
WHEREAS, the City Council expects to pass the 5709.41 TIF Ordinance, which ordinance
will declare that 100% of the increase in the assessed value of the Development Site will be a
public purpose and exempt from taxation in accordance with the requirements of the TIF Statutes;
and
WHEREAS, the TIF Ordinance provides or will provide that the owners of the Development
Site will make Service Payments with respect to the Development Site; and
WHEREAS, the City passed the CRA Ordinance (Ordinance No. 33-15) on May 4, 2015
which established the Bridge Park CRA and will generally make provision for exemptions from
real property taxation of up to 100% of the assessed valuation of a new structure or remodeling of
an existing structure located within the Bridge Street District CRA for a period of up to fifteen
years; and
WHEREAS, the City heretofore passed the NCA Ordinance (Ordinance No. 25-15) on March
19, 2015, which provided for the creation of the Bridge Park NCA within the Development Site in
accordance with the requirements of the NCA Act; and
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WHEREAS, the Developer will provide certain guarantees to the City and will secure unto
the City the timely performance of Developer’s obligations under the Agreement, and completion
of the Project, in accordance with the terms of this Agreement; and
WHEREAS, the City and the Developer desire to enter into this Agreement to provide for
the construction of the Community Facilities, the development of the Project, the collection of the
Service Payments, Minimum Service Payment and the NCA Charges, and to memorialize their
mutual understandings with regard to the manner in which the Development Site, the Commercial
Improvements and the Public Improvements will be developed; and
WHEREAS, this Agreement is deemed vital to the design, development and construction of
the Project; and
WHEREAS, the Developer represents that it has the requisite expertise, capability and access
to financial resources to carry out its obligations under this Agreement and fully develop the
Project as described herein, and represents and warrants that it will at all times devote sufficient
time and resources to carry out its obligations hereunder and fully develop the Project; and
WHEREAS, the City Council passed Ordinance No. [__]-23 on _________, 2023,
determining that the development of the Project on the Development Site as described herein will
confer substantial benefits, including additional jobs, tourism and revenues, upon the City and its
constituents, while encouraging significant development in the surrounding area; approving the
form of this Agreement, and authorizing the City Manager to execute this Agreement on behalf of
the City and to take or cause to be taken all necessary and proper actions to effectuate the intent of
the Agreement; and
NOW, THEREFORE, in consideration of the promises and covenants contained herein, and
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by the Parties, the Parties acknowledge and affirm the foregoing and agree as follows:
Section 1. Definitions and Interpretation.
1.1. Definitions. In addition to the words and terms defined elsewhere in this
Agreement or by reference to another document, the words and terms set forth herein have the
meanings set forth in this Section 1 unless the context or use clearly indicates another meaning or
intent. As used herein:
“5709.41 TIF Ordinance” means the ordinance to be passed by City Council pursuant to
Ohio Revised Code Section 5709.41 which will declare that 100% of the increase in the assessed
value of the commercial portions of the Development Site subsequent to acquisition of that
property by City to be a public purpose and exempt from taxation in accordance with the
requirements of Ohio Revised Code Sections 5709.41, 5709.42 and 5709.43 (collectively, the
“5709.41 TIF Statute”).
“Affiliate” means a corporation, limited liability company, partnership or other entity
controlled by, controlling or under common control with the Developer or a Block Owner. For
purposes of this definition, “control” means the power to direct or cause the direction of
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management and policies of the entity, whether through the ownership of ownership interests in
the entity, by contract or otherwise.
“Agreement” means this Development Agreement by and between the City and the
Developer and dated as of the Effective Date, including all Exhibits, as the same may be amended
from time to time.
“Block Owner” means, individually, the owner of record of the fee interest in all or any
portion of the Development Site and, collectively, all owners of record of the fee interest in the
Development Site, in each case other than City, CFCFA or another governmental entity.
“Bridge Park NCA” means the Bridge Park New Community Authority created pursuant
to the NCA Ordinance and the NCA Petition.
“Bridge Street District” means an area located within the City, consisting of approximately
1,100 acres and generally bounded by I-270, West Dublin-Granville Road and Sawmill Road, as
more specifically delineated in the BSD Zoning Regulations.
“Bridge Street District Area Plan” means the Special Area Plan for the Bridge Street
District within the Dublin Community Plan as adopted by City Council on July 1, 2013, as
amended.
“Bridge Street District CRA” means the Bridge Street District Community Reinvestment
Area as created by the CRA Ordinance and approved by the Ohio Development Services Agency
on June 9, 2015.
“BSD Zoning Regulations” means the zoning regulations for the Bridge Street District
which are codified in Chapter 153 of the City’s Code of Ordinances and are applicable to the
development of the Development Site.
“CFCFA” means the Columbus-Franklin County Finance Authority, a duly constituted
Ohio Port Authority.
“CFCFA/NCA Debt” means up to $35,000,000 in aggregate principal amount of debt
issued by CFCFA or Bridge Park NCA to provide funding for costs of the Community Facilities,
or such higher amount as approved by City.
“City” means the City of Dublin, Ohio, an Ohio municipal corporation.
“City Council” means the City Council of City.
“City Parking Facility Funding” has the meaning assigned to it in Section 7.2.2.
“Closing Date” means the date on which the Loan funding the Commercial Improvements
closes in accordance with the applicable Loan Documents for the Loan.
“Commercial Budget” means the budget of Commercial Costs submitted by Developer to
City as contemplated by Section 10.6.
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“Commercial Costs” means the hard and soft costs of developing the Commercial
Improvements as necessary to obtain a certificate of occupancy for the Commercial Improvements,
including the costs of acquiring the Development Site and the costs of designing, financing,
constructing and equipping the Commercial Improvements, including commercially reasonable
contingency amounts and development fees but excluding the Public Improvement Costs.
“Commercial Improvements” means approximately 90,000 square feet of class A office
space, an upscale (e.g. 5-star) hotel with approximately 115 guest rooms, approximately 14,000
square feet of commercial retail and restaurant space and approximately 60 residential rental
apartment units, together with related site amenities, as generally depicted on the Conceptual
Development Plan. Commercial Improvements do not include any Public Improvements.
“Commercial Property” means that portion of the Development Site upon which the
Commercial Improvements will be constructed as identified in the Conceptual Development Plan.
“Community Facilities” means the Parking Facilities. The Developer may propose, and
the City may approve in its sole discretion, additional public improvements that may be funded by
the CFCFA/NCA Debt if and to the extent that proceeds of that debt exceed the Public
Improvements Costs of the Parking Facilities.
“Community Facilities Property” means that portion of the Development Site or other
property upon which all or a portion of the Community Facilities will be constructed, as identified
in the Conceptual Development Plan or otherwise by the City and Developer.
“Community Plan” means the key policy guide for decision-making about the City’s built
and natural environments, containing detailed recommendations for future development including
the appropriate location and density or intensity of residential and commercial uses; the general
location and character of roads; the general location of parks, open space and public buildings; and
the general sites for and extent of public water and sanitary sewer utilities.
“Completion Guarantors” means the Developer and the Principals.
“Completion Guaranty” means the Completion Guaranty by the Completion Guarantors
for the benefit of the City in substantially the form of the Completion Guaranty for Block C, in
each case guaranteeing Developer’s timely performance of its obligations under this Agreement,
including, without limitation, the timely completion of the Commercial Improvements and the
Community Facilities.
“Conceptual Development Plan” means the conceptual plan for the Project attached as
EXHIBIT A, as the same may be modified by the Developer with City’s consent. The Developer
will be required to follow and fulfill all of the BSD Zoning Regulations and related processes in
order to implement this conceptual plan.
“Construction Agency Agreement” means the Construction Agency Agreement or
Construction Manager at Risk Agreement between CFCFA or Bridge Park NCA and the Developer
or its Affiliate pertaining to the construction of the Community Facilities, as the same may be
amended from time to time pursuant to its terms.
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“Construction Commencement Deadline” means the date that is two calendar years after
the Effective Date.
“Cooperative Agreement” means the Tax Increment Financing and Cooperative
Agreement by and among the City, the Bridge Park NCA and, unless otherwise approved by City,
the CFCFA, pursuant to which CFCFA or Bridge Park NCA will construct, operate and maintain
the Community Facilities, and City and Bridge Park NCA will provide for the collection and
distribution of Service Payments and NCA Revenue, as the same may be amended from time to
time pursuant to its terms.
“CRA Agreement” means the Community Reinvestment Area Agreement dated as of the
Effective Date and provided for in Section 6.
“CRA Ordinance” means Ordinance No. 33-15 passed by the City Council on May 4,
2015, which created the Bridge Street District CRA and generally makes provision for exemptions
from real property taxation of up to 100% of the assessed valuation of a new structure or
remodeling of an existing structure located within the Bridge Street District CRA for a period of
up to 15 years (each a “CRA Exemption”), all in accordance with the requirements of Ohio Revised
Code Sections 3735.65 et seq. (collectively, the “CRA Statute”).
“Default Notice” has the meaning given in Section 11.
“Developer” means Crawford Hoying Development Partners, LLC, a limited liability
company organized and existing under the laws of the State, including any successors or assigns
thereof permitted under this Agreement.
“Developer Default” has the meaning given in Section 11.
“Development Site” means the real property on which the Commercial Improvements and
the Community Facilities will be located as depicted on the Conceptual Development Plan.
“Director of Finance” means the Director of Finance of the City.
“Disbursement Schedule” has the meaning given in Section 10.3.
“Dublin CSD” means the Dublin City School District, Ohio.
“Effective Date” means the date defined as such in the introductory paragraph of this
Agreement.
“Engineer” means the City Engineer, or any architectural or engineering firm licensed to
perform engineering services within the State and appointed by the City.
“Environmental Laws” means any federal, state, local, municipal, foreign, international,
multinational or other applicable constitutions, laws, ordinances, principles of common law,
regulations, statutes or treaties designed to minimize, prevent, punish or remedy the consequences
of actions that damage or threaten the environment or public health and safety, including, without
limitation, all applicable federal, state and local environmental, land use, zoning, health, chemical
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use, safety and sanitation laws, statutes, ordinances and codes relating to the protection of the
environment and/or governing the use, storage, treatment, generation, transportation, processing,
handling, production or disposal of Hazardous Substances, and the rules, regulations, policies,
guidelines, interpretations, decisions, orders and directives of federal, state and local governmental
agencies and authorities with respect thereto, including, without limitation, CERCLA.
“Equity Investment” means, with respect to the Commercial Costs and the Public
Improvement Costs not anticipated to be paid from Public Funding, the capital contributions to the
Developer, Block Owner or their Affiliates to finance the portion of such costs not anticipated to
be financed by the Loan.
“Equity Investment Documents” means the documents evidencing one or more binding
commitments issued by one or more investors to the Developer, Block Owner or their Affiliates
to provide the Equity Investment.
“Force Majeure” means acts of God; fires; epidemics; landslides; floods; strikes; lockouts
or other industrial disturbances; acts of public enemies; acts or orders of any kind of any
governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or
malfunctions of or accidents to machinery, transmission pipes or canals; partial or entire failures
of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes,
hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive
precipitation; or any other cause or event not reasonably within the control of the Developer or the
City, as the case may be, excluding, however, the inability of the Developer to obtain financing
for its obligations hereunder.
“Governmental Authority” means, collectively, the State, any political subdivision of the
State, any municipality, and any agency, department, commission, board or bureau of any of the
foregoing having jurisdiction over the Project.
“Hazardous Substance” means, without limitation, any flammable explosives, radon,
radioactive materials, asbestos, urea formaldehyde foam insulation, urban fill/soil, polychlorinated
biphenyls, petroleum and petroleum products, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials as defined in CERCLA, the Hazardous Materials
Transportation Act, as amended (49 U.S.C. §§1801, et seq.), RCRA, or any other applicable
Environmental Law and in the regulations adopted pursuant thereto.
“Incentives” mean, collectively, the real property tax abatements set forth in the CRA
Agreements, the Public Funding for the Public Improvements, and the TIF Ordinances and the
Service Payments collected thereto and applied pursuant to Section 8.
“Incentive Contingencies” has the meaning given in Section 10.
“Issuance Costs” means all costs incident to the issuance of the CFCFA/NCA Debt,
including underwriting fees or discounts, bond counsel fees, and other usual and customary fees
incurred in connection with the issuance of municipal debt.
“Legal Requirements” means all applicable laws, statutes, ordinances, rules and
regulations of Governmental Authorities.
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“Lender” means the bank or banks providing the Loan for a portion of the Commercial
Costs.
“Loan” means one or more loans made by one or more lenders to the Developer and/or its
Affiliates to finance a portion of the Commercial Costs.
“Loan Documents” means the documents evidencing, securing and/or executed for the
benefit of the Lender in connection with the Loan.
“Minimum Service Payments” means the minimum service payments to be made to the
City in lieu of taxes on each parcel of Commercial Property as further defined and described in
Section 8.3 and the Service Agreement.
“NCA Act” means Ohio Revised Code Chapter 349.
“NCA Charge” means the community development charges which will be levied and
collected by the Board of Trustees of the Bridge Park NCA from time to time and used for the
purpose of paying the costs of various community facilities and community services, as further
defined in Section 8.
“NCA Declaration” means the declaration of covenants recorded against the Commercial
Property and providing for the collection of the NCA Charge from such property.
“NCA Ordinance” means Ordinance No. 25-15 passed by the City Council on March 19,
2015, which created the Bridge Park NCA in accordance with the requirements of the NCA Act.
“NCA Petition” means the Petition for Organization of a New Community Authority dated
February 17, 2015, relating to the creation of the Bridge Park NCA, as amended from time to time.
“NCA Revenue” means all income received by or on behalf of the Bridge Park NCA from
the Development Site, including all NCA Charge income and income from the operation of the
Community Facilities.
“Operation and Maintenance Agreement” means the Operation and Maintenance
Agreement for the Community Facilities to be entered into by and among the CFCFA and/or
Bridge Park NCA, the Developer and the Block Owner, and approved by the City, providing for
the operation, maintenance and capital repair of the Community Facilities, as the same may be
amended from time to time pursuant to its terms. Each Operation and Maintenance Agreement for
Parking Facilities shall be in substantially the form of the Operation and Maintenance Agreement
used for Bridge Park parking facilities, or as otherwise agreed by Developer, Block Owner and
CFCFA or Bridge Park NCA, as applicable, and approved by City.
“Parking Facilities” mean the structured parking facilities and related site improvements
(e.g. retaining walls and surface improvements providing access to the structured parking
facilities) to be located on the Development Site as further described and depicted in the
Conceptual Development Plan and EXHIBIT B.
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“Parties” mean the City and the Developer, with each of the City and the Developer in its
respective individual capacity referred to as a “Party”.
“Principals” means, with respect to the Completion Guaranty, Brent Crawford, Bob
Hoying, and any other entity or individual providing a completion guaranty to the Lender.
“Private Financing” means the Loan and the Equity Investment.
“Project” means, collectively, the Commercial Improvements and Public Improvements,
which will consist generally of a proposed mixed-use development to be constructed by the
Developer upon the Development Site consisting of residential units, office, restaurant and retail
spaces, hospitality and a community event facilities, together with roadway improvements and
parking facilities necessary to accommodate such development, all as further described and
depicted in this Agreement.
“Project Agreements” mean, collectively, this Agreement, the Service Agreement, the
Operation and Maintenance Agreement, the Construction Agency Agreement, the NCA
Declaration, the Completion Guaranty, and any other agreement or document between City and
Developer with respect to the Project, with each such agreement or document referred to
individually as a “Project Agreement.”
“Public Funding” means the net proceeds of the CFCFA/NCA Debt available to pay
Public Improvement Costs.
“Public Improvements” means the Parking Facilities. The Developer may propose, and
the City may approve in its sole discretion, additional public improvements that may be funded by
the CFCFA/NCA Debt if and to the extent that proceeds of that debt exceed the Public
Improvements Costs of the Parking Facilities.
“Public Improvement Budget” means the budget of Public Improvement Costs prepared
and approved as contemplated by Section 10.2.
“Public Improvement Costs” means the costs of designing, constructing and equipping the
Public Improvements as approved by the City, including, without limitation, the categories of costs
for permanent improvements set forth in Section 133.15, Ohio Revised Code, but excluding real
property acquisition costs, Issuance Costs, debt service reserves and capitalized interest on the
Public Party Debt.
“Public Improvement Plans” means the detailed final working drawings and specifications
and addenda thereto for the construction of the Public Improvements.
“Public Parties” means the City, the NCA and the CFCFA, together with any other public
issuers within the State of Ohio that may provide funding through investment grade bond funds.
“Public Party Debt” means any debt issued by a Public Party to finance the Public Funding
and to pay any Issuance Costs, debt service reserves and capitalized interest.
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“Service Agreement” means the Service Agreement by and between the Developer, any
Block Owner and the City, as the same may be amended from time to time pursuant to its terms,
establishing covenants running with each parcel of the Commercial Property and providing for the
collection of Service Payments and Minimum Service Payments for that parcel, the parcel owner’s
obligations regarding the operation, maintenance and capital repair of the Commercial
Improvements, and other matters provided therein.
“Service Payments” means service payments in lieu of taxes which will be paid by the
owners of the Commercial Property pursuant to and in accordance with Ohio Revised Code
Section 5709.42.
“State” means the State of Ohio.
“TIF Ordinance” means the 5709.41 TIF Ordinance.
“TIF Statutes” means, collectively, Ohio Revised Code Sections 5709.41, 5709.42 and
5709.43.
1.2. Interpretation.
1.2.1. Any reference in this Agreement to City or to any officers of City includes
those entities or officials succeeding to their functions, duties or responsibilities pursuant to or by
operation of law or lawfully performing their functions.
1.2.2. Any reference to a section or provision of the Constitution of the State, or a
section, provision or chapter of the Revised Code includes the section, provision or chapter as
modified, revised, supplemented or superseded from time to time; provided, that no amendment,
modification, revision, supplement or superseding section, provision or chapter will be applicable
solely by reason of this paragraph if it constitutes in any way an impairment of the rights or
obligations of any Party under this Agreement.
1.2.3. No presumption will apply in favor of any Party in the interpretation of this
Agreement or in the resolution of any ambiguity of any provision hereof.
1.2.4. Unless the context indicates otherwise, words importing the singular number
include the plural number, and vice versa; the terms “hereof”, “hereby”, “herein”, “hereto”,
“hereunder” and similar terms refer to this Agreement; and the term “hereafter” means after, and
the term “heretofore” means before, the date of this Agreement. Words of any gender include the
correlative words of the other gender, unless the sense indicates otherwise. References to articles,
sections, subsections, clauses, exhibits or appendices in this Agreement, unless otherwise
indicated, are references to articles, sections, subsections, clauses, exhibits or appendices of this
Agreement.
1.2.5. The captions and headings in this Agreement are solely for convenience of
reference and in no way define, limit or describe the scope of the intent of any article, section,
subsection, clause, exhibit or appendix of this Agreement.
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1.2.6. Any references herein to exhibits which are attached hereto shall be intended
to incorporate the information contained on such exhibit at the point of such reference.
Section 2. General Agreement and Term. For the reasons set forth in the Recitals
hereto, which Recitals are incorporated herein by reference as a statement of the public purposes
of this Agreement and the intended arrangements between the Parties, the Parties shall cooperate
in the manner described herein to facilitate the construction of the Project in a manner consistent
with the objectives of the Bridge Street District Area Plan, included in the Community Plan and
the BSD Zoning Regulations. The Developer acknowledges that the City has adopted the BSD
Zoning Regulations and various other development and construction regulations which are
codified in the City’s Code of Ordinances and are applicable to the development of the Project and
agrees, except as provided in Sections 4.8 and 4.10, that it will be required to follow and fulfill all
of the BSD Zoning Regulations and related processes. The Developer agrees that the Project will
be constructed in a manner which is consistent with generally accepted construction industry
standards and guidelines applicable to similar projects and in conformity with installation
guidelines as may be recommended by the various manufacturers of the building materials. If any
portion of the Project does not meet the requirements of the BSD Zoning Regulations, the
Developer acknowledges that it will be required to obtain the applicable City approvals for such
portion(s) of the Project through the appropriate reviewing body or reconstruct the portion of the
Project that does not meet said requirements.
As the Developer develops the Project, the Commercial Costs and, except to the extent the
Public Parties provide the Public Funding as described herein, the Public Improvement Costs shall
be paid solely and exclusively from funding obtained by the Developer. The City will provide
certain Incentives, which are based on the Commercial Improvements to be made, the Commercial
Budget and market rent conditions, and which are conditioned upon the satisfaction of certain
Incentive Contingencies, all as provided herein.
This Agreement shall become effective as of the Effective Date and terminates (a) if the
Incentive Contingencies have not been met before the Construction Commencement Deadline,
upon written notice delivered by City to Developer, or (b) on such earlier date as may be
determined pursuant to Section 11 or mutually agreed by the Parties; provided, however, the
following provisions shall survive any termination of this Agreement: (i) the provisions of Section
12, and (ii) the provisions of Sections 1, 4.11, 11 and 13.
Section 3. Representations and Warranties of the Parties.
3.1. City Representations and Warranties. The City represents and warrants as of the
date of delivery of this Agreement that:
3.1.1. It is a municipal corporation and political subdivision duly organized and
validly existing under the Constitution and laws of the State of Ohio and its Charter.
3.1.2. It is not in violation of or in conflict with any provisions of the laws of the
State or of the United States of America applicable to City which would impair its ability to carry
out its obligations contained in this Agreement.
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3.1.3. It is legally empowered to execute, deliver and perform this Agreement and
to enter into and carry out its obligations contemplated by this Agreement. Execution, delivery
and performance by City do not and will not violate or conflict with any provision of law applicable
to City, including its Charter, and do not and will not conflict with or result in a default under any
agreement or instrument to which City is a party or by which it is bound wherein a violation,
conflict or default would materially and adversely affect the City’s ability to carry out its
obligations under this Agreement.
3.1.4. This Agreement has, by proper action, been duly authorized, executed and
delivered by City and all steps necessary to be taken by City have been taken to constitute this
Agreement, and the obligations of City contemplated herein are legal, valid and binding
obligations of City, enforceable in accordance with their terms, except as limited by applicable
relief, liquidation, conservership, bankruptcy, moratorium, rearrangement, insolvency,
reorganization or similar laws affecting the rights or remedies of creditors generally, as in effect
from time to time.
3.1.5. There is no litigation pending or, to the knowledge of the individuals signing
this Agreement on behalf of the City, threatened against or by the City wherein an unfavorable
ruling or decision would materially and adversely affect the City’s ability to carry out its
obligations under this Agreement.
3.1.6. It will do all things in its power that are reasonable and necessary in order to
maintain its existence and assure the assumption of its obligations under this Agreement by any
successor public body.
3.2. Developer Representations and Warranties. The Developer represents and warrants
as of the date of delivery of this Agreement and as of the date of each disbursement of Public
Funding that:
3.2.1. It is a limited liability company duly organized and validly existing and in
full force and effect under the laws of the State, and has power to do business in the State.
3.2.2. It is not in violation of or in conflict with any provisions of the laws of the
State or of the United States of America applicable to the Developer that would impair its ability
to carry out its obligations contained in this Agreement.
3.2.3. It is legally empowered to execute, deliver and perform this Agreement and
to enter into and carry out the transactions contemplated by this Agreement. That execution,
delivery and performance do not and will not violate or conflict with any provision of law
applicable to the Developer, and do not and will not conflict with or result in a default under any
agreement or instrument to which the Developer is a party or by which it is bound. Neither the
execution and delivery of this Agreement or any Project Agreement to which the Developer, Block
Owner or an Affiliate of the Developer is a party, nor consummation of any of the transactions
herein or therein contemplated nor compliance with the terms and provisions hereof or thereof will
contravene the organizational documents of the Developer, Block Owner or of its Affiliate nor any
laws to which Developer or its Affiliate is subject, or any judgment, decree, license, order or permit
applicable to the Developer, or will conflict with or be inconsistent with, or result in any breach of
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any of the terms of the covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of a lien upon any of the property or assets of the Developer,
Block Owner or its Affiliates pursuant to the terms of, any indenture, mortgage, deed of trust,
agreement or other instrument to which the Developer, Block Owner or any of its Affiliates is a
party or by which Developer or any Affiliate is bound, or to which Developer, Block Owner or
any Affiliate is subject.
3.2.4. This Agreement has, by proper action, been duly authorized, executed and
delivered by the Developer and all steps necessary to be taken by the Developer have been taken
to constitute this Agreement, and the covenants and agreements of the Developer contemplated
herein are valid and binding obligations of the Developer, enforceable in accordance with their
terms. The execution, delivery and performance by the Developer, Block Owner or any of their
Affiliates of the Project Agreements to which it is a Party are within the Developer’s, Block
Owner’s and the Affiliate’s powers, respectively, and have been duly authorized by all necessary
action of the Developer, Block Owner and their Affiliates. The individual executing this
Agreement on behalf of the Developer or any of the Project Agreements on behalf of the
Developer, Block Owner or any Affiliate has been duly authorized to act for and to bind that party
to its terms. No consent, authorization, approval, order or other action by, and no notice to or
filing with, any court or Governmental Authority or regulatory body or third party, is required for
the execution, delivery and performance by Developer of this Agreement or by Developer, Block
Owner or any Affiliate of the Project Agreements to which it is a party.
3.2.5. There is no litigation pending or, to the knowledge of the Developer,
threatened against or by the Developer, Block Owner or any Affiliate wherein an unfavorable
ruling or decision would materially and adversely affect the Developer’s ability to carry out its
obligations under this Agreement.
3.2.6. It is in compliance with State of Ohio campaign financing laws contained in
Ohio Revised Code Chapter 3517.
3.2.7. No event has occurred and no condition exists with respect to it that would
constitute a Developer Default under this Agreement or that, with the lapse of time or with the
giving of notice or both, would constitute a Developer Default under this Agreement.
3.2.8. It will comply with all laws and regulations (including, without limitation,
zoning and permitting laws and regulations) applicable to its development of the Development Site
and the Project, as applicable.
3.2.9. Developer is currently in compliance with, and not currently in violation of,
any provisions of Ohio Revised Code Section 2921.42 that may be applicable to it, and (ii) will
take no action inconsistent with those laws, as any of them may be amended or supplemented from
time to time.
3.2.10. Developer is not aware of any finding for recovery having been issued
against it or any Block Owner or Affiliate by the Auditor of the State of Ohio which is
“unresolved”.
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Section 4. Transfers of Real Property; Community Entertainment District; Open
Space Requirements.
4.1. Conveyance of Real Property Relating to 5709.41 TIF Ordinance. Solely as it
relates to passage of the 5709.41 TIF Ordinance in furtherance of the City’s urban redevelopment
activities, Developer shall convey to the City title to such portion of the Development Site as may
be necessary and requested by the City from time to time for that purpose via a quitclaim deed and
the City shall accept title thereto. The City shall re-convey to Developer title to that property via a
quitclaim deed one business day following its acceptance of title to that property. The City and
Developer each agree that it will not permit third parties to access such property during the City’s
period of ownership.
4.2. Transfer of Community Facilities Property. Developer shall, on or before the
Closing Date, transfer long term leasehold or fee title to the Community Facilities Property located
to CFCFA or Bridge Park NCA, as appropriate. Such title shall be free and clear of all liens and
encumbrances except for (a) the Service Agreement, (b) the NCA Declaration, (c) the Operation
and Maintenance Agreement, (d) any covenants requested by Developer and acceptable to City to
provide for reserved parking spaces in the Parking Facilities for tenants of the Commercial
Improvements, provided, however, that the total number of reserved spaces shall not exceed eighty
(80) spaces unless otherwise approved by City, and (e) such other encumbrances as approved by
City. Developer shall provide all environmental reports and property surveys as requested by City,
and shall provide a title insurance policy in favor of CFCFA or Bridge Park NCA, each in form
and substance acceptable to City.
4.3. Community Entertainment Districts. The City is hereby committed, and agrees to
use its best efforts, to create one or more Community Entertainment Districts that encompass the
Project.
4.4. Open Space Requirements. The Project will comply with all BSD Zoning
Regulation requirements for open space dedication. Under the BSD Zoning Regulations, a fee-in-
lieu is required for any open space deficiencies.
Section 5. Commercial Improvements. The Developer intends to develop the
Development Site as described in this Agreement and the Conceptual Development Plan attached
as EXHIBIT A. The Developer will develop the Commercial Improvements and the Project in
accordance with all Legal Requirements, including, without limitation, the BSD Zoning
Regulations.
The final Commercial Budget will be delivered by Developer to City in accordance with
Section 10.6. Developer agrees, and each respective Block Owner shall agree in the Service
Agreement, that, unless otherwise approved by City: (i) the hard costs and total costs of the
Commercial Improvements shall be no less than $67,454,390, (ii) it will complete construction of
the Commercial Improvements in accordance with all Legal Requirements and this Agreement
within 36 months of satisfaction of the Incentive Contingencies (subject to extensions of time for
Force Majeure), and (iii) not encumber the Commercial Property with any liens other than those
created by the Project Agreements or the first mortgage securing the Loan and duly and punctually
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pay, perform and observe their respective obligations under the Loan Documents for the Loan until
the completion of all Commercial Improvements and Community Facilities.
Section 6. Community Reinvestment Area Agreements. The City heretofore passed
the CRA Ordinance and created the Bridge Street District CRA, which Bridge Street District CRA
has been approved by the Ohio Development Services Agency. City and Developer (or its
designated Affiliate Block Owner) will enter into one or more CRA Agreements on the Effective
Date collectively providing for real property tax exemptions for the Community Facilities. Each
Block Owner and CFCFA and/or Bridge Park NCA, as necessary or appropriate, will join the
applicable CRA Agreement. The CRA Agreements shall include, among other things, an
acknowledgement by Developer and Block Owner that City may terminate the CRA Agreement if
Developer and Block Owner do not satisfy the Incentive Contingencies by the Construction
Commencement Deadline. The CRA Agreements will provide for a 15 year, 100% real property
tax exemption for the Community Facilities. That exemption will take priority over the real
property tax exemption provided by the TIF Ordinance.
Section 7. Public Improvements. The Parties agree that the following Public
Improvements will benefit and serve the Project and such Public Improvements will be constructed
as follows:
7.1. Community Facilities. The Developer agrees that, working cooperatively with the
Bridge Street NCA and, unless otherwise approved by City, the CFCFA, it will provide for the
financing and construction of the Community Facilities.
7.1.1. Ownership; Contracting. The Community Facilities will be owned by
CFCFA, Bridge Park NCA or such other Ohio political subdivision the determination of which
shall be reasonably approved by the City and must be built in accordance with City approved
designs and City building standards, and pursuant to one or more guaranteed maximum price
construction contracts between the CFCFA, Bridge Park NCA or Developer and qualified
contractors. The Developer will provide construction services in connection with the Community
Facilities pursuant to the Construction Agency Agreement by and between the CFCFA or Bridge
Park NCA and Developer, and the CFCFA or Bridge Park NCA will retain an owner’s
representative to provide construction and disbursement oversight, with the scope of duties for the
owner’s representative further defined in the Cooperative Agreement. The City will be a third
party beneficiary of the Construction Agency Agreement and will have the right to enforce the
obligations of the Developer and CFCFA or Bridge Park NCA thereunder. Except as otherwise
approved by City, all construction contracts for the Community Facilities must contain customary
public contract disbursement, performance bond, payment bond, maintenance bond, warranty,
insurance and indemnity provisions and step-in rights for CFCFA or Bridge Park NCA and City
in the event of default by Developer under the Construction Agency Agreement. All construction
contracts and the Construction Agency Agreement for the Community Facilities must be in form
and substance acceptable to City.
7.1.2. Public Funding and Disbursements. The Community Facilities will be
financed primarily with bonds issued by the CFCFA or the Bridge Park NCA. Developer shall
use its best efforts to place with purchasers the CFCFA/NCA Debt containing the most favorable
interest rates and other terms as possible given then current market conditions, provided that the
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interest rate on any series CFCFA/NCA Debt purchased by Developer or its Affiliates shall not
exceed the lesser of (a) 6.00% per year or (b) the sum of (i) 30-year rate for revenue bonds as
included in the “Bond Buyer Revenue Bond Index” database maintained by The Bond Buyer on
the date immediately preceding the issuance date of the applicable bonds or, if such index is
unavailable, then such other publicly available index or measurement of 30-year high-yield fixed-
rate revenue bonds selected by City and Developer and (ii) 2.00%. Developer shall provide any
credit enhancements necessary for placements it arranges, whether in the form of a letter of credit,
a guaranty, or otherwise. The City may elect to cause another party to place or refund the
CFCFA/NCA Debt; provided, however, the terms of such debt must comply with the terms of the
CFCFA/NCA Debt set forth in the following sentence unless otherwise approved by Developer.
Unless otherwise approved by City, all CFCFA/NCA Debt shall (i) amortize based on substantially
level payments of principal and interest, (ii) permit optional redemption at a redemption price of
par plus accrued interest no later than 10 years after the date of issuance, and (iii) limit Issuance
Costs to 3.50% of the principal amount. All documents related to the CFCFA/NCA Debt must be
in form and substance acceptable to City. Public Funding for the Community Facilities shall be
disbursed pursuant to the requirements of EXHIBIT D and corresponding provisions of the
Cooperative Agreement. The Developer may propose, and the City may approve in its sole
discretion, additional public improvements that may be funded by the CFCFA/NCA Debt if and
to the extent that proceeds of that debt exceed the Public Improvements Costs of the Parking
Facilities.
7.1.3. Operation and Maintenance of Parking Facilities. The Developer and the
applicable Block Owner will enter into and record as a covenant running with the Development
Site an Operation and Maintenance Agreement for the Parking Facilities. The Operation and
Maintenance Agreement will be in substantially the form of the Operation and Maintenance
Agreements entered into for Bridge Park and will include Developer and Block Owner’s covenants
to keep and maintain, or cause to be kept and maintained, the Parking Facilities in good, operable,
and usable condition and repair, normal wear and tear excepted, but, in any event, consistent with
other first class parking facilities in the central Ohio area and in compliance with generally
accepted industry standards for the long term maintenance and capital reinvestment for parking
facilities of this type, located within the central Ohio climate, and shall make or cause to be made
any and all repairs or replacements as may be required to maintain such standards. Specifically,
the Developer and applicable Block Owner shall perform the specific maintenance with respect to
the Parking Facilities generally in accordance with a maintenance standards manual developed by
Developer and Block Owner and approved by City. The Operation and Maintenance Agreement
shall provide, among other things, that the non-reserved parking spaces within the Parking
Facilities shall be kept open and available to the general public at all times, the Developer or Block
Owner shall fund any shortfalls between the revenue generated by the Bridge Park NCA or the
Community Facilities and available to pay the cost of operating and maintaining the Community
Facilities and the actual cost of operating and maintaining the Community Facilities. The City and
the Bridge Park NCA will be third party beneficiaries of the Operation and Maintenance
Agreement, and will have the right to enforce the obligations of the Developer, Block Owner,
Bridge Park NCA and CFCFA thereunder.
7.2. City Financial Obligations. All payment obligations of the City hereunder are
expressly subject to appropriation by City Council of funds necessary to make those payments and
are binding on City only to the extent of such appropriation. Any of City’s payment obligations
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under this Agreement do not constitute an indebtedness of the City within the provisions and
limitations of the laws and the Constitution of the State of Ohio, and the Developer does not have the
right to have taxes or excises levied by the City for the payment of any amount owed by the City
hereunder. Except as specifically provided for herein, the City has no responsibility for the
financing, design, construction, operation, maintenance and/or repair of the Community Facilities.
Section 8. Tax Increment Financing.
8.1. TIF Ordinance. Subject to Section 2, the City agrees to pass the TIF Ordinance and
create a tax increment financing area within the Development Site. City Council will adopt the
5709.41 TIF Ordinance within 90 days of the date all Incentive Contingencies are satisfied. The
TIF Ordinance shall provide that the first tax year for the real property tax exemption thereunder
shall be tax year 2026 (collection year 2027).
8.2. Application of Service Payments. The City will apply the Service Payments and
Minimum Service Payments it receives pursuant to EXHIBIT E and the related provisions of the
Cooperative Agreement.
8.3. Minimum Service Payments. The Service Agreement will provide that the owner
of each parcel of Commercial Property will provide for a minimum service payment obligation
pursuant to Ohio Revised Code Section 5709.91 (the “Minimum Service Payments”). The
Minimum Service Payments consist of two amounts: (i) an amount equal to the amount of the
NCA Charge due for that parcel as described in the NCA Declaration applicable to that parcel,
which amount is due and payable only to the extent that the NCA Charge is not paid when due,
and (ii) an aggregate amount equal to $71,614,546, with annual payments of that amount first due
in calendar year 2027 in the amount of $2,165,665, thereafter increasing with each triennial update
or sexennial reappraisal to a final annual amount of $2,639,933 due in calendar year 2056 (or in
each case, such higher amounts as the Developer, Block Owner and City agree). The Minimum
Service Payment described in the foregoing clause (ii) will be allocated to each tax parcel of
Commercial Property as described in the Service Agreement. The amount of Service Payments
paid to the Franklin County Treasurer for each tax parcel in a calendar year will be credited against
the Minimum Service Payments due for that parcel for that calendar year.
Section 9. New Community Authority.
9.1. General. The Developer heretofore prepared and filed the NCA Petition with the
City on February 17, 2015, proposing the creation of the Bridge Park NCA and the City Council
heretofore approved on March 19, 2015, the creation of the Bridge Park NCA. City and Developer
will cooperate as necessary to add the Development Site to that district. To the extent not payable
from available NCA Revenue, Developer shall pay all reasonable and necessary expenses of the
Bridge Park NCA.
9.2. NCA Charge.
9.2.1. General. Pursuant to the NCA Act, the NCA Petition and the Cooperative
Agreement, the Parties acknowledge that the Bridge Park NCA shall impose NCA Charges and
collect such NCA Charges from owners of real property located within the Development Site and
from business operating within the Development Site. The NCA Declaration shall provide for an
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annual NCA Charge based on assessed valuation (the “Assessed Valuation Charge”), an NCA
Charge based on retail gross sales, and a NCA Charge based on the gross receipts of hotels
operating within the Development Site.
9.2.2. Timing of NCA Charge. The NCA Declaration will provide that the
Assessed Valuation Charge will first be collected during the earlier of (i) the first full calendar
year after issuance of a certificate of occupancy for any portion of the Commercial Improvements
and (ii) the first full calendar year that begins at least 24 months after the satisfaction of the
Incentive Contingencies.
9.2.3. Calculation of Assessed Valuation Charge. The Assessed Valuation Charge
for each parcel of Commercial Property will be determined as described in the NCA Petition,
provided that the per square foot value of commercial office property shall be no less than $159.00,
hotels shall be no less than $200.00, commercial retail property shall be no less than $164.00, and
apartments shall be no less than $184.00, or the then current value assessed by the Franklin County
Auditor. The amount of Service Payments paid to the Franklin County Treasurer or Minimum
Service Payments paid to the Franklin County Treasurer or City for each tax parcel in a calendar
year will be credited against the Assessed Valuation Charge due for that parcel for that calendar
year.
9.3. Application of NCA Revenues. Pursuant to the Cooperative Agreement, the Bridge
Park NCA shall pay all NCA Revenues to the City. City will apply the NCA Revenues it receives
pursuant to EXHIBIT E and the related provisions of the Cooperative Agreement.
Section 10. Incentive Contingencies. The obligations of the City to provide Incentives
are contingent upon the satisfaction of all of the following contingencies (collectively, the
“Incentive Contingencies”). Each of the agreements, evidence or other document required to be
submitted to satisfy an Incentive Contingency must be in form and substance acceptable to City in
order for the Incentive Contingency to be satisfied. The Parties will proceed diligently and in good
faith to pursue the satisfaction of the Incentive Contingencies in a timely and coordinated manner
intended to result in the timely development of the Project in accordance with the Conceptual
Development Plan and final development plan approvals. The Parties will coordinate their efforts
to pursue the satisfaction of the Incentive Contingencies in a logical order intended to result in the
satisfaction of all of the Incentive Contingencies as soon as practical. From time to time, at the
request of the Developer, the City shall confirm the satisfaction, waiver or failure of any of the
Incentive Contingencies which have been satisfied, waived or have not been met.
10.1. Public Improvement Plans. The Developer shall have caused the Public
Improvement Plans to be prepared and submitted to the City, and the City shall have approved, the
Public Improvement Plans for the Community Facilities.
10.2. Public Improvement Scope and Budget. The Developer shall have prepared and
submitted to the City, and the City shall have approved, the Public Improvement Budget for the
Community Facilities (including the Schedule of Values for those Community Facilities) based on
the approved Public Improvement Plans and other information then most currently available,
itemizing and detailing the Public Improvement Costs for those Community Facilities, including
commercially reasonable contingency amounts, and with documentation satisfactory to the City.
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Developer shall also have provided to City evidence that the Lender has approved the Public
Improvement Budget.
10.3. Disbursement Schedule. The Developer shall have developed and submitted to the
City, and the City shall have approved, a schedule of disbursements of proceeds of the Private
Financing for payment of Commercial Costs (including disbursements to date) and the schedule
of disbursements of Private Financing and Public Funding for payment of costs of the Public
Improvements (the “Disbursement Schedule”). The City shall have the right to review and request
additional documentation and to further request modifications of the Disbursement Schedule based
on the information submitted by the Developer.
10.4. Community Facilities Property. The Developer and CFCFA or Bridge Park NCA
shall have executed, delivered and provided to City documents conveying each portion of the
Community Facilities Property to CFCFA or Bridge Park NCA as provided in Section 4.6.
Developer shall have obtained and delivered to CFCFA or Bridge Park NCA and City a
commitment for title insurance for CFCFA’s or Bridge Park NCA’s interest in the Community
Facilities Property.
10.5. CFCFA/NCA Debt. Developer shall have provided to City (i) the fully executed
bond documents for the CFCFA/NCA Debt providing bond proceeds sufficient to pay all Public
Improvement Costs for the Community Facilities and (ii) evidence that the purchase price for such
CFCFA/NCA Debt has been fully paid and deposited with the trustee or is in the process of
collection as required by Ohio Revised Code Section 5705.41.
10.6. Commercial Budget. The Developer shall have prepared and submitted to the City
the Commercial Budget. The Commercial Budget must include commercially reasonable
contingency amounts and detailed documentation with respect to each element of the Commercial
Cost. The Commercial Budget shall reflect those items and costs as the Developer determines, in
its best professional judgment, are reasonable and necessary to develop the Commercial
Improvements as described in the then current Conceptual Development Plan. Developer shall
also have provided to City evidence that the Lender has approved the Commercial Budget.
10.7. Proforma. The Developer shall have prepared and submitted to the City the
proforma for the Private Improvements, which shall be based on the most current information
available to Developer regarding the budgeted Commercial Costs and the projected stabilized
operating income and expense statement for the Private Improvements. Developer shall also have
provided to City evidence that the Lender has approved the proforma.
10.8. Loan; Loan Funding Contingencies. The Developer shall have obtained and
provided to the City the Loan Documents for the Loan for the Commercial Costs. All of the Loan
Documents shall be executed and delivered by the parties thereto, and the Loan shall otherwise be
closed as contemplated by the Loan Documents. Developer shall provide to the City (i) then
current drafts of the Loan Documents at least two weeks prior to the scheduled Closing Date, and
(ii) copies of the executed Loan Documents on or about the Closing Date. The Loan Documents
shall provide that the Lender shall send to City a notice of any default by the borrower under the
Loan Documents.
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10.9. Equity Investment. The Developer shall have provided evidence that the Equity
Investment has been funded for the Commercial Costs not funded with Loans plus the Public
Improvement Costs not anticipated to be paid from the Public Funding. All of the Equity
Investment Documents shall be executed and delivered by the parties thereto, and the Equity
Investment shall otherwise be closed as contemplated by the Equity Investment Documents. The
Developer shall provide to the City (i) then current drafts of the Equity Investment Documents at
least two weeks prior to the scheduled Closing Date, and (ii) copies of the executed Equity
Investment Documents on or about the Closing Date.
10.10. Operation and Maintenance Agreement. The Developer and CFCFA and/or Bridge
Park NCA shall have entered into the Operation and Maintenance Agreement for the Community
Facilities. The Operation and Maintenance Agreement for Parking Facilities shall be in
substantially in the form of the Operation and Maintenance Agreement for the Bridge Park parking
facilities and shall comply with the requirements of Section 7.2.3. Each Operation and
Maintenance Agreement shall have been recorded against the real property comprising the
Development Site on or before the Closing Date, prior to all mortgages or other liens or
encumbrances except those approved by the City.
10.11. NCA Declaration. Developer and the Block Owner have executed and recorded
the NCA Declaration providing for collection of the NCA Charge, with each the NCA Declaration
to be in form and substance acceptable to Developer and the City.
10.12. Environmental Reports. Developer shall have submitted such environmental
reports for the Development Site to City as have been requested by City and evidencing there are
no Hazardous Materials located on the Development Site or violations of Environmental Laws that
would prevent development of the Development Site in accordance with the Conceptual
Development Plan. Developer shall have delivered a reliance letter from the preparer of the
environmental reports authorizing reliance on those reports by City and the owners of the
Community Facilities.
10.13. Cooperative Agreement. The City, CFCFA (unless otherwise approved by City)
and NCA shall have entered into the Cooperative Agreement providing for, among other things,
the issuance of CFCFA/NCA Debt to fund Community Facilities, the payment to CFCFA or
Bridge Park NCA of Service Payments and NCA Revenue as necessary to make debt service
payments on CFCFA/NCA Debt, and the construction, operation and maintenance of the
Community Facilities.
10.14. Completion Guaranty. The Developer and Principals shall have executed and
delivered to the City the Completion Guaranty substantially in the form of the completion
guarantees for Bridge Park, with each Completion Guaranty evidencing guaranty of completion of
no less than the Commercial Improvements and Community Facilities.
10.15. Permits and Construction Contracts. The Developer shall have obtained the
required permits necessary for the Commercial Improvements and Community Facilities. The
Developer shall have provided fully executed copies of the guaranteed maximum or fixed price
construction contracts for the construction of the Commercial Improvements and Community
Facilities.
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10.16. Hotel Brand Confirmation. The Developer shall have secured and submitted to the
City, and the City shall have approved, the branding and operator for the hotel that is part of the
Private Improvements. Unless otherwise approved by the City, the hotel shall be branded as a
Marriott Autograph with a minimum development budget of $300,000 per guest room.
10.17. Plan for Parcel 273-008269. The Development Site constitutes a portion of current
Franklin County tax parcel 273-008269. The Developer shall have prepared and submitted a
master plan for reference for the remainder of that parcel in conjunction with the Concept Plan for
the Development Site. This master plan, among other things, shall illustrate the Developer’s
redevelopment plans for that parcel and the functional interrelationships between the Project and
the improvements to be made to that parcel as part of its redevelopment.
10.18. Service Agreement. The Service Agreement shall be effective and shall have been
recorded against the real property comprising the Development Site, prior to all mortgages or other
liens or encumbrances except those approved by the City.
10.19. Construction Agency Agreement for Community Facilities. CFCFA or Bridge
Park NCA and the Developer shall have entered into the Construction Agency Agreement.
10.20. Public Parking Covenant. Block Owner and owner of the Community Facilities
have executed and recorded a covenant running with the land in favor of City for the Parking
Facilities. Such covenant shall provide that all parking spaces in the Parking Facilities, except
those reserved as described in Section 4.5, shall be held open to the public and subject to parking
charges, if any, as provided in the applicable Operation and Maintenance Agreement or as
otherwise approved by City. Such covenant shall be prior to all mortgages or other liens or
encumbrances except those approved by the City.
10.21. Closing Opinions. On the Closing Date, the Developer and Block Owner will
provide to City (i) a certificate confirming the representations of the Developer or Block Owner
set forth in this Agreement or in any of the other Project Agreements and (ii) an opinion of
Developer’s and Block Owner’s counsel, subject to customary assumptions, qualifications and
limitations, confirming that the Project Agreements to which the Developer or Block Owner is a
party (either as a named party or by acceptance of fee title to all or any of the Development Site)
have been duly authorized, executed and delivered by the Developer and Block Owner and
constitutes the legal, valid and binding obligation of the Developer and Block Owner enforceable
in accordance with its terms and that neither the entry into nor the performance of and compliance
with those Project Agreements have resulted or will result in any violation of, or a conflict with or
a default under, any judgment, decree, order, contract or agreement by which the Developer or
Block Owner is bound and any legal requirement applicable to the Developer or Block Owner.
Section 11. Events of Default and Remedies.
11.1. Developer Default. Any one or more of the following shall constitute a “Developer
Default”:
(a) Default by the Developer in the due and punctual payment, performance or
observance of any material obligation of the Developer or Block Owner under
this Agreement or any other Project Agreement as to which City has given a
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Default Notice to the Developer, which default the Developer does not cure
within the period of time specified for cure in such Default Notice;
(b) Any representation or warranty made by the Developer or Block Owner in this
Agreement or any other Project Agreement is false or misleading in any
material respect as of the time made;
(c) Any report, certificate or other document furnished by the Developer or Block
Owner to a Public Party pursuant to this Agreement or any other Project
Agreement is false or misleading in any material respect as of the time furnished
and has been relied upon by City to its material detriment prior to correction by
the Developer;
(d) The filing by the Developer or Block Owner of a petition for the appointment
of a receiver or a trustee;
(e) The making by the Developer of a general assignment for the benefit of
creditors;
(f) The entry of an order for relief pursuant to any Chapter of Title 11 of the U.S.
Code, as the same may be amended from time to time, with the Developer as
debtor;
(g) The filing by the Developer of an insolvency proceeding with respect to the
Developer or any proceeding with respect to the Developer for compromise,
adjustment or other relief under the laws of any country or state relating to the
relief of debtors; or
(h) The occurrence of a default by the Developer or Block Owner under any of the
Loan Documents or Equity Investment Documents that is not either (i) cured
within the applicable cure period, if any, provided therein or (ii) waived in
writing by the Developer’s or Block Owner’s Lender or investor(s), as
applicable.
11.2. Remedies for Developer Default. At any time as of which a Developer Default
exists, the City at its option, may, but shall not be obligated to, exercise any one or more of the
following remedies:
(a) By written notice to the Developer, terminate this Agreement, provided that
such termination shall not affect the obligations of the Developer that have then
accrued;
(b) By written notice to the Developer and the Trustee, cease disbursements of
proceeds of the Public Funding if no Loan proceeds have been disbursed or if
the Lender has temporarily or permanently ceased disbursements of the Loan;
(c) (i) recover from the Developer any sums of money that are due and payable by
the Developer to or for the benefit of the City under this Agreement; (ii)
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commence an action for specific performance or other equitable relief against
the Developer with respect to the defaulted obligations as provided in Section
11.6; and (iii) exercise the City’ rights under Section 11.7 with respect to the
Developer Default; and
(d) Enforce, or avail themselves of, any other remedies available to them at law or
in equity.
11.3. City Default. Any one or more of the following shall constitute a “City Default”:
(a) Default by City in the due and punctual payment, performance or observance
of any obligation of City under this Agreement or any other Project Agreement,
as to which the Developer has given a Default Notice to the City, which default
the City do not cure within the period of time specified for cure in the Default
Notice;
(b) Any representation or warranty made by City in this Agreement or any other
Project Agreement is false or misleading in any material respect as of the time
made and has been relied upon by the recipient to its material detriment prior
to correction by City; or
(c) Any report, certificate or other document furnished by City to the Developer
pursuant to this Agreement or any other Project Agreement is false or
misleading in any material respect as of the time made and has been relied upon
by the recipient to its material detriment prior to correction by City.
11.4. Remedies for City Default. At any time as of which a City Default exists, the
Developer, at its option, may, but shall not be obligated to, exercise any one or more of the
following remedies:
(a) By written notice to the City, terminate this Agreement, provided that such
termination shall not affect the obligations of the City that have then accrued;
(b) (i) recover from City any sums of money that are due and payable by City to or
for the benefit of the Developer under this Agreement; (ii) except for
obligations requiring City Council approval, commence an action for specific
performance or other equitable relief against City with respect to the defaulted
obligations as provided in Section 11.6; and (iii) exercise the Developer’s rights
under Section 11.7 with respect to the City Default; and
(c) Enforce, or avail itself of, any other remedies available to it at law or in equity.
11.5. Default Notices. At any time when there exists a default by the Developer in the
due and punctual payment, performance or observance of any obligation of the Developer under
this Agreement or Developer or Block Owner any other Project Agreement, City may give the
Developer a written notice, indicated as being a “Default Notice” under this Section, identifying
the default and specifying a period of time for the cure of the default. At any time when there
exists a default by City in the due and punctual payment, performance or observance of any
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obligation of City under this Agreement or any other Project Agreement, the Developer may give
the City a written notice, indicated as being a “Default Notice” under this Section, identifying such
default and specifying a period of time for the cure of the default. Any notice given in accordance
with this Section is called a “Default Notice.” The period of time for cure to be set forth in any
Default Notice may be not shorter than such period of time as is reasonable in light of the nature
of the default and the time reasonably required to cure the default.
11.6. Enforcement. As the remedy at law for the breach of any of the terms of this
Agreement may be inadequate, each enforcing Party has a right of temporary and permanent
injunction, specific performance and other equitable relief that may be granted in any proceeding
brought to enforce any provision hereof, without the necessity of proof of actual damage or
inadequacy of any legal remedy.
11.7. Self-Help. Without limiting the provisions of Section 11.6, (i) should any
defaulting Party fail to remedy any default identified in a Default Notice within the reasonable
cure period specified in the Default Notice, or (ii) should any default under this Agreement exist
which (A) constitutes or creates an immediate threat to health or safety or (B) constitutes or creates
an immediate threat of damage to or destruction of property, then, in any such event, the non-
defaulting Party has the right, but not the obligation, to enter upon the property of the defaulting
Party to take such steps as the non-defaulting Party may elect to cure, or cause to be cured, the
default or violation. If a non-defaulting Party cures, or causes to be cured, a default as provided
above in this Section, then there will be due and payable by the defaulting Party to the non-
defaulting Party upon demand the amount of the reasonable costs and expenses incurred by the
non-defaulting Party in pursuing the cure, plus interest thereon from the date of demand at the rate
set forth in Section 11.8.
11.8. Interest. Except as otherwise expressly provided herein, amounts that are due and
payable by the Developer to City under this Agreement will bear interest if not paid when due,
until paid, (a) at the prime rate published in the “Money Rates” section of the Wall Street Journal
from time to time for the first 30 days after due, and (b) at the higher of the rate provided for in
clause (a) or 8% per annum beyond the first 30 days after due.
11.9. Costs of Enforcement. If an action is brought by the City for the enforcement of
any provision of this Agreement, the Developer, and only to the extent that the Developer or Block
Owner is found to be in default or breach of this Agreement or another Project Agreement, will
pay to the City all costs and other expenses that become payable as a result thereof, including
without limitation, reasonable attorneys’ fees and expenses.
Section 12. Indemnification. Developer shall, at its cost and expense, defend,
indemnify and hold the City and any officials, employees, agents and representatives of the City,
its successors and assigns (collectively the “Indemnified Parties” and each an “Indemnified
Party”), harmless from and against, and shall reimburse the Indemnified Party for, any and all
loss, cost, claim, liability, damage, judgment, penalty, injunctive relief, expense or action
(collectively the “Liabilities” and each a “Liability”), other than Excluded Liabilities, whether or
not the Indemnified Party shall also be indemnified as to any such claim by any other person, the
basis of which claim (a) was caused by or results from the actions or failures to act of Developer,
Block Owner, or their Affiliates, agents, employees, contractors, subcontractors and material
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suppliers while in possession or control of the Project, whether or not such action or inaction was
negligent or reckless, or is in any way related to the construction of the Project or the selection of
contractors, subcontractors or material suppliers relating thereto; (b) is based, in whole or in part
upon failure or alleged failure of Developer, Block Owner or their Affiliates to satisfy their
obligations under this Agreement or another Project Agreement; (c) relates to fraud, misapplication
of funds, illegal acts, or willful misconduct on the part of Developer, Block Owner or their
Affiliates; or (d) relates to the bankruptcy or insolvency of Developer, Block Owner or their
Affiliates. The indemnity provided for herein shall survive the expiration or termination of and
shall be separate and independent from any remedy under any Project Agreement.
“Excluded Liability” means each Liability to the extent it is attributable to (i) the gross
negligence or willful misconduct of any Indemnified Party or the failure of any Indemnified Party
that is a third party beneficiary of this Agreement to perform any obligation required to be
performed by the Indemnified Party as a condition to being indemnified hereunder, including
without limitation, the settlement of any Liability without the consent of the Developer, or, to the
extent the Developer’s ability to defend a Liability is prejudiced materially, the failure of an
Indemnified Party to give timely written notice to the Developer of the assertion of a Liability.
Upon notice of the assertion of any Liability, the Indemnified Party shall give prompt
written notice of the same to the Developer. Upon receipt of written notice of the assertion of a
Liability, the Developer shall have the duty to assume, and shall assume, the defense thereof, with
power and authority to litigate, compromise or settle the same; provided that, the Indemnified Party
shall have the right to approve any obligations imposed upon it by compromise or settlement of
any Liability or in which it otherwise has a material interest, which approval may be withheld in
its sole discretion.
At Developer’s expense, an Indemnified Party may employ separate counsel and
participate in the defense of any Liability; provided, however, that any such fees and expenses
must be reasonable and necessary to protect the interests of the Indemnified Party. The Developer
shall not be liable for any settlement of any Liability made without its written consent, but if settled
with the written consent of the Developer, or if there is a final judgment for the plaintiff in an
action, the Developer agrees to indemnify and hold harmless the Indemnified Party, except only
to the extent of any Excluded Liability.
Section 13. Miscellaneous.
13.1. Estoppel Certificates. Each Party (a “Responding Party”) will, from time to time,
within fifteen business days after written request by another Party (a “Requesting Party”), execute
and deliver to the Requesting Party and/or any third party designated by the Requesting Party, a
statement in writing certifying (i) that (except as may be otherwise specified by the Responding
Party) (A) this Agreement is in full force and effect and unmodified, (B) the Responding Party is
not in default in the performance or observance of its obligations under this Agreement, and (C)
to the Responding Party’s actual knowledge, the Requesting Party is not in default in the
performance or observance of the Requesting Party’s obligations under this Agreement, and (ii) as
to any other factual matters as the Requesting Party may reasonably request about this Agreement,
the status of any matter relevant to this Agreement.
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13.2. Administrative Actions. To the extent permitted by law, and except as otherwise
provided in this Agreement, all actions taken or permitted to be taken by the City under or in
furtherance of this Agreement may be taken by the City Manager and will not require legislative
action of a City Council beyond the legislative actions authorizing this Agreement. The City
Manager, on behalf of the City, is authorized to make all approvals and consents that are
contemplated by this Agreement and other Project Agreements, without the separate approval by
the City Council, including reviews, approvals, and consents (including but not limited to, such
actions with respect to the Incentive Contingencies) and any and all such other approvals
contemplated herein. All actions, approvals, and consents of City required under this Agreement
must be given in writing in order to be effective.
13.3. Recording. This Agreement will not be recorded. However, various provisions of
this Agreement may be included in other Project Agreements that are intended to be recorded.
13.4. Confidentiality. Unless otherwise directed by court order, City will treat the Loan
Documents, the Equity Investment Documents, the commitments of any tenants or purchasers to
the Project, the expected or actual tenant and ownership mix of the Project, any proformas, and
any other information provided to the Public Parties and clearly marked “trade secret” as trade
secrets and not as public records or information, and will not disclose such documents or
information to any third party without the written consent of the Developer. The City will
promptly notify the Developer of (a) any public records request made to it that seeks disclosure of
such documents or information and (b) any court action filed against it to compel the disclosure of
such documents or information. The City will reasonably cooperate with the Developer in
defending any such court action. The Developer will defend City against any third party claim
related to the Developer’s designation of certain records as exempt from public disclosure, and
will hold harmless the City for any liability or award to a plaintiff for damages, costs and
reasonable attorney’s fees, incurred by the City by reason of such claim.
13.5. Authorized Officers. For the purpose of executing the necessary approvals or
consents under this Agreement and any other Project Agreement, the following individuals are
authorized to execute such approvals or consents on the behalf of their respective Parties: (i) for
the City, the City Manager; (ii) for the Developer, Brent Crawford or other representative
designated by written notice given by the Developer to City.
13.6. Assignment. Except as expressly provided hereunder, this Agreement may not be
assigned without the prior written consent of the non-assigning party.
13.7. Binding Effect. The provisions of this Agreement shall be binding upon the
successors and/or assigns of the Parties.
13.8. Captions. The captions and headings in this Agreement are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
13.9. Day for Performance. Wherever herein there is a day or time period established for
performance and such day or the expiration of such time period is a Saturday, Sunday or legal
holiday, then such time for performance shall be automatically extended to the next business day.
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13.10. Entire Agreement. This Agreement, together with the other Project Agreements,
constitute the entire Agreement between the Parties on the subject matter hereof and supersedes
all prior negotiations, agreements and understandings, both written and oral, between the Parties
with respect to such subject matter. In the event of conflict between this Agreement and any of the
other Project Agreements, the terms of the other Project Agreement shall control. This Agreement
may not be amended, waived or discharged except in an instrument in writing executed by the
Parties.
13.11. Executed Counterparts. This Agreement may be executed in several counterparts
(including electronically executed counterparts), each of which shall be deemed to constitute an
original, but all of which together shall constitute but one and the same instrument. It shall not be
necessary in proving this Agreement to produce or account for more than one of those counterparts.
Signatures transmitted by facsimile or electronic means are deemed to be original signatures.
13.12. Extent of Covenants; No Personal Liability. All covenants, obligations and
agreements of the Parties contained in this Agreement shall be effective to the extent authorized
and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to
be a covenant, obligation or agreement of any present or future member, officer, agent or employee
of the City or the Developer other than in his or her official capacity, and neither the members of
the legislative body of the City nor the members or owners of the Developer nor any City official
or authorized representative of the Developer executing this Agreement shall be liable personally
under this Agreement or be subject to any personal liability or accountability by reason of the
execution thereof or by reason of the covenants, obligations or agreements of the City contained
in this Agreement.
13.13. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State without regard to its principles of conflicts of laws. All claims,
counterclaims, disputes and other matters in question between the City, its agents and employees,
and the Developer, its employees and agents, arising out of or relating to this Agreement or its
breach will be decided in a court of competent jurisdiction within Franklin County, Ohio.
13.14. Notices. Except as otherwise specifically set forth in this Agreement, all notices,
demands, requests, consents or approvals given, required or permitted to be given hereunder shall
be in writing and shall be deemed sufficiently given if actually received or if hand-delivered or
sent by recognized, overnight delivery service or by certified mail, postage prepaid and return
receipt requested, addressed to the other Party at the address set forth in this Agreement or any
addendum to or counterpart of this Agreement, or to such other address as the recipient shall have
previously notified the sender of in writing, and shall be deemed received upon actual receipt,
unless sent by certified mail, in which event such notice shall be deemed to have been received
when the return receipt is signed or refused. For purposes of this Agreement, notices shall be
addressed to:
To the City at: City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: City Manager
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To the Developer at: Crawford Hoying Development Partners, LLC
6640 Riverside Drive, Suite 500
Dublin, Ohio 43017
Attention: Brent Crawford
The Parties, by notice given hereunder, may designate any further or different addresses to
which subsequent notices; certificates, requests or other communications shall be sent.
13.15. No Waiver. No right or remedy herein conferred upon or reserved to any Party is
intended to be exclusive of any other right or remedy, and each and every right or remedy shall be
cumulative and in addition to any other right or remedy given hereunder, or now or hereafter
legally existing upon the occurrence of any event of default hereunder. The failure of any Party
to insist at any time upon the strict observance or performance of any of the provisions of this
Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any
such right or remedy or be construed as a waiver or relinquishment thereof. Every right and
remedy given by this Agreement to the Parties hereto may be exercised from time to time and as
often as may be deemed expedient by the parties hereto, as the case may be.
13.16. Ohio Laws. Any reference to a section or provision of the Constitution of the State,
or to a section, provision or chapter of the Ohio Revised Code shall include such section, provision
or chapter as modified, revised, supplemented or superseded from time to time; provided, that no
amendment, modification, revision, supplement or superseding section, provision or chapter shall
be applicable solely by reason of this paragraph if it constitutes in any way an impairment of the
rights or obligations of the Parties under this Agreement.
13.17. Recitals. The Parties acknowledge and agree that the facts and circumstances as
described in the Recitals hereto are an integral part of this Agreement and as such are incorporated
herein by reference.
13.18. Severability. If any provision of this Agreement, or any covenant, obligation or
agreement contained herein is determined by a court to be invalid or unenforceable, that
determination shall not affect any other provision, covenant, obligation or agreement, each of
which shall be construed and enforced as if the invalid or unenforceable portion were not contained
herein. That invalidity or unenforceability shall not affect any valid and enforceable application
thereof, and each such provision, covenant, obligation or agreement shall be deemed to be
effective, operative, made, entered into or taken in the manner and to the full extent permitted by
law.
13.19. Survival of Representations and Warranties. All representations and warranties of
the Parties in this Agreement shall survive the execution and delivery of this Agreement.
13.20. Time of the Essence. Time is of the essence of this Agreement.
13.21. Construction. No provision of this Agreement shall be construed against a Party
by reason of such Party having drafted such provision.
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13.22. Successors and Assigns. This Agreement is binding upon and inures to the benefit
of the Parties and their respective successors and assigns, provided that this does not authorize any
assignment or transfer not permitted by this Agreement.
13.23. Exhibits. All exhibits to this Agreement are incorporated herein by reference and
made a part hereof, to the same extent as if set out in full herein.
13.24. Diligent Performance. With respect to any duty or obligation imposed on a Party
by this Agreement, unless a time limit is specified for the performance of such duty or obligation,
it is the obligation of that Party to commence and perform the same in a diligent and workmanlike
manner and to complete the performance of that obligation as soon as reasonably practicable after
commencement of performance.
13.25. No Partnership. This Agreement does not and may not be construed to create a
partnership or joint venture between or among any of the Parties.
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IN WITNESS WHEREOF, the City and the Developer have caused this Development
Agreement to be executed in their respective names by their duly authorized officers as of the last
date set forth below.
CITY OF DUBLIN, OHIO
By:
Printed: Megan D. O’Callaghan
Title: City Manager
Date:
Approved as to Form and Correctness:
By:
Printed:
Title: Law Director
Date:
CRAWFORD HOYING DEVELOPMENT
PARTNERS, LLC
By:
Printed:
Title:
Date:
D-1
EXHIBIT D
Disbursement Requirements
Section 1. Definitions. As used in this EXHIBIT D, the following terms have the
meanings set forth in this Section. Capitalized terms not defined in this Section or elsewhere in
this Exhibit have the meanings set forth in Section 1 of the Agreement.
“Architect” means the independent architect of record for the Community Facilities or
Commercial Improvements, as applicable, retained by Developer and acceptable to City.
“Cost Certificate” means the Cost Certificate for any disbursement request submitted by
Developer to CFCFA or Bridge Park NCA pursuant to the Construction Agency Agreement.
“Engineer” means the independent engineer of record for the Community Facilities
retained by Developer and acceptable to City.
“Owner’s Representative” means a qualified construction management company retained
by CFCFA or Bridge Park NCA to provide owner’s representative services with respect to the
Community Facilities, including the certifications described in this Exhibit.
“Schedule of Values” means the schedule of values for each Community Facility submitted
by Developer and approved by City pursuant to Section 10.2 of the Agreement.
Section 2. General Requirements. Requests by Developer for disbursements of
Public Funding are subject to the following requirements, each of which shall be incorporated into
the Cooperative Agreement and Construction Agency Agreement for the Community Facilities:
(1) Written certification from the Architect to City confirming that based on the
schedule of values for the Commercial Improvements and the progress of
construction completion, sufficient funds are available from the Equity Investment
and Loan to complete the Commercial Improvements in accordance with the
Commercial Budget.
(2) Written certification from Developer and Lender to City confirming that
disbursements of the Equity Investment and Loan through the requested date of
disbursement are at least equal to disbursements shown on the Disbursement
Schedule that correspond to the requested disbursement of Public Funding.
(3) Written certification from Lender to City that (a) Developer and Block Owners are
not then in default under the terms of the Loan Documents, (b) the Loan is not “out
of balance” or similar concept as set forth in the Loan Documents, (c) subject to
funding the Equity Investment as required by the Loan Documents and continued
construction of the Commercial Improvements in accordance with the Construction
Budget, Developer and Block Owner have satisfied all requirements to disburse the
Loan, and (d) Lender is not aware of any event that with notice and the passage of
time would create a default under the Loan Documents.
D-2
(4) No Developer Default has occurred and is continuing, and no event has occurred
that, with the lapse of time or with the giving of notice or both, would constitute a
Developer Default.
Each document required to be submitted for a disbursement must be in form and substance
acceptable to City.
Section 3. Progress Payments. Payment of Public Funding for Public Improvement
Costs actually incurred by Developer or its contractors for the Community Facility, less a retainage
equal to five percent (5.00%) (the "Retainage"), shall be made, based on periodic Cost Certificates
submitted to CFCFA or Bridge Park NCA and the percentage of completion of that Community
Facility per the Schedule of Values, in each case for services actually performed by Developer and
its contractors. Payments for work properly performed shall be made within thirty (30) days
following the satisfaction of each of the following conditions:
(1) Submittal of the Cost Certificate with all required supporting documentation
including, but not limited to, all applicable conditional and unconditional lien
waivers, which shall be based upon statements prepared and submitted by
Developer to City in such detail as City shall reasonably require to enable City to
verify, evaluate and approve the services completed in accordance with the terms
and conditions stated herein.
(2) Submittal of an application for payment on AIA Document G702/G703 to
Developer from every contractor on whose account Developer is seeking payment
in the Cost Certificate.
(3) Written certification from the Architect is provided to City confirming that (a) the
portion of the Community Facility for which Developer is requesting payment,
based on the Schedule of Values, is properly complete, and (b) sufficient funds are
available to complete the Community Facility in accordance with the Public
Improvement Budget.
(4) The Engineer shall have inspected and approved all such work and delivered to City
its approval in writing as to the completion of all work for which reimbursement is
being requested in a good and workmanlike manner, in full compliance with the
Public Improvement Plans and in accordance with applicable law, and Architect or
Engineer shall have delivered written certification to City confirming that all
government inspections, approvals and/or completion certificates required for such
work have been obtained and copies of such inspections, approvals and certificates
have been delivered to City.
(5) Written certification from the Owner’s Representative is provided to City
confirming that the portion of the Community Facility for which Developer is
requesting payment, based on the certifications provided by Architect and
Engineer, is properly complete in accordance with the Schedule of Values.
(6) A title update, satisfactory to City, is provided to City confirming that the
Community Facilities Property for the Community Facility is free and clear of all
D-3
mechanic's liens or other encumbrances previously asserted or claimed in
connection with the construction work performed hereunder by Developer.
(7) Submission by Developer of evidence reasonably acceptable to City that all
conditions of Section 2 of this Exhibit have been met.
(8) The City may withhold payment, in whole or in part, (a) to the extent reasonably
necessary to protect the City from nonconforming or incomplete work or from loss
for which the Developer or a contractor is or may be responsible, or (b) if any
protocol under this Section has not been satisfied in the City’s reasonable
discretion.
Section 4. Substantial Completion Payment and Release of Retainage. Payment of
Public Funding for Public Improvement Costs actually incurred by Developer or its contractors
for the Community Facility upon substantial completion of the Community Facility per the
Schedule of Values shall be made, and the Retainage shall be released except to the extent
necessary to complete all punch list items, by City within thirty (30) days following the satisfaction
of each of the following conditions:
(1) Submittal of the Cost Certificate with all required supporting documentation
including, but not limited to, all applicable conditional and unconditional lien
waivers, which shall be based upon statements prepared and submitted by
Developer to City in such detail as City shall reasonably require to enable City to
verify, evaluate and approve the services completed in accordance with the terms
and conditions stated herein.
(2) Submittal of an application for payment on AIA Document G702/G703 to
Developer from every contractor on whose account Developer is seeking payment
in the Cost Certificate.
(3) Written certification from the Architect is provided to City confirming that (a)
substantial completion of the Community Facility, in accordance with the Schedule
of Values and the construction contracts for the Community Facility, has occurred,
and (b) sufficient funds are available to complete the Community Facility in
accordance with the Public Improvement Budget.
(4) The Engineer shall have inspected and approved all such work and delivered to City
its approval in writing as to the substantial completion of the Community Facility
in a good and workmanlike manner, in full compliance with the Public
Improvement Plans and in accordance with applicable law, and the Architect or
Engineer shall have delivered written certification to City confirming that all
government inspections, approvals and/or completion certificates required for such
work have been obtained and copies of such inspections, approvals and certificates
have been delivered to City.
(5) Written certification from the Owner’s Representative is provided to City
confirming that substantial completion of the Community Facility, based on the
certifications provided by the Architect, Engineer and inspections performed by
D-4
Owner’s Representative, has occurred in accordance with the Schedule of Values
and the construction contracts for the Community Facility.
(6) A title update, reasonably satisfactory to City, is provided to City confirming that
the Community Facilities Property for the Community Facility is free and clear of
all mechanic's liens or other encumbrances previously asserted or claimed in
connection with the construction work performed hereunder by Developer.
(7) A certificate of substantial completion is issued by the Architect or Engineer and
delivered to City.
(8) The punch list and an estimate of the costs to complete the punch list items, certified
by the Architect and Engineer, shall have been delivered to City; provided,
however, that in no event shall the sum of the costs of completing the punch list
items exceed five percent (5%) of the Public Improvement Costs for the
Community Facility.
(9) Submission by Developer of evidence reasonably acceptable to City that all
conditions of Section 2 of this Exhibit have been met.
(10) The City may withhold payment, in whole or in part, (a) to the extent reasonably
necessary to protect the City from nonconforming or incomplete work or from loss
for which the Developer or a contractor is or may be responsible, or (b) if any
protocol under this Section has not been satisfied in the City’s reasonable
discretion.
Section 5. Final Payment. The final payment of Public Funding for Public
Improvement Costs actually incurred by Developer or its contractors for the Community Facility
per the Schedule of Values shall be made within thirty (30) days following the satisfaction of each
of the following conditions:
(1) Submittal of the Cost Certificate with all required supporting documentation
including, but not limited to, all applicable conditional and unconditional lien
waivers, which shall be based upon statements prepared and submitted by
Developer to City in such detail as City shall reasonably require to enable City to
verify, evaluate and approve the services completed in accordance with the terms
and conditions stated herein.
(2) Submittal of an application for payment on AIA Document G702/G703 to
Developer from every contractor on whose account Developer is seeking payment
in the Cost Certificate.
(3) Written certification from the Architect is provided to City confirming that final
completion of the Community Facility and all punch list items has occurred.
(4) Receipt of written notice from Developer that it is in compliance with all of its
obligations hereunder.
D-5
(5) The Engineer shall have certified to City in writing that all construction of the
Community Facility has been completed in a good and workmanlike manner, in full
compliance with the Public Improvement Plans and in accordance with applicable
law, and the Architect or Engineer shall have delivered written certification to City
confirming that and all government inspections, approvals and/or completion
certificates required for such work shall have been performed and obtained and
copies of such inspections, approvals and certificates have been delivered to City.
(6) Contractor's affidavits are provided by Developer to City from all contractors and
major material suppliers used in the performance of the work on the Community
Facility, together with copies of all final lien and claim waivers from such parties.
(7) Written certification from the Owner’s Representative is provided to City
confirming that final completion of the Community Facility and all punch list items,
based on the certifications provided by the Architect, Engineer and inspections
performed by Owner’s Representative, has occurred in accordance with the
Schedule of Values.
(8) A title update, reasonably satisfactory to City, is provided to City confirming that
the Community Facilities Property for the Community Facility is free and clear of
all mechanic's liens or other encumbrances previously asserted or claimed in
connection with the construction work performed.
(9) A final set of reproducible drawings of the Community Facility is provided to City.
(10) A final ALTA As-Built survey showing all improvements to the Community
Facilities Property for the Community Facility is delivered to City.
(11) Submission by Developer of evidence reasonably acceptable to City that all
conditions of Section 2 of this Exhibit have been met.
(12) City may withhold payment, in whole or in part, (a) to the extent reasonably
necessary to protect City from nonconforming or incomplete work or from loss for
which the Developer or a contractor is or may be responsible, or (b) if any protocol
under this Section has not been satisfied in the City’s reasonable discretion.
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E-1
EXHIBIT E
Application of Service Payments and NCA Revenues
Section 1. Definitions. As used in this EXHIBIT E, the following terms have the
meanings set forth in this Section. Capitalized terms not defined in this Section or elsewhere in
this Exhibit have the meanings set forth in Section 1 of the Agreement.
“Trustee” means the indenture trustee for the applicable issue of CFCFA/NCA Debt.
Section 2. Payment of NCA Revenue to City. The Cooperative Agreement shall
provide that the Bridge Park NCA will retain all NCA Revenue it receives (other than NCA
Revenue that would otherwise be collected as part of the Minimum Service Payment described in
clause (ii) of Section 8.3 of the Development Agreement, which shall be paid to City) and apply
that NCA Revenue pursuant to the waterfall in Section 4.
Section 3. Application of Service Payments. If the City collects Minimum Service
Payments pursuant to clause (i) of Section 8.3 of the Development Agreement (i.e. if the NCA
Charge is not paid when due), the City will remit all such amounts (other than amounts collected
to satisfy the obligations described under clause (ii) of Section 8.3 of the Development Agreement)
to or at the direction of the Bridge Park NCA for the Bridge Park NCA to the waterfall in Section
4. .
Section 4. Application of Service Payments and NCA Revenue. The Cooperative
Agreement shall provide that the City will apply on each May 15 and November 15, or such later
date that the City receives the semi-annual distributions of Service Payments and NCA Charges,
all Service Payments and NCA Revenue that it has received since the prior application of such
funds in the following order of priority, provided that, unless otherwise approved by City, NCA
Revenues shall be applied first, and Service Payments shall be applied second:
(1) If Service Payments are collected pursuant to the TIF Ordinance, to the City for
payment to the Dublin City School District and the Tolles Career and Technical
Center the amount due pursuant to Section 1(a) of the Bridge Street District
Cooperative Agreement between such school district and City (generally being an
amount equal to 10% of the taxes each school district would have otherwise
received absent the exemptions provided by the TIF Ordinance in years 16-30 of
each such exemption).
(2) To the Trustee for payment of any rebate liability to the federal government with
respect to the CFCFA/NCA Debt.
(3) To the Trustee the amount necessary for the payment of interest and principal on
the next payment date (to the extent not already funded) plus, for CFCFA/NCA
Debt with annual principal payments, one-half of the scheduled principal amount
due on the next principal payment date on the CFCFA/NCA Debt (subject to the
interest rate restrictions on the CFCFA/NCA Debt described in Section 7.2.2 of the
E-2
Agreement), plus any fixed fees of the Trustee and the CFCFA as issuer of the
CFCFA/NCA Debt approved by the City.
(4) To the Trustee an amount equal to 100% of the Service Payments and NCA
Revenues for deposit into the debt service reserve fund for the CFCFA/NCA Debt
until the amount on deposit in that fund equals a maximum of 10% of the
outstanding principal amount of the CFCFA/NCA Debt.
(5) To the Trustee, 50% of the amount remaining after application of paragraphs 1-4
to be used for optional redemption of the CFCFA/NCA Debt, beginning for the
year in which the earliest optional redemption date occurs under the documents for
the CFCFA/NCA Debt.
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