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67-06 OrdinanceRECORD OF ORDINANCES Blank, Inc. Ordinance No. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE STONEHENGE COMPANY REGARDING 6055 AVERY ROAD WHEREAS, the City of Dublin is preparing to widen Avery Road from south of Shier Rings Road to just north of Woemer Temple Road, including the installation of a roundabout at Tuswell Drive; and WHEREAS, The Stonehenge Company is the owner of 6055 Avery Road, which is located at the northwest corner of Avery Road and Tuswell Drive; and WHEREAS, in 2004, The Stonehenge Company was prepared to file a building permit application for the construction of a daycare facility on this property; and WHEREAS, in an effort to limit the City's financial liability due to the uncertainty of the final alignment for the Avery Road widening project at that time and the potential need for an access road from Tuswell Drive north through 6055 Avery Road, the City requested The Stonehenge Company defer filing the building permit application until the roadway alignment was determined; and WHEREAS, the roadway alignment was established in 2006 and the access road through the Stonehenge property is not necessary; and WHEREAS, the City has agreed to reimburse The Stonehenge Company for expenses incurred based on the City's request to defer development of 6055 Avery Road. NOW, THEREFORE, BE IT ORDAINED by the Council, of the City of Dublin, State of Ohio, —r7— of the elected members concurring that: Section 1 . The City Manager is hereby authorized to execute the attached Agreement with potential changes therein not inconsistent with the intent of the Agreement, and make reimbursement to The Stonehenge Company. Section 2 . This Ordinance shall take effect and be in force from and after the earliest date provided by law. Passed this 6�` day of 200 Mayor - Presiding Officer ATTEST: 67 -06 Passed 20 Clerk of Council Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490 CITY OF DUBLIN To: Members of Dublin City Council From: Jane S. Brautigam, City Manage Date: July 31, 2008 ��f TS s Initiated By: Marsha I. Grigsby, Director of Finance Paul A. Hammersmith, Director of Engineering/City Engineer Memo Re: Ordinance 67 -06, Authorizing the City Manager to Execute an Agreement with the Stonehenge Company Regarding 6055 Avery Road Summary As discussed in the June 26, 2008 memo to City Council, Ordinance 67 -06 was initially introduced on October 16, 2006. Prior to the second reading on November 6, 2006, The Stonehenge Company (Stonehenge) requested the Ordinance be postponed until November 20, 2006, and then again to December 11, 2006. Prior to the December 11 meeting, it was determined the Ordinance needed to be tabled until such time as Stonehenge reviewed and evaluated the existing and future (based on the Agreement) setback requirements related to the potential development of 6055 Avery Road. The attached Agreement provides for reimbursement of certain expenses incurred by Stonehenge as a result of deferring the development of their property as requested by the City for the reason noted in the October 11, 2006 memo. As mentioned in the June 26, 2008 memo, some language in the Agreement needed to be modified due to the City's completion of the Avery Road/Tuswell Drive roundabout (Tuswell roundabout) project, the City's acquisition of the Swope property and dates that are referenced. Section 3 has been modified to remove language no longer necessary as a result of the Tuswell roundabout project having been completed and the City's acquisition of the Swope property, which included the area referred as the Access Easement Area, after the Ordinance was tabled. Section 4 has been revised to only include the City's obligation to reimburse Stonehenge for the cost to construct a curb cut on Tuswell Drive and an access drive over the Access Easement or, at the City's option, to complete the improvements to provide access to the Property. The other items previously referenced have been completed (Sections 4(a) and 4(b)) or not deemed necessary (Section 4(c)). A redlined copy of the Agreement has been included for reference. Recommendation Staff recommends that Ordinance 67 -06 be adopted at the August 4, 2008 City Council meeting. CITY OF DUBLIN- Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490 Memo TO: Members of City Council FROM: Jane S. Brautigam, City Manager--�sgg�� r DATE: June 26, 2008 // INITIATED BY: Marsha I. Grigsby, Director of Finance RE: Tabled Ordinance No. 67 -06, An Ordinance Authorizing the City Manager to Execute an Agreement with the Stonehenge Company regarding 6055 Avery Road Summary: As you may recall, Ordinance No. 67 -06 was initially introduced on October 16, 2006. Prior to the second reading on November 6, 2006, The Stonehenge Company (Stonehenge) requested the Ordinance be postponed until November 20, 2006, and then again to December 11, 2006. Prior to the December 11 meeting it was determined the Ordinance needed to be tabled until such time as Stonehenge reviewed and evaluated the existing and future (based on the Agreement) set -back requirements related to the potential development of 6055 Avery Road. Stonehenge recently contacted the City and requested the legislation move forward. The Agreement provides for reimbursement of certain expenses incurred by Stonehenge as a result of deferring the development of their property as requested by the City for the reasons noted in the October 11, 2006 memo. The Agreement also provides for the portion of Tuswell Drive that has been removed as a result of the recently completed intersection improvement at Avery Road to be vacated and dedicated to Stonehenge. A credit for the value of the vacated roadway is to be applied against the reimbursement to be made by the City. Due to the amount of time that has past, some language will be modified (i.e. dates and the fact that the intersection improvement project has been completed). A copy of the staff memos, Ordinance No. 67 -06 and the Agreement are attached for reference. Recommendation: It is recommended that Ordinance No. 67 -06 be removed from the table and scheduled for a second reading/public hearing at the August 4, 2008 City Council Meeting. Attachments AGREEMENT THIS AGREEMENT (the "Agreement ") is made and entered into this day of , 2008 by and between the City of Dublin, Ohio, an Ohio municipal corporation (the "City ") with a mailing address of 5200 Emerald Parkway, Dublin, Ohio 43017 and The Stonehenge Company an Ohio corporation ( "Stonehenge "), with a mailing address of 147 North High Street, Gahanna, Ohio 43230 (collectively, the "Parties "). WITNESSETH WHEREAS, Stonehenge purchased the property commonly known as 6055 Avery Road, Dublin, Ohio 43016 (the "Property "), which Property is outlined in pink on the attached Exhibit A , which is incorporated herein; and WHEREAS, Stonehenge intended to develop a daycare facility on the Property and incurred $129,180 in expenses in connection therewith (the "Expenses "); and WHEREAS, the City notified Stonehenge of its intention to widen Avery Road (the "Project"), which would impact accesses to the Property and those adjoining it, and therefore requested Stonehenge to forego developing the daycare until the City finalized the configuration of the Project; and WHEREAS, Stonehenge acquired, at a cost of $222,652.46 per acre, the property commonly known as 6035 Avery Road, Dublin, Ohio 43016 (the "Swope Property "), which Swope Property is outlined in vellow on Exhibit A ; and WHEREAS, the City intends to vacate an approximately 0.42 -acre portion of Tuswell Drive as part of the Project (the "Vacation Area "), which Vacation Area is shown in blue and orange on Exhibit A and WHEREAS, the City and Stonehenge have agreed that the City will convey the Vacation Area to Stonehenge and reimburse Stonehenge for the Expenses, provided that the Expenses are reduced by $51,210.07, which figure represents the value of a 0.23 -acre portion of the Vacation Area using the per acre purchase price that Stonehenge paid for the Swope Property (i.e., 0.23 x $222 ,652.46= $51,210.07)(hereinafter the "Vacation Area Value "). NOW THEREFORE, in consideration of the foregoing and the covenants, warranties, terms, and conditions hereinafter set forth, the Parties agree as follows: 1. Contingency This Agreement is contingent upon the City obtaining City Council approval of this Agreement. If such approval is not obtained by August 31, 2008, then the City may terminate this Agreement, in which event the Parties shall be fully released and relieved from all further liability and obligations arising hereunder. 2. Reimbursement The City shall, on or before September 30, 2008, reimburse Stonehenge the sum of $77,969.94, which sum represents the difference between the Expenses Ili 1291GGQi) 1 and the Vacation Area Value (i.e., $129,180— $51,210.07= $77,969.94). Stonehenge acknowledges that the payment of such reimbursement to Stonehenge, together with the conveyance of the Vacation Area to Stonehenge, shall constitute satisfaction in full for any expenses, costs and/or losses which Stonehenge may incur and /or has incurred as a result of the Project and in exchange for which Stonehenge hereby relinquishes any and all claims now or hereafter arising with respect to the Project and the Property. Said reimbursement shall be payable in cash or wired funds. 3. Conveyance The City shall convey the Vacation Area to Stonehenge by limited warranty deed (the "Deed ") . Said Deed shall be in substantially the form attached as Exhibit B , which is incorporated by reference, and shall include: (a) the grant of a permanent access easement from the City to Stonehenge for the benefit of the Property/Vacation Area over and upon the area shown in green on Exhibit A (the "Access Easement Area "); and (b) the reservation of a permanent utility /right -of -way easement over the portion of the Vacation Area shown in orange on Exhibit A (the "Utility Easement Area'). The City shall be responsible for all recording fees for the Deed; the costs to prepare any necessary legal descriptions incident thereto, including the legal descriptions of the Access Easement Area and Utility Easement Area, if necessary; the costs of a title insurance binder and the policy premium for a policy in an amount equal to the Vacation Area Value, if requested by Stonehenge; and all other closing expenses, including real estate taxes and assessments, whether or not a lien, prorated to date of closing, the City and Stonehenge acknowledging that there are no real estate taxes since the City is a governmental entity. Further, Stonehenge agrees that the conveyance of the Vacation Area to Stonehenge shall be conditioned upon the Vacation Area being combined with the Property such that they constitute a single tax parcel, all expenses of which shall be paid by the City. The City shall provide Stonehenge with advance written notice of the date the Deed will be recorded. Stonehenge shall cooperate with the City in combining the Vacation Area with the Property, including promptly completing any documentation necessary to effectuate same. 4. Improvements Stonehenge shall, prior to commencement of the construction thereof, submit to the City and City Engineer complete plans and specifications (the "Plans "), together with a complete cost estimate (the "Estimate "), to construct the following improvements in the locations shown on Exhibit "A" attached hereto: (a) a curb cut onto Tuswell Drive for the purpose of providing access to the Vacation Area and Property through the Access Easement Area, and (b) an access drive over the Access Easement Area from Tuswell Drive to the Property (collectively, the "Improvements "). If such Plans are incomplete, inadequate or inconsistent with the City Engineer's requirements, then Stonehenge shall revise same as directed by the City Engineer and resubmit revised Plans and an Estimate to the City and City Engineer for approval. This process shall be repeated until such time as the Plans and Estimate are approved by the City and City Engineer. After the Plans and Estimate are approved by the City and City Engineer, the City shall notify Stonehenge of its election to either (x) construct the Improvements in accordance with the approved Plans, in which event such Improvements shall be constructed by IH12916 o.i ) 2 the City (or a contractor selected by the City), at the City's sole cost and expense, in accordance with a mutually agreed upon construction schedule (but in no event shall the City be required to use the contractor that prepared the Estimate), (y) require Stonehenge to construct the Improvements in accordance with the approved Plans, in which event such construction shall be performed by the contractor that prepared the Estimate, at the City's sole cost and expense, in accordance with a mutually agreed upon construction schedule. If the City requires Stonehenge to construct the Improvements, then after such Improvements are complete and further provided that the following are satisfied: (i) Stonehenge provides the City with an affidavit signed by Shonehenge stating that the Improvements have been completed in strict compliance with the approved Plans, including breakdown of Stonehenge's final and total construction costs, together with copies of invoices for such work and proof, satisfactory to the City, of payment thereof, (ii) Stonehenge provides the City with an affidavit of the contractor(s) constructing the Improvements stating that they have been fully completed in strict compliance with the approved Plans and that all subcontractors, laborers and materials suppliers, who supplied materials and/or labor for same (whose names and addresses shall be recited in the affidavit) have been paid in full, and that all liens therefor that have been or might be filed have been discharged of record or waived; (iii) Stonehenge provides the City with a complete release and waivers of lien executed by said contractor(s), and releases and waivers of lien executed by every subcontractor supplying labor and/or materials for such Improvements; and (iv) the Improvements have been finally approved and/or inspected by the City and /or City Engineer pursuant to the final approval process required by the City for similar improvements, THEN the City shall, within thirty (30) days thereafter, pay to Stonehenge, as Landlord's contribution toward the cost to construct the Improvements, the actual documented costs and expenses incurred by Stonehenge in constructing the Improvements. If the actual costs and expenses will materially vary from the Estimate, then Stonehenge shall consult with the City prior to undertaking same and upon completion of same provide the City with documentation evidencing such costs. The Parties acknowledge and agree that the City shall have no obligation to remove and/or relocate any utility lines located within the Vacation Area nor shall the City be responsible for any improvements within the Vacation Area and/or Property. If any mechanic's lien is filed against the Access Easement Area or other property owned by the City as a result of any work or act of Stonehenge, then Stonehenge, at its expense, shall discharge or bond off the same within ten (10) days from the filing thereof. All Improvements performed hereunder be in accordance with good construction practices, all applicable laws, codes, ordinances and regulations. No material deviations from the final approved Plans shall be permitted unless otherwise approved by the parties in writing. The City's review of the Plans shall not constitute the assumption of any responsibility by the City for their accuracy or sufficiency. Upon completion of the Improvements, the party constructing same shall, to the extent practical, promptly restore any affected property in the immediate vicinity thereof to substantially the same condition existing prior to the construction thereof. The Parties further acknowledge and agree that, following the completion of the construction of the Improvements, Stonehenge shall, at its sole cost and expense, be responsible for the maintenance, repair and replacement thereof. Stonehenge acknowledges and agrees that tH1291640.1 } 3 until such time as the Improvements are completed, the Property will not have access to Tuswell Drive. 5. Location of Easements Notwithstanding the foregoing, the Parties agree that any reference to or depiction of any easement provided for or contemplated herein represent only the Parties' approximation as to the location and size of such easements. The Parties agree to reasonably and in good faith cooperate with each other in granting and locating such easements. 6. No Warranties The Parties agree that the conveyance by the City to Stonehenge of the Vacation Area is without any implied or express warranty except as set forth in the deed, that the City makes no warranties or covenants whatever, including, but not limited to, warranties of fitness for a particular purpose, and that the Vacation Area shall be transferred in an "AS IS" condition. Stonehenge hereby agrees to hold the City harmless and to indemnify the City for any claims brought by, for, against, or on behalf of Stonehenge with respect to the Vacation Area or the access drive subsequent to date hereof. 7. Successors and Assigns The terms of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto. 8. Construction of Agreement. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio. For all litigation, disputes and controversies which may arise out of or in connection with this Agreement, THE UNDERSIGNED WAIVE THE RIGHT TO TRIAL BY JURY AND CONSENT TO VENUE AND .JURISDICTION IN FRANKLIN COUNTY, OHIO. Whenever the singular number is used herein, the same shall include the plural where appropriate and the words of any gender shall include any other gender where appropriate. Time is of the essence in all provisions of this Agreement. Captions contained herein are inserted only for the purpose of convenient reference, and in no way define, limit or describe the scope of this Agreement or any part hereof. If any provision of this Agreement is held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, nor shall the same constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in writing, by the party making the waiver. The covenants and agreements set forth in this Agreement shall not be cancelled by performance under this Agreement. 9. Entire Agreement This Agreement embodies the entire Agreement between the City and Stonehenge and shall not be modified, changed or altered in any respect, except in a writing, executed in the same manner as this Agreement by the Parties hereto. �H1291660I } 4 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below their respective signatures. CITY: City of Dublin, an Ohio municipal corporation By Jane Brautigam, City Manager Date The foregoing is accepted. STONEHENGE: The Stonehenge Company, an Ohio corporation By Mo M. Dioun, President Date Attachments Exhibit A : Graphical Depiction Exhibit B Deed (H1291660I � !I II,-, I jumL EXHIBIT A 1 : Nil !I II,-, I jumL KW O o \ M1 i EO c# amii Imam KW O o \ M1 i EO EXHIBIT B {H 1291660.1f LIMITED WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS, that the CITY OF DUBLIN, OHIO, an Ohio municipal corporation ( "Grantor "), whose tax mailing address is 5200 Emerald Parkway, Dublin, Ohio 43017, for valuable consideration paid, grants, with limited warranty covenants, to The Stonehenge Company, an Ohio corporation ( "Grantee "), whose tax mailing address is 147 North High Street, Gahanna, Ohio 43230, the real property situated in the State of Ohio, County of Franklin, and City of Dublin and being legally described on Exhibit "A" attached hereto and incorporated by this reference herein (the "Property "). The Property conveyed hereby is made subject to: (a) easements, conditions, restrictions, covenants and provisions of record; (b) real property taxes and assessments which are a lien on the Property but not yet due and payable; (c) zoning ordinances and building laws; (d) rights of the public to use any portion of the Property located within any road or public right -of -way; and (e) the reservation of the easement set forth herein. Prior Instrument Reference No.: , Recorder's Office, Franklin County, Ohio Tax Parcel Number: Grantor hereby expressly reserves unto itself, its successors, and assigns, a non - exclusive, permanent utility and right -of -way easement over the portion of the Property legally described on Exhibit `B" attached hereto and incorporated by this reference herein and Graphically depicted on Exhibit "C" attached hereto and incorporated by this reference herein (the "Easement Area "). Grantee shall be entitled to use said Easement Area in a manner that is not inconsistent with Grantor's use thereof; provided, however, that no buildings or other improvements may be constructed therein without Grantor's prior written consent. Grantor shall have the right to access such Easement Area for the construction, installation, maintenance, repairs, and replacement of any of Grantor's facilities located therein, and shall, upon completion of such activities, restore the property of Grantee disturbed thereby to substantially the condition existing immediately thereto. Otherwise, Grantee shall have sole responsibility for the maintenance, repair and replacement of the Easement Area. Grantor is the owner of an approximate acre tract of real property legally described on Exhibit "D" attached hereto and incorporated by this reference herein and graphically depicted on Exhibit "E" attached hereto and incorporated by this reference herein (the "Access Area "). Grantor hereby grants to Grantee, its successors, and assigns, a permanent access (H1291660I ) 8 easement over the Access Area for the benefit of the Property and the real property owned by Grantee commonly known as 6055 Avery Road, Dublin, Ohio 43016, and legally described on Exhibit "E" attached hereto and incorporated by this reference herein ( "6055 Avery Road ") and acquired by Grantee pursuant to . Grantee shall have sole responsibility for the maintenance, repair and replacement of the Access Area and improvements located thereon. Grantee shall, at its own expense, obtain, carry and keep in force liability insurance against any liability or claim for personal injury, wrongful death or property damage with respect to the use of the Access Area, with financially responsible insurers authorized to transact insurance business in the State of Ohio, with commercially reasonable limits as may be required by Grantor from time to time. Such insurance shall include all of the coverages typically provided by the Broad Form Comprehensive General Liability Endorsement and a contractual liability endorsement. The policy shall name Grantor as an additional insured and shall provide that such policy may not be canceled without 30 days' prior written notice to both Grantor and Grantee. Upon request, Grantee shall provide to Grantor a certificate of insurance evidencing such coverage. Except for injuries, deaths, losses, damages, or other matters resulting from the gross negligence or willful conduct of Grantor, or Grantor's agents or employees, Grantee shall indemnify Grantor, its agents and employees, and save them harmless from and against all loss, liability, damage, actions, causes of action, or claims for injury, death, loss or damage of whatever nature to any person, property or business interest caused by or resulting from an act or omission of Grantee or Grantee's agents, employees, customers, servants, licensees, invitees, tenants or subtenants of Grantee with regard to use of the Access Area, and from and against any and all costs, expenses or liabilities (including reasonable fees of attorneys, paralegals, experts, court reporters and others) incurred by Grantor in connection with any claim, action or proceeding in respect of any such loss, liability, damage or claim. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be executed by its duly authorized officer this day of , 2008. CITY OF DUBLIN, OHIO, an Ohio municipal corporation STATE OF OHIO FRANKLIN COUNTY : ss. By: Print Name: Its: (H1291660A 1 9 BE IT REMEMBERED, that on this day of , 2008, before me, the subscriber, a Notary Public in and for said state, personally came the of the City of Dublin, an Ohio municipal corporation, the Grantor in the foregoing deed and acknowledged the signing thereof to be his voluntary act and deed for and on behalf of said limited Liability company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public My Commission Expires: This instrument prepared by: Gregory S. Baker, Esq. Schottenstein, Zox & Dunn A Legal Professional Association 250 West Street Columbus, Ohio 43215 IH1291660I ) 10 REDLINED AGREEMENT AGREEMENT THIS AGREEMENT (the "Agreement ") is made and entered into this day of Oeteber , 2966 by and between the City of Dublin, Ohio, an Ohio municipal corporation (the "City") with a mailing address of 5200 Emerald Parkway, Dublin, Ohio 43017 and The Stonehenge Company an Ohio corporation ( "Stonehenge"), with a mailing address of 147 North High Street, Gahanna Ohio 43230 (collectively, the "Parties "). WITNESSETH WHEREAS, Stonehenge purchased the property commonly known as 6055 Avery Road, Dublin, Ohio 43016 (the "Property "), which Property is outlined in oink on the attached Exhibit A_, which is incorporated herein; and WHEREAS, Stonehenge intended to develop a daycare facility on the Property and incurred $129,180 in expenses in connection therewith (the "Expenses"); and WHEREAS, the City notified Stonehenge of its intention to widen Avery Road and the "Project ") -ead which would impact accesses to the PrpnertV and those adjoining it and therefo r requested Stonehenge to forego developing the daycare until the City finalized the configuration of the Project; and WHEREAS, Stonehenge acquired, at a cost of $222,652.46 per acre, the property commonly known as 6035 Avery Road, Dublin, Ohio 43016 (the "Swope Property"), which Swope Property is outlined in Yellow on Exhibit A ; and WHEREAS, the City intends to vacate an approximately 0.42 -acre portion of Tuswell Drive as part of the Project (the "Vacation Area "), which Vacation Area is shown in blue and orange on Exhibit A and WHEREAS, the City and Stonehenge have agreed that the City will convey the Vacation Area to Stonehenge and reimburse Stonehenge for the Expenses, provided that the Expenses are reduced by $51.210.07. which fieure represents the value of a 0.23 -acre portion of the Vacation Area j usmg the per acre purchase price that Stonehenge paid for the Swope Property (i 0 x 6 46= 1 10 071(h r inaft r h "Vacation Area 1 ..11R21i NOW THEREFORE, in consideration of the foregoing and the covenants, warranties, terms, and conditions hereinafter set forth, the Parties agree as follows: 1. Contingency This Agreement is contingent upon the City obtaining City Council approval of this Agreement. If such approval is not obtained by Neveffibef 30 , 2006 31. 200M& then the City may t ermina te this Agreement, in which event the Parties shall be fully released and relieved from all further liability and obligations arising hereunder. 2. Reimbursement The City shall, on or before September 30. 200.8. reimburse Stonehenge the sum of $77,969.94, which sum represents the difference between the Expenses and the value of ° 0.23 °°-° eAio° °r he Vacation Area using the per .e., $129,180 (0.23i S -222te)— LQ Z2 = $77,969.94}1. Stonehenge acknowledges that the payment of such reimbursement to Stonehenge, together with the conveyance of the Vacation Area to Stonehenge, shall constitute satisfaction in full for any expenses, costs and/or losses which Stonehenge may incur and/or has incurred as a result of the Project and in exchange for which Stonehenge hereby relinquishes any and all claims now or hereafter arising with respect to the Project and the Property. Said reimbursement shall be payable in cash or wired funds. 3. Conveyance The City shall convey the Vacation Area to Stonehenge by limited warranty deed (the "Deed") belew . Said Deed shall be in substantially the form attached as Exhibit B which is incorporated by reference, and shall include: (a) the grant of a permanent access easement from the City to Stonehenge for the benefit of the Property/Vacation Area over and upon the area shown in green on Exhibit A (the "Access Easement Area "); and (b) the reservation of a permanent utility /right -of -way easement over the portion of the Vacation Area shown in orange on Exhibit A (the "Utility Easement Area "). aelmewledge that the Gity does ne! ewTently ewn the Aeeess Easement Area and if the City deeg not aequire stieh afea by the date the Gity intends te deliver the Deed te Stenehenge, then I Gity shall have the right te provide oeeess to the PfepeF� Area at another leeatie The City shall be responsible for all recording fees for the Deed; the costs to prepare any necessary legal descriptions incident thereto, including the legal descriptions of the Access Easement Area and Utility Easement Area, if necessary; the costs of a title insurance binder and the policy premium for a policy in an amount equal to the Vacation Area [i.e., guested by Stonehenge and all other closing expenses, including real estate taxes and assessments, whether or not alien, prorated to date of closing, the City and Stonehenge acknowledging that there are no real estate taxes since the City is a governmental entity. Further, Stonehenge agrees that the conveyance of the Vacation Area to Stonehenge shall be conditioned upon the Vacation Area being combined with the Property such that they constitute a single tax parcel, all expenses of which shall be paid by the City. The City shall provide Stonehenge with advance written notice of the date the Deed will be recorded. Stonehenge shall cooperate with he City in combining the Vacation Area with the Property_ including promptly completing any documentation necessary to effectuate Stonehenge shall, within ten (10) days after the date heFeef-, gfem te the Gity a Easement"). The Grading Easement shall expire apen the later- of the City pr-eviding the Deed to I/ I 1 11 ' 1 1 1" 1' 1 • ' 1. 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II • 1 1..1 .11 - y. -. •1 \I n. r• 1 •n 1 I1. .• • "1 • .1 1• 1 1'rll ,'1 1 • 1' {•. 1 1 • "t I 1 I.l l r 1 - \ - . I 1 - • . 1 1 , 1 . • 1 , , . - 1 - 11 , . 1 1 - . 1 1 _ ! - • I _.0 . 11 - 1 III 111 III • .o _111_• "11- S 1 • 11 - - - - 11 - F • 1 - 1 t 1 •1, . •, .,11 •. /• - F • -! "1 I -\ t •IIC • I_I_ 1 • II .11 I - 1• • 1. .11 (61 I I L ; j 0 M .1. a I VA a I I U I If M 01 It 07 1• - 1 " 11! • • "1 JI • 1 1:. - 1 t 1 { .Le • \ 1. 1 "" I_. _:. 1 as .1" ll. 1 1 a t_1 'I "1 I -1. _ { _• _I1_.... 11 • - i1 - 1 r� 1 { 1. 1 1 1 { {_ 1., 1" - •l - 1. 1 0 1' / - .11 1 1 •1111 •! 1. 1 I • • 11 q 1 11 • - It - 1 1' _ S.. 11 U -1 -1 1 ._11 -. I'1 - 1 ._1 - 1 • 11 "! - 1 •1 1 {. 11 1' 11 • 11 f S_• . 1 1 ' , I ' ! - . I I - 1.. � I I I - _ 1 11. - _I_ ' 1 - 1 !. - 1 - 1 ! ' (.- • 1 ! .! - { 11• • 1 " {... 1 1/" .1I ••1 •11t - 11 • 11 t • 1 I 1 1• iI "1 ..,•1 • .O - IMMM7 1 • 1" . 11 . - 1 • - 11 . _y -- 1• 1 { 1 • 1 - 11 • t • 1 1 111 - 11. , 1 1 , 1 - • ',1 . 1 1 1 .111 _ . . II 1 ' III t - •_ ..1 11 • ll'} _.!_!_ .I" .1• s_. - . 11 • • •, - l { • - 11 1...1. Me 11MMM-r-TREMIMR. 11-MMIRWRTMOM in, •I • . 1 I •1"1"1 1"1 . ,1"1 I "! - 1• 1 1• '- 1 1.11 11 1 - :... .,I • - II - I 1 "1.IR1 - 1 I - _{1 - 1 1 : •. :I 1. ' i zw __I •! . , . 1 . II • 1 1..1 .11 - y. -. •1 \I n. r• 1 •n 1 I1. .• • "1 • .1 1• 1 1'rll ,'1 1 • 1' {•. 1 1 • "t I 1 I.l l r 1 - \ - . I 1 - • . 1 1 , 1 . • 1 , , . - 1 - 11 , . 1 1 - . 1 1 _ ! - • I _.0 . 11 - 1 III 111 III • .o _111_• "11- S I I - 1 - - . • I . 1 I 1 . . 1 The Parties further acknowledge and agree that, following the completion of the construction of the Improvements, Stonehenge shall, at its cost and expense, be responsible for the maintenance, repair and replacement thereof. Stonehenge acknowledges and agrees that until such time as the Improvements are completed, the Property will not have access to Tuswell Drive. !w!ff 4 5. Location of Easements Notwithstanding the foregoing, the Parties agree that any reference to or depiction of any easement provided for or contemplated herein represent only the Parties' approximation as to the location and size of such easements. The Parties agree to reasonably and in good faith cooperate with each other in granting and locating such easements. 6. No Warranties The Parties agree that the conveyance by the City to Stonehenge of the Vacation Area is without any implied or express warranty except as set forth in the deed, that the City makes no warranties or covenants whatever, including, but not limited to, warranties of fitness for a particular purpose, and that the Vacation Area shall be transferred in an "AS IS" condition. Stonehenge hereby agrees to hold the City harmless and to indemnify the City for any claims brought by, for, against, or on behalf of Stonehenge with respect to the Vacation Area or the access drive subsequent to date hereof. 7. Successors and Assigns The terms of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto. 8. Construction of Agreement This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio. For all litigation, disputes and controversies which may arise out of or in connection with this Agreement, THE UNDERSIGNED WAIVE THE RIGHT TO TRIAL BY JURY AND CONSENT TO VENUE AND JURISDICTION IN FRANKLIN COUNTY, OHIO. Whenever the singular number is used herein, the same shall include the plural where appropriate and the words of any gender shall include any other gender where appropriate. Time is of the essence in all provisions of this Agreement. Captions contained herein are inserted only for the purpose of convenient reference, and in no way define, limit or describe the scope of this Agreement or any part hereof. If any provision of this Agreement is held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, nor shall the same constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in writing, by the party making the waiver. The covenants and agreements set forth in this Agreement shall not be cancelled by performance under this Agreement. 9. Entire Agreement This Agreement embodies the entire Agreement between the City and Stonehenge and shall not be modified, changed or altered in any respect, except in a writing, executed in the same manner as this Agreement by the Parties hereto. 5 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below their respective signatures. CITY: City of Dublin, an Ohio municipal corporation By Jane Brautigam, City Manager Date The foregoing is accepted. STONEHENGE: The Stonehenge Company, an Ohio corporation By Mo M. Dioun, President Date Attachments Exhibit A : Graphical Depiction Exhibit B Deed !I II,-, I jumL EXHIBIT A 1 : Nil !I II,-, I jumL KW O o \ M1 i EO c# amii Imam KW O o \ M1 i EO EXHIBIT B !PL'olf✓aT :. LIMITED WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS, that the CITY OF DUBLIN, OHIO, an Ohio municipal corporation ( "Grantor "), whose tax mailing address is 5200 Emerald Parkway, Dublin, Ohio 43017, for valuable consideration paid, grants, with limited warranty covenants, to The Stonehenge Company, an Ohio corporation ( "Grantee "), whose tax mailing address is 147 North High Street, Gahanna, Ohio 43230, the real property situated in the State of Ohio, County of Franklin, and City of Dublin and being legally described on Exhibit "A" attached hereto and incorporated by this reference herein (the "Property"). The Property conveyed hereby is made subject to: (a) easements, conditions, restrictions, covenants and provisions of record; (b) real property taxes and assessments which are a lien on the Property but not yet due and payable; (c) zoning ordinances and building laws; (d) rights of the public to use any portion of the Property located within any road or public right -of -way; and (e) the reservation of the easement set forth herein. Prior Instrument Reference No.: , Recorder's Office, Franklin County, Ohio Tax Parcel Number: Address: , Dublin, O hie Grantor hereby expressly reserves unto itself, its successors, and assigns, a non - exclusive, permanent utility and right -of -way easement over the portion of the Property legally described on Exhibit "B" attached hereto and incorporated by this reference herein and Graphically depicted on Exhibit "C" attached hereto and incorporated by this reference herein (the "Easement Area "). Grantee shall be entitled to use said Easement Area in a manner that is not inconsistent with Grantor's use thereof, provided, however, that no buildings or other improvements may be constructed therein without Grantor's prior written consent. Grantor shall have the right to access such Easement Area for the construction, installation, maintenance, repairs, and replacement of any of Grantor's facilities located therein, and shall, upon completion of such activities, restore the property of Grantee disturbed thereby to substantially the condition existing immediately thereto. Otherwise, Grantee shall have sole responsibility for the maintenance, repair and replacement of the Easement Area. Grantor is the owner of an approximate _ acre tract of real property legally described on Exhibit "D" attached hereto and incorporated by this reference herein and graphically depicted on Exhibit "E" attached hereto and incorporated by this reference herein (the "Access Area "). Grantor hereby grants to Grantee, its successors, and assigns, a permanent access Tx+ 9 easement over the Access Area for the benefit of the Property and the real property owned by Grantee commonly known as 6055 Avery Road, Dublin, Ohio 43016, and legally described on Exhibit "E" attached hereto and incorporated by this reference herein ( "6055 Avery Road ")-and by Grantee pursuant to . Grantee shall have sole responsibility fo the maintenance repair and replacement of the Access Area and improvements located thereon_ Grantee shall, at its own expense, obtain, carry and keep in force liability insurance against any liability or claim for personal injury, wrongful death or property damage with respect to the use of the Access Area, with financially responsible insurers authorized to transact insurance business in the State of Ohio, with commercially reasonable limits as may be required by Grantor from time to time. Such insurance shall include all of the coverages typically provided by the Broad Form Comprehensive General Liability Endorsement and a contractual liability endorsement. The policy shall name Grantor as an additional insured and shall provide that such policy may not be canceled without 30 days' prior written notice to both Grantor and Grantee. Upon request, Grantee shall provide to Grantor a certificate of insurance evidencing such coverage. Except for injuries, deaths, losses, damages, or other matters resulting from the gross negligence or willful conduct of Grantor, or Grantor's agents or employees, Grantee shall indemnify Grantor, its agents and employees, and save them harmless from and against all loss, liability, damage, actions, causes of action, or claims for injury, death, loss or damage of whatever nature to any person, property or business interest caused by or resulting from an act or omission of Grantee or Grantee's agents, employees, customers, servants, licensees, invitees, tenants or subtenants of Grantee with regard to use of the Access Area, and from and against any and all costs, expenses or liabilities (including reasonable fees of attorneys, paralegals, experts, court reporters and others) incurred by Grantor in connection with any claim, action or proceeding in respect of any such loss, liability, damage or claim. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be executed by its duly authorized officer this day of OetebeF 2W& 200$., CITY OF DUBLIN, OHIO, an Ohio municipal corporation STATE OF OHIO FRANKLIN COUNTY : ss. By: Print Name: Its: 10 BE IT REMEMBERED, that on this day of OetebeF , 2OW , 2W& before me, the subscriber, a Notary Public in and for said state, personally came , the , of the City of Dublin, an Ohio municipal corporation, the Grantor in the foregoing deed and acknowledged the signing thereof to be his voluntary act and deed for and on behalf of said limited liability company. IN TESTIMONY WBEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public My Commission Expires: This instrument prepared by: Gregory S. Baker, Esq. Schottenstein, Zox & Dunn A legal Professional Association 250 West Street Columbus, Ohio 43215 M 94,��.� 12 .. ---- Will M 94,��.� 12 .. ---- - . M 94,��.� 12 �TK�tiY•lll d�i� irtl �•T•l:�i �l.\ \i _ _ _ • !FI�R7l��:17- hE�5T�5TJT_�L . • '"a'a" ".a -r 13 • '"a'a" ".a -r 13 DOCUMENTS FROM 2006 CITY OF DUBLIN City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490 To: Members of Dublin City Council From: Jane S. Brautigam, City Manager Date: December 6, 2006 Initiated By: Marsha I. Grigsby, Deputy City Manager/Director of Finance Memo Re: Ordinance No. 67 -06, An Ordinance Authorizing The City Manager to Execute an Agreement with The Stonehenge Company regarding 6055 Avery Road SUMMARY: At the November 20, 2006 City Council meeting staff recommended Ordinance 67 -06 be postponed until December 11, 2006. The Stonehenge Company has requested the Ordinance be postponed again. Due to their scheduling conflicts we have been unable to meet and discuss issues with regard to future development of their site. RECOMMENDATION: Staff is recommending Ordinance 67 -06 be tabled until a meeting with The Stonehenge Company has occurred. It is anticipated this meeting will not be scheduled until January 2007. City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 -410 -4490 CITY OF DUBLIN Memo To: Members of Dublin City Council From: Jane S. Brautigam, City Manager `i �e �` %✓� ✓'�j ��� 1 Date: November 15, 2006 Initiated By: Marsha I. Grigsby, Director of Finance Re: Ordinance 67 -06, An Ordinance Authorizing The City Manager To Execute An Agreement With The Stonehenge Company Regarding 6055 Avery Road SUMMARY: The second reading/public hearing of Ordinance 67 -06 was originally scheduled for November 6, 2006. At the November 6, 2006 City Council meeting, staff requested the legislation be postponed until the November 20 meeting. The Stonehenge Company had requested the delay to allow for additional review and understanding of the set -back requirements related to the future development of the site. Based on scheduling conflicts, we have been unable to meet and clarify the development issues as of this date. RECOMMENDATION• Staff is recommending the second reading/public hearing of Ordinance 67 -06 be postponed until December 11, 2006. SACouncil Packets \l 1-20 -06 MEETING PACKET\ord 67 -06 - memo re postponing.doc City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490 CITY OF DUBLIN To: Members of Dublin City Council From: Jane S. Brautigam, City Manager Date: October 11, 2006 Initiated By: Marsha I. Grigsby, Director of Finance Paul Hammersmith, Director of Engineering Memo Re: Ordinance 67 -06, An Ordinance Authorizing The City Manager To Execute An Agreement with The Stonehenge Company Regarding 6055 Avery Road SUMMARY: As you are aware, the City has programmed phase 1 construction of the Avery Road widening project, including the installation of a roundabout at Tuswell Drive, in 2007. Prior to the final roadway alignment being established earlier this year and the determination to install a roundabout at the Tuswell Drive intersection, an access road through 6055 Avery Road (the Stonehenge property) was identified as necessary in the preliminary alignment studies. In 2004, the Stonehenge Company was prepared to file a building permit application for the construction of a daycare facility on this property. If a daycare facility had been constructed and the access road through the Stonehenge property was needed as shown in the preliminary alignment, the cost to acquire the right -of -way would have been considerable, including the possibility of having to acquire the entire property. In an effort to limit the City's future financial liability, City staff requested that the Stonehenge Company defer filing a building permit for the construction of the daycare facility until the roadway alignment issues were resolved. The Stonehenge Company agreed to defer construction of the daycare facility. The Stonehenge Company as a result of not proceeding with the construction of the daycare facility incurred expenses that the City has agreed to reimbursed. The attached agreement provides for the reimbursement of those expenses which include real estate taxes, interest carrying costs and land development costs that had been incurred. The expenses totaled $129,180. As a result of constructing a roundabout at the intersection of Tuswell Drive, a portion of the existing Tuswell Drive will be vacated. The City does not have a use for the vacated portion of Tuswell Drive and has offered to dedicate that portion of the existing roadway to The Stonehenge Company for a credit against the reimbursement of the expenses. The attached Agreement provides for this dedication and includes a map of the area depicting the vacated roadway. The credit for the vacated roadway will result in a payment of $77,970 being made to The Stonehenge Company. RECOMMENDATION: Staff recommends that Ordinance 67-06 be adopted at the November 6, 2006 City Council meeting. AGREEMENT THIS AGREEMENT (the "Agreement') is made and entered into this day of October, 2006 by and between the City of Dublin, Ohio, an Ohio municipal corporation (the "City ") with a mailing address of 5200 Emerald Parkway, Dublin, Ohio 43017 and The Stonehenge Company an Ohio corporation ( "Stonehenge "), with a mailing address of 147 North High Street, Gahanna, Ohio 43230 (collectively, the "Parties "). WITNESSETH WHEREAS, Stonehenge purchased the property commonly known as 6055 Avery Road, Dublin, Ohio 43016 (the "Property"), which Property is outlined in pink on the attached Exhibit A , which is incorporated herein; and WHEREAS, Stonehenge intended to develop a daycare facility on the Property and incurred $129,180 in expenses in connection therewith (the "Expenses "); and WHEREAS, the City notified Stonehenge of its intention to widen Avery Road and construct a round -about in connection therewith (the "Project') and requested Stonehenge to forego developing the daycare until the City finalized the configuration of the Project; and WHEREAS, Stonehenge acquired, at a cost of $222,652.46 per acre, the property commonly known as 6035 Avery Road, Dublin, Ohio 43016 (the "Swope Property "), which Swope Property is outlined in ev flow on Exhibit A ; and WHEREAS, the City intends to vacate an approximately 0.42 -acre portion of Tuswell Drive as part of the Project (the "Vacation Area "), which Vacation Area is shown in blue and orange on Exhibit A and WHEREAS, the City and Stonehenge have agreed that the City will convey the Vacation Area to Stonehenge and reimburse Stonehenge for the Expenses provided that the Expenses are reduced by the value of a 0.23 -acre portion of the Vacation Area, which value shall be based upon the per acre purchase price that Stonehenge paid for the Swope Property. NOW THEREFORE, in consideration of the foregoing and the covenants, warranties, terms, and conditions hereinafter set forth, the Parties agree as follows: 1. Contingency This Agreement is contingent upon the City obtaining City Council approval of this Agreement. If such approval is not obtained by November 30, 2006, then the City may terminate this Agreement, in which event the Parties shall be fully released and relieved from all further liability and obligations arising hereunder. 2. Reimbursement The City shall, on or before December 29, 2006, reimburse Stonehenge the sum of $77,969.94, which sum represents the difference between the Expenses and the value of a 0.23 -acre portion of the Vacation Area using the per acre purchase price that Stonehenge paid for the Swope Property [i.e., $129,180 — (0.23 x $222,652.46) = $77,969.94]. Stonehenge acknowledges that the payment of such reimbursement to Stonehenge, together with the conveyance of the Vacation Area to Stonehenge, shall constitute satisfaction in full for any expenses, costs and/or losses which Stonehenge may incur and/or has incurred as a result of the Project and in exchange for which Stonehenge hereby relinquishes any and all claims now or hereafter arising with respect to the Project and the Property. Said reimbursement shall be payable in cash or wired funds. 3. Conveyance The City shall convey the Vacation Area to Stonehenge by limited warranty deed (the "Deed ") at such time as the City reasonably determines that the Project has been completed to a point such that the re- located Tuswell Drive and roundabout can be conveniently used by the general public and the Vacation Area is no longer required for public use and the City has completed the Improvements and performed the work described in Section 4 below. Said Deed shall be in substantially the form attached as Exhibit B . which is incorporated by reference, and shall include: (a) the grant of a permanent access easement from the City to Stonehenge for the benefit of the Property/Vacation Area over and upon the area shown in green on Exhibit A (the "Access Easement Area "); and (b) the reservation of a permanent utility/right -of -way easement over the portion of the Vacation Area shown in orange on Exhibit A (the "Utility Easement Area "). Notwithstanding subsection (a) of the immediately preceding sentence, the Parties acknowledge that the City does not currently own the Access Easement Area and if the City does not acquire such area by the date the City intends to deliver the Deed to Stonehenge, then the City shall have the right to provide access to the Property/Vacation Area at another location along Tuswell Drive reasonably acceptable to the Parties. The City shall be responsible for all recording fees for the Deed; the costs to prepare any necessary legal descriptions incident thereto, including the legal descriptions of the Access Easement Area and Utility Easement Area, if necessary; the costs of a title insurance binder and the policy premium for a policy in an amount equal to the reimbursement value of the Vacation Area [i.e., $51,210.061; and all other closing expenses, including real estate taxes and assessments, whether or not a lien, prorated to date of closing, the City and Stonehenge acknowledging that there are no real estate taxes since the City is a governmental entity. Further, Stonehenge agrees that the conveyance of the Vacation Area to Stonehenge shall be conditioned upon the Vacation Area being combined with the Property such that they constitute a single tax parcel, all expenses of which shall be paid by the City. The City shall provide Stonehenge with advance written notice of the date the Deed will be recorded. Stonehenge shall, within ten (10) days after the date hereof, grant to the City a grading easement in substantially the form attached hereto as Exhibit C (the "Grading Easement'). The Grading Easement shall expire upon the later of the City providing the Deed to Stonehenge and the completion of all work on the Project. 4. Restoration of Vacation Area and Improvements The City shall be responsible for the following: JIIM48 26.4j 1 (a) removing any asphalt located within the Vacation Area, with such removal to be completed at such time as the Project has been completed to a point such that the re- located Tuswell Drive and roundabout can be conveniently used by the general public, (b) providing back -fill and seeding within the Vacation Area, if deemed necessary by the City, (c) removing and relocating and/or abandoning utility lines located within the Vacation Area, if deemed necessary by the City, with such removal to be completed at such time as the Project has been completed to a point such that the re- located Tuswell Drive and roundabout can be conveniently used by the general public, the City and Stonehenge understanding that it is not necessary to remove and relocate and/or abandon the existing sanitary sewer line shown on Exhibit A , (d) constructing a curb cut on Tuswell Drive for the purpose of providing access to the Vacation Area and Property through the Access Easement Area, and (e) constructing an access drive over the Access Easement Area from Tuswell Drive to the Property. The improvements described in Items (d) and (e) of the immediately preceding sentence are collectively referred to herein as the "Improvements." The Parties further acknowledge and agree that, following the completion of the construction of the Improvements, Stonehenge shall, at its cost, be responsible for the maintenance, repair and replacement thereof. Stonehenge acknowledges and agrees that until such time as the Improvements are completed, the Property will not have access to Tuswell Drive. 5. No Warranties The Parties agree that the conveyance by the City to Stonehenge of the Vacation Area is without any implied or express warranty except as set forth in the deed, that the City makes no warranties or covenants whatever, including, but not limited to, warranties of fitness for a particular purpose, and that the Vacation Area shall be transferred in an "AS IS" condition. Stonehenge hereby agrees to hold the City harmless and to indemnify the City for any claims brought by, for, against, or on behalf of Stonehenge with respect to the Vacation Area or the access drive subsequent to date hereof. 6. Successors and Assigns The terms of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties hereto. 7. Construction of Agreement This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio. For all litigation, disputes and controversies which may arise out of or in connection with this Agreement, THE UNDERSIGNED WAIVE THE RIGHT TO TRIAL BY JURY AND CONSENT TO VENUE AND JURISDICTION IN FRANKLIN COUNTY, OHIO. Whenever the singular number is used herein, the same shall include the plural where appropriate and the words of any gender shall include any other gender where appropriate. Time is of the essence in all provisions of this Agreement. Captions contained herein are inserted ni0794426.4 t 3 only for the purpose of convenient reference, and in no way define, limit or describe the scope of this Agreement or any part hereof. If any provision of this Agreement is held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, nor shall the same constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing waiver. No waiver shall be binding, unless executed, in writing, by the party making the waiver. The covenants and agreements set forth in this Agreement shall not be cancelled by performance under this Agreement. 8. Entire Agreement This Agreement embodies the entire Agreement between the City and Stonehenge and shall not be modified, changed or altered in any respect, except in a writing, executed in the same manner as this Agreement by the Parties hereto. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date set forth below their respective signatures. CITY: City of Dublin, an Ohio municipal corporation M Date Jane Brautigam, City Manager The foregoing is accepted. STONEHENGE: The Stonehenge Company, an Ohio corporation `- Mo M. Dioun, President Date Attachments Exhibit A : Graphical Depiction Exhibit B Deed 1H0784426.4 4 Y x ti r e� c v z u, z � c� �y g X z n � •t b z d pn z 0 H f. a ` �Z !s ° m N� a KMALL RIDGE #9 a a VVVfififi w I NZ F pm Nr N • +E N D / � � o �n s O � O I4 to � a � P t v � v AVERY ROAD IMPROVEMENTS CTY OF DU BLIN N T.USWELL DRIVE INTERSECTION a ` �Z !s ° m N� a P� a a VVVfififi w I NZ F pm Nr om � �n O � O I4 to z a � P v � v a ` �Z ° m N� z w I NZ tG pm Nr om m �n O � O I4 to z - -- AVERY ROAD IMPROVEMENTS CTY OF DU BLIN T.USWELL DRIVE INTERSECTION A .m r DUBLIN. 01110 EXHIBIT B 4H6)94626A LIMITED WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS, that the CITY OF DUBLIN, OHIO, an Ohio municipal corporation ( "Grantor "), whose tax mailing address is 5200 Emerald Parkway, Dublin, Ohio 43017, for valuable consideration paid, grants, with limited warranty covenants, to The Stonehenge Company, an Ohio corporation ( "Grantee "), whose tax mailing address is 147 North High Street, Gahanna, Ohio 43230, the real property situated in the State of Ohio, County of Franklin, and City of Dublin and being legally described on Exhibit "A" attached hereto and incorporated by this reference herein (the "Property "). The Property conveyed hereby is made subject to: (a) easements, conditions, restrictions, covenants and provisions of record; (b) real property taxes and assessments which are a lien on the Property but not yet due and payable; (c) zoning ordinances and building laws; (d) rights of the public to use any portion of the Property located within any road or public right -of -way; and (e) the reservation of the easement set forth herein. Prior Instrument Reference No.: , Recorder's Office, Franklin County, Ohio Tax Parcel Number: Address: Dublin, Ohio 43016 Grantor hereby expressly reserves unto itself, its successors, and assigns, a non - exclusive, permanent utility and right -of -way easement over the portion of the Property legally described on Exhibit 14 13" attached hereto and incorporated by this reference herein and Graphically depicted on Exhibit "C" attached hereto and incorporated by this reference herein (the "Easement Area"). Grantee shall be entitled to use said Easement Area in a manner that is not inconsistent with Grantor's use thereof; provided, however, that no buildings or other improvements may be constructed therein without Grantor's prior written consent. Grantor shall have the right to access such Easement Area for the construction, installation, maintenance, repairs, and replacement of any of Grantor's facilities located therein, and shall, upon completion of such activities, restore the property of Grantee disturbed thereby to substantially the condition existing immediately thereto. Otherwise, Grantee shall have sole responsibility for the maintenance, repair and replacement of the Easement Area. Grantor is the owner of an approximate _ acre tract of real property legally described on Exhibit "D" attached hereto and incorporated by this reference herein and graphically depicted on Exhibit "E" attached hereto and incorporated by this reference herein (the "Access Area "). Grantor hereby grants to Grantee, its successors, and assigns, a permanent access easement over the Access Area for the benefit of the Property and the real property owned by Grantee commonly known as 6055 Avery Road, Dublin, Ohio 43016, and legally described on Exhibit "E" attached hereto and incorporated by this reference herein ( "6055 Avery Road "). Grantee shall, at its own expense, obtain, carry and keep in force liability insurance against any liability or claim for personal injury, wrongful death or property damage with respect to the use of the Access Area, with financially responsible insurers authorized to transact insurance business in the State of Ohio, with commercially reasonable limits as may be required by Grantor from time to time. Such insurance shall include all of the coverages typically provided by the Broad Form Comprehensive General Liability Endorsement and a contractual liability endorsement. The policy shall name Grantor as an additional insured and shall provide that such policy may not be canceled without 30 days' prior written notice to both Grantor and Grantee. Upon request, Grantee shall provide to Grantor a certificate of insurance evidencing such coverage. Except for injuries, deaths, losses, damages, or other matters resulting from the gross negligence or willful conduct of Grantor, or Grantor's agents or employees, Grantee shall Pagc I oft (N %B9]�J.2f indemnify Grantor, its agents and employees, and save them harmless from and against all loss, liability, damage, actions, causes of action, or claims for injury, death, loss or damage of whatever nature to any person, property or business interest caused by or resulting from an act or omission of Grantee or Grantee's agents, employees, customers, servants, licensees, invitees, tenants or subtenants of Grantee with regard to use of the Access Area, and from and against any and all costs, expenses or liabilities (including reasonable fees of attorneys, paralegals, experts, court reporters and others) incurred by Grantor in connection with any claim, action or proceeding in respect of any such loss, liability, damage or claim. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be executed by its duly authorized officer this day of October, 2006, CITY OF DUBLIN, OHIO, an Ohio municipal corporation STATE OF OHIO FRANKLIN COUNTY : ss By: Print Name: Its: BE IT REMEMBERED, that on this day of October, 2006, before me, the subscriber, a Notary Public in and for said state, personally came the ' of the City of Dublin, an Ohio municipal corporation, the Grantor in the foregoing deed and acknowledged the signing thereof to be his voluntary act and deed for and on behalf of said limited liability company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public My Commission Expires: This instrument prepared by: Gregory S. Baker, Esq. Schottenstein, Zox & Dunn A Legal Professional Association 250 West Street Columbus, Ohio 43215 Pap 2 of 2 (H0189)133) EXHIBIT C (H61544264 GRADING EASEMENT KNOW ALL MEN BY THESE PRESENTS: That The Stonehenge Company, whose mailing address is 147 North High Street, Gahanna, Ohio 43230 ( "Grantor "), for and in consideration of good and valuable consideration, the receipt of which is hereby acknowledged, hereby grants, remises, releases, and forever quitclaims unto the City of Dublin, whose mailing address is 5200 Emerald Parkway, Dublin, Ohio 43017 ( "Grantee "), the right to change the grade of the land and to establish slopes and cutbacks adjacent to the road right -of -way and to keep and maintain the slope and cutbacks under, in, over and upon the following tracts of land situated in the City of Dublin, County of Franklin, and State of Ohio, to -wit: See Exhibit A, attached hereto and incorporated by this reference herein. Tax Parcel Number: Address: 6055 Avery Road, Dublin, Ohio 43016 Said Grantee shall have the right at all times to go upon the lands herein described to construct, maintain and repair the said slopes and cutbacks as may be necessary, and while nothing in this deed shall be construed so as to grant any right to said Grantee which shall in any way interfere with the safe and unrestricted use by Grantor of the land adjacent to and above said easement, Grantor shall not use nor attempt to use said property in such manner as would interfere with the proper, safe and continuous maintenance and use of said easement and specifically shall not build thereon or thereover any structure (except driveways, paved areas, grass, shrubs and fences) which may interfere with the maintenance and use of said slopes and cutbacks. Grantee, as soon as practicable after construction of the utilities, including but not limited to alterations and repairs thereto, shall cause the property of Grantor located within the easement herein described to be restored to its former condition as nearly as is reasonably possible. Grantor, its successors and assigns, hereby release the Grantee from any claims for compensation or claims for damages resulting from this grant, except that Grantee shall not be released from liability for damage caused by its gross negligence or willful misconduct. The agreements in this Grading Easement shall run with the land and be binding upon and inure to the benefit of the respective heirs, personal representatives, successors, transferees, and assigns of the Grantor and Grantee. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be executed by its duly authorized officer this day of October, 2006. THE STONEHENGE COMPANY, an Ohio corporation By: Print Name: Its: 11iongs 13 .1 i STATE OF OHIO FRANKLIN COUNTY : ss BE IT REMEMBERED, that on this day of October, 2006, before me, the subscriber, a Notary Public in and for said state, personally came , the , of The Stonehenge Company, an Ohio corporation, the Grantor in the foregoing easement and acknowledged the signing thereof to be his voluntary act and deed for and on behalf of said limited liability company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. Notary Public My Commission Expires: This instrument prepared by: Gregory S. Baker, Esq. Schottenstein, Zox & Dunn A Legal Professional Association 250 West Street Columbus, Ohio 43215 IM0189SI3.1 )