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Ordinance 41-10RECORD OF ORDINANCES 41 -10 Ordinance No. Passed 20 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH SAWMILL PARTNERS INVESTMENT COMPANY ( "SAWMILL I "), SAWMILL PARTNERS INVESTMENT CO. NO. II ( "SAWMILL II ") AND SAWMILL HARD CENTER LLC ( "SHC "), WHEREBY SAWMILL I WILL TRANSFER TO THE CITY CERTAIN REAL ESTATE IN THE CITY OF DUBLIN, COUNTY OF FRANKLIN, AND STATE OF OHIO, IN LIEU OF REIMBURSING THE CITY FOR CERTAIN COSTS TO BE INCURRED BY THE CITY IN CONNECTION WITH THE FUTURE IMPROVEMENTS TO THE INTERSECTION OF SAWMILL ROAD AND HARD ROAD WITH THE CITY PAYING TO THE OWNERS THE DIFFERENCE BETWEEN THE APPRAISED VALUE OF THE LAND AND THE CALCULATED COSTS OF THE FUTURE IMPROVEMENTS WHEREAS, in the future the City will be constructing improvements to the intersection of Sawmill Road and Hard Road; and WHEREAS, Sawmill Partners Investment Company, No. II (Sawmill II) agreed as a condition of certain zoning approvals granted by the City to construct certain improvements to the intersection of Sawmill Road and Hard Road or to reimburse the City for certain costs related to the improvements. Sawmill II later sold and conveyed the property benefitting from such improvements to Sawmill Hard Center, LLC (SHC); and WHEREAS, Sawmill I is the owner of an approximate 7.2 acre tract of land, as depicted on Exhibit A, and Sawmill I, Sawmill II and SCH are affiliated business entities; and WHEREAS, in lieu of payment to reimburse the City for the cost of the improvements to the intersection of Sawmill Road and Hard Road, Sawmill I, on behalf of itself, Sawmill II and SHC, has agreed to transfer and convey to the City fee simple title to the approximate 7.2 acre tract of land as consideration of the City's future construction costs of the improvements at the intersection of Sawmill Road and Hard Road; and WHEREAS, the City agrees to pay to Sawmill I the approximate difference between the appraised value of the 7.2 acre tract of land and the agreed upon costs of the intersection improvements required by the zoning approvals to be completed by Sawmill II. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, of its elected members concurring, that: Section 1. The City Manager is hereby authorized to execute the Agreement attached hereto as Exhibit B, with Sawmill I, Sawmill II and SHC and to execute any documents related to the transfer and conveyance of the 7.2 acre tract of land. Section 2 . This Ordinance shall take effect and be in force on the earliest date permitted by law. Passed this L.2'I � day of j)e CekVk yje- 2010. ATTEST: Clerk of Council CITY OF DUBLIN- Office of the City Nlanager 5200 Emerald Parkway • Dublin, 01-143017-1090 Phone: 614- 410 -4400 • Fax: 614 - 410 -4490 ll To: Members of Dublin City Council From: Marsha I. Grigsby, Interim City Manager Date: October 28, 2010 Re: Ordinance 41 -10 - Authorizing The City Manager To Execute An Agreement To Acquire A 7.2 Acre Tract Of Land In Lieu Of Reimbursement From The Developer For Certain Costs Related To The Future Improvements Of The Intersection Of Sawmill Road And Hard Road With The City Paying The Difference Between The Appraised Value Of The Land And The Calculated Costs Of The Developer's Obligation Summary As you are aware, Sawmill Partners Investment Company No. II (Sawmill II) is required to construct certain improvements to the intersection of Sawmill Road and Hard Road, or reimburse the City for the estimated costs of those improvements, as a condition of the Kroger Centre development text. The 2011 -2015 Capital Improvements Program currently has the improvements to the intersection programmed in 2013. The Ordinance authorizes the execution of an Agreement to provide for Sawmill Partners Investment Company (Sawmill I) to transfer and convey an approximate 7.2 acre tract of land they own to the City on behalf of itself, Sawmill II and Sawmill Hard Center LLC as consideration in lieu of a cash contribution to the improvements at the intersection of Sawmill Road and Hard Road. The City will pay to Sawmill I the approximate difference between the appraisal of the 7.2 acre tract of land (5580,000) and the agreed upon estimated costs of the improvements ($448,500) required to be made by Sawmill II. This 7.2 acre tract of land will preserve an area with a significant stand of trees, including the large oak tree that resulted in Hard Road being relocated prior to its construction to preserve the tree, and will maintain a greenway along Hard Road. This tract of land also abuts Riverside Drive Park and will provide for access to the park off of Hard Road instead of Riverside Drive. Development of Riverside Drive Park is programmed for 2011. Recommendation Staff recommends that Ordinance 41 -10 be passed at the second reading/public hearing at the November 15 City Council meeting. EXHIBIT A Property Report A AMnemted on 10/27/10 at 09 31 os r nce E. Mingo, 11 Counfy Audifo� Parcel ID Map Routing No Card No Location 273 - 008594 -00 273 -O071C - 031 -00 1 00000 RIVERSIDE DR CAS �= 7 Ilitil This drawing is prepared forthe real property inventory within this county. It is compiled from recorded deeds, survey plats, and other public records and data Users of this annoying are notified that the public primary information source should be consulted for verification of the information contained on this drawing The county and the mapping companies assume no legal responsibilities forthe infommation contained on this drawing. Please notify the Franklin County GIS Division of any discrepancies. EXHIBIT B AGREEMENT THIS AGREEMENT (the "Agreement ") is made and entered into on the day of , 2010 (the "Effective Date "), between SAWMILL PARTNERS INVESTMENT COMPANY, an Ohio general partnership ( "Sawmill I "), SAWMILL PARTNERS INVESTMENT CO. NO. II, an Ohio general partnership ( "Sawmill II "), SAWMILL HARD CENTER LLC, an Ohio limited liability company ( "SHC "), and the CITY OF DUBLIN, OHIO, an Ohio municipal corporation (the "City "). Background Information A. Sawmill I, Sawmill II, and SHC (the "Affiliated Entities ") are affiliated business entities that currently have or previously have had ownership interests in various parcels of real property generally located to the west and northwest of the intersection of Sawmill Road and Hard Road in Dublin, Ohio. B. Sawmill II was the owner of real property located to the northwest of the intersection of Sawmill Road and Hard Road in the City of Dublin, Ohio (the "Retail Property ") when zoning entitlements were approved by the City for the development of a retail center generally known as the Kroger Marketplace Centre. Sawmill II later sold and conveyed the Retail Property to SHC. C. Notwithstanding previous commitments by Sawmill II to construct certain roadway and other improvements at the Sawmill and Hard Roads intersection associated with the commercial development of the Retail Property by Sawmill II and/or SHC, the City constructed the same for and on behalf of Sawmill II (the "Improvements "). D. In consideration of the City's construction of the Improvements, and in lieu of any obligation which Sawmill II had to construct same, Sawmill II agreed to reimburse the City for a portion of the cost of construction of the Improvements in the amount of $448,500.00 (the "Reimbursement "). The Reimbursement by Sawmill II was required by the City and was in addition to other sources of funding available to the City, including but not limited to, contributions to such costs from other property owners and/or pursuant to tax increment financing programs. E. Sawmill I is the owner of an approximate 7.2 acre tract of unimproved real property located in the City of Dublin, Franklin County, Ohio, currently described as tax parcel number 273 - 008594 (the "Property "), which Property is depicted on Exhibit A attached hereto and made a part hereof. On August 13, 2010, the City obtained an appraisal of the Property from The Robert Weiler Company (the "Appraisal") showing the total market value of the Property as $580,000.00 (the "Appraised Value "). F. In lieu of payment of the Reimbursement, Sawmill I, on behalf of itself, Sawmill II, and SHC, is willing to make, and the City is prepared to accept, a conveyance to the City of fee simple title to the Property on the terms and conditions more fully set forth herein. IH20423523 } Statement of Agreement NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the foregoing Background Information and as follows: ARTICLE I TRANSFER OF PROPERTY 1.01 Agreement On the terms and conditions set forth below, Sawmill I agrees to transfer and convey the Property to the City, including all of its respective right, title and interest in such Property, in full satisfaction of any and all obligations of the Affiliated Entities to make payment of the Reimbursement or to otherwise to construct, or make any contribution to the cost of construction of, the Improvements, all on the terms and conditions hereinafter set forth. 1.02 Price Based upon the approximate difference between the Appraised Value of the Property and the amount of the Reimbursement, the Parties agree that the City shall, at the closing, pay to Sawmill I One Hundred Thirty Thousand Dollars ($130,000.00) as the purchase price for the Property (the "Purchase Price "). The Purchase Price shall be subject to the prorations, credits, allowances and other adjustments specifically provided for herein and shall be paid by the City to Sawmill I. ARTICLE II EFFECT OF CONVEYANCE OF THE PROPERTY 2.01 Effect of Conveyance At the Closing for the Property, (a) Sawmill I shall execute and deliver into escrow with a title company selected by the City ( "Escrow Agent'), the limited warranty deed and other closing documents required of Sawmill I by the provisions of Article V, (b) the City shall deposit the Purchase Price into escrow with the Escrow Agent, and (c) the City shall execute and deliver to Escrow Agent the closing documents required of the City by Article V, including a full and total release (the "Release "), substantially in the form attached hereto as Exhibit "B " , pursuant to which the City shall release the Affiliated Entities from any obligation to contribute to the cost of construction of the Improvements. If the transfer of the Property to the City is consummated as herein contemplated, the Release shall be delivered to the Affiliated Entities and shall become effective as of the date of recording of the limited warranty deed. If the transfer of the Property is not consummated as herein contemplated, the escrow shall be terminated as provided herein, the documents deposited in escrow shall be returned to the party making such deposit and Sawmill I and/or SHC shall be subject to such obligations with respect to the Improvements as existed prior to the date hereof. ARTICLE III CONTINGENCIES 3.01 Contingencies The City shall not be obligated to close on the Property under this Agreement unless the contingencies set forth below are satisfied or waived by the City, in its sole 1H2O423523 } 2 Sawmill Partners City of Dublin Purchase Agmt 1020 10 alu discretion, on or before sixty (60) days from the Effective Date (the "Contingency Date "). The contingencies shall be deemed to have been satisfied or waived as of the Contingency Date, unless the City notifies Sawmill I on or before the Contingency Date of its failure to satisfy the contingencies, in which event all Parties shall be fully released and relieved from all further liability and obligation hereunder and the Affiliated Entities shall be subject to such obligations with respect to the Improvements as existed prior to the date hereof. The contingencies are that (a) the City, at its sole cost, shall have obtained a satisfactory Phase I Environmental Site Assessment of the Property indicating that the same is free of all hazardous wastes, substances and materials which may require remediation or which may result in penalties under applicable laws, rules or regulations, (b) Dublin City Council has approved of this Agreement, and (c) the City, at its sole cost, has received such reports, inspections, investigations, examinations, tests or other information indicating that the condition of the Property is acceptable to the City. 3.02 Tests and Engineering Studies For and during the entire period that this Agreement is in effect, the City shall, at its sole cost, have the right through the City's representatives, associates, employees and /or contractors and agents to enter upon the Property at reasonable times for the purpose of surveying, inspecting, making contour surveys, temporary excavations, test borings and other purposes required by the City to enable the City to evaluate the environmental condition of the Property. The City agrees that it shall be responsible for any liability (including liability resulting from bodily injury or death), loss, damage, claim, cost or expense (including reasonable attorney's fees and expenses) which may have resulted or may result from any such entry upon or inspection of the Property by the City, its representatives, associates, employees and/or contractors and agents and, to the extent permitted by law, the City shall indemnify and hold Sawmill I harmless from and against any such liability. Should the closing on the sale and conveyance of the Property by Sawmill I to the City not occur for any reason, the City shall restore the Property to a substantially similar condition as existed prior to its entry upon the Property as permitted under this subparagraph and provide to Sawmill I copies of any and all testing and engineering studies. 3.03 Submission of Materials Within seven (7) days after the execution hereof, Seller shall provide to the City any studies, site specific investigations and/or surveys in Seller's possession pertaining to the Property. ARTICLE IV EVIDENCE OF TITLE 4.01 Evidence of Title Subject to Section 4.04 below, the City shall, at Sawmill I's cost and expense, obtain a title commitment (the "Commitment ") for the issuance of an owner's policy of title insurance [ALTA Owner's Policy (10/17/1992)] with respect to the Property, in the amount of $580,000.00 and issued by a title company selected by the City and reasonably approved by Sawmill I. Promptly upon receipt of the Commitment the City shall deliver a copy thereof to Sawmill I. The Commitment shall be in an amount reasonably determined by the City and shall show fee simple title to the Property in Sawmill I, free and clear of all liens and encumbrances except standard preprinted exceptions and exclusions and except: (a) those created by City; 1H2O423523 ) 3 Sawmill Partners City of Dublin Purchase Agmt 10 20 10 alu (b) those set forth in this Agreement; (c) general real estate taxes and special assessments which are a lien but are not then due and payable; (d) highways and public rights of way; and (e) easements and restrictions of record which, in the City's reasonable opinion, do not materially interfere with the City's intended use of the Property. If the City desires a title policy based on the Commitment, Sawmill I shall pay all reasonable premiums and other reasonable costs associated therewith. At or at any time prior to the closing, the City may obtain endorsements to the Commitment updating same to the respective date and showing no change in the state of the title to the Property. 4.02 Survey Subject to Section 4.04 below, the City may, at its expense, obtain a survey (the "Survey ") of the Property. Any such Survey shall be prepared by a surveyor registered in Ohio. If the City obtains a Survey, a copy thereof shall be delivered to Sawmill I. 4.03 Defects If an examination of either the Commitment (including any endorsements thereof) or Survey discloses that Sawmill I does not have good and marketable title to the Property or shows exceptions to title other than those permitted herein, and if Sawmill I is unable or unwilling to correct such defects or remove such exceptions within thirty (30) days after receiving written notice thereof from the City, the City may take any one or more of the following actions by written notice given to Sawmill I within five (5) days after the expiration of the aforesaid thirty (30) day period: (x) waive its objection to any such defects and/or exceptions and proceed with the transaction; (y) give additional time to correct such defects or remove such exceptions to title; or (z) treat the inability or unwillingness to remedy or remove any such defect, lien, encumbrance, easement, condition, restriction or encroachment as a termination of this Agreement, in which event no party shall have liability to the others hereunder (except the indemnification and restoration provisions in subparagraph 3.02 above) and Sawmill I and/or SHC shall be subject to such obligations with respect to the Improvements as existed prior to the date hereof. The City shall not be required to object to any monetary liens, all of which are the responsibility of the respective Sawmill I to remove prior to or at Closing. If the City does not object to any exceptions disclosed by the Commitment or Survey, or if the City elects to waive its objection to such defects and /or exceptions as set forth in (x) above, all such exceptions and/or defects as disclosed by the Commitment and Survey shall be deemed to be permitted exceptions and title conveyed or dedicated as herein set forth shall be subject thereto. ARTICLE V DEED AND OTHER DOCUMENTS 5.01 Limited Warranty Deed Subject to the provisions of Section 4.04 above, Sawmill I shall convey fee simple title to the Property to the City by a duly and validly executed, recordable limited warranty deed, free and clear of all liens and encumbrances, except those I H20423 52.3 1 4 Sawmill Partners City of Dublin Purchase Agmt 10 20 10 alu permitted pursuant to the provisions of Section 4.01 and 4.03 hereof. Sawmill I shall execute and deliver such deed into escrow, as set forth in Section 2.01 hereof, on the Closing Date. 5.02 Release The City shall execute and deliver the Release to Escrow Agent at Closing. 5.03 Other Documents The City and the Affiliated Entities agree that such other documents as may be legally necessary or appropriate to carry out the terms of this Agreement shall be executed and delivered by the appropriate party at Closing. Such documents shall include, but not be limited to, a closing statement, affidavit regarding liens, unrecorded matters and possession, and resolutions authorizing the transactions contemplated herein. ARTICLE VI POSSESSION AND INSPECTION 6.01 Possession The City shall be entitled to full and exclusive possession of the Property upon recording the limited warranty deed and the termination of the escrow as herein provided. During the continuance of this Agreement, Seller shall permit representatives of the City free and full access to the Property, subject to the provisions of Section 3.03 hereof. ARTICLE VII CLOSING /ESCROW 7.01 Closing Date The transaction contemplated hereby shall be closed (the "Closing ") within thirty (30) days after the Contingency Date, unless such closing date is extended by agreement of the parties or as necessary to cure title defects as provided in Article 4 hereof (the "Closing Date "). The Closing shall be at such time and place as the City and Sawmill I may mutually agree. 7.02 Escrow Procedures At such time as the limited warranty deed, the Release and other closing documents have been placed in escrow with the Escrow Agent, the Escrow Agent shall cause the limited warranty deed to be placed of record and thereafter the Release shall be delivered to the Affiliated Entities by Escrow Agent. ARTICLE VIII APPORTIONMENTS AND ADJUSTMENTS 8.01 On the Closing Date, the City and Sawmill I shall apportion, adjust, prorate and pay the following items in the manner hereinafter set forth: (a) Taxes and Assessments Sawmill I shall pay or credit against the purchase price all delinquent real estate taxes, together with penalties and interest thereon, all assessments which are a lien against the Property as of the closing date (both current and reassessed, whether due or to become due and not yet payable), all real estate taxes for years prior to closing, real estate taxes for the year of closing, prorated through the closing date and all agricultural use tax recoupments for {H2O42352.3 } 5 Sawmill Partners City of Dublin Purchase Agmt 1020 10 alu years through the year of closing. The proration of undetermined taxes shall be based upon a three hundred sixty -five (365) day year and on the last available tax rate, giving due regard to applicable exemptions, recently voted millage, change in tax rate or valuation (as a result of this transaction or otherwise), etc., whether or not the same have been certified. It is the intention of the parties in making this tax proration to give the City a credit as close in amount as possible to the amount which the City will be required to remit to the County Treasurer for the period of time preceding the closing date. Upon making the proration provided for herein, Sawmill I and the City agree that the amount so computed shall be subject to later adjustment should the amount credited at closing be incorrect based upon actual tax bills received by the City after closing. The covenants and agreements set forth in this Agreement shall not be cancelled by performance under this Agreement, but shall survive the closing and the delivery of the deed of conveyance hereunder; (b) Seller's Expenses Sawmill I shall, at the Closing (unless previously paid), pay by credit against the purchase price the following: (i) The cost of furnishing the Commitment and policy referred to in Section 4.01 hereof; and (ii) One -half (1/2) the fee, if any, charged by the title insurance company for closing the transaction contemplated herein. (c) The City's Expenses The City shall, at the Closing (unless previously paid), pay the following: (i) The recording fees required for recording the limited warranty deed; (iii) The cost of the Survey, if any; and (iii) One -half (1/2) the fee, if any, charged by the title insurance company for closing the transaction contemplated herein. (d) Brokers Sawmill I hereby warrants and represents to the City that Sawmill I has not engaged or dealt with any broker or agent in regard to this Agreement. Sawmill I further agrees to indemnify the City and hold the City harmless against any liability, loss, cost, damage, claim and expense (including, but not limited to, attorneys' fees and costs of litigation) which the City shall ever incur or be threatened with because of any claim of any broker or agent claiming through Sawmill I, whether or not meritorious, for any such fee or commission. The City hereby represents and warrants to Sawmill I that the City has not engaged or dealt with any broker or agent in regard to this Agreement. The City further agrees to indemnify Sawmill I and hold Sawmill I harmless against any liability, loss, cost, damage, claims and expense (including, but not limited to, attorneys' fees and cost of litigation) which Sawmill I may ever suffer, incur, or be threatened with because of any claim by any broker or agent claiming by, through or under the City, whether or not meritorious, for any such fee or commission. 1H20423523 ) 6 Sawmill Partners City of Dublin Purchase Agmt 1020 l0 alu ARTICLE IX WARRANTIES AND REPRESENTATIONS 9.01 Warranties and Representations of Affiliated Entities The Affiliated Entities (or a particular Affiliated Entity, as indicated below) hereby represent and warrant to the City as follows: (a) Each is authorized to enter into this Agreement and consummate the transactions contemplated herein; (b) Through and until the closing date, Sawmill I shall not enter into any easement, purchase or sale agreement, lease or other contract pertaining to the Property; and (c) To the best of Sawmill I's knowledge, there are no hazardous wastes, hazardous substances, or hazardous materials located in, on or about or generated from the Property which may require remediation or which may result in penalties under any applicable law. 9.02 Effect of Warranties and Representations All representations and warranties set forth in this Agreement shall be true and correct as of the date hereof and as of the closing date. Each of the Affiliated Entities hereby agree to indemnify and hold the City harmless from and against any and all claims, demands, liabilities, costs and expenses of every nature and kind (including attorneys' fees) which the City may sustain at any time by reason of the untruth, breach, misrepresentation or non - fulfillment of any of the covenants, representations, warranties or agreements made by that Affiliated Entity in this Agreement or in any documents or agreements delivered in connection with this Agreement or with the closing of the transaction contemplated hereby. The City shall be liable for any and all claims, demands, liabilities, costs and expenses of every nature and kind (including reasonable attorneys' fees and expenses) which the Affiliated Entities may sustain at any time by reason of the non - fulfillment of any of the covenants, representations, warranties or agreements made by the City in this Agreement or in any documents or agreements delivered in connection with this Agreement or with the closing of the transaction contemplated hereby and, to the extent permitted by law, the City hereby agrees to indemnify and hold the Seller harmless from and against the same. 9.03 Breach of Warranties Prior to Closing If, during the pendency of this Agreement, any warranty or representation made under this Agreement shall be untrue, incorrect or misleading, in whole or in part, the non - defaulting party shall have all rights and remedies available at law or in equity, including termination of this Agreement. ARTICLE X NOTICES 10.01 Notice Procedure Any notices required hereunder shall be in writing, shall be transmitted by certified mail, postage prepaid, return receipt requested, by nationally recognized overnight courier, or by facsimile (followed by deposit in regular US mail) and shall be deemed tH2O42352.3 } Sawmill Partners City of Dublin Purchase Agmt 1020 10 alu given when received or when receipt is refused, and shall be addressed to the parties at the following addresses: To the Affiliated Entities: Mr. Nick Vollman Plaza Properties 3016 Maryland Ave. Columbus, Ohio 43209 To the City: 5200 Emerald Parkway Dublin, Ohio 43017 Attn: City Manager With a copy to: Gregory S. Baker, Esq. Schottenstein, Zox & Dunn, LPA 250 West Street Columbus, Ohio 43215 ARTICLE XI GENERAL PROVISIONS 11.01 Governing Law This Agreement is being executed and delivered in the State of Ohio and shall be construed and enforced in accordance with the laws of the State of Ohio. The undersigned hereby waive the right to trial by jury. 11.02 Entire Agreement This Agreement constitutes the entire contract between the parties hereto, and may not be modified except by an instrument in writing signed by the parties hereto, and supersedes all previous agreements, written or oral, if any, of the parties. 11.03 Assignment This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns. 11.04 Invalidity If any provision of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. 11.05 Waiver 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. [Signatures on following page.] (H20423523 1 Sawmill Partners City of Dublin Purchase Agmt 10 20 10 alu IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day and year first aforesaid. SAWMILL PARTNERS INVESTMENT CO. Print Name: Its: SAWMILL PARTNERS INVESTMENT CO. NO. II By: RUB, LLC, an Ohio limited liability company, its general partner Gloria S. Haffer, Trustee of the Bernard R. Ruben Irrevocable Trust for Children dated 1/14/03, its managing member By: SAWMILL HARD CENTER LLC By: Print Name: Laurence G. Ruben Its: Co- Manager CITY OF DUBLIN, OHIO, an Ohio municipal corporation By: Marsha Grigsby, Acting City Manager JH20423523 l Sawmill Partners City of Dublin Purchase Agmt 10 20 10 alu Approved as to Form: LO Printed: Stephen J. Smith Title: Director of Law {H2O42352.3 } Sawmill Partners City of Dublin Purchase Agmt 1020 10 alu FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City of Dublin, Ohio under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City during the year 2010 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: ' 2010 Marsha I. Grigsby Director of Finance City of Dublin, Ohio (H2O42352.3 ) 1 1 Sawmill Partners City of Dublin Purchase Agmt 10 20 10 alu EXHIBIT A Property Report A AMnemted on 10/27/10 at 09 31 os r nce E. Mingo, 11 Counfy Audifo� Parcel ID Map Routing No Card No Location 273 - 008594 -00 273 -O071C - 031 -00 1 00000 RIVERSIDE DR CAS �= 7 Ilitil This drawing is prepared forthe real property inventory within this county. It is compiled from recorded deeds, survey plats, and other public records and data Users of this annoying are notified that the public primary information source should be consulted for verification of the information contained on this drawing The county and the mapping companies assume no legal responsibilities forthe infommation contained on this drawing. Please notify the Franklin County GIS Division of any discrepancies. EXHIBIT B RELEASE This Release ( "Release ") is entered into as of , 2010, by the CITY OF DUBLIN, OHIO, an Ohio municipal corporation (the "City "), for the benefit of SAWMILL PARTNERS INVESTMENT COMPANY, an Ohio general partnership ( "SPI "), SAWMILL PARTNERS INVESTMENT CO. NO. II, and Ohio general partnership ( "SPI II "), and SAWMILL HARD CENTER LLC, an Ohio limited liability company ( "SHC ") (SPI, SPI II and SHC are hereinafter referred to together as "Sawmill "). BACKGROUND INFORMATION A Notwithstanding previous commitments by Sawmill to construct certain roadway and other improvements at the Sawmill and Hard Roads intersection required in connection with Seller's development of the property in the vicinity thereof, the City will construct same for and on behalf of Seller (the "Improvements "). B. In consideration of the City's construction of the Improvements, and in lieu of any obligation which Seller had to construct same or contribute financially to the cost of the Improvements, Seller agreed to reimburse the City for a portion of the cost of construction of the Improvements in the amount of $448,500.00 (the "Reimbursement "). The Reimbursement by Seller was required by the City and was in addition to other sources of funding available to the City, including but not limited to, contributions to such costs from other property owners and/or pursuant to tax increment financing programs. C. In lieu of payment of the Reimbursement, and in consideration of a full and total release of Sawmill by the City from any and all obligations of Sawmill with respect to the Improvements and/or to make the Reimbursement, Sawmill has conveyed to the City certain real property (the "Property "), as described in that certain Agreement between the City and Sawmill, dated the day of , 2010 (the "Agreement "). NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the City agrees to the foregoing Background Information and further agrees as follows: 1. Release. The City, on behalf of itself, its representatives, agents, employees, officers, attorneys, insurers, predecessors, successors and assigns, hereby releases and discharges Sawmill, and its partners, officers, directors, employees, agents, affiliates and its and their successors and assigns (the "Sawmill Parties "), in their designated capacities and personally, from (i) any obligation which Sawmill ever had, now has or may in the future have to the City, to construct, or to contribute to or pay any cost attributable in any way to the construction of, the Improvements (the "Improvement Obligations "), and (ii) any and all claims and causes of action, including but not limited to all claims and causes of action arising in whole or in part on, before or after the IH2O473523 } 1 effective date of this Release, which the City has or may have against Sawmill and the Sawmill Parties, whether such claims or causes of action are legal or equitable, contingent or mature, known or unknown, or joint, several, or individual, including but not limited to, potential claims and causes of action made by the City, or which could be made by the City now or in the future, relating in any way to the Improvement Obligations, the Improvements, the Reimbursement or the Agreement. The foregoing release shall not apply to (x) any future special assessments that may be used for the future roadway improvements (excluding the Improvements) at the time of such improvements in accordance with Ohio Revised Code, (y) any and all claims, demands, liabilities, costs and expenses arising as a result of or in any way connected with the operation, ownership, custody or control of the Property prior to the transfer of the Property to the City, including any third party claims in connection with the development of the Property, but such release shall apply to any such claims made in connection with the acts or omissions of the City, its representatives, agents, employees, officers, attorneys, insurers, predecessors, successors and assigns, including but not limited to, its contractor, with respect to any construction of the Improvements prior to the date of such transfer. 2. Covenant Not to Sue. The City, on behalf of itself, its representatives, agents, employees, officers, attorneys, insurers, predecessors, successors and assigns, irrevocably agrees to refrain from making any claim or demand or to commence, cause, or permit to be prosecuted on its behalf, any action in law or in equity against Sawmill or the Sawmill Parties on account of or related to (i) the Improvement Obligations, the Improvements, the Reimbursement, the Agreement or any other agreement, understanding or claim of right with respect thereto, however characterized or (ii) damages arising from or related to the same. The City further covenants that this Release may be treated as a defense to any action or proceeding related or pertaining to the Improvement Obligations, the Improvements, the Reimbursement, the Agreement or any other agreement, understanding or claim of right with respect thereto, however characterized, that may be brought, instituted, or taken by the City or on its behalf against Sawmill or the Sawmill Parties. The foregoing shall not apply to any and all claims, demands, liabilities, costs and expenses arising as a result of or in any way connected with the operation, ownership, custody or control of the Property prior to the transfer of the Property to the City, including any third party claims in connection with the development of the Property, but such release shall apply to any such claims made in connection with the acts or omissions of the City, its representatives, agents, employees, officers, attorneys, insurers, predecessors, successors and assigns, including but not limited to, its contractor, with respect to any construction of the Improvements prior to the date of such transfer. 3. Intent. Except as otherwise provided herein, the City intends that this Release be a full, final and total release of any and all claims and any and all rights to sue with respect to any of the matters set forth herein, whether legal or equitable, contingent or mature, known or unknown, or joint, several, or individual, including but not limited to potential claims and causes of action which could be made by the City against Sawmill or the Sawmill Parties now or in the future. I H2O42352.3 ) Sawmill Partners City of Dublin Purchase Agmt 1020 10 alu 2