60-09 OrdinanceRECORD OF ORDINANCES
60-09
Ordinance No.
20
Passed
AN ORDINANCE AUTHORIZING THE PROVISIONS OF CERTAIN
INCENTIVES FOR THE PURPOSES OF ENCOURAGING THE
LOCATION OF DELTA ENERGY HOLDINGS, LLC WITHIN THE CITY
OF DUBLIN, WHICH INCLUDE DECLARING IMPROVEMENTS TO
CERTAIN REAL PROPERTY TO BE DEVELOPED AS A DELTA
ENERGY HOLDINGS, LLC FACILITY TO BE A PUBLIC PURPOSE,
DESCRIBING THE PUBLIC INFRASTRUCTURE IMPROVEMENTS TO
BE MADE TO BENEFIT THE PARCELS OF SUCH DEVELOPMENT,
REQUIRING THE OWNERS THEREOF TO MAKE SERVICE
PAYMENTS IN LIEU OF TAXES, PROVIDING FOR THE FRANKLIN
COUNTY TREASURER TO DISTRIBUTE SERVICE PAYMENTS TO
THE DUBLIN CITY SCHOOL DISTRICT IN THE AMOUNT IT WOULD
OTHERWISE RECEIVE ABSENT THE EXEMPTION, CREATING A
MUNICIPAL PUBLIC IMPROVEMENT TAX INCREMENT
EQUIVALENT FUND FOR THE DEPOSIT OF THE BALANCE OF SUCH
SERVICE PAYMENTS, AND AUTHORIZING THE EXECUTION OF A
REAL ESTATE PURCHASE CONTRACT FOR THE SALE OF A
PORTION OF PARCEL 273-010591-00 AND AN ECONOMIC
DEVELOPMENT AND TAX INCREMENT FINANCING AGREEMENT,
AND DECLARING AN EMERGENCY.
WHEREAS, consistent with this City's Economic Development Strategy (the "Strategy")
approved by Resolution No. 07-94 adopted on June 20, 1994, and the updated Strategy
approved by Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage
commercial office development and provide for the retention and creation of employment
opportunities within the City; and
WHEREAS, the City currently owns a certain parcel of real property located within the City
(which parcel is depicted as the "Dublin Parcel" on Exhibit A attached hereto and referred to
herein as the "Property"); and
WHEREAS, Delta Energy Holdings, LLC (the "Company") has completed an examination of
its workforce needs, and induced by and in reliance on the economic development incentives
provided for in this Ordinance, the Company is desirous of constructing a new corporate
headquarters in the City and relocating its workforce and operations to the City; and
WHEREAS, to facilitate the Company's proposed expansion and to promote the creation of
employment opportunities within the City, the City has determined to sell an approximate 4.0
- 5.08 acre portion of the Property (with such portion of the Property being referred to herein
as the "Development Site") to the Company and to offer the various other economic
development incentives to the Company as described in this Ordinance; and
WHEREAS, Ohio Revised Code Sections 5709.40(B), 5709.42 and 5709.43 (collectively, the
"TIF Statutes") authorize the legislative authority of a municipal corporation, by ordinance, to
declare the improvement to certain parcels of real property located within the municipal
corporation to be a public purpose and exempt from taxation, require the owner of each parcel
to make service payments in lieu of taxes, establish a municipal public improvement tax
increment equivalent fund for the deposit of the remainder of such service payments and
specify public infrastructure improvements made, to be made or in the process of being made
that directly benefit, or that once made will directly benefit those parcels; and
WHEREAS, the Company expects to construct an approximate 22,000 to 35,000 square foot
LEED certified office building and a related parking lot and improvements on the
Development Site (collectively, the "Project"); and
WHEREAS, this Council has determined to declare the Improvement (as defined in Section
2) to the Property to be a public purpose and exempt from taxation under the TIF Statutes and
to require the owners of the Property to make Service Payments (as defined in Section 3) with
respect to the Property; and
WHEREAS, this Council has determined that the Project will promote commercial activity
and create jobs within the City and therefore, the City will utilize the Service Payments to
provide for the public infrastructure improvements described in Exhibit B attached hereto (the
"Public Infrastructure Improvements") that once made will directly benefit the Property; and
RECORD OF ORDINANCES
Ordinance No.
60-09
Passed
Form No. 30043
20
WHEREAS, the City has determined that a portion of the Service Payments shall be paid to the
Dublin City School District (the "School District") in an amount equal to the real property taxes
that the School District would have been paid if the Improvement to the Property had not been
exempted from taxation pursuant to this Ordinance; and
WHEREAS, notice of this Ordinance has been delivered to the boards of education of the
School District and the Central Ohio Joint Vocational School District, each in accordance with
and within the time periods prescribed in Ohio Revised Code Section 5709.83; and
WHEREAS, this Council has determined to provide for the execution and delivery of a Real
Estate Purchase Contract and an Economic Development and Tax Increment Financing
Agreement, all to provide for the sale and development of the Development Site;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio, ~ of the elected members concurring, that:
Section 1. Sale of the Property and Provision of Other Economic Development Incentives. The
sale and conveyance of the Development Site to the Company pursuant to the terms and
provisions of the Real Estate Purchase Contract (as described in Section 7) is hereby authorized.
Further, the provision of the various economic development incentives described in the EDTIF
Agreement (as described in Section 8) is hereby authorized.
Section 2. Authorization of Tax Exemption. This Council hereby finds and determines that
100% of the increase in assessed value of the Property subsequent to the effective date of this
Ordinance (which increase in assessed value is hereinafter referred to as the "Improvement" as
defined in Ohio Revised Code Section 5709.40(A)) is hereby declared to be a public purpose and
shall be exempt from taxation for a period commencing with the first tax year that begins after
the effective date of this Ordinance and in which an Improvement due to the construction of a
new structure on that Property first appears on the tax list and duplicate of real and public utility
property for such Property and ending on the earlier of (a) thirty (30) years after such
commencement or (b) the date on which the City can no longer require service payments in lieu
of taxes, all in accordance with the requirements of the TIF' Statutes.
Section 3. Payment of Service Payments and Property Tax Rollback Pam. As provided in
Ohio Revised Code Section 5709.42, the owners of any portion of the Property are hereby
required to and shall make service payments in lieu of taxes with respect to the Improvement
allocable thereto to the Treasurer of Franklin County, Ohio (the "County Treasurer") on or before
the final dates for payment of real property taxes. Each service payment in lieu of taxes shall be
charged and collected in the same manner and in the same amount as the real property taxes that
would have been charged and payable against the Property if it were not exempt from taxation
pursuant to Section 2 of this Ordinance, including any penalties and interest (collectively, the
"Service Payments"). The Service Payments, and any other payments with respect to the
Property that are received by the County Treasurer in connection with the reduction required by
Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, as the same may be amended
from time to time, or any successor provisions thereto as the same may be amended from time to
time (the "Property Tax Rollback Payments"), shall be allocated and distributed in accordance
with Section 5 of this Ordinance.
Section 4. Creation of TIF Fund. This Council hereby establishes, pursuant to and in accordance
with the provisions of Ohio Revised Code Section 5709.43, the Delta Energy Project Municipal
Public Improvement Tax Increment Equivalent Fund (the "Fund'). The Fund shall be
maintained in the custody of the City and shall receive all distributions to be made to the City
pursuant to Section 5 of this Ordinance. Those Service Payments and Property Tax Rollback
Payments received by the City with respect to the Improvement of the Property and so deposited
pursuant to Ohio Revised Code Section 5709.42 shall be used solely for the purposes authorized
in the TIF' Statutes or this Ordinance. The Fund shall remain in existence so long as such Service
Payments and Property Tax Rollback Payments are collected and used for the aforesaid
purposes, after which time the Fund shall be dissolved and any surplus funds remaining therein
transferred to the City's General Fund, all in accordance with Ohio Revised Code Section
5709.43.
Page 2 of 4
RECORD OF ORDINANCES
Dayton Lcgal Blank,lne.
60-09
Ordinance No.
Form No.300~3
Page 3 of 4
Passed , 20
to the School District, an amount equal to the amounts the School District
would otherwise receive as real property tax payments (including the
applicable portion of any Property Tax Rollback Payments) derived from the
Improvement to the Property absent the passage of this Ordinance, and
• to the City, all remaining amounts for further deposit into the Fund (as defined
in Section 4 of this Ordinance).
All distributions required under this Section 5 are requested to be made at the same time and in
the same manner as real property tax distributions.
Section 6. Public Infrastructure Improvements. This Council hereby designates the Public
Infrastructure Improvements described in Exhibit B attached hereto as public infrastructure
improvements made, to be made or in the process of being made that directly benefit, or that
once made will directly benefit, the Property.
Section 7. Real Estate Purchase Contract. The form of Real Estate Purchase Contract (the
"Real Estate Purchase Contract") presently on file with the Clerk of this Council, providing
for, among other things, the sale and conveyance of the Development Site to the Company, is
hereby approved and authorized with changes therein and amendments thereto not inconsistent
with this Ordinance and not substantially adverse to this City and which shall be approved by
the City Manager. The City Manager, for and in the name of this City, is hereby authorized to
execute the Real Estate Purchase Contract in substantially that form along with any
amendments thereto, provided that the approval of such changes and amendments thereto by
the City Manager, and the character of those changes and amendments as not being
substantially adverse to this City, shall be evidenced conclusively by the City Manager's
execution thereof. This Council further authorizes the City Manager, for and in the name of
the City, to execute any amendments to the Real Estate Purchase Contract, which amendments
are not inconsistent with this Ordinance and not substantially adverse to this City.
Section 8. Tax Increment Financing Agreement. The form of Economic Development and Tax
Increment Financing Agreement (the "EDTIF Agreement") presently on file with the Clerk of
this Council, providing for, among other things, the payment of Service Payments by the
owners of any portion of the Property and the provision of certain economic development
incentives to the Company, is hereby approved and authorized with changes therein and
amendments thereto not inconsistent with this Ordinance and not substantially adverse to this
City and which shall be approved by the City Manager. The City Manager, for and in the
name of this City, is hereby authorized to execute the EDTIF Agreement with respect to the
Property in substantially that form along with any amendments thereto, provided that the
approval of such changes and amendments thereto by the City Manager, and the character of
those changes and amendments as not being substantially adverse to this City, shall be
evidenced conclusively by the City Manager's execution thereof. This Council further
authorizes the City Manager, for and in the name of the City, to execute any amendments to
the EDTIF Agreement, which amendments are not inconsistent with this Ordinance and not
substantially adverse to this City.
Section 9. Non-Discriminatory Hiring PolicX. In accordance with Section 5709.823 of the
Ohio Revised Code, this Council hereby determines that no employer located upon the
Property shall deny any individual employment based solely on the basis of race, religion, sex,
disability, color, national origin or ancestry.
Section 10. Further Authorizations. This Council hereby authorizes and directs the City
Manager, the Clerk of Council, the Director of Law, the Director of Finance or other appropriate
officers of the City, to make such arrangements as are necessary and proper for the sale and
conveyance of the Development Site, the provision of the various economic development
incentives described in the EDTIF Agreement and the collection of the Service Payments.
This Council further hereby authorizes and directs the City Manager, the Clerk of Council, the
Director of Law, the Director of Finance or other appropriate officers of the City to prepare and
sign all agreements and instruments and to take any other actions as may be appropriate to
implement this Ordinance.
Section 11. Filings with Ohio Department of Development. Pursuant to Ohio Revised Code
Section 5709.40(I), the Clerk of Council is hereby directed to deliver a copy of this Ordinance
RECORD OF ORDINANCES
Ordinance No.
60-09
Page 4 of 4
Passed 20
Section 11. Filings with Ohio Department of Development. Pursuant to Ohio Revised Code
Section 5709.40(I), the Clerk of Council is hereby directed to deliver a copy of this Ordinance
to the Director of Development of the State of Ohio within fifteen days after its effective date.
Further, and on or before March 31 of each year that the TIF Exemption remains in effect, the
Economic Development Director or other authorized officer of the City shall prepare and
submit to the Director of Development of the State of Ohio the status report required under
Ohio Revised Code Section 5709.40(I).
Section 12. Open Meetings. This Council finds and determines that all formal actions of this
Council and any of its committees concerning and relating to the passage of this Ordinance
were taken in an open meeting of this Council or its committees, and that all deliberations of
this Council and any of its committees that resulted in those formal actions were in meetings
open to the public, all in compliance with the law including Ohio Revised Code Section
121.22.
Section 13. Effective Date. This Ordinance is declared to be an emergency ordinance
necessary for the immediate preservation of the public peace, health, safety or welfare, and
therefore shall be effective upon passage.
Signed
Presiding Officer
Attest:
Clerk of Council
Passed: ~ Q (~.~jZ~ o~ , 2009
Effective: ~p ~~ /'~,(j~ ~ , 2009
CITY OF DUBLIN..
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017-1090
Phone: 614-410-4400 • Fax: 614-410-4490
To: All Members Dublin City Council
From: Terry Foegler, City Manager~~/ ~~ ~~
Date: October 29, 2009
Memo
Initiated By: Marsha Grigsby, Deputy City Manager/Director of Finance
Dana L. McDaniel, Deputy City Manager/Director of Economic Development
Re: Additional information re Ordinance 60-09, Delta Energy
Summary
At the first reading of Ordinance 60-09 (Delta Energy), Council Members asked staff to address the
following questions:
Capital projects for similar Economic Development Agreements. As part of the
proposed Economic Development Agreement for Delta Energy, certain infrastructure
improvements are mentioned as incentives. The City agrees to finance, construct and install
necessary road improvements including a traffic roundabout at the intersection of Commerce
Parkway and Perimeter Drive, necessary improvements to Commerce Parkway and any
guardrails that maybe required along Emerald Parkway. The City also agrees to finance,
construct and install public bike paths, sidewalks and lighting in proximity to the property.
First, it is important to point out that the City identified the intersection improvements at
Perimeter and Commerce Parkway in its recently approved Five-Year Capital Improvements
Program (CIP). These improvements are scheduled for 2014 and are estimated to cost $1.6
million. This project was identified and budgeted for construction, regardless of Delta
Energy's project. Delta Energy's investment in this new project within a new Tax Increment
Finance (TIF) district may enable the City to construct this planned improvement earlier
than currently scheduled. Currently, staff is contemplating improvements to Commerce
Parkway as a result of the Delta Energy project that may include a cul de sac, street lighting
and bikepath. Additionally, guardrail maybe required along Emerald Parkway. These
improvements are estimated to cost $300,000. Improvements previously mentioned are
subject to Council approval as part of the annual CIl' update. The only exception maybe any
guardrail project that may need installation for public safety purposes. Staff would likely
approach Council separately for this authorization, depending on timing. The following two
projects are examples of infrastructure improvements provided as part of Economic
Development Agreements:
a. Cardinal Health. The recent expansion of Cardinal Health included improvements to
Emerald Parkway at both the entrances to the original headquarters building and to
the new facility. This project included signalization, turn lane improvements,
entryway improvements, utility setbacks and connections, and some right-of--way
acquisition. The total cost of this project was $1,375,000. All improvements are
funded through Tax Increment Financing.
Memo re: Ordinance No. 60-09
October 29, 2009
Page 2 of 2
b. IGS Energy. The recent construction of the new IGS Energy headquarters facility
required improvements to the intersection of Emerald Parkway and Innovation
Drive. These improvements include turn lanes and signalization. The project is
currently under construction and cost $361,000. Additionally, the City agreed to bury
overhead power lines that cross I-270 at an estimated cost of $375,000. All
improvements are funded through Tax Increment Financing.
2. Withholdings. Delta Energy provided staff their forecast of employees and associated
payroll for the next fve years. Staff estimates payroll withholdings will be approximately
$946,500 over this period. It is reasonable to assume that the City could experience
withholdings for a period often years from a company who owns its own facility. Based on
conservative growth, staff estimates the City could experience payroll withholdings from
Delta Energy of $2,150,000 over aten-year period. Typically, for a project of this type the
City would offer performance-based incentives of approximately 20% of annual
withholdings for at least afive-year term. Such an incentive to the company would have
equaled at least $190,000 over fve years. The City is not offering this incentive and is
instead selling City-owned property equal to the price the City paid for it ($225,000/acre) in
2001.
3. LEED Certification. The proposed agreement with Delta includes a LEED Certification
Grant in the amount of $40,000. The City previously included a $75,000 LEED Ceilification
Grant agreement in the IGS Economic Development Agreement. Should IGS construct its
second building, the City will pay a LEED Certification Grant of $50,000. In all cases,
payment of the LEED Certification Grants are dependent upon the companies meeting
certain requirements, including obtaining LEED Certification.
Recommendation
Staff recommends Council approve Ordinance 60-09 as an emergency at the second reading/public
hearing on November 2"~ and waive the 30-day waiting period. Please address any questions you
may have to Dana McDaniel.
EXHIBIT A
PROPERTY
The following map specifically identifies and depicts the general vicinity of the Property and
constitutes part of this Exhibit A. The Property includes tax parcel 273-010591-00.
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EXHIBIT B
PUBLIC INFRASTRUCTURE IMPROVEMENTS
The Public Infrastructure Improvements include the construction of the following
improvements and all related costs (as defined in Ohio Revised Code Section 133.15(B)):
• constructing a traffic circle/roundabout at the intersection of Commerce Parkway and
Perimeter Drive,
• constructing a cul-de-sac and other improvements to Commerce Parkway,
• constructing a guardrail on Emerald Parkway between certain termini,
• constructing related storm water retention detention improvements, and
• constructing improvements to Perimeter Drive from Emerald Parkway to Avery-
Muirfield Drive,
together with constructing and installing curbs and gutters, public utilities which include water mains,
fire hydrants, sanitary sewer, and storm sewer, stormwater improvements, burial of utility lines, gas,
electric and communications service facilities (including fiber optics), street lighting and signs,
sidewalks, bikeways, and landscaping (including scenic fencing and irrigation), traffic signs and
signalization, and including design and other related costs, any right-of--way or real estate acquisition,
erosion and sediment control measures, grading, drainage and other related work, survey work, soil
engineering, inspection fees and construction staking, any other necessary site improvements, and in
each case, all other costs and improvements necessary and appurtenant thereto.
CITY OF DUBLIN,.
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017-1090
Phone: 614-410-4400 • Fax: 614-410-4490
To: All Members Dublin City Council
From: Terry Foegler, City Manager ~ Fl
Date: October 15, 2009
Memo
Initiated By: Marsha Grigsby, Deputy City Manager/Director of Finance
Dana L. McDaniel, Deputy City Manager/Director of Economic Development
Re: Ordinance 60-09, Economic Development Agreement with Delta Energy
Summary
Staff has been in discussions with Delta Energy, LLC. ("Delta") for several months regarding the
attraction of its operations and workforce to the City of Dublin. Delta intends to construct a new
22,000 square-foot headquarters facility in Dublin. The construction of a new corporate
headquarters facility demonstrates Delta's long-term commitment to Dublin. Delta is expected to
locate to Dublin with 75 employees and expand its workforce to at least 100 employees by 2015.
Delta desires to purchase property currently owned by the City (Enclosure 1) at the southwest
corner of Emerald Parkway and Perimeter Drive and construct a new headquarters facility.
Enclosure 2 provides the concept plan and elevations for Delta's proposed facility.
Delta, currently located in the City of Columbus, offers customized energy management services for
energy consumers and producers and provides competitively-priced natural gas supply and
transportation to industrial end-users. Customers include multi-facility corporate accounts, single-
site industrial consumers, independent producers, and utility companies. Delta's energy
management services are provided throughout the continental United States and Canada, while
natural gas sales and transportation are focused in the major consuming regions of the Northeast,
Mid-Atlantic, Mid-Continent and Gulf Coast. Delta currently services numerous Fortune 500
accounts, manages electric and gas-consuming facilities across most industries, and provides
customized energy services for energy suppliers, producers and utilities.
Attached for your consideration is Ordinance 60-09, authorizing the City Manager to execute a Real
Estate Purchase Contract (Enclosure 3). The Economic Development and Tax Increment Financing
Agreements are included as Exhibit C to the Real Estate Purchase Agreement. Highlights of the
Delta project include:
1. LEED Certification Grant. The City agrees to pay a LEED Certification Grant in the
amount of $40,000, once all of the following has been satisfied: completion of up to
35,000 square feet of office building (currently approved for 14,386 sf); the City has
issued a certificate of occupancy for the building; and the City receives a copy of the
LEED certification for the building.
2. Conveyance of Property. The City agrees to convey the property in accordance with
the Real Estate Purchase (Enclosure 3). If approved, the City will sell to Delta City-
Memo re: Ordinance 60-09 - EDA -Delta Energy
October 12, 2009
Page 2 of 3
owned land for $225,000 per acre. In 2001, the City purchased this property at the same
cost per acre in order to construct Emerald Parkway from Perimeter Drive to Shier Rings
Road. The land was considered to be part of the future Coffinan Park expansion plans
because of its development limitations. After many months of searching the immediate
area for the appropriate available site, Delta approached the City about the idea of
purchasing this City-owned land on which it would construct its headquarters. In
consideration for attracting 100 new jobs and causing investment in new facilities, staff
recommends selling this property to Delta for S225,000 per acre. The exact amount of
acreage is yet to be determined, pending the outcome of finite designs and surveys. At
this time, staff estimates selling between 4.25 and 4.75 acres to Delta.
3. Infrastructure Improvements. The City agrees to finance, construct and install
necessary road improvements including a traffic roundabout at the intersection of
Commerce Parkway and Perimeter Drive, necessary improvements to Commerce
Parkway and any guardrails that may be required along Emerald Parkway. The City also
agrees to finance, construct and install public bike paths, sidewalks and lighting in
proximity to the property. The roundabout at the intersection of Commerce Parkway and
Perimeter Drive is currently programmed in the City's Five-Year Capital Improvements
Program for construction in 2014. The establishment of the tax increment financing
district as authorized by Ordinance 60-09 will likely accelerate the completion of the
public improvement. The City and Delta agree to work cooperatively on the design and
construction of a storm water retention pond to be constructed on the northeast comer of
Commerce Parkway and Perimeter Drive. The retention pond will serve both the City
and Delta's storm water retention needs and remain on City-owned property. Delta will
construct the retention pond and the City will reimburse Delta for its proportionate share
of the total capacity.
4. Easements. Delta agrees to grant to the City the necessary easements or rights-of--way
on the property for the installation of public improvements, at no cost to the City.
5. Tax Increment Financing (TIF) District. Delta agrees to cooperate in the creation of a
tax increment financing district on the property and covenants to make payments-in-lieu-
of-taxes, or service payments, for the purpose of funding the public infrastructure
improvements identified in Exhibit B to the Ordinance. The Ordinance provides for the
establishment of anon-school TIF district. As provided for in the Ohio Revised Code, a
non-school TIF district may be in place for a period of 30 years or until the City is
reimbursed for the public infrastructure improvements. The proposed project is
estimated to generate between $26,000 to $38,500 in annual service payments to the
City. Based on the estimated cost of the intersection improvement project reflected in
the CIP, the TIF district will likely be in place for the maximum time allowed by the
Ohio Revised Code.
As a result of the non-school TIF, the Dublin School District (the District) will receive
service payments based on their effective millage. It is estimated they will receive
between $40,000 to $60,000 in annual service payments. The new private improvement
values are considered "exempt" for property tax purposes and therefore are not reflected
in the District's assessed valuation total. This is beneficial to the District because as
Memo re: Ordinance 60-09 -EDA - Delta Energy
October 12, 2009
Page 3 of 3
assessed valuation increases, the State school foundation aid payments made to the
District are decreased.
It is important to highlight that the property, if continued to be owned by the City would
have been farmed and maintained in the Current Agricultural Use Value program,
resulting in less than $100 in annual property tax revenues, until such time as Coffman
Park was expanded to include the City-owned land on the north side of Perimeter Drive.
At that point in time, the City would have filed an application for property tax exemption
on all of the City-owned property. The private development of this property will result
in future property tax revenues for governmental entities within the taxing district that
would not have been generated if the City continued to own the property.
On Thursday, October 8`~', Delta's application for "Conditional Use" was reviewed and approved by
the Dublin Planning and Zoning Commission.
Recommendation
Staff recommends Council approve Ordinance 60-09 as an emergency at the second reading/public
hearing on November 2, waiving the 30-day waiting period. Please address any questions you may
have to Dana McDaniel.
Enclosure 1: Delta Energy Concept Plan & Elevation Drawings
Enclosure 2: Concept Plan
Enclosure 3: Real Estate Purchase Agreement w/ EDA & TIF Agreements
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Enclosure 2
(Concept Plan)
Enclosure 2
Concept Plan (continued)
Proposed Elevations
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1. North Elevation -View from Perimeter Drive
~~~=
2. South Elevation -View from Emerald Parkway
Enclosure 3
Real Estate Purchase Agreement w/ EDA & TIF Agreements
Memo re: ®rdinance No. 60-09
®ctober 12, 2009
Page 8 of 8
Enclosure 3
Real Estate Purchase Agreement w/ EDA & TIF Agreements
Real Estate Purchase Contract
Industrial --Investment -Commercial
It is recommended that all parties be represented by legal counsel.
Contract modified from Columbus Board of Realtors form with legs! counsel.
1. OFFER AND PROPERTY DESCRIPTION: The undersigned, Delta
Energy Holdings, LLC, an Ohio limited liability company (hereinafter referred to as
"Buyer'°), offers to purchase from the City of Dublin, Ohio (hereinafter referred to as
"Seller"} through Broker, the following described real estate including, without limitation,
all improvements, fixtures, appurtenant rights, privileges and easements: located in the
County of Franklin, and the State of Ohio, and in the City of Dublin, and consisting of
approximately 4.0 - 5.08 acres as generally shown on the attached Exhibit A
(hereinafter the "Property"}, which Property is part of a larger tract of real property
owned by Seller known as Franklin County Parcel # 273-010591-00 and legally
described on the attached Exhibit B (the "Parent Parce}"). The Parent Parcel less the
Property is hereinafter referred to as the "Retained Property".
2. PRICE AND TERMS: The purchase price of the Property shall be Two
Hundred Twenty Five Thousand Dollars ($225,040.00) per acre of the Property, as
determined by the Survey (as hereinafter defined), payable at closing with cash or other
immediately available funds.
3. CONTINGENCIES:
a) Environmental Inspection: Within ninety (90) days after the
acceptance hereof, Seller agrees to permit the Buyer, the Buyer's lender and any
qualified, professional environmental consultant or consultants retained by Buyer or its
prospective fender(s) to conduct, at the expense of the Buyer, an environmental site
assessment. Buyer agrees to indemnify and hold Seller harmless from any injury or
damage to persons, property and crops caused by such inspection and to restore the
Property to substantially the condition in which the same were found before such
inspection. If such assessment is obtained and the consultant recommends further
inspection to determine the extent of suspected contamination or recommends remedial
action, the Buyer, at Buyer's option, may notify the Seller in writing, within the above-
specified period, that this Contract is null and void. Failure of Buyer to so deliver written
notice and copy of the environmental report(s) within such time periad shall constitute a
waiver of Buyer's right to terminate this Contract pursuant to this provision. The
indemnification herein shall survive the termination of this Contract.
b) Property Inspection: Buyer, at Buyer's expense, shall have ninety (90)
days after the acceptance hereof to have the Property and all improvements, fixtures
and equipment inspected. Buyer shall be permitted to complete any inspection
including but not limited to soil sampling and testing, soil boring and soil compaction
tests. Seller shall cooperate in making the Property reasonably available for such
inspection(s). Buyer agrees to indemnify and hold Seller harmless from any injury or
damage to persons, property and crops caused by such inspection(s) and to restore the
Property to substantially the condition in which the same were found before such
inspection. If Buyer is not, in good faith, satisfied with the condition of the Property as
disclosed by such inspection(s), Buyer may terminate this Contract by delivering written
notice of such termination to Seller, along with a written copy of such inspection
report(s), within the time period specified above, such notice and report{s} shall specify
the unsatisfactory conditions. Failure of Buyer to so deliver written notice and copy of
the inspection report(s) within such time period shall consti#ute a waiver of Buyer's right
to terminate this Contract pursuant to this provision. The indemnification herein shall
survive the termination of this Contract.
c) Z_ oninq Contingency: Buyer, at its sole expense, shat! have up to
ninety (90) days from the Effective Date of this Contract (the "Zoning Contingency
Period") to obtain from the City of Dublin or any other applicable zoning, building or
engineering department, commission or board, zoning changes and/or approvals
reasonably satisfactory to Buyer to allow Buyer to use the Property for office uses. If
delays in obtaining satisfactory approval are not caused by any fault of Buyer, but are
caused by events or factors beyond the reasonable contro{ of Buyer, Buyer shalt be
entitled to four (4} additional thirty (30} day extensions of the Zoning Contingency
Period by providing, in each case, written notice to Seller that Buyer requires such
extensions} on or before the expiration of the Zoning Contingency Period ar applicable
extension thereof, and providing Seller with evidence of the cause or causes of such
delay. Buyer, at its sole cost and expense, shall submit to the Dublin Planning and
Zoning Commission (`°PZC") an application for a conditional use permit in time for the
PZC's October 2009 meeting. Seller will cooperate with Buyer in the completion of any
application needed in order for Buyer to seek zoning and building approval, but shall
incur no expense in connection with Buyer's efforts to seek and obtain approvals.
If Buyer is unable to obtain the approval of the City of Dublin or applicable zoning
commission or board for zoning changes or approvals to allow the Buyer to use the
property for the intended use described herein, Buyer may terminate this Contract by
delivering written notice to the Seller prior to the expiration of the Zoning Contingency
Period or applicable extension thereof. Failure of Buyer to so deliver written notice of
termination prior to the expiration of the Zoning Contingency Period or extension
thereof, if applicable, shall constitute a waiver of Buyer's righ# to terminate the Contract
pursuant to this provision.
d) Intentional) deleted.
e~ Financing: Buyer's obligations hereunder are contingent upon Buyer
obtaining financing acceptable to Buyer, in Buyer's sale discre#ion, within ninety (90)
days after the acceptance hereof. In the event that Buyer does not obtain such
acceptable financing, Buyer may provide written notice to Seller that Buyer wishes to
terminate this Contract within such ninety (90) day period. Failure to deliver such
written notice within such ninety (90) day period shall constitute a waiver of Buyer's right
to terminate the Contract pursuant to this provision.
f) Governmental Approvals: Buyer shall have ninety (90) days after the
acceptance hereof (the "Governmental Approval Contingency Period") to obtain
approval of its final development plan, including, but not limited to the approval of two
curb cuts providing access to and from the Property to Commerce Parkway, the
dimensions and boundaries of the Property and the address of the Property, from all
governmental bodies needed to permit Buyer to complete and operate its proposed
development, which proposed development shall include an office building comprising
no less than 22,000 nor more than 35,000 square feet of building area, together with
associated parking lots, retention ponds, water features, landscaping and other
improvements typically found in a first-class office complex (hereinafter, the "Project").
Unless this Contract is sooner terminated, Buyer shalt submit its application to PZC in
time for the PZC's October meeting. If delays in obtaining satisfactory approval are not
caused by any fault of Buyer, but are caused by events or factors beyond the
reasonable control of Buyer, such as, for example, the PZC either tabling or failing to
complete hearings upon Buyer's planning commission application in a timely manner,
then Buyer shall be entitled to four (4) additional thirty (30) day extensions of the
Governmental Approval Contingency Period by providing, in each case, written notice to
Seiler that Buyer requires such extension(s) on or before the expiration of the
Governmental Approval Contingency Period or extension thereof, and providing Seller
with evidence of the cause or causes of such delay. In the event that Buyer is not able
to obtain approval of its final development plan within the period of this contingency,
including any extensions thereof, then Buyer may terminate this Contract by delivering
written notice to the Seller prior to the expiration of the Governmental Approval
Contingency Period or applicable extension thereof. Failure of Buyer to so deliver
written notice of termination prior to the expiration of the Governmental Approval
Contingency Period or applicable extension thereof shall constitute a waiver of Buyer's
right to terminate the Contract pursuant to this provision.
g) State of Ohio Incentives: Buyer shall have ninety (90) days after the
acceptance hereof to obtain any State of Ohio economic incentives acceptable to Buyer
at Buyer's sole discretion. In the event that Buyer is not able to obtain economic
incentives from the State of Ohio within the period of this contingency then Buyer may
terminate this Contract by delivering written notice to the Seller prior to the expiration of
the time period specified herein. Failure of Buyer to so deliver writ#en notice of
termination prior to the expiration of the time period specified herein, shall constitute a
waiver of Buyer's right to terminate the Contract pursuant to this provision. Seller will
cooperate with Buyer in the completion of any application needed in order for Buyer to
seek any State of Ohio incentives, but shat! incur no expense in connection with Buyer's
efforts to seek and obtain such incentives.
h) Ecanomic Development Agreement: This Contract is contingent
upon Seller and Buyer, within ninety (90) days after the Effective Date (the "EDA
Approval Contingency Period"), entering into and obtaining Dublin City Council approval
of an Economic Development Agreement in substantially the form attached hereto as
Exhibit C (the "EDA").
If, despite their good faith efforts, Buyer and Seller are unable to reach agreement on
the terms and conditions of the EDA and/or obtain Dublin City Council approval thereof
within the EDA Approval Contingency Period, then Seller and/or Buyer may extend
such EDA Approval Contingency Period for up to four (4) additional thirty (30} day
periods by providing, in each case, written notice to the other party that of such
extension on or before the expiration of the EDA Approval Contingency Period or
extension thereof. If Seller and Buyer are unable to agree upon the terms and
conditions of the EDA and/or obtain Dublin City Council approval thereof within the
period of this contingency, including any extensions thereof, then Seller and/or Buyer
may terminate this Contract by delivering written notice to the other at anytime prior to
the expiration of the EDA Approval Contingency Period or applicable extension thereof.
If Seller and Buyer fail to provide such written notice to the other within such time
period, then this Contract shall be deemed terminated, effective as of the expiration of
the EDA Approval Contingency Period or applicable extension thereof.
i) Dublin City Councit Approval: This Contract shall be contingent upon
Seller, within ninety (90) days after the acceptance hereof, obtaining Dublin City Council
approval of the terms of this Contract. If Dublin City Council fails to approve of this
Contract within such period, then this Contract may be terminated by Seller upon
delivery of written notice thereof to Buyer.
j) Survey Approval: This Contract shall be contingent upon Seller,
Buyer and the PZC, on or before the expiration of the Governmental Approval
Contingency Period, as the same may be extended, approving the exact dimensions
and boundaries of the Property, which shall be generally consistent with Exhibit A_
Promptly following the PZC's and Seller's approval of the general boundaries and
dimensions of the Property (but in no event later than ten (10) business days prior to
the closing), Buyer shall, at its sole cost and expense, deliver to Seller and the Title
Company for approval, a boundary survey (the "Survey") and legal description of the
Property, prepared by a surveyor, registered in the State of Ohio (the "Surveyor"},
together with any other documents legally necessary to split the Property from the
Parent Parcel_ If the dimensions and boundaries of the Property are not agreed upon
on or before the expiration of the Governmental Approval Contingency Period, as the
same may be extended, then the Buyer or Seller may rescind this Contract by providing
written notice thereof to the other at any time prior to the expiration thereof. If Seller
and Buyer fail to provide such written notice to the other within such time period, then
this Contract shall be deemed terminated, effective as of the expiration of the
Governmental Approval Contingency Period or applicable extension thereof.
Notwithstanding anything contained herein to the contrary, Buyer shaft proceed in good
faith and with due diligence to undertake and complete the activities identified in
Section 3, and, upon request by Seller, shall keep Seller generally advised of
developments with respect thereto at all times during the respective contingency
periods, including, without limitation, by providing oral and written progress reports and
by making available to Seller such documents as Seller may request from time #o time,
including, without limitation, copies of due diligence proposals, paid invoices, reports,
surveys, soil tests, utility studies, zoning applications, invoices and other documents.
Buyer shall bear ail costs associated with or arising out of any and all activities
regarding its inspections identified herein.
4. POSSESSION: Possession shall be given to Buyer upon closing, subject
to the Permitted Exceptions (as hereinafter defined) and the righ#s of the occupants of
the Property under that certain Use Agreement dated January 11, 2001 between Seller,
as licensor, and Dorothy L_ Thomas, Marian D_ Thomas, Robert Thomas, William
Thomas and Andrew Thomas, as licensees (the "Use Agreement"), a copy of which
Use Agreement is attached hereto as Exhibit D. At the closing, Seller shall assign all of
its rights, title an interest under the Use Agreement to Buyer, and Buyer shall assume
same, pursuant to an assignment document in form and substance acceptable to Buyer
and Seller. Upon request, Seiler shall join Buyer in the execution of a notice
terminating such Use Agreement. Notwithstanding anything to the contrary contained
herein, Buyer agrees that Buyer's investigations and surveying of the Property shall not
unreasonably interfere with the use of the Property by the licensees under the Use
Agreement and that Buyer shal6 indemnify Seller from and against any damages
caused to the crops, if any, damaged during such inspections or surveys. The
indemnification herein shall survive the termination of this Contract.
5. RENTALS AND OTHER PRORATtONS: Rents and operating expenses,
if applicable, shall be prorated as of the date of closing.
6. FIXTURES AND EQUIPMENT: If applicable, the consideration shall
include all fixtures owned by Seller including, but not limited to: built-in appliances;
heating, ventilating, air conditioning (HVAC) and humidifying equipment and their
control apparatus; stationary tubs; pumps; water softening equipment; roof antennae;
attached wall-to-wall carpeting and attached floor coverings, curtain rods and window
coverings including draperies and curtains; attached mirrors; light, bathroom and
lavatory fixtures; storm and screen doors and windows, awnings, blinds and window air
conditioners, whether now in or on the Property or in storage; garage door openers and
controls; attached fireplace equipment; security systems and controls; smoke alarms;
satellite TV reception system and components; all exterior plants and trees; and the
following: (None if left blank)
7. DAMAGE OR DESTRUCTION OF PROPERTY: If applicable, risk of
physical loss to the real estate and improvements shall be borne by Seller until closing,
provided that if any property covered by this Contract shall be substantially damaged or
destroyed before this transaction is closed, Buyer may a) proceed with the transaction
and be entitled to all insurance proceeds, if any, payable to Seller under all policies
covering the Property, or b) rescind this Contract and thereby release all parties from
liability hereunder by giving written notice to Seller and Broker within ten (10) days after
Buyer has written notice of such damage or destruction. Failure by Buyer to so notify
Seller and Broker shall constitute an election to proceed with the transaction.
8. CONDITION OF PROPERTY: If applicable, Seller agrees that upon
delivery of the Deed, the improvements constituting part of the real estate shall be in
the same condition as they are on the date of this offer, reasonable wear and tear
excepted.
Seller shall, within ten (10) days after the Effective Date, submit to Buyer the
following information andlor materials, to the extent the same is available, for use by
Buyer in preparation for the purchase of the Property: (a) prior surveys of the Parent
Parcel; (b) prior environmental studies of the Parent Parcel; and (c} a copy of the title
insurance policy issued upon Seller's acquisition of the Parent Parcel. All materials
provided to Buyer pursuant to this Section 8 shall be deemed conditional. If this
transaction is not closed in accordance with the terms hereof, such materials shall be
returned to Seller upon demand.
9. EVIDENCE OF TITLE: Within fifteen (15) days of execution and delivery
hereof, Seller shall provide to Buyer an owner's title insurance commitment [current
ALTA owner's] issued by Benchmark Title Agency, Inc. (the "Title Company"), in the
amount of the purchase price of the Property (which purchase price shall initially be
based upon the Property containing 5.08 acres and be subject to adjustment upon
completion of the Survey). The title evidence shall be initially certified as of the date of
examination of title with endorsement not before 8:00 a.m. on the business day prior to
the date of closing, all in accordance with the standards of the Columbus Bar
Association, and shall show in Seller marketable title in fee simple free and clear of all
liens and encumbrances except: a) those created by or assumed by Buyer; b) those
specifical{y set forth in this Contract; c) zoning ordinances; d) legal highways; e)
covenants, restrictions, conditions and easements of record that do not unreasonably
interfere with Buyer's intended use of the Property; and f) matters that might be
disclosed by an accurate survey of the Property (the "Permitted Exceptions"). At
closing, Seller shall pay the premium for an owners policy of title insurance. Buyer
shall pay any additional costs incurred in connection with mortgagee title insurance
issued for the protection of Buyer's lender and any additional premiums associated with
endorsements requested by Buyer or Buyer's lender. Buyer and Seller shall each pay
one-half (112) the fee, if any, charged by the Title Company for closing the transaction
contemplated herein.
If title to all or part of the Property is unmarketable, as determined by Ohio law
with reference to the Ohio State Bar Association's Standards of Title Examination, or is
subject to defects, liens, encumbrances, easements, conditions, restrictions or
encroachments other than those accepted in this Contract (hereinafter, "Defects"), then
the Buyer shall give the Seller written notice of any Defects within fifteen (15) days after
the Buyer's receipt of the title commitment. In the event the Buyer fails to give such
notice, the Buyer shall be deemed to have accepted the current status of title. Seller
shall, within thirty (30) days after written notice thereof, remedy or remove any such
Defects, obtain title insurance without exception therefor or elect not to correct such
Defects. In the event Seller is unable to remedy or insure against the Defects or elects
not to correct such Defects within the thirty (30) day period, then Seller shall give notice
thereof to Buyer, and Buyer shall, within five (5} days after receipt of such notice, either
declare this Contract null and void or elect to proceed to closing. In the event the Buyer
elects to declare this Contract null and void pursuant to the foregoing sentence, no
party hereto shall have any claim #or damages against the other. If Buyer fails to
provide such notice or if Buyer elects to proceed with the transaction contemplated
herein, then Buyer agrees to accept title to the Property subject to such Defects and
proceed with the closing. At closing, the status of title shall remain unchanged and the
Seller shall sign an affidavit with respect to off-record title matters in accordance with
the community custom.
If Buyer desires and ALTA/ASCM survey, then Buyer shall pay the cost thereof.
10. CONVEYANCE AND CLOSING: At closing, Seller shall pay transfer taxes
and deed preparation costs and shall convey, at closing, marketable title (as described
in paragraph 9) to the Property by deed of limited warranty {the "Deed") in fee simple,
with release of dower, if any. Buyer shall pay the recording fees required for recording
the Deed and any of Buyer's lender's documents, such as a mortgage. The date of
closing shall be within thirty (30} days of satisfaction or waiver of al! contingencies,
which closing date may be extended by agreement of Buyer and Seller and shat! be
extended by such time, if any, as is necessary to cure Defects, as set forth in Section 9
above (the '°Closing Date"). The closing shall be at such time and place as Buyer and
Seller may mutually agree upon.
Buyer and Seller agree that such other documents as may be legally necessary or
appropriate to carry out the terms of this Contract shall be executed and delivered by
the appropriate party at Closing. Such documents shall include, but not be limited to a
closing statement, and Seller's affidavit regarding liens, unrecorded matters and
possession.
11. TAXES AND ASSESSMENTS: At closing, Seller shall pay or credit on
purchase price all delinquent taxes, including penalty and interest, all assessments that
are a lien on the date of this Contract and, except as set forth in the following
paragraph, all agricultural use tax recoupments for years prior to the year of closing. At
closing, Seller also shall pay or credit on the purchase price all other unpaid real estate
taxes that are a lien for years prior to closing and a portion of such taxes and, except as
set forth in the following paragraph, agricultural use #ax recoupments for year of closing,
prorated through date of closing and based on a 365-day year and, if undetermined, on
most recent available tax rate and valuation, giving effect to applicable exemptions,
recently voted millage, change in valuation, etc., whether or not certified. The tax
proration herein shall take into account the fact that Buyer is acquiring a portion of the
Parent Parcel by multiplying the applicable taxes and assessments by a fraction, the
numerator of which shall be the acreage contained in the Property and the denominator
of which shall be the total acreage contained in the Parent Parcel.
Buyer and Seller acknowledge and agree that the Property is currently in the
Current Agricultural Use Valuation (CAUV) Program. At such time as Buyer, its
successors and assigns, ceases to use the Property for agricultural purposes and
removes the Property from the CAUV Program, any agricultural use tax recoupments
allocable to the period of time the Property was owned by Seller or its predecessors in
the title shall be promptly paid by Seller and Buyer, provided that Buyer shat! be
responsible for any remaining agricultural use tax recoupment due for periods from and
after the date of closing.
With regard to future assessments, Seller warrants that, as of the date of the
acceptance hereof, no improvements or services to the site or area have been installed
or furnished that would result in the costs being assessed against the real estate, and
no written notification has been received by Seller from public authority or owners'
association of future improvements that would result in costs being assessed against
the real estate.
Real estate taxes and assessments are subject to retroactive change by
governmental authority. The rea! estate taxes for the Property for the current tax year
may change as a result of the transfer or as a result of a change in the tax rate. All
proration of real estate taxes and assessments shall be final as of closing, except as
otherwise provided herein.
12. BUYER'S EXAMINATION: BUYER IS RELYING SOLELY UPON ITS
OWN EXAMINATION OF THE PROPERTY AND INSPECTIONS HEREIN REQUIRED,
IF ANY, FOR ITS PHYSICAL CONDITION, CHARACTER, AND SUITABILITY FOR
BUYER'S INTENDED USE AND IS NOT RELYING UPON ANY REPRESENTATIONS
BY THE BROKERS} OR SELLER, EXCEPT FOR THOSE MADE BY BROKER(S) OR
SELLER DIRECTLY TO THE BUYER HEREIN. THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE iS" BASIS AND WITH
ALL FAULTS, AND BUYER EXPRESSLY ACKNOWLEDGES THAT, IN
CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS
OTHERWISE SPECIFIED IN SECTION 16 OR THE LIMITED WARRANTY DEED,
SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED,
OR ARISING BY OPERATION OF LAW, 1NCLUDlNG, BUT NOT LIMITED TO, ANY
WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY,
TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF
THE PROPERTY.
13. INDEMNITY: Seller agrees to defend, indemnify and hold harmless
Broker(s), and their agents and employees for any cost or liability that may be incurred
by or imposed on Broker(s) for any breach by Seller of any representation or warranty
or for any misrepresentation or concealment of fact by Seller in connection with the
Property.
14. ENVIRONMENTAL DISCLAIMER BY BROKER: Buyer and Seller
acknowledge that Broker(s) have made no independent investigation to determine
whether hazardous materials exist in, on or about the Property. Buyer and Seller
understand that any such determination requires the expertise of a specialist in
hazardous materials, the retaining of which is the responsibility of Buyer and/or Seller
and not that of Broker.
15. DEPOSIT: Upon the final acceptance of this Contract by both parties,
Buyer shall deposit with the Title Company the sum of Ten Thousand Dollars
{$10,000.00)(the "Deposit"}. The Deposit shall be held by the Title Company in its non-
interest-bearing trust account in accordance with the provisions of the Escrow
Agreement, attached hereto and made a part hereof as Exhibit E. Further, Buyer and
Seller agree that the provisions of this Section 15 pertaining to the disposition of the
Deposit shall apply: a) the Deposit shall be applied on purchase price or returned to
Buyer when transaction is closed; b) if Seller fails or refuses to perform, or any
contingency is not satisfied or waived, the Deposit shalE be returned to Buyer and
neither party shall have any further liability hereunder; c) if Buyer fails or refuses to
perform, this Deposit shall be paid to Seller, which payment, or the acceptance thereof,
shall not in any way prejudice the rights of Seller or any Broker in any action for
damages or specific performance; d) If this Contract is terminated in accordance with
Section 3 (Contingencies) or Section 9 (Evidence of Title), the Deposit shall be returned
to Buyer and neither party shall have any further liability hereunder; e) In the event of a
dispute over the disposition of the deposit, the Title Company shall retain the Deposit
until {i) Buyer and Seller have settled the dispute; (ii) disposition has been ordered by a
final court order; or (iii) the Title Company deposits said amount with a court pursuant to
applicable court procedures.
16. REPRESENTATIONS AND WARRANTIES: Seller has advised Buyer that
Seller has fee simple title to the Property. Seller further represents and warrants to
Buyer as set forth below in this Section 16, which representations and warranties shall
survive the closing for a period of one (1) year, and the passing of title of the Property
to Buyer.
a) Seller is not in default with respect to any order or decree of any court or of
any such governmental agency or instrumentality regarding any of the Property.
b) Seller has not filed for relief as a debtor under any state receivership laws or
federal bankruptcy laws.
c) Seller has or will have full authority to enter into this Contract upon Dublin
City Council approval hereof and to execute all documents contemplated hereby, and
Seller's execution, delivery and performance of this Contract will not violate the
provisions of any agreement to which Seller is a party or by which it is bound.
d) Seller will not enter into or extend any lease or tenancy agreement affecting
any of the Property that will survive the closing without prior written approval of Buyer,
except as otherwise provided for herein.
e) Seller shall transfer the Property to Buyer in its present condition, and will not
create or permit any additional defects, liens, restrictions or other encumbrances to be
created on or regarding the title thereto after the date of this Contract, except as
otherwise provided #or herein or as permitted under the Use Agreement.
f) No person, firm, corporation or entity has or will have any right or option to
acquire any part of the Property other than Buyer hereunder.
g) In the event any claim is made by any party for the payment of sums due
for the furnishing of labor and/or materials to the Property prior to the closing da#e
hereof, or in the event any Tien is filed against the Property subsequent to the closing as
a result of such furnishing of such materials and/or labor, Seiler shall discharge said
lien.
h) Seller has not used the Property for the disposal of any hazardous or toxic
waste materials, nor to the Seller's actual knowledge without independent inquiry, does
the Property currently contain any hazardous or toxic waste materials, except as
provided in that certain Phase I Environmental Site Assessment dated December 2000
prepared by Raymond-Beling of Ohio, Inc.
Buyer represents and warrants to Seller as set forth below in this Section 16, which
representations and warranties shall survive the closing for a period of one (1) year,
and the passing of title of the Property to Buyer:
i) the execution, delivery and performance of this Contract, and the
consummation of the transaction contemplated hereby, will not result in any breech of,
or constitute any default under any agreement ar other instrument to which Buyer is a
party or by which Buyer may be bound;
j) the execution, delivery and performances by Buyer of this Contract and
the performance by Buyer of the transaction contemplated hereunder have each been
duly authorized by such persons or authorities as may be required by law; and on the
closing date, Buyer shall provide Seiler with certified resolutions, or other instruments,
in form reasonably satisfactory to Seller and the Title Company evidencing such
authorization.
17. DEVELOPMENT MATTERS: The Deed shall contain (a) an obligation for
Buyer to commence construction of the Project within sixty (60} days after the date of
the closing, or such later date as may be mutually agreed upon by Seller and Buyer (the
"Build Requirement Date"}, (b) an obligation for Buyer to complete construction of the
Project within ~) days after the commencement thereof, or such later date as
may be mutually agreed upon by Seller and Buyer (the "Completion Requirement
Date"), and (c} a restriction that the party taking title to the Property shalt not, without
the prior written consent of Seller, sell the Property, nor shall there be any material
transfer in the ownership of the party taking title to the Property, until such time as the
Project is complete and open for business. The Deed shall also provide that if any one
or combination of the foregoing conditions are not satisfied, then Seller shall have the
option to repurchase the Property for the purchase price originally paid by Buyer to
Seller hereunder (or, if construction of the Project has commenced, for the then fair
market value of the Property as then improved, which fair market value shall be
determined by an appraiser selected by Seller). Such option may be exercised at any
time prior to the Buyer's satisfaction of the applicable condition or upon learning that the
Property has been transferred in violation of the terms of the Deed. If Seller exercises
the option to repurchase the Property, the closing of such repurchase shall take place
within 30 days after Seller's exercise thereof at such location as Seller shall designate.
At such closing, good and marketable title in fee simple to the Property shall be
conveyed to Seller by limited warranty deed with release of dower, free and clear of all
liens and encumbrances except those which affected title to the Property when
originally conveyed to Buyer (provided that such deed shall not contain the restrictions
set forth herein). Rea! estate taxes and assessments shall be prorated as of the date
of resale and possession shall pass to Seller at such closing. At such closing, Seller
shat! be reimbursed for al! reasonable costs and expenses incurred by Seller in
connection with the transaction contemplated herein such that Seller is in the same
position as if the initial sale to Buyer had not taken place, including, without limitation,
title expenses and legal costs incurred in negotiating this Contract, the EDA and closing
the transaction contemplated herein.
To secure Buyer's obligations hereunder, upon Seller's request, Buyer shall
deliver to the Title Company to hold in escrow, a duly and properly executed limited
warranty deed in accordance with the above paragraph (the °'Re- Conveyance Deed"),
and if, in Seller's good faith opinion, Buyer breaches any one or combination of the
conditions set forth in the Deed, then upon notice from Seller to the Title Company and
Buyer, the Title Company shall be authorized to release the Re-Conveyance Deed from
escrow and record same in the Franklin County, Ohio records. Within thirty (30) days
thereafter, Seller shalE repay Buyer the amount of the purchase price paid to Seller for
the Property set forth herein (or, if construction of the Project has commenced, for the
then fair market value of the Property as then improved, which fair market value shall
be determined by an appraiser selected by Seller). Such price shall be reduced by any
real estate taxes and assessments prorated as of the date such Re-Conveyance Deed
is recorded and all reasonable costs and expenses incurred by Seller in connection with
the transaction con#emplated herein such that Seller is in the same position as if the
initial sale to Buyer had not taken place, including, without limitation, title expenses and
legal costs incurred in negotiating this Contract, the EDA and closing the transaction
contemplated herein. Upon recording the Re-Conveyance Deed, possession of the
Property shall pass to Seller. If title to the Property is re-vested in Seller in accordance
with the terms hereof, then the EDA shall automatically terminate as of the date of such
re-vesting. Seller and Buyer acknowledge and agrees that the provisions of this
Section 17 are a material inducement to Seller for the execution of this Contract-
At the closing, Seller shall grant to Buyer anon-exclusive easement to use the
storm water retention pond on the Retained Property in substantially the form attached
hereto as Exhibit F.
18. MISCELLANEOUS: This Contract constitutes the entire agreement and
no oral or implied agreement exists. Any amendments to this Contract shall be in
writing, signed by Buyer(s) and Seller{s) and copies provided to them. This Contract
shall be binding upon the parties, their heirs, administrators, executors, successors and
assigns. Time is of the essence of all provisions of this Contract. In compliance wi#h
fair housing laws, no party shall in any manner discriminate against any Buyer or
Buyers because of race, color, religion, sex, familial status, handicap or national origin.
Paragraph captions are for identification only and are not a part of this Contract. This
Contract shall be binding upon and inure to the benefit of the parties hereto, their
respective heirs, legal representatives, successors and assigns. Buyer shat! not assign
this Contract without the prior written consent of Seller. Nothing contained herein
constitutes the approval of Seller in its regulatory capacity, including but not limited to,
the City's Development Department, including the PZC, code regulation, licensing,
permitting or the Hke.
19. BROKER'S FEE: Seller hereby warrants and represents to Buyer that
Seller has not engaged or dealt with any broker or agent in regard to this Contract.
Buyer hereby warrants and represents to Seller that Buyer has not engaged or dealt
with any broker or agent in regard to this Contract other than RJ Boli Realty, Ltd.
("Broker'). Buyer shall pay any brokerage fee owing to Broker in connection with this
transaction. Seller agrees to indemnify Buyer and hold Buyer harmless against any
liability, loss, cost, damage, claim and expense (including, but not limited to, attorneys'
fees and costs of litigation) which Buyer shall ever incur or be threatened with because
of any claim of any broker or agent claiming through Seller, whether or not meritorious,
for any such fee or commission. Buyer agrees to indemnify Seller and hold Seller
harmless against any liability, loss, cost, damage, claims and expense (including, but
not limited to, attorneys' fees and cost of litigation) which Seller may ever suffer, incur,
or be threatened with because of any claim by any broker or agent claiming by, through
or under Buyer, including Broker, whether or not meritorious, for any such fee or
commission. The indemnifications herein shall survive the termination of this Contract
or the closing and shall not be merged into any instrument of conveyance delivered at
closing.
20. NOTICES: Any notices required hereunder shall be in writing, shall be
transmitted by certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight courier, and shall be deemed given when received or when
receipt is refused, and shall be addressed to the parties at the addresses set forth
below. Notices shall be effective upon receipt or refusal of receipt.
21. EXPIRATION AND ACCEPTANCE: This offer shall remain open for
acceptance until 3:00 p.m. Columbus, Ohio time on
2009 and a signed copy shall be returned to Buyer upon acceptance.
Buyer hereby makes the foregoing offer this day of October, 2009.
BUYER:
Delta Energy Holdings, LLC
By:
Sheri Tackett, President
Address: 2674 Federated Boulevard
Columbus, Ohio 43235
Phone: {614)
Deed to: Delta Energy Holdings, inc
Buyer's Attorney: William L. Loveland {614} 464-3563
Seller agrees to and accepts the foregoing offer this day of , 2009 (the
"Effective Date").
SELLER:
City of Dublin, Ohio
Terry D. Foegler, City Manager
Address: 5200 Emerald Parkway
Dublin, Ohio 43017
Phone: (614) -
Approved as to farm:
Stephen J. Smith, Law Director
Name of Seller's Attorney: Gregory S. Baker (614) 462-2344
NOTE: AGENCY DISCLOSURE STATEMENT: If Applicable, Buyer and Seller
acknowledge having reviewed and signed the at#ached Agency Disclosure Statement
as required by Ohio law.
PARTIES TO THIS CONTRACT MUST BE PROVIDED WITH A COPY.
EXHIBIT LISTING:
Exhibit A - Depiction of Property and Parent Parcel
Exhibit B - Legal Description of Paren# Parcel
Exhibit C - EDA
Exhibit D - Use Agreement
Exhibit E - Escrow Agreement
Exhibit F - RetentionlDetention Pond Easement
EXHIBIT A
a» r~rinn my
The following map specifically identifies and depicts the general vicinity of the
Property and constitutes part of this Exhibit A. The Property includes tax parcel 273-
010591-00.
Q
667.61 61 s 2 ~~ m To be retained o O
5200 66~~8 663 ~ by Clty
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purchased
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EXHIBIT B
Legal Description of Parent Parcel
~~ ~~~~W Ul~~~~1 ~~
y
2740 East Main Street
Bexley, Ohio 43209-2577
(614) 235-8677
Telefa.x 235-4559 April 1 [, 2000
Revised May 3 2000
5.457 Acres
Situated in the State of Ohio, County of Franklin, City of Dublin, being part of
Virginia Military Survey No. 2542 and part of Parcel Tltree conveyed to BancOhio
National Bank of Columbus in Official Record Volume 07681 B-1 I, Recorder's Office,
Franklin County, Oltio and being part of Lot 3 of lames Brown Subdivision in Complete
Record Volume 102, Pagc 97, Clerk of Courts Office, Franklin County, Oltio (al!
references to recorded documents arc on tilt in said Recorder's Office, unless otherwise
noted) and being more particularly described as follows:
Commencing at a set railroad spike in the centerline of Posl Road at the northwest
corner of said Lot No. 3 and ttte norilteast corner of Metro Noritt Business Park, as the
same is numbered and delineated upon the recorded plat thereof, of record in Plat Book
66, Page 7 i ;
Thence, along the east line of Reserves °`A" and "B" and part of the east line of
Commerce Parkway (50 feet wide) of said Metro North Business Park, and part of the
west line of said Lot No. 3 and part of the west line of said Parcel Three, South 03° 18'
52" West, 1,219.24 feet to a set iron pin in the south line of Perimeter Drive and being
the southwest corner of the City of Dublin 1.355 Acrc tract (Parcel 47 WD Inst.
199802100030106) and being TILE TRUE POINT OF BEGINNING:
Thence. along the south line of said Perimeter Drive, part of the south line of said
1.355 Acre tract and across part of said Parce{ Three and part of said Lot No. 3 the
following three (3) courses:
I) North 46° 33' 23" East, 43.29 Fect to a stt iron pint;
2} South 86° 45' 36" East, 149.83 feet to a set iron pin;
3} Along an arc oFa curve to the right having a radit-s of 531.46 feet, a delta angle of
36° 28° 41 ", a chord bearing and distance of Soutlt 68° 31' IS" East, 332.68 feet to
a set iron pin;
Thence, across part of said Lot No. 3 and part of said Parce! Three, the following three
(3)courses:
Continued...
Page Z
5.457 Acres
t) South 32° 42' 07" East, 44.85 feel to a found 1" O.D. iron pin with a yellow cap
inscribed "Burgess and Niplc";
2) Along an arc of a curve to the rigftt Itaving a radios of 804.50 feet, a delta angle of
09° 03' 02", a chord bearing and distance of Sotttlt 35° 24' 38" East, 126.95 feet to
a found I " O.D. iron pin wills a yellow cap inscribcd "Burgess and Niple";
3) Along an arc of a curve to the right having a radius of 552.50 feet, a delta angle of
10° 56' 49", a chord bearing and distance of Sotitlt 25° 24' 43" East, 105.40 feet to
a found 1 " O.D. iron pin with a yellow cap inscribcd "Burgess and Niple" in the
cast line of said Parcel Three a~zd east tint of said Lot 3, and being in the west fine
of the City of Dublin 4.199 Acrc tract (Parcel 1 WD Inst. 1998021000301 l 1);
Thence, along part of the east line of said Parcel Three and part of the east line of said
Lot 3, and part of the west line of said 4.199 Acre tract, Sotith 03° i4' 21" West, I I.Bd
feet to a found 1" O.D. iron pin witE~ a yellow cap inscribed "Burgcss and Nip1e' ;
Titcncc, across part of said Lot No_ 3 and part of said Parcel Tliree tl~e following three
(3) courses:
l) South 42° 2I' 21" Wcst, 54.77 feet to a found 1" O.D. iron pits with a yellow cap
inscribed Burgcss and Niple;
Z) North 89° 44' 44" Wcst, 140.65 feet to a found 1" O.D. iron pin wily a yellow cap
inscribcd Burgcss and Niplc;
3) Along an arc of a curve to itte leis having a radios of 970.00 feel, a delta angle of
29° 58' SZ", a chord bearing and distance of South 75° I S' S4" Wcst, SOI.80 feet
to a set iron pin in the west line of said Parcel Thrcc and the east line of Lot No. 2
of said Metro North Business Park;
Thence, along part of the west tine of said Parcel Three and part of the east line of said
Lot No. 2 and part of the cast line bf said Commerce Parkway, North 03° 18' S2" East,
S 17.09 feet to the place of beginning CONTAINING 5.457 ACRES. subject however io
ail legal Highways, easetntnts, restrictions of record and of records in tlu respective
utility offices.
Continued...
Page 3
5.457 Acres
The foregoing description was prepared from an achtal ftield survey made by Myers
Surveying Company Inc_ in Febnr'ary 2000. Iron pins set are 30" x t" O.D. wills orange
plastic caps inscribed "P.S. #6579", unless otherwise iiotcd. Basis of bearings is the
north fine of Perimeter Drive as South 86° 45' 36" East per If~strument No.
199802100030106. The above-described 5.457 Acrc tract is cncrimbered by 0.147 Acres
of area in tither existing easements or right-of-way, leaving a net area of 5.3i 0 Acres.
Mye Surveyin Company Inc
A beri! Mye . #6579
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FRANKS-iN COUNTY
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EXHIBIT C
ECONOMIC DEVELOPMENT AGREEMENT
'~ ~~ '` '~ Drr,Jt nJ Ocu,ber• ', l(ltld I~•ur I)i.~c•uxsion f',n~,oscs Otell' ~' ~~ ~~ '~
F.,CONOM[C DF,VELOPMENT AND
TAX INCREMENT FINANCING AGREEMENT
THIS ECONOVttC DEVF:LOP~1E\T AGREE~tiIEN"I' (this "flgreen,e,at") is made and entered into
this day ol~ , 2009 {the "Effective Dote"), by and between the CITY of DUBLIN,
OHIO (the "Gifu"}, a municipal corporation duly organized and validly existing under the
Constitution and the laws of the State of Ohio (the "State'') and its Charter, and DELTA ENERGY
HOLDINGS, LLC (the "Compa,ty" and collectively with the City, the "Parties"), an Ohio limited
liability company with its main office currently located at 2674 Federated Boulevard, Columbus,
Ohio 43235, under the circumstances summarized in the following recitals.
RECITALS:
WHERL•AS, consistent with its Economic Development Strategy (the "Strategy") approved
by Dublin City Council Resolution No. 07-94 adopted on June 2U, 1994, and the updated Strategy
approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires
to encourage commercial offce and retail development and provide for the retention and creation
of employment opportunities within the City; and
WHEREAS, based on the results of the Company's recent comprehensive examination of
workforce needs, and induced by and in reliance on the economic development incentives
provided in this Agreement, the Company is desirous constructing a new corporate headquarters in
the City and relocating its workforce and operations to the City; and
WHEREAS, the Company has determined that it will construct a LEED certified building
within the City {the "Project", with the Project being constructed upon certain real property
referred to herein as the "Property", as generally depicted on EXHIBIT A attached hereto and
incorporated herein by reference) to facilitate the creation of a new corporate headquarters in the
City and relocating its workforce and operations to the City; and
WHEREAS, the Company desires that certain public infrastructure improvements (which
public infrastructure improvements are more fully described on EXHIBIT B which is attached
hereto and incorporated herein by reference and such public infrastructure improvements are
collectively referred to herein as the "Public Infrastructure Improvements") be constructed and
installed, and agrees that the Public Infrastructure Improvements will benefit the Property; and
WHEREAS, prior to the passage of the T1F Ordinance (as defined below), the City provided
notice of the proposed passage of the TIF Ordinance to the Dublin City School District (the
"School District") and the Central Ohio Joint Vocational School District, all as required by Ohio
Revised Code Section 5709.83; and
WHEREAS, the City has determined that it is necessary and appropriate and in the best
interests of the City to provide for the Company, and any subsequent owners of the Property (the
Company and the subsequent owners being referred to herein individually as an "Owner" and
collectively as the "Owners"), to make service payments in lieu of taxes (the "Service Payments")
. :: 1)rrt ft n f tictnhr~r -, 211(19 -- /•nr• d)iscussiun Purposes (hrlt• '': :~::: :`
with respect to the Property to pay the costs of the construction by the City of the Puhlic
(nfrastn~cture improvements (including debt service on any securities issued for that purpose) and
to compensate t1~e School District, all pursuant to and in accordance with Ohio Revised Code
Sections X709.40 through X709.43 {collectively, the `'TIF Statutes"); and
WHEREAS, the Company has agreed to cooperate in the creation of a tax increment
financing area on the Property, and the City, by passage of Ordinance No. -09 on
2009 (the "TIF Ordinance"), has determined that it is necessary and appropriate
and in the best interests of the City Eo (i) provide certain economic incentives to the Company for
the purpose of creating and preserving jobs and employment opportunities and to improve the
economic welfare of the people of the State of Ohio and the City as authorized in Article VIII,
Section 13 of the Ohio Constitution, (ii) create a tax increment financing area, pursuant to the TIF
Statutes, which area shall include the Property, and identify certain Public Infrastructure
improvements, which will directly benefit the Property, (iii) declare that l00% of the increase in
assessed value of the Property subsequent to the effective date of the TIF Ordinance (the
`Improvenrerrt") is a public purpose and declared to be exempt from taxation for a period
commencing with the first tax year that begins after the effective date of the TIF Ordinance and in
which an Improvement first appears on the tax list and duplicate of real and public utility property
and ending on the earlier of (a} thirty (30) years after such exemption commenced or (b) the date
on which the City can no longer require Service Payments, all in accordance with the requirements
of the TIF Statutes (the "Taz Exemption") and (iv) provide for the Company, and its successors
and assigns, to make service payments in lieu of taxes with respect to the Property ("Service
Payments") to pay costs of the construction of the Public Infrastructure Improvements and for
distribution to the School District; and
WHEREAS, in order io provide for the collection of such Service Payments, to induce the
City to construct the Public Infrastructure Improvements and to induce the Company to proceed
with the Project to facilitate the creation ofa new corporate headquarters in the City and to relocate
its workforce and operations to the City, the City and the Company desire to enter into this
Agreement on the terms as hereinafter provided;
NOW THEREFORE, the City and the Company covenant, agree and obligate themselves as
follows:
Section 1. Company's Agreement to Construct a New Corporate Headquarters and
Relocate Its Workforce and Operations to the City. Ln consideration of the economic development
incentives to be provided by the City herein, the Company agrees that it will construct a new
facility upon the Property to facilitate the creation of a new corporate headquarters in the City and
to relocate its workforce and operations to the City. The company expects to relocate
fult-time equivalent employment opportunities to the City by , 20 .The average
annual wage of these full-time equivalent employment opportunities is estimated to be
-2-
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Section ?. ('ity Agreement to Provide lncentivcs.
(a) General. In consideration for the Company's agreement to develop a new facility to
facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and
operations to the City, the City agrees to provide econo-nic development incentives to the Company
in accordance with this Section.
(b) LEER Certification Grant
(i} General. The City has determined to encourage the construction of•"green"
buildings within the City. The Company agrees to construct a building (the "Building") in
the area depicted on EXI~IBIT A to facilitate the creation of a new corporate headquarters in
the City and to relocate its workforce and operations to the City. The Company anticipates
that the Building will be constructed as a "green" building and will receive LEED
certification following completion. In consideration of the Company's agreement to
construct the Building and to facilitate the creation of a new corporate headquarters in the
City and to relocate its workforce and operations to the City, the City agrees to provide the
Company with a LEED Certification Grant. The Parties acknowledge that the LEED
Certification Grant is intended to subsidize the Company's additional costs which will be
incurred in connection with design of a LEED certified building and the costs of obtaining
the LEED certification for that building.
{ii) LEED Certification Grant. The City agrees to pay to the Company a grant
(the "1 F,F.D Certification Grmrt"} in the amount of Forty Thousand Dollars ($40,000.00)
within thirty {30} days following the occurrence (to the City's reasonable satisfaction) of
all of the following: (A} the Company completes construction of the Building with an
aggregate square footage of at least 22,000 square feel but not more than 35,000 square feet,
(B) the City has issued a certificate of occupancy for the Building, and (C) the City has
received a copy of the LEED certification for the Building.
(iii) Forfeiture of Right to Receive LEED Certification Grant. The Company
agrees and acknowledges that the LEED Certification Grant provided for in this Section
2(b) is being made by the City to the Company in consideration for the Company's
agreement to facilitate the creation of a new corporate headquarters in the City and to
relocate its workforce and operations to the City. The Company further agrees that if the
requirements of Subsection 2(b)(ii) are not satisfied, the City shall not be obligated to make
the LEED Certification Grant required by that Subsection.
(iv) Standard of Conduct by City. In all matters related to the review,
administration and granting of a certificate of occupancy in connection with subsection
2{b}(ii), the City will act in good faith with a!1 reasonable dispatch.
(v) Method of Payment. The payment provided for in this Section 2(b) shall be
made by the City to the Company by electronic funds transfer or by such other manner as is
mutually agreed to by the City and the Company.
-3-
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{vi) City's Obligation to Make Payments Not Deht:. Payments l.,imited to
Non-"I~ax Revenges. Notwithstanding anything to the contrary herein, tEie obligations of
the City pursuant to this Section 2(b) shall not be a general obligation debt or bonded
indebtedness, ar a pledge of the general credit or taxes levied by the City, and the Company
shall have rto right to have excises or taxes levied by the City, the State or any other
political subdivision of the State for the perforniance of any obligations of the City herein.
Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances
required to be made by the City pursuant to this Section 2(b) shall be payable solely from
the City's non-tax revenues. Further, since Ohio law limits the City to appropriating
monies for such expenditures only on an annual basis, the obligation of the City to make
payments pursuant to this Section 2(b) sha[I be subject to annual appropriations by the City
Council and certification by the Director of Finance of the City as to the availability of such
non-tax revenues. For purpose of this Agreement, "raontax revem~es" shall mean alt
moneys of the City which arc not moneys raised by taxation, to the extent available for
such purposes, including, but not limited to the following: (A) grants from the United
States of America and the State; (B) payments in lieu of taxes now or hereafter authorised
to be used for the purposes by State statute; (C) fines and forfeitures which arc deposited in
the City's General Fund; (D) fees deposited in the City's General Fund from properly
imposed licenses and permits; (E) investment earnings on the City's General Fund and
which are credited to the City's General Fund; (F) investment earnings of other funds of the
City that are credited to the City's General Fund; (G) proceeds from the sale of assets
which are deposited in the City's General Fund; (H) rental income which is deposited in the
City's General Fund; and {I) gifts and donations.
(c) Other City Incentives.
(i) Conveyance of Property; City's Obligations and Termination. The City
agrees to convey the Property to the Company in accordance with the Real Estate Purchase
Contract (the "Real Estate Purchase Contract") by and between the City and the Company
dated , 2009. The Parties agree that if the Company shall fail to consummate the
purchase of the Property in accordance with the terms of the Real Estate Purchase Contract,
then this Agreement shall terminate and the City shall have no obligations hereunder.
(ii) Zoning_and Ptan Review Processes. The City agrees to work cooperatively
with the Company and its consultants in connection with the preparation by the Company
of the development plans for the Building to facilitate compliance by the Company with
the City's zoning and planning standards and the related review process.
(iii) Roadway Improvements. The City agrees to finance, construct and install
necessary road improvements, including a traffic circle/roundabout at the intersection of
Commerce Parkway and Perimeter Drive, a cul-de-sac and other improvements to
Commerce Parkway, and any related guardrails as are determined by the City to be
necessary. The Parties agree that the City's obligations pursuant to this Subsection 2(c)(iii}
shall be completed in accordance with City's 5-Year Capital Improvement Program;
provided, however, the City may, in its sole discretion, complete such roadway
-4-
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improvements earlier if the City projects that Service Payments will be sufficient to
provide for the payment of those costs.
(iiij Bike Paths, Sidewalks and Li~htin~Improvements. The City agrees to
finance, construct and install hike paths, sidewalks and lighting in proximity to the
Property (as generally depicted on EXHIBIT C attached hereto and incorporated herein by
reference) as such improvements are determined by the City to be necessary.
(iv) Storm Water dmprovements.
{A) General. "l'he Parties agree to work cooperatively on the design and
construction of a storm water retention pond to be located on real property owned
by the City at the comer of Perimeter Drive and Commerce Parkway. The Parties
agree that the storm water retention pond will serve both the City and the
Company's storm water retention needs in relation to the Property and other real
property in proximity thereto.
(B) Design and Construction. The Parties agree to work cooperatively
on the design of the storm water retention pond. The Company agrees to construct
the storm water retention pond at its expense to coincide with the construction of
the Project. The Parties agree that the Company may construct landscaping
improvements related to the storm water retention pond which exceed the standards
required by the City, provided, however, the Company shall be responsible for the
costs of construction and maintenance of those landscaping improvements which
exceed the standards required by the City.
{C) Reimbursement by the City. Within thirty (30) days following
completion of the storm water retention pond and approval of the construction
thereof by the City Engineer, the City will reimburse the Company for a portion of
the cost of the storm water retention pond in an amount equal to the product of (1)
the percentage of the total capacity of the storm water retention pond estimated by
the City to be used by real property other than the Property multiplied by {2} the
total cost of the storm water retention pond. For purposes of the preceding
computation, the use and cost of the storm water retention pond shall be subject to
the reasonable determination of the Ciiy.
(D) Compliance with Laws. In connection with the completion of the
storm water retention pond, the Company agrees that it shall comply with, and
cause all of its employees, agents, contractors and consultants to comply with, all
applicable federal, state, county, municipal and other governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions of any
court, board, agency, commission, office or other authority of any nature
whatsoever for any governmental unit {federal, state, county, district, municipal,
city or otherwise) whether now or hereafter in existence affecting the site of the
storm water retention pond or any part thereof, or the construction, use, alteration
or operation thereof, or any part thereof, whether now or hereafter enacted and in
-5-
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force, including but not limited to the prevailing wage requirements of Chapter
41 15 of the Ohio Kevised Code, and all permits, licenses and authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and
encu-nbrances contained in any instruments, either of record or known to the
Company, at any time in force affecting the site of the storn~ water retention pond
or any part tl~ereoC
(v) Easements for Public Infrastructure improvements. At no cost to the City,
the Company agrees to grant to the City such easements or rights-of--way on the Property,
and at such times, as the City determines are necessary for the construction and/or
installation of the Public Infrastructure Improvements.
(vi) State Incentives. The City agrees to work in a reasonable and cooperative
manner with the Company to assist the Company in securing further funding from the State
to further facilitate the Company's Project.
Section 3. Tax Increment Financing Area.
(a) General. The Company has agreed to cooperate in the creation of a tax increment
financing area on the Property, and the City, by passage of the TIF Ordinance, has determined that
it is necessary and appropriate and in the best interests of the City to (i) create a tax increment
financing area, which area shall include the Property, and identify certain Public Infrastructure
Improvements, which will directly benefit the Property, (ii) declare that Improvement is a public
purpose and declared to be exempt from taxation for a period commencing with the first tax year
that begins after the effective date of the TIF Ordinance and in which an Improvement first appears
on the tax list and duplicate of real and public utility property and ending on the earlier of (A) thirty
(30) years after such exemption commenced or (B) the date on which the City can no longer
require service payments in lieu of taxes, all in accordance with the requirements of the TIF
Statutes and (iii) provide for the Company, and its successors and assigns, to make Service
Payments with respect to the Property to pay costs of the construction of the Public Infrastructure
Improvements and for distribution to the School District.
{b) Covenant to Make Payments in Lieu of Taxes. The Company, on behalf of itself
and any subsequent Owners of the Property, hereby covenants to make Service Payments
attributable to their respective period of ownership of the Property, all pursuant to and in
accordance with the requirements of the TIF Statutes, and any subsequent amendments or
supplements thereto, the TIF Ordinance and this Agreement.
Service Payments will be made semiannually to the County Treasurer of Franklin County,
Ohio (or to such 'I-reasurer's designated agent for collection of the Service Payments) on or before
the final dates for payment of real property taxes for the Property. Any late payments will bear
penalties and interest at the then current rate established under Ohio Revised Code Sections
323.121 and 5703.47 or any successor provisions thereto, as the same maybe amended from time
to time.
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Service Payments will be made in accordance with the requirements of the 'I~[F Statutes
and the TIF Ordinance and, for the Property, wil[ be in the same amount as the real property taxes
that would have been charged and payable against the improvement to the Property (after credit for
any other payments received by the City under Ohio Revised Code Sections 319.302, 321.24,
323.152 and 323.156, or arty successor provisions thereto, as the same may he amended from time
to time, and are referred to herein as the "Property Tux Rollhuck Pcrymerrts"} if it were not exempt
from taxation pursuant to the TIF Ordinance, including any penalties and interest. No Owner will,
under any circumstances, be required for any tax year to pay both real property taxes and Service
Payments with respect to any portion ofthe Improvement, whether pursuant to Ohio Revised Code
Section 5709.42, the TIF Ordinance or this Agreement.
{c) Declaration of Covenants; Priority of Lien. It is intended and agreed, and it will be
so provided by the Company in a declaration relating to the Property (the "Declarcrtior:") recorded
by the Company within fifteen (15) days following conveyance of the Property by the City to the
Company and substantially in the form attached hereto as 1N,XHIBIT D, that the covenants provided
in Subsections 3(b), 3(c), 3(d), 3(i) and 3{j) of this Agreement are covenants running with the land
and that they will, in any event and without regard to technical classification or designation, }egal
or otherwise, be binding to the fullest extent permitted by law and equity for the benefit and in
favor of and enforceable by the City and the School District against any Owner with respect to that
Owner's period of ownership of the Property, whether or not this Agreement remains in effect or
whether or not such provision is included by an Owner in any deed to such Owner's successors and
assigns. It is further intended and agreed that these agreements and covenants will remain in effect
for the full period of exemption permitted in accordance with the requirements of the TIF Statutes
and the TIF Ordinance enacted pursuant thereto.
Such covenants running dvith the land will have priority over any other lien or
encumbrance on the Property and any improvements thereon, except for such title exceptions as
are approved in writing by the City, and the Company will, upon the City's request, cause any and
all holders of mortgages or other liens existing on the Property as of the time of recording of the
Declaration to subordinate such mortgage or lien to those covenants running with the land. The
parties acknowledge that the provisions ofOhio Revised Code Section 5709.91, which specify that
the Service Payments will be treated in the same manner as taxes for all purposes of the lien
described in Ohio Revised Code Section 323.11, including, but not limited to, the priority of the
lien and the collection of Service Payments, will apply to this Agreement and to the Property and
any improvements thereon.
At the City's option and within fifteen (1 S) days of its request, the Company hereby agrees
to provide such title evidence, at no cost to the City, as is necessary to demonstrate to the City's
satisfaction that the covenants running with the ]and provided in the Declaration are prior and
superior to any other liens, encumbrances or other title exceptions, except for those which are
approved in writing by the City.
Upon satisfaction of the Owner's obligations under this Agreement and termination of the
Owner's obligation to make the Service Payments, the City will, upon the request of the Owner of
the Property, execute an instrument in recordable form evidencing such termination and releasing
the covenants running with the land set forth in the Declaration with respect to the Property.
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(d) Exemption Application. "fhe City and the Company agree to cooperate in the
preparation, execution and filing of all necessary applications and supporting documents to obtain
from time to time the T1F Exemption and to enable the City to collect Service Payments with
respect to the Property. The City and the Company each agree to perforn~ such acts as are
reasonably necessary or appropriate to effect, claim, reserve and maintain the TIF Exemption and
collect the Service Payments, including, without limitation, joining in the execution of all
documentation and providing any necessary certificate reyuired in connection with the TiF
Exemption or the Service Payments. "fhe Owners authprize the City to file any applications
necessary to obtain from time to time the TIF Exemption as provided in the TIF Ordinance.
(e) Tax Increment Equivalent Fund. The City and the Company acknowledge the
creation, pursuant to the TIF Ordinance, of the _ Project Municipal Public
Improvement "I~ax Increment Equivalent Fund (the `'Fi~ncl") to be maintained in the custody of the
City. The City and the Company acknowledge that the Fund shall receive all Service Payments
and Property Tax Rollback Payments payable to the City (after providing for the payments to the
School District as required by the TIF Ordinance) in respect of the Property as described in Section
3(b), with all such Service Payments and Property Tax Rollback Payments deposited into the Fund
being used to remit payments to the School District and finance or pay the costs of the Public
Infrastructure Improvements (as described in the TIF Ordinance). Any incidental surplus
remaining in the Fund shall be disposed of as provided in Section 5709.43 of the Ohio Revised
Code.
(f} Construction of Proicct and Public Infrastructure Improvements. In consideration
for the City's agreements herein, the Company agrees to construct, or cause the construction of,
the Project. Inconsideration for the Company's agreement to construct the Project, the City agrees
to construct, or cause to be constructed, the Public Infrastructure Improvements in accordance with
Section 2(c}.
(g) Termination. Upon satisfaction of the Owners' obligations under this Agreement
and termination of the Owners' obligations to make the Service Payments, the obligations set forth
in Section 3(b) shall terminate.
(h) Estoppel Certificate. Within fifteen (I S) days after a request from any Owner of the
Property, the City will execute and deliver to that Owner or any proposed purchaser, mortgagee or
lessee of the Property, a certificate stating that with respect to the Property, if the same is true: (i)
that this Agreement is in full force and effect; (ii) that the requesting Owner is not in default under
any of the terms, covenants or conditions of this Agreement, or, if that Owner is in default,
specifying same; and (iii) such other matters as that Owner reasonably requests.
(i) Information Reportin>;. The Owners covenant to cooperate in all reasonable ways
with, and provide necessazy and reasonable information to, the designated Tax increment Review
Council to enable that Tax Increment Review Council to review and determine annually during the
term of this Agreement the compliance of the Owner with the terms of this Agreement. Any
information supplied to such Tax Increment Review Council will be provided solely for the
purpose of monitoring the Owner's compliance with this Agreement.
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The Owners further covenant to cooperate in all reasonable ways with, and provide
necessary and reasonable information to the City to enable the City to submit the status report
required by Ohio Revised Code Section 5709.40(1) to the Director of~ the Ohio Department of
Development on or before March 31 of each year within the ternz of the Agreement. Any
information supplied to the City will be provided solely for the purpose of enabling the City to
comply with this requirement.
(j) Nondiscriminatory Hiring Policy. The Owners will comply with the City's
nondiscriminatory hiring policy set forth in the TIF Ordinance and adopted pursuant to Ohio
Revised Code Section 5709.832. In furtherance of that policy, the Owners agree not deny any
individual employment located upon the Property solely on the basis of race, re}igion, sex,
disability, color, national origin, or ancestry.
Section 4. Miscellaneous.
(a) Assignment. This Agreement may not be assigned without the prior written
consent of all non-assigning Parties.
(b) Binding Effect. The provisions of this Agreement shall be binding upon the
successors or assigns of the Parties.
{c} 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.
(d) 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.
(e) Entire Agreement. This Agreement embodies the entire agreement and
understanding of the Parties relating to the subject matter herein and therein and may not be
amended, waived or discharged except in an instrument in writing executed by the Parties.
(f) Events of Default and Remedies. Except as otherwise provided in this Agreement,
in the event of any default in or breach of this Agreement, or any of its terms or conditions, by any
Party hereto, such defaulting Party shall, upon written notice from any non-defaulting Party,
proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30)
days after receipt of such notice. In the event such default or breach is of such nature that it cannot
be cured or remedied within said thirty (30) day period, then in such event the defaulting Party
shall upon written notice from any non-defaulting Party commence its actions to cure or remedy
said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy
said breach. In case such action is not taken or not diligently pursued, or the default or breach shall
not be cured or remedied within a reasonable time, the aggrieved non-defaulting Party may
institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such
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,. :: 1)~•u~t nj Uc•tohc~r -, ~IJIj~J - I'AY I)LS'C[/.Cti/OIf Pttrpn~~~s ll~rlti• :- '::: '':
default or breach, including, but not limited to, proceedings to compel specific performance by the
defaulting Party.
(g) Executed Countemarts. This Agreement may be executed in several counterparts,
each of which shall be deemed to constitute an original, but all of which together shall constitute
but one and the same instrument. !t shall not be necessary in proving this Agreement to produce or
account for more than one of those counterparts.
(h) 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 taw. 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 Company other than in his or her official capacity, and neither the members of the
legislative body of the City nor any official 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, obliga[ions or agreements of the City and the
Company contained in this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio or applicable federal law. All claims, counterclaims,
disputes and other matters in question between the City, its agents and employees, and the
Company, 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.
(j) Indemnification. "fhe Company hereby agrees to indemnify and hold the City
harmless and agrees to defend the City from and against any and all claims, Losses, damages,
demands, liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs,
expenses, or disbursements of any kind or nature which may arise as a result of (i) breach of this
Agreement by the Company, (ii} anything done or omitted to be done through the negligence or
intentional acts of the Company or of its staff, agents or employees, or (iii) any action by the
Company or any of its offacers, directors, employees, or agents, which action requires the approval
of the City and such has not been obtained. The City shall promptly give the Company written
notice, at the address provided in this Agreement, of any and all claims, losses, damages, demands,
liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs, expenses, or
disbursements of any kind or nature for which the City seeks indemnification. The obligation of
the Company pursuant to this Section 4(j) shall survive termination of this Agreement without
limitation.
(k) Legal Authority. The Parties respectively represent and covenant that each is
legally empowered to execute, deliver and perform this Agreement and to enter into and carry out
the transactions contemplated by this Agreement. The Parties further respectively represent and
covenant that this Agreement has, by proper action, been duly authorized, executed and delivered
by the Parties and all steps necessary to be taken by the Parties have been taken to constitute this
Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and
binding obligation of the Parties, enforceable in accordance with its terms.
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(1) Limit on Liability. Notwithstanding any clause or provision of this Agreement to
the contrary, in no event shall City or the Company be liable to each other for punitive, special,
consequential, or indirect damages of any type and regardless of whether such damages are
claimed under contract, tort (including negligence and strict liability) or any other theory of law.
(m) 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 shat]
be in writing and shall be deemed sufficiently given if actually received or ifhand-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:
(i) the City at: City of Dublin, Ohio
5800 Shier Rings Road
Dublin, Uhio 43016-7295
Attention: Economic Development Director
{ii) the Company at: Delta Energy Holdings, LLC.
2674 Federated Boulevard
Columbus, Ohio 43235
Attention: President
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.
(n) 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.
{o) 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 shalt be deemed to
be effective, operative, made, entered into or taken in the manner and to the full extent permitted
by law.
{p} Survival of Representations and Warranties. All representations and warranties of
the Parties in this Agreement shall survive the execution and delivery of this Agreement.
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(REMAINDER OF PAGE (NTF.NTIONALL Y LEFT BLANK - ,S7GNAT(iRF PACE FOLLUWS1
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tN WITVFSS WHEREOF, the City and the Company have caused this Agreement to be
executed in their respective names by their duly authorized representatives, ail as of the date first
written above.
CI'T'Y OF' DIiBLIN, OII10
By:
Printed:_ Terry D. Foe~(er
Title:___ City Manas;er
Approved as to Form:
By:
Printed: Stephen J. Smith
Title: Director of Law
DELTA ENERGY HOLDINCS9 LI,C
By:
Printed: Sharon 5. Tackett
Title: President
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FISCAL, nFFlCI:R'S CERTIFICA"1'I=
"I~he undersigned, Director of Finance of the City under the foregoing Agreement, certifies
hereby that the moneys required to meet the obligations of the City under the foregoing Agreement
have been appropriated lawfully for that purpose, and are in the Treasury of the City or in the
process of collection to the credit of an appropriate fund, free from any previous encumbrances.
This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio Revised Code.
Dated: , 2009
Marsha I. Grigsby
Deputy City ManagerlDirector ofFinance
City of Dublin, Ohio
-I4-
EXHIBIT A
PR (1PFR'T'V
The following map specifically identifies and depicts the general vicinity of the
Property and constitutes part of this Exhibit A. The Property includes tax parcel 273-
010591-00.
To be retained
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)~';\HIBI'1~ B
DESCRIP"r1ON OF Tf1E PUBLIC INFRAS'I'RUC"PURE IMPROVEMENTS
The Public Infrastructure Improvements include the construction of the following
improvements and all related costs (as defined in Ohio Revised Code Section 133.15(B))=
• constructing a traffic circle/roundabout at tl~e intersection of Commerce Parkway
and Perimeter Drive,
• constnlcting a cul-de-sac and other improvements to Commerce Parkway,
• constructing a guardrail on Emerald Parkway between certain termini,
• constructing related storm water retention detention improvements, and
• constructing improvements to Perimeter Drive from Emerald Parkway to
Avery-MuirFeld Drive,
together with constructing and installing curbs and gutters, public utilities which include
water mains, fire hydrants, sanitary sewer, and storm sewer, stormwatcr improvements, burial of
utility lines, gas, electric and communications service facilities {including fiber optics), street
lighting and signs, sidewalks, bikeways, and landscaping (including scenic fencing and irrigation},
traffic signs and signalization, and including design and other related costs, any right-of--way or
real estate acquisition, erosion and sediment control measures, grading, drainage and other related
work, survey work, sail engineering, inspection fees and construction staking, any other necessary
site improvements, and in each case, all other costs and improvements necessary and appurtenant
thereto.
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F;x1ilKrr D
FORM OF DECLARA'T'ION OF COVENANTS
"i'AX INCREMENT FINANCING DECLARATION OF COVENANTS
This TAX INCREMENT FWANCtNG DECLARATION OF COVENANTS (this "Declaration") is
made by DfiT.TA ENERGY HOLDINGS, LLC, an Ohio Iimited liability company, duly created in State
of Ohio and authorized to do business in the State of Ohio (the "Declarant"), with its principal
office located in ,Ohio.
WITNESSETH:
WHEREAS, the Declarant has acquired a certain parcel of real property located in the County
of Franklin, Ohio (the "County"), a description of which real property is attached hereto as Exhibi4 A
(collectively, the "Yropert}-"} (representing 1~ax Parcel No. ),having acquired such fee
simple title by an instrument recorded in the Official Records of the Office of the Recorder of
Franklin County, Ohio (the "Corurty Recorder'), as instrument number ;and
WHEREAS, the Declarant contemplates making or having made certain private
improvements to the Property (the "Project"); and
WHEREAS, the City, by its Ordinance No. -09 passed , 2009 (the "TIF
Ordinance"), has declared that 100% of the increase in the assessed value of the Property subsequent
to the effective date of the TIF Ordinance (such increase hereinafter referred to as the "Inrprovemerrt"
as further defined in Ohio Revised Code Section 5709.40 and the TIF Ordinance) is a public purpose
and is exempt from taxation (such exemption referred to herein as the "TIF Exemption") for a period
commencing with the fast tax year that begins after the effective date of the TIF Ordinance and in
which an Improvement due to the construction of a new structure on the Property first appears on the
tax list and duplicate of real and public utility property for that Property and ending on the earlier of
(a) thirty (30) years after such commencement or (b) the date on which the City can no longer require
service payments in lieu of taxes, all in accordance with the requirements of Ohio Revised Code
Sections 5709.40 through 5709.43 (collectively, the "TIF Statutes") and the TIF Ordinance; and
WHEREAS, it is necessary to construct or to cause to be constructed certain public
infrastructure improvements (the "Public Ir~rastructure Improvements") specified in the TIF
Ordinance, which the Declarant agrees will directly benefit the Property and the Project; and
WHEREAS, the City has determined that it is necessary and appropriate and in the best
interests of the City to provide for the Declarant and any subsequent owners) of the Property to make
service payments in lieu of taxes with respect to the Property (the "Service Payments"), which
Service Payments will be used to pay costs of construction of the Public Infrastructure Improvements
and to compensate the Dublin City School District (the "Schoo! District"), all pursuant to and in
accordance with the TIF Statutes and the TIF Ordinance; and
D-1
WHEREAS, the Declarant and the City entered into that certain Economic Development and
-I-ax Increment Financing Agreement dated , 2009 (the "Agreement"); and
WHEREAS, this Declaration is being made and tiled of record pursuant to Section 3(c) of
the Agreement;
NOW, 7~HEREFORE, the Declarant, for itself and its successors and assigns to or of the
Property, hereby declares that the forgoing recitals are incorporated into this Declaration by this
reference and that the Property and any improvements thereon will be held, developed, encumbered,
leased, occupied, improved, built upon, used and conveyed subject to the terms and provisions of this
Declaration:
Section 1. Service Payments. T'he Declarant agrees to make Service Payments for the
Property attributable to its period of ownership of the Property, all pursuant to and in accordance
with the requirements of the TIF Statutes, the T1F Ordinance and any subsequent amendments or
supplements thereto.
Service Payments for the Property will be made semiannually to the County Treasurer of
Franklin County, Ohio (or to such County Treasurer's designated agent for collection of the
Service Payments) on or before the date on which real property taxes would otherwise be due and
payable for that Property. Any late payments will bear penalties and interest at the then current
rate established under Ohio Revised Code Sections 323.121 and 5703.47 or any successor
provisions thereto, as the same maybe amended from time to time.
Service Payments for the Property will be made in accordance with the requirements of the
TIF Statutes and the TIF Ordinance and will be in the same amount as the real property taxes that
would have been charged and payable against the Improvement to that Property (after credit for any
other payments received by the City under Ohio Revised Code Sections 319-302, 321.24, 323.152
and 323.156, or any successor provisions thereto, as the same may be amended from time to time, and
are referred to herein as the "Property Tax Rollback Payments") had the TIF Exemption not been
granted, including any penalties and interest. The Declarant will not, under any circumstances, be
required far any tax year to pay both real praperty taxes and Service Payments with respect to the
Improvement to the Property, whether pursuant to Ohio Revised Code Section 5709.42, the TIF
Ordinance, the Agreement or this Declaration.
The Declarant acknowledges that the provisions of Ohio Revised Code Section 5709.91,
which specify that the Service Payments will be treated in the same manner as taxes for all
purposes of the lien described in Ohio Revised Code Section 323.11 including, but not limited to,
the priority of the lien and the collection of Service Payments, applies to the Property and any
improvements thereon.
Section 2. Exemption Applications. The Declarant further agrees to cooperate in the
preparation, execution and filing of all necessary applications to obtain from time to time the TIF
Exemption and to enable the City to collect Service Payments with respect to the Property. The
Declarant authorizes the City to file any applications necessary to obtain from time to time the TIF
Exemption as provided in the TIF Ordinance.
C-1
Section 3. Provision of Information. "fhe Declarant agrees to cooperate in all
reasonable ways with, and provide necessary and reasonable information to, the designated Tax
Incentive Review Council to enable that Tax incentive Review Council to review and determine
annually during the term of the Agreement the compliance of the Declarant with the terns of the
Agreement.
The Declarant further agrees to cooperate in all reasonable ways with, and provide
necessary and reasonable information to the City to enable the City to submit the status report
required by Ohio Revised Code Section 5709.40{I} to the Director of the Ohio Department of
Development on or before March 31 of each year.
Section 4. Nondiscriminatory Hiring Policy. The Declarant agrees to comply with
the City's nondiscriminatory hiring policy adopted pursuant to Ohio Revised Code Section
5709.832. In furtherance of that policy, the Declarant agrees that it will not deny any individual
employment located upon the Property solely on the basis of race, religion, sex, disability, color,
national origin, or ancestry.
Section 5. Covenants to Run With the Land. 7'he Declarant agrees that the covenants
contained in this Declaration shall be covenants running with the land and that they shall, in any event
and without regard to technical classification or designation, legal or otherwise, be binding to the
fullest extent permitted bylaw and equity, for the benefit and in favor of, and enforceable by, the City
and the School District (each a "Beneficiary" and together the "Beneficiaries"), against the Property,
any improvements thereon and the owner of the Property, without regard to whether any Beneficiary
has at any time been, remains or is an owner of any land or interest therein to, or in favor of, which
these covenants relate. Each Beneficiary has the right in the event of any breach of any covenant
herein contained to exercise all of the rights and remedies and to maintain all actions or suits at law or
in equity or in other groper proceedings to which it may be entitled to cure that breach.
The Declarant further agrees that all covenants herein, whether or not these covenants are
included by the owner of the Property in any deed to that owner's successors and assigns, shall be
binding upon each subsequent owner and shall be enforceable by the Beneficiaries in the manner
provided in this Declazation, and that any future owner of the Property or any successors or assigns of
the Declazant shall be treated as the Declarant with respect to the Property for all purposes of this
Declaration.
The Declazant further agrees that the covenants herein will remain in effect so long as the
Service Payments can be collected pursuant to the TIF Statuses and the TIF Ordinance unless
otherwise modified or released in writing by the City in a written instrument filed in the Official
Records of the County Recorder.
The Declarant further agrees that the covenants herein have priority over any other lien or
encumbrance on the Property and any improvements thereon, except for such title exceptions as
are approved in writing by the City, and the Declarant will, upon the City's request, cause any and
all holders of mortgages or other liens existing on the Property as of the time of recording of this
Declaration to subordinate such mortgage or lien to those covenants running with the land.
C- I
At the City's option and at its request, the Declarant hereby agrees to provide such title
evidence, at no cost to the City, as is necessary to demonstrate to the City's satisfaction that the
covenants running with the land provided in this Declaration are prior and superior to any other
liens, encumbrances or other title exceptions, except for those which are approved in writing by the
City.
IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed and
effective as of , 200
DELTA ENERGY HOLDINGS, LLC
By:
Printed:
Title:
STATE OF OHIO }
ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 200_,
by ,the of Detta Energy Holdings, LLC, an Ohio limited liability
company.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal
on the date and year aforesaid.
Notary Public
This instnunent prepared by:
Christopher J. Franzmann
Squire, Sanders & Dempsey L.L.P.
41 S. High Street, Suite 2000
Columbus, Ohio 43215
C-I
EXHIBIT D
USE AGREEMENT
THIS USE AGREEMENT (this "Agreement"} is made as of the ~ day of ~ ~~•Y ,
200¢ (the "Effective Date") by and between the City of Dublin, Ohio, an Ohia municipal
corporation (herein referred to as "Licensor") and Dorothy L. Thomas, Marian D.
Thomas, Robert Thomas, William Thomas, and Andrew Thomas (collectively herein
referred to as "Licensee").
PROPERTY
As part of the consideration for Licensors purchase from Licensee of the real
property situated in the City of Dublin, County of Franklin and State of Uhio, such real
property being more particularly described on the attached Exhibit "A" ("Parcel B") and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Licensor hereby grants to Licensee anon-exclusive, restricted license to
f~ Parcel B.
2. TERM OF AGREEMENT
Licensee shall have the right to occupy Parcel B from and after the Licensor's
purchase of Parcel B from Licensee to the earlier of the following: (a} the date on which
Licensee voluntarily vacates Parcel B, or (b} thirty (30) days following the date Licensor
notifies Licensee in writing of its decision to terminate this Agreement (the "Possession
Termination Date"}, unless this Agreement is terminated earlier as provided for herein (the
"Term"). Licensor may, upon thirty {30) day's prior written notice to Licensee, terminate
this Agreement at such time as Licensor so determines, in Licensor's sole discretion.
3. TERMINATION
In the event Licensee does not comply N~ith any term, provision, condition or
covenant of this Agreement, then at the option of Licensor, this Agreement and the terms
hereby created, shall immediately terminate without any right on the part of Licensee to
reinstate this Agreement by payment of any sum due or by other performance of any
condition, term or covenant broken.
4. USE OF THE PROPERTY
Licensee agrees to use Parcel B in a safe and careful manner and in compliance
with all laws, ordinances, rules and regulations of all federal, state and local governmental
agencies having jurisdiction, including without limitation all such laws, ordinances, rules
Use Agreement
Parce! B
Page 1 of 6
and regulations relating to hazardous materials. Parcel B shall be used solely in the same
manner as of the Effective Date, however, Licensee shall have the right to remove any and
all items from Parcel B (and shall remove all personal property, debris and/or other non-
attached hazardous substances) provided that upon the expiration of Licensee's right to
possession, Parcel B shall be left in no worse condition than as of the Effective Date of this
Agreement. Licensee agrees to provide to Licensor final lien waivers from any and all
contractors employed by Licensee to perform any such removal of property.
5. INSURANCE: lNDEMNIFiCATiON
(a) Casualty Insurance. Licensee shat{ cant' such insurance against loss of its
property in, on or about Parcel B by fire and such other risks as are covered
by all risk and extended coverage property insurance or other hazards as
Licensee deems necessary. Licensor shall not be Eiable for any damage to
Licensee's property on Parcel B caused by fire or other insurable hazards
regardless of the nature or cause of such fire or other casualty, and
regardless of whether any negligence of Licensor or Licensors employees
or agents contributed thereto. Licensee releases Licensor of and from all
liability for any such damage. Licensee agrees that its insurance policy or
policies shall include a waiver of subrogation recognizing this release from
liability.
(b) Liabil' Insurance. Licensee agrees to procure and maintain during the term
o#this Agreement a policy of liability insurance insuring Licensee against any
and all losses, claims, demands or actions for injury to or death of any one
or more persons and for damage to property in any one occurrence in Parcel
B to the limit of not less than $500,000.00 and $1,000,000.00 general
aggregate policy limit arising from Licensee's use of Parcel B. Licensee shall
furnish #o Licensor certificates evidencing the continuous existence of such
insurance coverage, which must name Licensor as an additional insured. All
insurance companies must be licensed to do business in Ohio. Certificates
of insurance will be provided at the time this Agreement is executed.
Certificates of insurance are to specify notification to Licensor of cancellation
or termination of policy not Tess than ten (10) days prior to cancellation or
termination.
(c) J,p,~plpj~y. Licensee shall indemnify Licensor, Licensors agents, employees,
officers or directors, against all damages, claims and liabilities arising from
any alleged products liability or from any accident or injury whatsoever
caused to any person, firm or corporation during the demised term on Parcel
B. The indemnification herein provided shall include all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or any
Use Agreement
Parcel B
Page 2 of 6
action or proceeding brought thereon. Licensee understands and hereby
expressly agrees that Licensor shall have no obligation whatsoever to insure
Parcel B.
6. UTILITIES AND SERVICES
Licensee shall be solely responsible for a!I costs and expenses relating to its
occupancy of Parcel B, including the costs of any and all utilities furnished to Parcel B,
including heat, water, gas, electricity, te{ephone, snow removal and cleaning.
7. MAINTENANCE AND REPAIRS
Licensee agrees to accept Parcel B in an "AS IS" condition. Licensor shall have no
obligation whatsoever to maintain or repair Parcel B or any improvements located thereon.
Licensee shall be responsible for all maintenance and repair obligations relating to Parcel
B for the Term of this Agreement, and in such regard Licensee shall, throughout the Term
of this Agreement and at its sole cost and expense. keep Parcel B in good order and
condition such that at the end of the Term the same shall be left in no worse condition than
that as of the Effective Date. Notwithstanding the foregoing, Licensee shall keep and
maintain all portions of Parcel B throughout the Term of this Agreement in a condition such
that the same comply with all applicable governmental laws and regulations of any kind.
8. END OF TERM
a. All personal property awned by Licensee may be removed from Parcel B by
Licensee no later than the end of the Term. At the end of the Term,
Licensee shall vacate Parcel B.
b. In the event of any breath(s) by Licensee of any of the warranties, covenants
or obligations contained in this Agreement, other than a breach of Licensee's
obligation to vacate Parcel B and return any and all keys to Licensor,
Licensee shall pay to Licensor such amounf(s) as is (are) reasonably
required to cure such breath(s).
c. In the event that Licensee has not vacated by the end of the Term, Licensee
shall forfeit to Licensor an amount equal to Five Hundred Dollars ($500) per
day for each day that Licensee does not so vacate Parcel B, plus all legal
and other costs incurred by Licensor as a result of Licensee's failure to so
vacate.
9. NOTICES
Use Agreement
Parcel B
Page 3 of 6
All notices, demands, requests, approvals, and consents required or permitted
under this Agreement shall be in writing and shall be given by certified mail (postage
prepaid, return receipt requested), hand delivery, or by nationally recognized
overnight courier and shall be effective upon receipt or refusal of receipt by the
noticed party at the following addresses:
(a) if intended for Licensee, to:
Richard L. llimond, Esq.
601 South High Street
Columbus, Ohio 43215
(b) If intended for Licensor, to:
Timothy Hensley
City Manager
City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
with copy to: Stephen J. Smith, Attorney at Law
Schottenstein, Zox & Dunn
A Legal Professional Association
41 South High Street, Suite 2600
Columbus Ohio 43215
10. MISCELLANEOUS
a. The full and complete agreement between the parties is herein written and
the parties shall not be bound by any ore! agreements, understandings, or
conditions otherwise than are expressly set forth in this Agreement or any
subsequent written agreement signed by the parties hereto.
b. The parties agree that failure of either party to insist upon stric# and prompt
performance of the covenants and agreements hereunder, or any of them,
and the acceptance of such performance #hereafter shall not constitute or be
construed as a waiver or relinquishment of such party's right thereafter to
enforce the same strictly in the event of a continuous or subsequent default
on the part of the defaulting party.
c. Nothing contained in this Agreement shall be deemed or construed by the
parties hereto or by any third person to create the relationship landlord and
tenant or principal and agent or partnership joint venture or of any
association between Licensor and Licensee.
Use Agrcemrnt
Parcel B
Page 4 of 6
d. The representations and warranties made herein shall survive the closing of
the Real Estate Purchase Agreement between Licensor and Licensee, dated
2000, and the termination of this Agreement.
e. This Agreement may be executed in any number of counterparts, with each
such counterpart being deemed to be an original instrument, but all such
counterparts together shall consti#ute but one agreement.
11. Hazardous Substances
During the Term of this Agreement, Licensee shall not suffer, allow, permit or cause
the generation, accumulation, storage, possession, release or threat of release of any
hazardous substance or toxic material, as those terms are used in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and any
regulations promulga#ed thereunder, or any other present or future federal, state or local
laws, ordinances, rules, and regulations. Licensee shall indemnify and hold Licensor
harmless from any and all liabilities, penalties, demands, actions, costs and expenses
(including without limitation reasonable attorney fees), remediation and response costs
incurred or suffered by Licensor directly or indirectly arising due to the breach of Licensee's
obligations set forth in this Section. Such indemnification shall survive expiration or earlier
termination of this Agreement. At the expiration or sooner termination hereof, Licensee
shall return Parcel B to Licensor in substantially the same condition as existed on the
Effective Date #ree of any hazardous substances in, on or from Parcel B.
Use Agreement
PazceI B
Page 5 of 6
(S)
IN WITNESS WHEREOi=, the parties hereto, intending to be legally bound hereby,
have duly executed this License Agreemen# on the day and year above written.
LICENSEE:
Dorothy .Thomas
~e ,,.,, Ids' ~7 d~~-,xa-a)
Marian D. Thomas
t ~~.-
Robert Thomas
~~~~~
William Thomas
~t_ ~~~
Andrew Thomas
LICENSOR:
CfTY OF DUBLfN, OHIO, an Ohio
municipal corporation - />
8y: ~~~~n~X~ -
Timothy C. Hensley ity Manager
Use Agreement
Parcel B
Page 6 of 6
(6)
Page 2
5.457 Acres
1) South 32° 42' 07" East, 44.85 feet to a fotittd I" O.D. iron pin with a yellow cap
inscribed "$urgess and Nip1e";
2} Along an arc of a curve to the right leaving a radius of 804.50 feet, a delta angle of
09° 03' 02", a chord bearing and distance of Soutli 35° 24' 38" East, I26.95 feet to
a found 1" O.D. iron pin with a yellow cap inscribed "Burgess and Niple";
3) Along an arc of a curve to the right having a radius of 552.50 feet, a delta angle of
10° 56' 49", a chord bearing and distance of South 25° 24' 43" East, 105.40 feet to
a found 1" O.D. iron pin with a yellow cap inscribed "Burgess and Niple" in tl~e
east line of said Parcel Three acid east line of said Lot 3, and being in the west line
of the City of Dublin 4. i99 Acre tract (Parcel l WD Inst. 1 99802 1 0003 0 1 l 1);
Thence, along part of the east line of said Parce! Tftree and part of the east tine of said
Lot 3, and part of the west line of said 4.199 Acre tract, Sotith 03° l4' 21" West, 1 1.84
feet to a found I" O.D. iron pin with a yel{ow cap inscribed "Burgess and Niple";
Thence, across part of said Lot No. 3 and part of said Parcel Three the following three
(3) courses:
1) South 42° 21' 21" West, 54.77 feet to a fottnci 1" O.D. iro~l pin with a yellow cap
inscribed Burgess and Niple;
2) North 89° 44' 44" West, 140.65 feet to a found t" O.D. iron pin with a yellow cap
inscribed Burgess and Niple;
3) Along an arc of a curve to tl}e left Laving a radius of 970.00 feet, a delta angle of
29° 58' 52", a chord bearing and distance of Soullt 75° I S' S4" West, 501.80 feet
to a set iron pin in the west line of said Parcel Three and the east line of Lot No. 2
of said Metro North Business Park;
Thence, along part of the west line of said Parcel Three and part of the east line of said
Lot No. 2 and part of the east line of said Commerce Parkway, North 03° 18' S2" East,
517.09 feet to the place of beginning CONTAINING 5.457 ACRES subject however to
all legal highways, easeme-tts, restrictions of record and of records in the respective
utility offices.
Continued...
.,
~lu~rs~°r~
2740 East Main Street
Bexley, Ohio 43209-2577
(614) 235-8677
Telefax 235-4559
EXHIBiTA
5.457 Acres
April 11, 2000
Revised May 3 2000
Situated in the Slate of Ohio, County of Franklin, City of Dublin, being part of
Virginia Military Survey No. 2542 and part of Parcel Three conveyed to BancOhio
National Bank of Columbus in Official Record Volume 07681 B-1 1, Recorder's Office,
Franklin County, Ohio and being part of Lot 3 oflames Brown Subdivision in Complete
Record Volume 102, Page 97, Clerk of Courts Oftce, Franklin County, Ohio (all
references to recorded documents are on Gle in said Recorder's Off ce, unless otherwise
noted) and being more particularly described as follows:
Commencing at a set railroad spike in tl~e centerline of Post Road at the northwest
corner of said Lot No. 3 and the northeast comer of Metro North Business Park, as the
same is numbered and delineated upon tE~e recorded plat thereof, of record in Plat Book
66, Page 7l ;
Thence, along the east line of Reserves "A" and "B" and part of iltie east line of
Commerce Parkway (50 feet wide) of said Metro North Business Park, and part of the
west line of said Lot No. 3 and part of the west line of said Parcel Three, South 03° 18'
52" West, 1,219.24 feet to a set iron pin in the south tine of Perimeter Drive and being
the southwest corner of the City of Dublin 1.355 Acre tract (Parcel 47 WD Inst_
199802100030106) and being ~'IlE TRUE POINT O[' QEGINN[NG•
Thence, along the south line of said Perimeter Drive, part of the south line of said
1.355 Acre tract and across part of said Parcel Three and part of said Lot No. 3 the
following three (3) courses:
1) North 46° 33' 23°' East, 43.29 feet to a set iron pin;
2) South 8b° 45' 36" East, 149.83 feet to a set iron pin;
3) Along an arc of a curve to the right having a radius of 531.46 feet, a delta angle of
36° 28' 4l", a chord bearitlg and distance of Soutli 68° 3l' IS" East, 332.68 feet to
a set iron pin;
Thence, across part of said Lot No. 3 and part of said Parcel Three, [he following three
{3) courses:
Continued...
CJCOMPANY V
Page 3
5.457 Acres
The foregoing description was prepared from an actual field survey made by Myers
Surveying Company Inc. in February 2000. Iron pins set are 30" x 1" O.D. with orange
plastic caps inscribed "P.S. #6579", unless otherwise noted. Basis of bearings is the
north line of Perimeter Drive as South 86° 45' 36°' East per Instrument No.
1 99802 1 00030 1 06. The above-described 5.457 Acre tract is encumbered by 0.147 Acres
of area in either existing easements or right-of--way, leaving a net area of 5.310 Acres.
Mye Surveyin Company inc. ~r~
,~ TE
P O
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Alberi J Mye . #6579 3
REOlkmh (2 1 1 9) ~ ~~
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PRELIMINARY
APPROVAL
A ~~
FRANKLIN COUNTY ^*~.,,~,~.,.
ENGINEERING DEPT.
GATE: QS~C~ $Y: -~L-__"'
EXHIBIT E
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement"} is made and entered into this _
day of 2009 by and between Energy Holdings, LLC, an Ohio limited
liability company (hereinafter referred to as "Buyer"), offers to purchase from the City of
Dublin, Ohia {hereinafter referred to as "Seller).
BACKGROUND INFORMATION
A. On October , 2009, Seller and Buyer entered into a certain Purchase
Agreement ("Purchase Agreement"), whereby Seller agreed to sell and Buyer agreed to
purchase a certain acre parcel of real property in Franklin County, Ohio.
B. Pursuant to Section 15 of the Purchase Agreement, Buyer agreed to
deposit the sum of $10,000.00 with an escrow agent.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Background Information
and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree to escrow the following sum on the
terms and conditions hereinafter set forth:
1. Appointment of Escrow Agent. Benchmark Title Agency, Inc., with an
address of 250 West Street, Columbus, Ohio 43215 {"Escrow Agent"), is hereby
appointed Escrow Agent and is hereby authorized and empowered to effectuate this
Agreement on the terms and conditions set forth herein. By acceptance hereof, Escrow
Agent agrees to said appointment and agrees to perform the obligations of the Escrow
Agent in accordance herewith.
2. Deposit of Escrow Funds. Buyer has simultaneously herewith deposited
with said Escrow Agent the surn of $10,000.00 (said amount, together with accrued
interest thereon, shall hereinafter be referred to as the "Escrow Funds°'). Escrow Agent
shall promptly deposit said sum in a separate money market account at a nations!
banking association or other financial institution acceptable to Buyer and Seller.
3. Disposition of Escrow Funds. Escrow Agent shall hold the Escrow
Funds as aforesaid until such time as any one of the following shall have occurred:
(a) Escrow Agent shall have received, on or before expiration of the
applicable contingency period set forth in the Agreement, written
instructions executed by Buyer which {i) state that the Contingencies (as
defined in the Purchase Agreement) have not been satisfied or waived, {ii)
certifies that the notice of failure to satisfy or waive the Contingencies
provided for in Section 3 of the Purchase Agreement has been given by
Buyer to Seller on or prior to the date of such instructions and (iii) have
attached thereto a copy of such notice of failure to satisfy or waive the
Contingencies; in such event, the Escrow Agent shall promptly thereafter
disburse the Escrow Funds to Buyer; or
(b} Escrow Agent shat! have received written instructions executed by
both Buyer and Seller directing Escrow Agent (i) to whom the Escrow
Funds are to be disbursed, (ii} the manner and all pertinent instructions
pursuant to which the Escrow Funds are to be disbursed and (iii) when the
Escrow Funds are to be disbursed (such written instructions shalt
hereinafter be referred to as "Joint Instructions"}; in such event, Escrow
Agent shall disburse the Escrow Funds as directed by the Joint
Instructions; or
(c) Escrow Agent shall have received written instructions executed by
either Buyer or Seller (the "Requesting Party"}, pursuant to which such
Requesting Party asserts that it is entitled under the Purchase Agreement
to receive the Escrow Funds and pursuant to which the information set
forth in subparagraph (a} above is provided to Escrow Agent (such written
instructions shall hereinafter be referred to as the "Unilateral
Instructions"); in such event, the following shall apply:
(s} Escrow Agent shall, within three (3} business days after receipt
of such Unilateral Instructions, give written notice to the other
party hereto (the "Other Party") that Escrow Agent has received
such Unilateral Instructions from the Requesting Party and that
Escrow Agent will disburse the Escrow Funds in accordance
therewith unless, within five (5} business days following the date
of Escrow Agents notice, said Other Party gives written notice to
Escrow Agent that (A) said Other Party disagrees with the
Requesting Party's assertion that it is entitled under the Purchase
Agreement to receive the Escrow Funds, (B} states the reasons}
for such disagreement and (C) objects to disbursement of the
Escrow Funds by Escrow Agent in accordance with the Unilateral
Instructions.
(ii) In the event that Escrow Agent does not receive any such
written objection to disbursement of the Escrow Funds in
accordance with the Unilateral Instructions from the Other Party
within five (5) business days following the date of the Escrow
Agent's notice to the Other Party, Escrow Agent shall disburse the
Escrow Funds as directed by the Unilateral Instructions.
(iii) In the event that Escrow Agent does receive such written
objection to disbursement of the Escrow Funds in accordance
with the Unilateral Instructions from the Other Party within five (5)
business days following the date of Escrow Agent's notice to the
Other Party, Escrow Agent shall continue to hold the Escrow
Funds hereunder until such time as {A} it receives Joint
Instructions pertaining to disposition of the Escrow Funds, (B) it is
ordered to make specific disposition of the Escrow Funds by a
court of competent jurisdiction or (C) it deposits the Escrow Fund
with a proper court as provided in Paragraph 5 hereof.
Disbursement of the Escrow Funds by Escrow Agent as hereinabove provided
will result in the termination of the terms and conditions of this Agreement.
4. indemnification of Escrow Agent. Buyer and Seller hereby agree that in
consideration for the services to be performed by Escrow Agent, Escrow Agent shall not
be held liable for misfeasance or nonfeasance. Further, Buyer and Seller agree to
indemnify and save harmless Escrow Agent against all liabilities, claims, losses,
damages, expenses, suits and actions whatsoever which might be brought against
Escrow Agent arising out of said escrow unless such actions or failure to act arise out of
gross negligence, willful misconduct and/or fraud of Escrow Agent.
5. Interpleader.
{a) Buyer and Seller specifically agree that Escrow Agent is not obligated to
disburse the Escrow Funds except as provided in Paragraph 3 hereof. If any question
exists as to the disposition of the Escrow Funds, Escrow Agent may demand from
Buyer and Seller Joint Instructions as to the disposition of such fund. If no such Joint
Instructions are received by Escrow Agent within fifteen (15} business days of such
demand, Escrow Agent may, at its sole discretion, either continue to hold the Escrow
Fund hereunder, without liability to any party for so doing, or act in accordance with the
following subparagraph (b).
(b) If, after request therefor, as provided in the foregoing subparagraph 5(a),
Escrow Agent does not timely receive Joint Instructions pertaining to the disposition of
the Escrow Fund, Escrow Agent may, by written notice to Buyer and Seller demand that
Buyer and Seller enter binding arbitration or litigation to determine to whom the Escrow
Fund should be delivered. Alternatively, Escrow Agent may file suit in Interpleader in
the proper court for the purpose of having the respective rights of Buyer and Seller
adjudicated. Escrow Agent, upon initiation of such suit, may deposit with the court the
Escrow Fund and upon giving notice thereof to Buyer and Seller, Escrow Agent shall be
fully released and discharged from all further obligations hereunder with respect to the
Escrow Fund.
(c) Buyer and Seller agree to pay to Escrow Agent, in equal shares, all
reasonable costs and reasonable attorney's fees incurred by Escrow Agent in
connection with this Agreement, including but not limited to, those incurred in the
resolution of disputes over the Escrow Funds or incurred in connection with any said
interpleader action.
6. Miscellaneous.
(a) Buyer's Federal Tax Identification Number is The
account in which the Escrow Funds are deposited shall be opened using the Tax
Identification Number of Buyer. All accrued interest shall be a part of the Escrow Fund
and shall be disbursed to the party(ies} as provided herein.
(b) The paragraph headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
(c) This Agreement shall be construed, interpreted, and governed by the law
of the State of Ohio without reference to conflict of law principles. The parties agree
that any dispute arising under this Agreement and any lawsuit involving this Agreement
to which the Escrow Agent is a party shalf be heard only by a court of competent
jurisdiction in Franklin County, Ohio. The parties waive any right to object to venue in
Franklin County, Ohio for any reason whatsoever, including, but not limited to, forum
non conveniens, lack of personal jurisdiction, or improper venue.
(d) This Agreement is binding upon and shall inure to the benefit of the
respective parties hereto, and their respective heirs, legs! representatives, successors
and assigns.
(e) For purposes hereof, a "business day" shall mean a day of the year, other
than (i) a Saturday; (ii) a Sunday; or (iii) any day upon which The Huntington National
Bank, Columbus, Ohio, is required or authorized by law to remain closed.
(f) Any notices required hereunder sha{I be in writing, shall be transmitted by
registered or certified mail, postage prepaid, return receipt requested. Notice shall be
deemed given when so deposited in the United States Postal Service, addressed to the
parties as set forth below:
If intended for Buyer, to:
Delta Energy Holdings, LLC
2674 Federated Boulevard
Columbus, Ohio 43235
Attn: Sheri Tackett, President
With a copy to:
Jonathan E. Adkins, Esq.
Attorney at Law
Loveland & Brosius, LLC
50 W. Broad Street, Suite 3300
Columbus, Ohio 43215
Development
If intended for Seller, to:
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attn: Dana McDaniel,
W ith a copy to:
Deputy City Manager/Director of Economic
Gregory S. Baker, Esq.
Schottenstein, Zox ~ Dunn
A Legal Professional Association
250 West Street, 6th Floor
Columbus, Ohio 43215
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
City of Dublin, Ohio
Terry D. Foegler, City Manager
Delta Energy Holdings, LLC
Sheri Tackett, President
The undersigned accepts the appointment as Escrow Agent under the foregoing
Agreement and agrees to undertake and perform the obligations imposed upon Escrow
Agent thereunder- The undersigned further acknowledges receipt of the aforesaid
Escrow Funds and a copy of the Purchase Agreement referred to therein.
Executed this _ day of , 2009.
ESCROW AGENT:
Benchmark Title Agency, Inc.
BY:
ITS:
EXHIBIT F
RETENTION/DETENTION POND
EASEMENT AGREEMENT
THIS RETENTION/DETENTION POND EASEMENT AGREEMENT (the
"Agreement") is made and entered into this day of , 2009, by and between
the City of Dublin, Ohio, an Ohio municipal corporation ("Grantor") and Delta Energy
Holdings, LLC, an Ohio limited liability company ("Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner, in fee simple, of an approximate acre
tract of real property located in Franklin County, Ohio, legally described on Exhibit "A",
attached hereto and made a part hereof (the "Easement Parcel");
WHEREAS, Grantee is the owner, in fee simple, of an approximate acre
tract of real property located in Franklin County, Ohio, which is situated adjacent to the
Easement Parcel and is legally described on Exhibit °'B", attached hereto and made a
part hereof (the "Grantee Parcel"). The Easement Parcel and Grantee Parcel are
graphically depicted on Exhibit °C" attached hereto and made a part hereof; and
WHEREAS, to facilitate the development of the Grantee Parcel, Grantee has
requested that Grantor grant to Grantee for the benefit of the Grantee Parcel an
easement on, over, across and through the Easement Parcel for retention/detention
pond and storm water drainage purposes, all upon the terms and conditions hereinafter
set forth, which easements Grantor is wiping to grant; and
WHEREAS, Grantee has agreed to construct the retention/detention pond and
related appurtenances in accordance with plans and specifications approved by Grantor
and Grantee, and Grantor has agreed to reimburse Grantee for- its prorata share of the
construction and future repair, maintenance and replacement thereof.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I
DEFINITIONS
In addition to the definitions set forth elsewhere in this Agreement, the following
terms shall be defined as follows:
1.01 Occupant. The term "Occupant", as used herein, is hereby defined as the
respective owner in fee simple of the Easement Parcel and the Grantee Parcel, their
successors and assigns.
4}{I669789 i f
Page 25 of 32
1.02. Permittee. The term "Permittee", as used herein, is hereby defined as the
tenants, customers, employees, agents, licensees, and invitees of an Occupant.
ARTICE_E 11
EASEMENTS AND RESTRICTIONS
2.01. Grant_ Subject to the limitations and conditions set forth in Section 2.03
hereof, Grantor does hereby grant, bargain, sell and convey to Grantee, its successors
and assigns, an irrevocable, nonexclusive, perpetual right and easement on, over,
across, under and through the Easement Parcel, which is legally described on Exhibit
R_, for the purpose of storm water drainage, including but not limited to constructing,
reconstructing, repairing, replacing and maintaining the Improvements (as hereinafter
defined) on the Easement Parcel for the benefit of the Grantee Parcel and other real
property owned and/or designated by Grantor from time to time.
2.02. Construction and Maintenance. For purposes of this Agreement, the term
"Improvements" shalt mean the improvements shown on the plans and specifications
prepared by Grantor and provided to Grantee (the "Plans"), which may include, without
limitation, the following: (a) a retention/detention pond, {b) fountain(s), (b) lighting in and
on the retention/detention pond and the Easement Parcel, {c} water quality equipment,
including aeration systems, and (d) landscaping in areas surrounding the
retention/detention pond on the Easement Parcel. Notwithstanding anything to the
contrary contained herein or in the Plans, Grantor and Grantee agree that Grantee may
construct landscaping improvements that exceed the standards required by Grantor so
long as the same are approved by Grantor and Grantee is solely responsible for any
excess costs associated with the construction, maintenance, repair and replacement
thereof (the "Excess Costs").
Grantee shall continuously maintain the appearance of the Easement Parcel in a first
class condition and state of repair, including, without limitation, mowing of grass,
trimming, weeding and maintaining landscaped areas, regular clearing of debris,
installing, repairing, maintaining and replacing {as necessary) fountain(s), lighting,
aeration, electrical and other equipment and mechanical systems and regular
monitoring and maintaining of the water quality.
Grantee shall (i) carry on all construction, maintenance, replacements and
repairs activity with diligence and dispatch, (ii) use its best efforts to complete the same
in the shortest time possible under the circumstances, {iii) cause all construction,
maintenance, replacement and repair activity to be performed in a good and
workmanlike manner, (iv} promptly upon the completion of any such construction,
maintenance, replacement and repair activity, restore such Easement Parcel as nearly
as possible to its former condition and appearance. Further, in connection with the
completion, repair, maintenance and replacement of the Improvements, Grantee shall
comply with, and cause all of its employees, agents, contractors and consultants to
comply with, all applicable federal, state, county, municipal and other governmental
statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and
(H 1649789 3'
Page 26 of 32
injunctions of any court, board, agency, commission, affice or other authority of any
nature whatsoever for any governmental unit (federal, state, county, district, municipal,
city or otherwise) whether now or hereafter in existence affecting the Easement Parcel,
or the construction, use, alteration or operation thereof, or any part thereof, whether
now or hereafter enacted and in force, including but not limited to the prevailing wage
requirements of Chapter 4115 of the Ohio Revised Code, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or known
to Grantee, at any time in force affecting the Easement Parcel or any part thereof.
2.03. Conditions. It is specifically agreed that the rights and easements granted
in Section 2.01 above are granted upon the condition that (a) neither Grantor nor
Grantee shall take or permit any actions to be taken which shall materially interfere with
the flow of storm water over and across the Easement Parcel or the use of the
Easement Parcel for the purposes herein granted, (b) Grantor will not alter or modify in
any material way the Easement Parcel, except to reconfigure the same to the extent
necessary to accommodate storm drainage requirements for other real property owned
and/or designated by Grantor, in which event such modifications shall not unreasonably
interfere with the Grantee Parcel or storm drainage therefrom, and Grantor shall restore
the Easement Parcel to substantially its previous condition upon completion of any such
modifications, and (c) the proposed development on the Grantee Parce! will create storm
water run-off from a drainage area of no more than acres.
2.04. Reimbursement. Within thirty (30) days following completion of the
Improvements and approval thereof by the City Engineer, Grantor shall reimburse
Grantee for a portion of the reasonable documented costs to construct the
Improvements in an amount equal to the product of (1) the percentage of the total
capacity of the storm water retention/detention pond reasonably estimated by Grantor
to be used by real property other than the Grantee Parcel multiplied by (2) the total cost
of the Improvements (excluding any Excess Costs), and subtracting from such product
one-half of the reasonable out-of-pocket costs incurred by Grantor in preparing the
Plans.
Upon Grantee's completion of the Improvements and approval thereof by the
City Engineer, Grantee shall bill Grantor on an annual basis for the reasonable costs
and expenses incurred by Grantee with respect to Grantee's ongoing maintenance,
repair and replacement obligations set forth in Section 2.02 above. The billing shall
reasonably itemize the types of expenses (including any Excess Expenses which are
the responsibility of Grantee) and shall state the calculations used to compute the sum
assessed to Grantor. Grantee shall, upon request, furnish written evidence of payment
of any costs and expenses and shall make such records available far audit during
regular business hours upon ten (10) days' notice. Grantor shall reimburse Grantee for
a portion of the reasonable documented costs to perform such maintenance, repairs
and replacements in an amount equal to the product of (1) the percentage of the total
capacity of the storm water retention/detention pond reasonably estimated by Grantor
to be used by real property other than the Grantee Parcel multiplied by {2) the total cost
of such maintenance, repairs and replacements (excluding any Excess Costs). Such
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amount shall be payable from Grantor to Grantee within thirty (30} days from the date of
receipt of the billing. Grantor shall be released from liability for payment of any
expense not billed within eighteen (18} months from the date that it was incurred by
Grantee.
Except in the event of a bona fide emergency, Grantee shall not carry on any
major construction, major maintenance, major replacement or major repair activity in
excess of $2,000.00 unless the approval of Grantor has been obtained which approval
shall not be unreasonably withheld, conditioned or delayed. If Grantor disputes such an
expenditure, #hen Grantor and Grantee shalt work in good faith to obtain the work for a
price both can accept. In the event the parties fail to agree, then Grantee and Grantor
shall submit the matter to binding arbitration.
2.05. Noncompliance. Should Grantee fail to perform its obligations hereunder,
Grantor shall be entitled but shall not be required to perform such obligations, and
Grantee shall reimburse Grantor for a portion thereof in accordance with this Article Il,
provided that, except in the case of an emergency, Grantor shall first notify Grantee of
the failure to maintain, repair and replace and shall permit Grantee to perform the
obligation within thirty (30} days after receipt of notice. if Grantee repeatedly fails to
perform its obligations in this Article II, Grantor shall be entitled to delegate such
obligations to a third party who shall be deemed to be an agent of Grantee and Grantor,
provided that Grantee is furnished thirty (30) days' prior notice thereof.
2.06 Insurance. Grantee shall maintain comprehensive commercial liability
insurance with respect to the Easement Area with commercially reasonable limits
approved by Grantor from time to time. Grantor shall be named as an additional
insured on such policy.
ARTICLE 111
NATURE OF EASEMENTS AND RIGHTS GRANTED
3.01. Run With the Land. Unless otherwise provided herein, the easements,
restrictions and each and all of the rights, obligations, covenants and provisions
contained herein are made for the direct benefit of the Grantee Parcel and other rea!
property owned andlor designated by Grantor from time to time, constitute covenants
running with the land and shall bind every Occupant of all or any portion of the
Easement Parcel at any time from and after the date hereof. Upon the sale or
conveyance of such parcel(s) by an Occupant, said Occupant shall no longer be liable
hereunder for the performance of obligations hereby imposed and accruing subsequent
to the date of transfer.
ARTICLE iV
NOT A PUBLIC DEDICATION
4.01. No Dedication. Except as otherwise contemplated herein, nothing
contained herein shall, or be deemed to, constitute a gift or dedication of all or any
portion of the Easement Parcel to the general public or for any public purpose
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whatsoever, it being the intention of the parties hereto that this Agreement be strictly
limited to and for the uses and purposes expressed herein.
ARTICLE V
ENFORCEMENT
5.01. Rights upon Default. In the event of any violation or threatened violation
by any party hereto or by any Occupant of any parcel of real property subject hereof, of
any terms, restrictions, covenants and conditions provided for herein, either of the
parties hereto, or their respective successors or assigns, as the case may be, shall
have all rights available under the law, including, but not limited to, the righ# to enjoin
such violation or threatened violation in a court of competent jurisdiction. Prior to the
commencement of any such action to enjoin such violation or threatened violation,
written notice of such violation or threatened violation shat! be given to all parties to this
Agreement in the manner as required by Section 5.02, below.
5.02. Default. A party shall not be in default under any of the terms, restrictions,
covenants or conditions hereof, unless and until such party shall have been served with
written notice specifying the nature of the default and shall #hereafter fail to cure such
default within thirty (30) days after the receipt of such written notice, or, if the default
cannot be reasonably cured within said thirty (30) day period, said party shall be given
such additional time as is necessary to cure such default so long as such party has
commenced to cure the default and is proceeding diligently to complete the curing
thereof.
5.03_ Indemnification. A party who is in default of any of the terms, restrictions,
covenants or conditions hereof, shall indemnify the other party, its respective
successors or assigns, as the case may be, from and against any and all costs,
damages and expenses incurred by that party as a result of the defaulting party's failure
to abide by the terms of this Agreement. In no event, however, shall the easements
and restrictions herein granted be terminated as a result of the default of a party hereto.
ARTICLE VI
MISCELLANEOUS
6.01. Relationship to Parties. Nothing contained herein shall be deemed or
construed by the parties hereto, or by any #hird party as creating the relationship of
principal and agent, of partnership or of joint venture between the parties hereto, it
being understood and agreed that no provision contained herein or any act of the
parties hereto shall be deemed to crew#e any relationship other than grantor and
grantee of the rights and easements set forth herein.
6.02. Notices. All notices required or permitted to be given pursuant to the
terms of this Agreement shall be in writing and shall be deemed to have been properly
given if delivered by hand, nationally recognized overnight mail, or by certified mail,
return receipt requested, postage prepaid, to the addresses set forth below, or to such
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other addresses as the parties may specify, from time to time, in writing, sent to the
o#her party. Notices shall be effective upon receipt or refusal of receipt.
If intended for Grantee, to:
Delta Energy Holdings, LLC
2674 Federated Boulevard
Columbus, Ohio 43235
Attn: Sheri Tackett, President
If intended for Seller, to:
City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attn: Legal
6.03. Waiver. Except to the extent that a party may have otherwise agreed in
writing, no waiver by such party of any breach of the other party of any of its obligations,
agreements or covenants hereunder shall be deemed to be a waiver of any subsequent
breach of the same or of any other covenants, agreements or obligations, nor shall any
forbearance by a party to seek a remedy for any breach by the other party be deemed a
waiver of any rights or remedies with respect to such breach or any similar breach in the
future.
6.04. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
6.05. Captions and Pronoun Usage. The captions and section numbers in this
Agreement are for convenience only and shall not be deemed to be a part hereof. The
pronouns used herein shall be considered as meaning the person, number and gender
appropriate under the circumstances at any given time.
6.06. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
6.07. Modification. This Agreement, or any easement, covenant or restriction
set forth herein, may not be amended, terminated, rescinded or otherwise modified, in
whole or in part, except by a written instrument executed by (a) the Occupant of the
Grantee Parcel, (b) the Occupant of the Easement Parcel and (c) the holder of each
and every mortgage encumbering all or any part of such property, and recorded with
the County Recorder, Franklin County, Ohio.
6.08. Counterparts. This Agreement may be executed in any number of
counterparts, with each such counterpart being deemed to be an original instrument,
but all such counterparts together shall constitute but one agreement.
OH 1 ba9789 3 }
Page 30 of 32
6.09. Benefit. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
Signed and acknowledged
in the presence of:
City of Dublin, Ohio
Terry D. Foegler, City Manager
Delta Energy Holdings, LLC
Sheri Tackett, President
STATE OF OHIO
COUNTY OF FRANKLIN
SS
The foregoing instrument was acknowledged before me this day of
2009, by Terry D. Foegler, City Manager of the City of Dublin, Ohio, an Ohio
municipa{ corporation, for and on behalf of said Ohio municipal corporation_
Notary Public
STATE OF OHIO
:SS
COUNTY OF FRANKLIN
The foregoing instrument was acknowledged before me this day of , 2009,
by Sheri Tackett, President of Delta Energy Holdings, LLC, an Ohio limited liability
company, for and on behalf of said Ohio limited liability company.
Notary Public
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Page 31 of 32
This instrument prepared by: Gregory S. Baker, Esq.
Schottenstein, Zox and Dunn
A Legal Professional Association
250 West Street
Columbus, Ohio 43215
EXH(BiTS:
A-Easement Parcel Legal Description
B-Grantee Parcel Legal Description
C-Graphical Depiction of Easement Parcel and Grantee Parcel
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