23-04 Resolution
RECORD OF RESOLUTIONS
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Passed ,20_
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO EXECUTE AN INFRASTRUCTURE AGREEMENT FOR
EMERALD PARWAY, PHASE SA, WITH SAWMILL PARTNERS
WHEREAS, the City of Dublin wishes to provide a roadway network with multiple
connections between routes and uses; and
WHEREAS, the City of Dublin wishes to create a continuous streetscape for all
portions of Emerald Parkway; and
WHEREAS, the City of Dublin wishes to ensure that roadway improvements
minimize impact to environmentally sensitive areas; and
WHEREAS, Sawmill Partners owns certain parcels of real property west of Sawmill
Road, south of Summit View Road and north and south ofRard Road in the City on
which it is developing a high quality mixed use community development; and
WHEREAS, the City of Dublin and Sawmill Partners desire to enter into an
Infrastructure Agreement to provide for the construction of various roadway, sanitary
sewer, and water infrastructure improvements; and
WHEREAS, the Parties have determined that it would be in the best interests ofthe
City and Sawmill Partners to enter into this Agreement to provide for the efficient and
coordinated development of the infrastructure improvements necessary in this section
of the City; and
WHEREAS, the City has determined that it is in the City's best interest for Sawmill
Partners to contribute funds toward the improvements described in the Infrastructure
Agreement.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
State of Ohio, +-- of the elected members concurring:
Section 1. The City Manager is hereby authorized to execute an infrastructure
agreement for Emerald Parkway, Phase 5A, with Sawmill Partners. This roadway
project is located between Sawmill Road and Rard Road.
Section 2. This resolution shall take effect and be in force from and after the
earliest date permitted by law.
Passedthis..dVPL dayof ~/ ,2004.
~L
Mayor - Presiding Officer
Attest:
~~~
Clerk of Council
I hereby certify that copies of this
Ordinance/Resolution were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
De
Office of the City Manager
5200 Emerald Parkway' Dublin, OH 43017 Memo
CITY OF DUBLIN. Phone: 614-410-4400 · Fax: 614-410-4490
To: Members of City Council
From: Jane S. Brautigam, City ManagerIJ~5. (b~-
Date: April 28, 2004 M ':<:-
Initiated By: Paul A. Hammersmith, P.E., Director of Engineering/City Engineer . ~~~
cto, Stephen J. Smith, Law Director
Barbara A. Cox, P,E., Assistant Director of Engineering - DevelopmenteJP-
Re: Infrastructure Agreement for Emerald Parkway, Phase SA
Resolution 23-04
Summary
Emerald Parkway, Phase 5, is located in the area ofthe Northeast Quad rezoning. It is to be constructed in two
phases. Phase 5A, between Sawmill Road and Hard Road, is currently being designed and is to be constructed
this year. Phase 5B, south of Hard Road to Billingsley Creek, is also being designed but will not be built until
development occurs around the roadway.
In the Preliminary Development Plan for the Northeast Quad, this roadway was to be a three-lane road. Since
that approval, the creation of the Emerald Parkway was developed to provide a local bypass to the interstate
system. The existing portions of Emerald Parkway have been constructed as a four-lane roadway with turn
lanes divided by a median. Also, specific landscape and hardscape features have been developed. In order to
maintain the continuity of the Emerald Parkway "look" and functionality, the Staff approached Sawmill
Partners on allowing the City to construct this phase of Emerald Parkway.
The Division of Engineering and Legal Department staff have been working for several months with Sawmill
Partners on the details of an Infrastructure Agreement for Phase 5A. The attached version of the Infrastructure
Agreement is the result of many meetings and discussions. A separate Infrastructure Agreement for Phase 5B
will be brought to Council in the near future.
------
Summary points of the Infrastructure Agreement for Emerald Parkway, Phase 5A:
, . Sawmill Partners is going to contribute up to a maximum of $1,431,930.00 paid on a bi-monthly scheduled
based on the percent of the construction work that is completed. This amount is essentially 60% of the
estimated construction costs for Phase 5A.
. Additional costs incurred during construction that are "extraordinary construction events" will be divided
by Sawmill Partners (60%) and the City (40%).
. The construction of Phase 5A is to be completed by December 1, 2004.
. Sawmill Partners will dedicate via a Final Plat the necessary right-of-way and easements. This has been
reviewed and approved by the Planning and Zoning Commission.
. A waiver of the City's Tree Preservation Ordinance is necessary. The request for waivers on Emerald
Parkway Phase 5 and Wyandotte Woods Boulevard were considered and approved by Council on February
2,2004. The consideration for a waiver on the Kroger Centre site is on Monday's night's agenda.
Staff anticipates having the construction drawings for Phase 5A ready for bidding in May of 2004 and to ask
Council to award the construction contract in June of 2004.
Recommendation
Staff recommends Council approval of Resolution 23-04 authorizing the City Manager to enter into an
Infrastructure Agreement with Sawmill Partners for the construction of Emerald Parkway, Phase 5A.
N:\EG\... Council\Council 2004\Emerald Pkwy 5 Agreement Memo.doc
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INFRASTRUCTURE AGREEMENT
EMERALD PARKWAY PHASE SA
THIS INFRASTRUCTURE AGREEMENT (the "Agreement') date , 2004,
by and between the CITY OF DUBLIN, OHIO (the "City"), a municipal corporation duly
organized and validly existing under the Constitution and laws of the State of Ohio (the "State")
and its Charter, and SAWMILL PARlNERS INVESTMENT COMPANY, SAWMILL
PARTNERS INVESTMENT COMPANY NO. II, AND SUMMIT VIEW ASSOCIATES
(individually and collectively "Sawmill Partners", and collectively with the City, the "Parties"
and each individually a "Party").
WITNESSETH:
WHEREAS, Sawmill Partners owns certain parcels of real property west of Sawmill
Road south of Summit View Road and north and south of Hard Road in the City on which it is
developing a high quality mixed use community development; and
WHEREAS, the City and Sawmill Partners desire to enter into a Development
Agreement, to provide for the construction of various roadway, sanitary sewer and water
infrastructure improvements; and
WHEREAS, the Parties have determined that it would be in the best interests of the City
and Sawmill Partners to provide for the efficient and coordinated development of the
infrastructure improvements necessary in this section of the City; and
WHEREAS, the City has determined that it is in the City's best interest for Sawmill
Partners to contribute funds toward the improvements described in Exhibit A and for the City to
construct such improvements.
NOW THEREFORE, the Parties covenant, agree and obligate themselves as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless otherwise defined herein, words and terms used in this
Agreement with initial capital letters shall have the meanings set forth in this Section 1.1.
"Agreemenf' means this Infrastructure Agreement by and between the City and Sawmill
Partners, as duly amended or supplemented from time to time in accordance with its terms.
"Agreement Term" means the period commencing with the execution and delivery of this
Agreement and ending on the Termination Date.
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"Authorized City Representative" means initially the Director of Development of the
City. The City may from time to time provide a written certificate to Sawmill Partners signed on
behalf of the City by the City Manager designating an alternative or alternates who shall have the
same authority, duties and powers as the initial Authorized City Representative.
"Authorized Sawmill Partners Representative" means initially Mike Rosen and any
designee of Sawmill Partners, their respective successors and assigns and/or successors in
interest. Sawmill Partners may from time to time provide a written certificate signed on behalf of
Sawmill Partners by any authorized Sawmill Partners official designating an alternate or
alternates who shall have the same authority, duties and powers as the initial Authorized Sawmill
Partners Representative.
"City" means the City of Dublin, Ohio.
"City Documents" means this Agreement and the Ordinance.
"Completion Date" means the date specified in a certificate given pursuant to Section 2.4
of this Agreement.
"Contractor" means the Contractor(s) selected by the City to perform and complete the
Infrastructure Improvements.
"Construction Documents" means the detailed construction documents for the
Infrastructure Improvements including, without limitation, working drawings, plans and
specifications for the Infrastructure Improvements together with a construction schedule on file
with and approved by the Authorized City Representative on behalf ofthe City, as the same are
approved by the Authorized Sawmill Partners Representative and as may be revised or
supplemented from time to time with the approval of the Authorized City Representative and the
Authorized Sawmill Partners Representative.
"Construction Period" means the period beginning with the commencement of the
construction ofthe Infrastructure Improvements and ending on the Completion Date therefor.
"Cost ofWor/C' means the total consideration paid or to be paid for the construction or
installation of the Infrastructure Improvements pursuant to Article II, and, except as otherwise
provided herein, excluding the costs of any easements or rights-of-way necessary for the
construction of the Infrastructure Improvements.
"Event oj Default" means an Event of Default under Section 6.1 of this Agreement.
"Extraordinary Construction Event" means an extraordinary, unforeseen, unforeseeable,
unanticipated construction condition which is outside the City's contract with the Contractor and
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increases the Cost of the Work but is an essential prerequisite or component for the Completion
of the Infrastructure Improvements. Any Extraordinary Construction Event, in addition to being
unforeseen, unforeseeable and unanticipated, shall further be non-cosmetic, non-voluntary, and
not caused or compelled by variables including but not limited to inflation, schedule issues,
contractor errors, engineering errors or other mistakes or omissions.
"Force Majeure" means acts of God; fires, epidemics, landslides, floods, strikes, lockouts
or other industrial disturbances' acts of public enemies; acts or orders of any kind of any
governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or
malfunctions of or accidents of machinery; transmission piles or canals; partial or entire failures
of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes,
hurricanes, tornadoes, storms or droughts; periods of unusually inclement weather or excessive
precipitation; or any cause or event (other than financial inability) not reasonably within the
control of Sawmill Partners or the City, as the case may be.
"Guaranteed Maximum Sum" means One Million, Four Hundred Thirty-One Thousand,
Nine Hundred and Thirty Dollars ($1,431,930.00).
"Infrastructure Improvements" means the Emerald Parkway Phase 5A as further
described in Exhibit A of this Agreement.
"Infrastructure Improvements Site" means the real estate described in Exhibit B of this
Agreement.
"Sawmill Partners" means Sawmill Partners Investment Company, Sawmill Partners
Investment Company, No. II, and Summit View Associates, individually and collectively Ohio
general partnerships duly organized and validly existing under the Constitution oflaws of the
State of Ohio, having their principal offices in Columbus, Ohio and their respective successors
and assigns and their successors in interest.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5800 Shier-Rings Road
Dublin, Ohio 43016-7295
Attention: Director of Development
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(b) As to Sawmill Partners:
Sawmill Partners Investment Company
1800 Moler Road
Columbus, Ohio 43207
Attention: Mike Rosen
or a different address as to which notice is given pursuant to Section 7.1 of this Agreement.
"Ordinance" means Resolution No. 23-04 passed by the Council of the City on
,2004. This ordinance shall provide, among other things, for any additional
monies required in excess of the Guaranteed Maximum Sum to complete the work.
"Person" shall mean an individual, a corporation, a partnership, an association, a limited
liability company, a joint stock company, ajoint venture, a trust, an unincorporated organization,
or a government or any agency or political subdivision thereof.
"Emerald Parkway Phase 5A" means any real and/or personal property improvements
identified generally under the heading Emerald Parkway Phase SA as described on Exhibit A
attached to this Agreement and further specifically described in the Construction Documents.
Generally, the Emerald Parkway Phase SA is that portion of the Infrastructure Improvements
which are constructed in the Infrastructure Improvements Site beginning at Hard Road extending
north to Sawmill Road.
"State" means the State of Ohio, one of the United States of America.
"W orlC' means the construction of the Infrastructure Improvements in accordance with
Articles 2 and 3 of this Agreement.
Section 1.2. Certain Words Used Herein: References. Any reference herein to the City,
any members or officers thereof, or other public boards, commissions, departments, institutions,
agencies, bodies or other entities, or members or officers thereof, includes without limitation,
entities or officials succeeding to their respective functions, duties or responsibilities pursuant to
or by operation of law or performing their functions lawfully.
Any reference to section or provisions of the Constitution of the State, the Act, a section,
provision or chapter of the Ohio Revised Code, federal or State laws includes without limitation,
that section, provision or chapter, or those laws or regulations, as amended, modified, revised,
supplemented or superseded from time to time.
Words of any gender include the correlative words of any other gender. Unless the
context indicates otherwise, words in1porting the singular number the plural number, and vice
versa. The terms "hereof," "herein," "hereby," "hereto," and "hereunder", and similar tenns,
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refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means
I before the date of delivery of this Agreement.
ARTICLE II
i CONSTRUCTION OF THE INFRASTRUCTURE IMPROVEMENTS
Section 2.1. General Considerations. In consideration of the City's promise to
construct the Infrastructure Improvements, Sawmill Partners agrees to finance a portion of the
Cost of Work, up to but not exceeding the Guaranteed Maximum Sum, in accordance with this
Agreement.
Section 2.2 Conditions Precedent. The City's obligation under Section 2.3(a) and
Sawmill Partners obligations under Section 2.3(b) below are conditional upon and contingent on
the following condition precedent:
(A) The City shall be the applicant on an application to the City Planning Commission
for a Final Development Plan and Plat seeking approval of the Infrastructure
Improvements and the City shall diligently pursue such application on behalf of
the Parties. The City shall pay the cost of preparation of the Final Development
Plan and Sawmill Partners shall pay the cost of preparation of the Plat dedicating
the right-of-way and any easement necessary for the Infrastructure Improvements.
The City's obligations under Sections 2.3(a) below shall commence upon the
approval by the City Planning Commission of the Final Development Plan for the
Infrastructure Improvements and the execution of this Agreement.
Section 2.3. Construction of the Infrastructure Improvements. The City covenants and
agrees that it will contract for the engineering and construction of the Infrastructure
Improvements in its name with a contractor or contractors, and Sawmill Partners covenants and
agrees to the construction of the Infrastructure Improvements by the City.
(a) The City covenants and agrees:
(1) to make, execute, acknowledge and deliver any contracts, orders, receipts,
writings and instructions hereafter delivered, and do all other things which
may be necessary or advisable for the construction, improvement and
equipping of the Infrastructure Improvements, all in conformity with all
applicable governmental laws, rules and regulations;
(2) pursuant to the provisions of this Agreement, to provide for the payment
of all fees, costs and expenses incurred in the construction, improvement
and equipping of the Infrastructure Improvements; and
(3) to the extent commercially reasonable, to ask for, demand, sue for, levy
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I
I
.
upon, recover and receive all sums of money, indebtedness and other
demands whatsoever which may be due, owing or payable to the City
under the terms of each contract, agreement, obligation, bond,
performance security, order and receipt in connection with the
construction, improvement and equipping of the Infrastructure
Improvements and to enforce the provisions of each contract, agreement,
obligation, bond, performance security, order and receipt in connection
therewith.
(4) The location of the Infrastructure Improvements Site has been slightly
altered at the request of the City from prior approvals issued to Sawmill
Partners. The City, by the approval of this Agreement and in consideration
for Sawmill Partners reliance thereon, hereby determines that no further
variances, rezoning or plan approval is necessary as a consequence of such
relocation and Sawmill Partners vested rights on its adjacent properties
with reference to buildable approved residential units, acreages, buildable
building square footages, setbacks or any similar development rights shall
not be impaired or reduced thereby. The City further agrees that no
building setback or parking setback shall be increased beyond that
provided in the Preliminary Development Plan approved by the City
Planning Commission as a result of Sawmill Partners conveyance to the
City of any easement for any purpose.
(5) A waiver of the City's Tree Preservation Ordinance is necessary for the
Infrastructure Improvements Site prior to commencement of the Work.
Sawmill Partners has filed a tree waiver application for Roadway
Improvement Project phase SA. The application I waivers will request a
reduction in replacement for non-landmark trees (as so defined by the
Dublin Landscape Code) to one replacement tree (a minimum of2 Yz" in
caliper inches) for each tree removed and for landmark trees (as defined by
the Dublin Landscape Code) to one caliper inch of replacement tree
(minimum of2 Yz" in caliper inches) for each caliper inch of Landmark
tree removed, or otherwise as agreed by the parties. The cost of the tree
replacement for the Infrastructure Improvement Site shall be allocated
60% to Sawmill Partners and 40% to the City. The parties agree that
pursuant to the issuance of the tree waiver, (1) the replacement trees for
Emerald Phase SA can be planted anywhere within the PUD zoning area
adjacent to such Improvement, north of Hard Road (2) can be in whole or
in part mitigated by the payment of a tree replacement fee the amount of
which will be calculated by the City and agreed to between the parties. If
the trees are replaced Sawmill Partners shall invoice the City for the City's
40% of the cost of the Infrastructure Improvement Site tree replacement
after such trees are installed, and the City shall promptly pay such invoice.
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The cost of tree replacement for Wyandotte Woods Boulevard shall be the
responsibility of Sawmill Partners. The replacement trees will be ordered,
provided, and installed by Sawmill Partners, and such replacement trees
shall be planted on Sawmill Partners property which is adjacent to the
Infrastructure Improvement Site. In the event the City fails to approve the
tree waivers pursuant to the terms of this paragraph, this Agreement shall
be terminable at the option of Sawmill Partners on notice to the City on or
before 10 days after such waiver is considered by City CounciL
(b) Sawmill Partners covenants and agrees:
(1) Sawmill Partners shall file Final Development Plans and diligently pursue
the approval of such plans by the City Planning Commission for (1) an
anchored retail development for the west side of Sawmill Road and (2) a
multi-family development for the tract (including Wyandotte Woods
Boulevard) located west of Emerald Parkway. Sawmill Partners
obligations under Section 2.3 (b)(2) below shall commence upon approval
by the City Planning Commission of the Final Development Plans for both
the retail site and the multi-family site west of Emerald Parkway.
(2) Provided the City Planning Commission has approved the plans set forth
in Section 2.3(b)(1) above to pay the Guaranteed Maximum Sum in
accordance with the payment schedule provided on Exhibit C attached
hereto and made a part hereof.
(3) To dedicate by deed, easements or plat on or before all right-
of-way which it owns for the Infrastructure Improvements, including a
non-exclusive easement(s) of twenty (20) feet wide along, adjacent, and
parallel to both sides of the Infrastructure Improvements Site subject to the
approval of Sawmill Partners.
(c) Construction Commencement
Emerald Parkway Phase SA Construction Commencement: The City's
obligations to commence construction on the Emerald Parkway Phase SA shall
begin after the satisfaction of the conditions precedent provided in Section 2.2 and
the approval of the Construction Documents by the Authorized Sawmill Partners
Representati ve.
Section 2.4. Completion Date and Certifications.
(a) The City shall exercise its best efforts to cause the Emerald Parkway Phase
SA to be substantially complete on or before December 1, 2004.
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I Consistent with such covenant, the Parties agree to cooperate hereunder in
I
order that the Emerald Parkway Phase 5A may be substantially complete
on or before such date.
(b) The Parties agree that such completion dates may be extended by mutual
written agreement of the Authorized City Representative and the
Authorized Sawmill Partners Representative.
Section 2.5. Guaranteed Maximum Amount and the dedication of the right-of-way for
the Infrastructure Improvements. Payment by Sawmill Partners of the Guaranteed Maximum
Amount and dedication of the rights-of-way and easements for the Infrastructure Improvements
shall relieve Sawmill Partners of all its responsibility to the City for contributions, costs,
assessments, or exactions toward the installation of the Infrastructure Improvements for all
Sawmill Partners' property west of Sawmill Road and north of Hard Road for Emerald Parkway
Phase SA, subject to the provisions of Section 3.4 below.
Section 2.6 Construction bv Sawmill Partners on adjacent properties during
construction of the Infrastructure Improvements. In the event the satisfaction of the conditions
precedent set forth in Section 2.2 above, completion and acceptance ofthe Infrastructure
Improvements by the City shall not be a condition of nor prerequisite to the issuance by the City
of any building permit for such properties, the commencement of construction on such properties
or temporary or final certificates of occupancy or site use permit or any other permit for the use
of buildings on such properties by Sawmill Partners or its contractors, purchasers, business
invitees agents, successors or its assigns thereon, that is prior to completion and acceptance by
the City of the Infrastructure Improvements by the City, subject to the following conditions:
(1) Construction, marketing, and temporary occupancy access for the northern multi-
family site shall be permitted and obtained solely and exclusively from Sawmill
Road at the permanent curb cuts as set forth in the Final Development Plan
approved by Dublin Planning and Zoning by Record of Action on January 22,
2004.
(2) Construction, marketing, and temporary occupancy access for the southern multi-
family site shall be permitted and obtained solely and exclusively from Hard Road
at the temporary construction curb cut as shown on the site construction
documents submitted for such site and as approved by the City, which such cut
shall be designed and constructed in accordance with the reasonable standards of
the City Engineer. This access shall be removed upon the latter of: l) the
acceptance by the City of the Infrastructure Improvements, 2) the completion of
construction of the multifamily units north of such access.
(3) Construction, marketing, and temporary occupancy access for the retail
commercial site shall be permitted and obtained solely and exclusively from
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Sawmill Road at the curb cut for such property as set forth in the Final
Development Plan therefore.
Section 2.7 Mass Excavation. In the event Sawmill Partners desires to conduct
excavation and dirt movinglbalancing on any portion its property the subject of an approved
Final Development Plan prior to City approval of construction plans for such development,
Sawmill Partners shall submit to the City Engineer a mass excavation plan for his review and
approvaL
ARTICLE III
FURTHER PROVISIONS RELATING TO THE CONSTRUCTION
OF THE INFRASTRUCTURE IMPROVEMENTS
Section 3.1. Construction Documents. The City covenants and agrees that the
construction, improvement and equipping of the Infrastructure Improvements will be
accomplished in accordance with the Construction Documents as approved by the Authorized
Sawmill Partners Representative, as those Construction Documents may be revised or
supplemented from time to time, provided such revisions or supplements are approved by the
Authorized City Representative and the Authorized Sawmill Partners Representative. Objection
and/or revisions shall be provided by the Authorized Sawmill Partners Representative to the City
within fifteen (15) days of delivery of such plans, or such plans shall be deemed approved.
Section 3.2. Plans for Roadwav. The City at its cost has prepared or caused to be
prepared or is preparing the Plans and Specifications for the Infrastructure Improvements.
(a) Preliminary plans for Emerald Parkway Phase SA shall be completed and
submitted to the Authorized Sawmill Partners Representative for review and
reasonable approvaL Final plans for Phase SA shall be completed and submitted
to the Authorized Sawmill Partners Representative for review and reasonable
approval on or before execution of the Construction Contract with the Contractor.
(b) The Construction Documents shall locate Emerald Parkway with a tolerance of all
on the horizontal plane and a vertical tolerance of 611 from the design of Emerald
Parkway prepared by R.D. Zande, dated as set forth on the Section, Line and
Grade Plan for Emerald Parkway Phase 5, 96-013-CIP, submitted December 20,
2002 and approved by the City, March 26,2003. The final plans shall deviate not
more than 0" on the horizontal plan and not more than 2" on the vertical plane
from the preliminary plans provided in paragraphs (a) above. The tolerance
provisions of this paragraph are set forth so that the engineering and construction
of Emerald Parkway will match up with the adjacent site engineering and
construction. To the extent that the City's construction of Emerald Parkway and
Sawmill Partners site construction are consistent, failure to meet strict
mathematical compliance with the tolerances set forth above shall not be a breach
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I
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I ofthis Agreement by the City.
(c) The Parties agree that the City may request and receive bids on the Infrastructure
Improvements in one or more packages.
Section 3.3. Traffic Control Requirements. The City shall be responsible for ensuring
the provision, through contractors or otherwise, of all traffic control devices, flaggers and police
officers required to properly and safely maintain traffic. All traffic control devices shall be
furnished, erected, maintained and removed in accordance with the "Ohio Manual of Traffic
Control Devices for Construction and Maintenance Operation."
Section 3.4. Cost of Work in Excess of Guaranteed Maximum Sum. City agrees to
assume and pay the Cost of Work for Emerald Parkway Phase SA in excess of the Guaranteed
Maximum Sum and to indemnify Sawmill Partners it successors, assigns and purchasers against
any Cost of Work in excess of the Guaranteed Maximum Sum. Provided however, in the event
the City's contractor requests the City to pay the costs associated with any "Extraordinary
Construction Event", as previously defined, the City shall first diligently pursue the non-payment
of such costs with the Contractor. In the event the cost of the Extraordinary Construction Event
is finally determined to be a cost of the Work, the City shall submit such costs, together with all
engineering reports and data, to the Authorized Sawmill Partners Representative for his
reasonable review and approval. Thereafter Sawmill Partners shall pay 60% of such costs, with
the City responsible for 40% of such costs.
Section 3.5. Public Use. Sa\\'lIlill Partners agrees that, upon satisfactory completion of
the Infrastructure Improvements in accordance with this Agreement, such Infrastructure
Improvements shall be dedicated and accepted by the City for public use.
ARTICLE IV
PA YMENT OF COSTS
Section 4.1. Payment Guaranteed Maximum Sum by Sawmill Partners. Sawmill
Partners not required to pay costs if amounts Insufficient. The Sawmill Partners represents and
warrants that it will pay the respective Guaranteed Maximum Sum all in accordance with the
terms of this Agreement. City acknowledges, agrees and covenants that the Guaranteed
Maximum Sum is not sufficient to pay in full the Cost of Work necessary to complete the
construction, improvement and equipping to be accomplished pursuant to this Agreement and
that additional City funds will be needed to pay the Cost of the Work subject to the provisions of
Section 3.4 above. The City further acknowledges that Sawmill Partners shall have no further
obligation to the City or otherwise upon the full payment of the Guaranteed Maximum Sum by
Sawmill Partners. The City shall pay all remaining cost of the work necessary to complete the
Infrastructure Improvements.
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ARTICLE V
CERTAIN REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Section 5.1. Certain Representations. Warranties. Covenants and Agreements of City.
The City represents and warrants as of the date of delivery of this Agreement that:
(a) It is a municipal corporation and political subdivision duly organized and validly
existing under the Constitution and laws of the State.
(b) It will have duly accomplished all conditions necessary to be accomplished by it
prior to the execution and delivery ofthe City Documents and to constitute such
City Documents as valid and binding instruments enforceable in accordance with
their respective terms.
(c) It is not in violation of or in conflict with any provision of the laws of the State
which would impair its ability to observe and perform its covenants, agreements
and obligations under the City Documents.
(d) It has and will duly authorized the execution, delivery, observance and
performance of the City Documents.
Section 5.2. Certain Representations. Warranties. Covenants and Agreements of
Sawmill Partners. Sawmill Partners represents and warrants as of the date of delivery of this
Agreement that:
(a) Sawmill Partners (i) are Ohio general partnerships duly organized, validly existing
and in good standing under the laws of the State and (ii) have all requisite power
and authority and all necessary licenses and permits to own and operate its
properties and to carry on its business as now being conducted and as presently
proposed to be conducted.
(b) There are no actions, suits, proceedings, inquiries or investigations pending, or to
the knowledge of Sawmill Partners threatened, against or affecting Sawmill
Partners in any court or before any governmental authority or arbitration board or
tribunal which involve the possibility of materially and adversely affecting the
transactions contemplated by this Agreement or the ability to perform its
obligations under this Agreement.
(c) The execution and delivery by Sawmill Partners of this Agreement and the
compliance by Sawmill Partners with all of the provisions hereof (i) are within the
authority and powers of Sawmill Partners, (ii) will not conflict with or result in
II
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any breach of any of the provisions of, or constitute a default under, any
agreement, articles of organization, operating agreement or other instrument to
which Sawmill Partners is a party or by which it may be bound, or any license,
I judgment, decree, law, statute, order, rule or regulation of any court of
I governmental agency or body having jurisdiction over Sawmill Partners or any of
its activities or properties, and (iii) have been duly authorized by all necessary
action on the part of Sawmill Partners.
(d) No event has occurred and no condition exists with respect to Sawmill Partners
that would constitute a default under this Agreement or which, with the lapse of
time or with the giving of notice or both, would become an Event of Default under
tlus Agreement.
Section 5.3. Sawmill Partners to Maintain Legal Existence. Sawmill Partners
covenants and agrees that it will maintain its legal existence so long as Sawmill Partners remains
liable under this Agreement.
Section 5.4. Indemnification. City shall indemnify, defend and hold hannless the
Sawmill Partners, from and against any and all suits or claims for damages or losses arising or
allegedly arising out of, or resulting from the design, construction and performance of the Work
by City, its contractors, subcontractors, agents, employees or representatives. City shall require
that all designers and contractors agreements, and shall require all such designers and contractors
to require that all subcontractors agreements, include indemnification language as found above.
City shall promptly reimburse Sawmill Partners for any cost, expense or attorney's fees incurred
on account of any such suit or claim incurred in enforcing the terms of this Agreement. This
indemnify does not cover (a) any injuries or damages occurring after the completion of
construction of the Work by City, unless resulting from defective design or construction or (b)
any injuries or damages arising solely from the negligence of the Sawmill Partners
Section 5.5. Further City Guaranties Relating to the Infrastructure Improvements. City
warrants that it will cause to be exercised in the perfonnance of the Work the standard of care
normally exercised by large municipality experienced in performing significant public
construction projects. City further warrants that each phase of the Work, if any, shall be free
from defects in materials and workmanship (without regard to the standard of care exercised in
its performance) for a period of one (1) year after final written acceptance of that phase of the
Work. City shall at its own expense:
(a) Correct or re-execute, or cause to be cOlTected or re-executed, any of the Work
that fails to conform with the requirements of the Construction Documents
(b) Correct, or cause to be corrected, any design defects and defects in materials and
workmanship of the Work (without regard to the standard of care exercised in its
performance) which appear within a period of one (1) year after final written
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acceptance of that Work or within such longer period of time as may be set forth
in the Construction Documents; and
(c) Replace, repair, or restore, or cause replacement, repair or restoration of, any
parts of the Work or any ofthe fixtures, equipment, or other items placed therein
that are injured or damaged as a consequence of any such failure or defect, or as a
consequence of corrective action taken pursuant hereto. Should City fail to make,
or cause to be made, corrections required by this Section within 180 days after
notice of the same, then Sawmill Partners may do so at the expense of and for the
City.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default and Remedies.
(a) Except as otherwise provided in this Agreement, in the event of any default in or
breach of this Agreement, or any of its terms or conditions, by either Party hereto,
or any successor to such Party, such Party or successor shall, upon written notice
from the other, proceed promptly to cure or remedy such default or breach. In
case such remedial action is not taken or not diligently pursued within thirty (30)
days of such written notice, the Party asserting default or breach may institute
such proceedings at law or in equity, or in the case of a claim against the City, an
action in mandamus, as may be necessary or desirable in its opinion to remedy
such default or breach.
(b) Notwithstanding the preceding paragraph, ifby reason of Force Majeure any Party
fails in the observance or performance of any of its agreements, duties or
obligations to be observed or performed under this Agreement, the Party shall not
be deemed to be in default under this agreement. The Party will give notice
promptly to the other of any event of Force Majeure and will use its best efforts to
remedy that event with all reasonable dispatch; provided that a Party will not be
required to settle strikes, lockouts or other industrial disturbances by acceding to
the demands of any opposing Person, when in that Party's judgment, that course
would be unfavorable to it; and no suspension will constitute an Event of Default
if that suspension is a result of the application of federal or State wage, price or
economic stabilization controls, cost containment requirements, restrictions on
rates or charges, which prevents City from observing and performing the
applicable covenant, agreement or obligation.
(c) The declaration of an Event of Default hereunder and the exercise of rights,
remedies and powers upon the declaration are subject to any applicable limitations
of federal or bankruptcy law affecting or precluding the declaration or exercise
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during the pendency of or immediately following any bankruptcy, liquidation or
reorganization proceedings.
Section 6.2. No Remedy Exclusive. Unless provided expressly otherwise herein, no
rights, remedy and power conferred upon or reserved to either Party under this Agreement is
intended to be exclusive of any other available right, remedy or power, but each right, remedy
and power shall be cumulative and concurrent and shall be in addition to every other right,
remedy and power available under this Agreement or existing at law, in equity or by statute or
otherwise now or hereafter.
No exercise, beginning of the exercise, or partial exercise by either Party of anyone or
more rights, remedies or powers preclude the simultaneous or later exercise by that Party of any
or all rights, remedies or powers. No delay or omission in the exercise of any right, remedy or
power accruing upon any Event of Default hereunder shall impair that or any other right, remedy
or power of shall be construed to constitute a waiver of any Event of Default hereunder, but any
right, remedy or power may be exercised from time to time and as often as may be deemed to be
expedient.
Section 6.3. No Additional Waiver Implied by One Waiver. In the event that any
covenant, agreement or obligation under this Agreement shall be breached by either Sawmill
Partners or the City and the breach shall have been waived thereafter by Sawmill Partners or the
City, as the case may be, the waiver shall be limited to the particular breach so waived and shall
not be deemed to waive any other or any subsequent breach thereunder.
No failure by either Party to insist upon the strict observance or performance by the other
Party of any covenant, agreement or obligation under this Agreement and no failure to exercise
any right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any
right to strict observance or performance or a waiver of any breach. No express waiver shall be
deemed to apply to any other breach or to any existing or subsequent right to remedy the breach.
Section 6.4. Waiver of Appraisement, Valuation and Other Laws. In the event that
there is an Event of Default under this Agreement and the defaulting Party does not contest the
existence of the Event of Default, the defaulting Party covenants and agrees to waive, and waives
hereby, the benefit of all appraisement, valuation, stay, extension or redemption laws in force
from time to time, all right of appraisement and redemption to which it may be entitled, and all
rights of marshaling, all to the extent that the defaulting Party may effect that waiver lawfully.
Neither the defaulting Party, nor anyone claiming through it, shall set up, claim or seek to take
advantage of any of those laws of rights.
Section 6.5. Right to Observe and Perform Covenants, Agreements and Obligations. If
City shall fail to observe or perform any covenant, agreement or obligation, under this
Agreement, without demand upon City and without waiving or releasing any covenant
agreement, obligation or Event of Default, upon thirty (30) days' written notice to City, Sawmill
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Partners may observe or perform that covenant, agreement or obligation for the account of City
provided that Sawmill Partners shall have no obligation to take any of those actions. Any
expenses incurred by Sawmill Partners under this Section 6.5 shall be payable from the
Construction Fund in accordance with this Agreement or if inadequate monies in said fund then
on demand made by Sawmill Partners to the City.
Section 6.6. Provisions Subiect to Applicable Law. All rights, remedies and powers
hereunder may be exercised only to the extent permitted by applicable law. Those rights,
remedies and powers are intended to be limited to the extent necessary so that they will not
render this Agreement invalid, unenforceable or not entitled to be recorded, registered or filed
I under any applicable law.
,
,
I ARTICLE VII
! MISCELLANEOUS
:
! Section 7.1. Notices. Except as otherwise specifically set forth in this Agreement, all
notices, demands, requests, consents or approvals given, required or permitted to be given
hereunder shall be in writing and shall be deemed sufficiently given if actually received or if
hand-delivered or sent by recognized, overnight delivery service or by certified mail, postage
prepaid and return receipt requested, addressed to the other Party at the address set forth in this
Agreement or any addendum to or counterpart of this Agreement, or to such other address as the
recipient shall have previously notified the sender of in writing, and shall be deemed received
upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to
have been received when the return receipt is signed or refused. A duplicate copy of each notice,
certificate, request or other communication given hereunder to the City or Sawmill Partners shall
be given also to the others. The Parties, by notice given hereunder, may designate any further or
different addresses to which subsequent notices, certificates, requests or other communications
shall be sent
Section 7.2. Extent of Provisions Regarding City. All representations, warranties,
covenants, agreements and obligations of the City under this Agreement shall be effective to the
extent authorized and permitted by applicable law. None of those representations, warranties,
covenants, agreements or obligations shall be deemed to be a representation, warranty, covenant,
agreement or obligation of any present or future member, officer, agent or employee of the City
in other than his or her official capacity.
Section 7.3. Extent of Provisions Regarding the City and Sawmill Partners: No
Personal Liability. No representation, warranty, covenant, agreement, obligation or stipulation
contained in this Agreement shall be deemed to constitute a representation, warranty, covenant,
agreement, obligation or stipulation of any present or future trustee, member, officer, agent or
employee of Sawmill Partners in an individual capacity, and to the extent authorized and
permitted by applicable law, no official executing or approving the City's or Sawmill Partners
. participation in this Agreement shall be liable personally under this Agreement or be subject to
15
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any personal liability or accountability by reason ofthe issuance thereof
Section 7.4. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon the Parties, and their respective permitted successors and assigns, subject, however,
to the specific provisions hereof; provided that any covenant, agreement or obligation of the City
which requires the expenditure of funds shall not be a general debt of the City, but shall remain,
until fulfilled, a liability of the City under this Agreement.
The Parties will observe and perform faithfully at all times all covenants, agreements and
obligations under this Agreement.
Each covenant, agreement and obligation of the City under this Agreement is binding
upon each officer of the City who may have the authority or duty from time to time under law to
take any action which may be necessary or advisable to observe or perform that covenant,
agreement or obligation.
Section 7.5. Execution Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute but
one and the same agreement. It shall not be necessary in proving this Agreement to produce or
account for more than one of those counterparts.
Section 7.6. Severability. In case any section or provision of this Agreement, or any
covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken,
or any application thereof, is held to be illegal or invalid for any reason,
(a) that illegality or invalidity shall not affect the remainder hereof or thereof, any
other section or provision hereof, or any other covenant, agreement, obligation or
action, or part thereof, made, assumed, entered into or taken, all of which shall be
construed and eIiforced as if the illegal or invalid portion were not contained
herein or therein,
(b) the illegality or invalidity of any application hereof or thereof shall not affect any
legal and valid application hereof or thereof, and
(c) each section, provision, covenant, agreement, obligation or action, or part thereof,
shall be deemed to be effective, operative, made, assumed, entered into or taken in
the manner and to the full extent permitted by law.
Section 7.7. Captions. The captions and headings in this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Agreement.
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Section 7.8. Governing Law and Choice of Forum. This Agreement shall be governed
by and construed in accordance with the laws of the State. All claims, counterclaims, disputes
I and other matters in question between the City, its agents and employees, and Sawmill Partners,
its employees, contractors, subcontractors and agents arising out of or relating to this Agreement
or its breach will be decided in a court of competent jurisdiction within the State.
Section 7.9 Survival of Representations and Warranties. All representations and
warranties of Sawmill Partners and the City in this Agreement shall survive the execution and
delivery of this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
i
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- . -. --
IN WITNESS WHEREOF, the City and Sawmill Partners have caused this Agreement to
be executed in their respective names by their duly authorized representatives, all as of the date
first written above.
CITY OF DUBLIN, OHIO
I By:
I
I Printed:
I
Title:
By:
Printed:
Title:
Approved as to Form:
By:
Printed:
Title:
SELLER:
Sawmill Partners Investment Company,
an Ohio general partnership
By:
Bernard Ruben, General Partner
By: Jerome Schottenstein Real Estate Co.
Limited Partnership II
By:
Jay L. Schottenstein, Trustee of
the Jerome Schottenstein 1984
Grandchildren's Trust, General
Partner
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Sawmill Partners Investment Company No. II,
an Ohio general partnership
By:
BemardRuben, General Partner
By: Jerome Schottenstein Real Estate Co.
Limited Partnership II
By:
Jay L. Schottenstein, Trustee of
the Jerome Schottenstein 1984
Grandchildren's Trust, General
Partner
Summit View Associates,
an Ohio general partnership
; By:
Murray Ebner
By:
Sylvia Ebner
By:
Jay L. Schottenstein, Trustee of
the Jerome Schottenstein 1984
Grandchildren's Trust
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FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing Agreement, certifies
hereby that the monies required to meet the obligations of the City during the year 2003 under the
foregoing Agreement have been appropriated lawfully for that purpose, and is 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: ,2004
Director of Finance
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EXHIBIT A
Infrastructure Improvements
"Infrastructure Improvements" means and includes but is not limited to the following:
(1) Roadway Project Improvements 5A also known as Emerald Parkway from Hard
Road northerly and easterly approximately 2,500 feet to the intersection of
Sawmill Road and Saltergate Drive as shown on the Final Development Plan
approved by Dublin Planning and Zoning on February 2, 2004.
(2) Intersection Improvements at Emerald Parkway and Hard Road and at Emerald
Parkway and Sawmill Road, including new and expanded traffic signals and any
balancing, recomputerization or rebalance of existing signals respectively.
(3) Twelve inch (12") water main extensions along Emerald Parkway.
(4) Storm sewer along Emerald Parkway sized to accommodate the Work and future
development within the tributary area.
(5) Emerald Parkway shall be 5 lanes at intersections with 4 lanes and an 18 foot
median between intersections, curbs and gutter sidewalks, and bike path, street
lighting, road signage, storm drainage, a 12 inch water main, full landscaping
including standard treatment at intersection (stamped concrete and stone walls),
all in compliance with A.D.A. criteria.
(6) Construct the turnout for the intersection of Wyandotte Woods Boulevard and
Emerald Parkway.
(7) Curb cuts including radius turnouts along Emerald Parkway for the Roadway
Improvement Project 5A shall be as included on the approved Final Development
Plan for Emerald Parkway provided at Section 2.2
(8) Underground utility conduits at intersection and road crossings (including
Wyandotte Woods Boulevard) for telephone, cable tv, gas, electric, water, sanitary
sewer, storm sewer, fiber-optic and other public and private utilities shall be
provided in the Preliminary Plan for the reasonable review and approval of the
Authorized Sawmill Partners Representative and constructed as approved.
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EXIllBIT B
Infrastructure Improvements Site
[insert here]
22
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EXHIBIT C
Payment Schedule
l. The first payment from Sawmill Partners to the City of Dublin shall be made on
the date which is sixty (60) days after the date on which the contractor has
commenced construction of the Work.
2. Thereafter, additional payments from Sawmill Partners shall be due each
subsequent sixty (60) days to the City.
3. The amount of the partial construction payment shall be determined by a sum
which is equal to an amount determined by multiplying the Guaranteed Maximum
Sum by a percentage equal to the percentage of the Work completed during that
payment period.
4. The City shall provide to the Authorized Sawmill Partners Representative a
construction progress report together with request for payment ten (10) days prior
to the date on which payment is due for the review and approval of by Authorized
Sawmill Partners Representative.
jschottsawmill-5A.agr (4/29/04-ncs) (5)
23