33-07 OrdinanceRECORD OF ORDINANCES
Dayton Legal Blank, Inc
Form No 30043
33 -07 (Amended)
Ordinance No. Passed 20
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
ENTER INTO A DEVELOPMENT AGREEMENT WITH THE
STONEHENGE COMPANY FOR THE REDEVELOPMENT OF
CERTAIN REAL PROPERTY AT THE NORTHWEST CORNER OF
BRIDGE AND HIGH STREETS FOR A FUTURE TOWN CENTER;
TO AUTHORIZE THE SALE OF A PORTION OF THE FUTURE
TOWN CENTER SITE TO THE STONEHENGE COMPANY FOR
DEVELOPMENT; TO AUTHORIZE THE ACQUISITION BY THE
CITY OF DUBLIN OF THE PROPERTY AT 37 DARBY STREET
FROM THE STONEHENGE COMPANY FOR THE DEVELOPMENT
OF A PUBLIC PARKING AREA; TO ENTER INTO AN
AGREEMENT WITH THE STONEHENGE COMPANY FOR THE
MAINTENANCE OF THE FUTURE TOWN CENTER; TO LEASE A
PORTION OF THE FUTURE TOWN CENTER TO THE
STONEHENGE COMPANY, AND DECLARING AN EMERGENCY.
WHEREAS, a goal of Dublin City Council is to continue to work with interested
parties to increase the vibrancy of the Dublin Historic District through commercial
redevelopment and the installation of additional parking improvements; and
WHEREAS, the City of Dublin and The Stonehenge Company desire to sell,
purchase, and lease certain tracts of land in the Dublin Historic District for the
development of a Town Center, which will be a mixed -use commercial office and
retail development and will include public areas within the Town Center and the
addition of public parking improvements in close proximity to the Town Center; and
WHEREAS, the City desires to execute, and has determined that it is in the City's
best interest to execute, the Development Agreement in a form substantially similar to
the draft Development Agreement, attached hereto as Exhibit "A ", as a means for the
City to reach its goal of improving the Dublin Historic District.
NOW, THEREFORE, BE IT ORDAINED by the Council, of the City of Dublin, State
of Ohio, of the elected members concurring, that:
Section 1. Dublin City Council authorizes the City Manager to execute a Development
Agreement in a form substantially similar to the draft Development Agreement attached
as Exhibit "A" with The Stonehenge Company.
Section 2. This Ordinance is declared to be an emergency necessary for the
immediate preservation of the public peace, health, safety or welfare, and for the
further reason that emergency action is necessary to comply with the timeframes
contained in the development agreement. The ordinance shall therefore be effective
upon passage.
Passed this / I -1 day of =� 1 2007.
Mayor - Presiding Officer
ATTEST:
Ld
Clerk of Council
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614 - 410 -4400 • Fax: 614 -410 -4490
erry or UTIAn
TO: Members of Dublin City Council
FROM: Jane S. Brautigam, City Manager
DATE: June 18, 2007
INITIATED BY: Sara G. Ott, Senior Project Manag
RE: Ord. 33 -07: Bridge and High Streets development Project —
Approval of a Development Agreement with The Stonehenge
Company
�i
Discussion
As noted in your packet materials, staff is providing information about the creation and use of
patio areas in the Bridge and High Redevelopment Project. The information below summarizes
the proposed terms City staff and Stonehenge have agreed to and incorporated into the proposed
development agreement attached hereto. Please note the attachment is updated to reflect the
information contained in this memorandum.
Patio Areas
Stonehenge will be granted rights to use portions of the public area for patio space as a permitted
use. Stonehenge would be responsible for making all necessary improvements such as adding
tables, chairs, umbrellas, fencing (when necessary) and for maintaining the space in first -class
condition.
Further the patio areas would be divided into exclusive and non - exclusive areas. Exclusive areas
are areas requiring a fence and would only be available to business patrons. Non - exclusive areas
do not require fencing and may be used by business patrons and the general public. In no event
would the patio areas exceed a total of 3,000 square feet. The actual placement of patio areas
would be as generally depicted on the modified concept plan and finalized in the to- be- approved
zoning regulations.
Public Art Contribution
Staff and Stonehenge have also discussed the cultural and aesthetic benefits of incorporating art
into the public areas of this project. Recognizing the benefit to Stonehenge and future tenants
of having first -class plaza space and having the benefit of using some of this space for patio
areas, Stonehenge has agreed to contribute $6,000 annually towards the acquisition and
maintenance of public artwork on the project site. After ten years of contributions, the annual
contribution will increase by the five -year average increase in Consumer Price Index (CPI).
Default Provisions
Additionally, Stonehenge requested 'further clarification in the agreement regarding a default by
the City of any material terms in the agreement. These materials terms would include issues
such as City becoming unable or unwilling to rezone the property after good faith effort by
Stonehenge to address conditions, the City becoming unable or unwilling to convey fee simple
title for the building footprints, or City becoming unable or unwilling to correct substantial
defects that materially and adversely affect the title to the building footprints that render the
footprints as not marketable.
While staff anticipates it is unlikely that any of these events will occur, if it should, the
agreement has been clarified that the City would 1) reimburse Stonehenge for costs incurred
towards making 37 Darby Street available to purchase to the City; 2) reimburse up to $25,000 in
documented out of pocket engineering and architectural fees and 3) forgive (or reimburse if
already paid) Stonehenge's $100,000 contribution toward the future parking lot construction.
Recommendation
Staff recommends approval of ordinance 33 -07.
{1104iia614 4 2
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 Manager
DATE:
June 14, 2007
INITIATED BY:
Sara G. Ott, Senior Project Manager
RE:
Ord. 33 -07: Bridge and High Streets Redevelopment Project —
Approval of a Development Agreement with The Stonehenge
Company
Memo
Discussion
During the first reading of Ordinance 33 -07, members of Council had inquiries regarding various
aspects of the proposed development agreement between the City of Dublin and the Stonehenge
Company. Further, staff wishes to provide additional information for second reading.
Concept Plan
In response to concept plan inquiries, staff has arranged for the proposed footprints and setbacks
to be marked on -site in the afternoon of Friday, June 15. While some adjustments may be made
through the rezoning process and in completing the final construction documents, the markings
will provide Council with a general indication of the layout. A map of the layout is attached
(Attachment A). The markings will remain until Monday evening.
There were also inquiries about visual enhancements for identifying crosswalks and addressing
pedestrian comfort around automobile uses. Staff and the design team are reviewing options to
address these concerns and will incorporate ideas as the land use approval process moves
forward.
Summary of the Development Agreement
Attached is an updated development agreement summary (Attachment B) for your review. Since
first reading, a few changes have occurred to clarify timelines and responsibilities. These
changes include:
• clarifying Stonehenge's responsibility to submit a concept plan application;
• clarifying the City's responsibility to pay for any necessary asbestos or other
environmental remediation necessary for demolishing buildings at 35 and 37 Darby
Street; and
• clarifying the timeframe in which Stonehenge may provide proposals for construction
work.
Memo — Bridge and High Dev. Agreement 2 nd Reading
June 14, 2007
Page 2
Patio Areas
Stonehenge and City staff are still negotiating a few details regarding the use of patio space.
This information will be provided to City Council by Monday evening.
Requestfor Emergency
Finally, in order to move forward with the timely purchase of 37 Darby Street and the
construction of the proposed parking lot in 2007, staff requests approval as an emergency.
Recommendation
Staff recommends approval of ordinance 33 -07 as an emergency.
If you have any questions regarding this project, please do not hesitate to contact Sara Ott at 410-
4448.
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CITY OF DUBLIN, OHIO
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CIT OF DUBLIN
PREPARED BY THE CITY OF DUBLJN,
DIVISION OF ENGINEERING
5800 Shier —Rings Road • Dublin, Ohio 43016 -1236 fl
Phone (614)410 -4600 0 Fax (614)761 -6506
ATTACHMENT
SUMMARY OF
DEVELOPMENT AGREEMENT FOR TOWN CENTER
AND PUBLIC PARKING AREA
UPDATED 6/14/07
• Parties — The Stonehenge Company ( "Stonehenge ") and the City of Dublin ( "City ").
• Properties —
• The City is the owner of the following tracts of improved real property located in the
Historic District: (i) an approximate 0.41 acre parcel known as Tax Parcel No. 273-
000148, (ii) an approximate 0.08 acre parcel known as Tax Parcel No. 273 - 000064,
(iii) an approximate 0.04 acre parcel known as Tax Parcel No. 273- 000002, and (iv)
an approximate 0.17 acre parcel known as Tax Parcel No. 273- 000065 (collectively, the
"Future Town Center Site").
• The City also owns an approximate 0.68 acre tract of improved real property located in
the Historic District comprising Tax Parcel Nos. 273 - 003680 and 273- 000310
(collectively, the "35 Darby Site ").
• Upon approval of this Agreement by City Council, Stonehenge will purchase 37 Darby
Street, containing approximately 0.322 +/- acres of improved real property, which
comprises Tax Parcel No. 273- 000018 (the "37 Darby Site ") for a purchase price of
approximately $475,000.00. Stonehenge will then sell the 37 Darby Site to the City for
$375,000.00. The 35 Darby Site and the 37 Darby Site are collectively referred to
herein as the "Future Parking Lot Site."
• Background — Stonehenge will construct the Town Center at the corners of High and Bridge
streets in the Historic District of Dublin at the Future Town Center Site and will construct a
public parking area at the Future Parking Lot Site. To accomplish this, Stonehenge will acquire
two non - contiguous portions of the Future Town Center Site (the 'Building Footprints "), upon
which it will construct two buildings, fronting High and Bridge streets (`Buildings ").
Stonehenge will also construct the public improvements within the area of the Future Town
Center Site which will be retained by the City ( "Public Area ").
• Price - Stonehenge will pay the City a purchase price of $25.30 per square foot of the Building
Footprints, which will be determined by ALTA surveys to be obtained by Stonehenge.
• City Contingencies - The Agreement is contingent upon: (a) obtaining City Council approval of
the Agreement and the City's purchase agreement with Stonehenge for the purchase of the 37
Darby Site; (b) receiving confirmation from Stonehenge that Stonehenge has obtained fee
simple title to the 37 Darby Site within five (5) days after Dublin City Council approves this
Agreement; (c) the execution of a purchase agreement with Stonehenge for the purchase of 37
Darby Street; (d) the City closing on the purchase of the 37 Darby Site from Stonehenge
simultaneously with Stonehenge's purchase of the same or within five (5) days thereafter; (e)
reaching agreement (or satisfying itself that it will reach agreement) with Stonehenge on the
location and dimensions of the Building Footprints and the elevations, plans and specifications
and other details (such as materials, layouts, configurations, etc.) for the Buildings; (f)
(HO933461,4I
Memo — Bridge and High Dev. Agreement 2 °d Reading
June 14, 2007
Page 4
obtaining Dublin City Council approval, and any other required approvals by the ARB, P &Z,
or otherwise, of the plans and specifications for the construction of the Future Town Center Site
and the Future Public Parking Lot Site; (g) approval of the rezoning of the Future Town Center
Site and Future Parking Lot Site to a zoning classification desired by the City, in its sole
discretion, for the use of the Future Town Center Site and the Future Parking Lot Site for the
City's and Stonehenge's intended purposes; and (h) receiving from Stonehenge, within thirty
(30) days following the date agreement is reached on the location thereof, ALTA surveys and
legal descriptions of the Building Footprints and Public Area.
• Stonehenge Contingencies — The Agreement is contingent upon: (a) reaching agreement (or
satisfying itself that it will reach agreement) with the City on the location and dimensions of the
Building Footprints and the elevations, plans and specifications and other details (such as
materials, layouts, configurations, etc.) for the Buildings, including any changes thereto
required by other governmental bodies responsible for the review thereof, such as the ARB,
P &Z and Dublin City Council; (b) obtaining rezoning approval and all other required
governmental approvals for the construction of the Future Town Center Site as set forth above;
(c) approval from the City of the lot splits which will be required to split the Building
Footprints from the Future Town Center Site so that the City can transfer fee simple title to the
Building Footprints to Stonehenge at the Closing; and (d) obtaining financing satisfactory to
Stonehenge on or before August 1, 2007, for the development of the Buildings.
• Contin2ency Period — Unless otherwise specified, the parties will have until the earlier of
(a) the date that City Council approves rezoning for the Town Center, or (b) December 31,
2007, to satisfy their respective contingencies.
• Parking Lot Plans The City will submit a rezoning application and conditional use application
for the Future Parking Lot Site to the appropriate governmental agencies for approval. The
goal is to commence and complete construction of the public parking lot in 2007 so that it will
be open to the public prior to the construction of the other improvements at the Future Town
Center Site. Stonehenge will meet its parking requirements for the Town Center site by
financially contributing to the construction costs of the parking lot.
• Building Demolition — The City will grant Stonehenge permission to demolish structures at 35
and 37 Darby Street as part of the construction of the public parking lot. The cost of the
demolition and the abatement of any asbestos or other environmental concern which may be
present on the site will be completed by Stonehenge, or by Stonehenge's contractor under
Stonehenge's direction. The cost for such demolition and abatement shall be paid by the City.
• Town Center Plans — On the first day of the month after the effective date of the Agreement,
Stonehenge will submit a Concept Plan application for the Future Town Center Site, and
thereafter a preliminary /final development plan application for the Future Town Center Site,
including the plans for the Buildings and the public improvements to be constructed in the
Public Area.
• Building Sizes - The Buildings must contain, in the aggregate, between 19,000 — 22,000 square
feet of leaseable space, and the Buildings must have, in the aggregate, Building Footprints
totaling between 9,500 — 11,000 sf.
(H093346L41 4
Memo — Bridge and High Dev. Agreement 2 °d Reading
June 14, 2007
Page 5
• Title - The City will convey fee simple title to the Building Footprints to Stonehenge. The City
will retain ownership of 35 Darby Street and will purchase 37 Darby Street from Stonehenge
for the Future Parking Lot Site.
• Building Footprint Closing - The closing will take place ninety (90) days after the contingency
period ends (i.e., all approvals have been obtained).
• Tax Increment Financing — It is anticipated that the Dublin City Council will pass an ordinance
creating a Tax Increment Financing arrangement to facilitate the construction of the public
improvements benefiting the Future Parking Lot Site and the Future Town Centex Site, The
TIF ordinance will exempt from taxation any improvements in the Future Town Center Site and
require the current and future property owners of the Buildings to pay service payments in lieu
of real estate taxes with respect to the improvements exempted from taxation.
• Closing Documents - At the closing, Stonehenge and the City will enter into a Declaration that
encumbers the Future Town Center Site. The purpose of the Declaration is to establish how the
Public Area will be used and maintained. In the Declaration, the City will grant access
easements for vehicular and pedestrian access, and parking, utility, general use, construction
and maintenance easements to Stonehenge (which will run to successive owners of the
Buildings) over certain portions of the Public Area necessary to construct the Buildings and
public improvements, to provide access to and from the Buildings, and to provide utility service
to the Buildings.
The Declaration will also address maintenance and repair obligations. The City will be
responsible for the maintenance, repair and replacement of the Public Area other than the area
located within the immediate proximity of the Buildings and areas reserved primarily for the
benefit of such Buildings (such as the patio seating areas to be leased to Stonehenge). The City
will be responsible for the maintenance of the Future Parking Lot Site.
• Patio Seating Area Reserved.
• Development Work - Stonehenge is responsible for the construction of: (a) the Buildings at the
Future Town Center Site (including all walkways, sidewalks, landscaping, hardscape, and
access ways); (b) the public improvements within the Public Area; and (c) the public parking
lot at the Future Parking Lot Site. The development work includes the demolition of existing
structures, utility and /or traffic control structure relocations, engineering, grading, filling
compaction drainage and permitting.
• Commencement of Construction —
• Parking Lot Stonehenge must provide the City with a construction schedule no later
than ten (10) days after the public parking lot plans are approved. Within fourteen (14)
days after the plans are approved, Stonehenge must submit a proposal for the
development of the public parking lot. if the City does not accept this proposal,
Stonehenge will have an additional fourteen (14) days to obtain third party bids. After
the City selects the contractor to be used for the project, Stonehenge must commence
(HO933461,41 5
Memo — Bridge and High Dev. Agreement 2 °d Reading
June 14, 2007
Page 6
construction within ten (10) days after the later of (i) receipt of building permits or (ii)
execution of the construction contract with the general contractor. The public parking
lot work should be completed within three (3) months after the commencement of
construction.
• Town Center Upon approval of the plans for the Town Center, Stonehenge must
provide the City with a proposed construction schedule. Within thirty (30) days after
approval of the Town Center plans, Stonehenge must submit a proposal to the City for
the construction of the public improvements in the Town Center. If the City does not
accept this proposal, Stonehenge will have an additional thirty (30) days to obtain thirty
party bids. Within five (5) days after the Closing, Stonehenge will award the contract
for the construction of the public improvements to the contractor approved by the City.
Within ten (10) days after the later of (a) the Closing on the sale of the Building
Footprints or (ii) receipt of building permits, Stonehenge will commence construction of
the Town Center, including the Buildings and the public improvements, all of which
will be completed within eighteen (18) months. Within thirty (30) days prior to the
issuance of the final occupancy permit for the Buildings, the City and Stonehenge will
enter into a maintenance agreement for the upkeep of the exterior portions of the
Buildings, the patio areas leased to Stonehenge, and the public improvements within the
Public Area, upon terms and conditions mutually agreeable to both parties.
• Stonehenge's Costs - Stonehenge will pay for all work related to the construction of the
Buildings and areas within the Building Footprints and will give the City a One Hundred
Thousand Dollar ($100,000.00) credit toward the construction of the public improvements,
which credit will be given in the last draw requests submitted by Stonehenge at the end of the
project.
• City's Costs and Reimbursement - The City will reimburse Stonehenge for the cost of the
public parking lot work and the construction of the public improvements within the Public Area
(including demolition costs and the costs incurred in the abatement of any asbestos discovered
at the site). The City is not required to reimburse Stonehenge for its legal or accounting fees,
and it is not responsible for any costs not set forth in the approved bids for any of the foregoing
work. Reimbursements take place through monthly draw requests. The City will make
reimbursements within fifteen (15) days after receipt of a draw request from Stonehenge,
together with evidence that all of the work applicable to such draw request has been paid for
and completed.
• Construction Management Fee The City will pay Stonehenge a management fee of three
percent (3 %) of the total cost of the parking lot work and the public improvement work within
the Public Area as compensation for overseeing and managing these portions of the
development.
• Denial of Zoning If zoning is denied, despite the good faith efforts of Stonehenge to
accommodate changes to the Town Center plans requested by the City, the City will reimburse
Stonehenge as follows: (a) up to $25,000.00 toward the documented out -of- pocket fees
incurred by Stonehenge for architectural and engineering fees; (b) up to $100,000.00 for the
loss which Stonehenge will incur by purchasing the 37 Darby Site for an amount greater than
(HO933461,41 6
Memo — Bridge and High Dev. Agreement 2 °d Reading
June 14, 2007
Page 7
the City purchase price of $375,000.00; and (c) interest payments (but no other carrying costs)
incurred by Stonehenge on the amount set forth in subsection (b), above, not to exceed an
amount of Five Thousand Dollars ($5,000.00).
Default - If Stonehenge defaults, then the City may cure the same and seek reimbursement.
Upon a default by either party, the other party may pursue any remedies available to such party
at law.
Prevailing Wale - The parking lot work and public improvement work are subject to prevailing
wage requirements.
(HO933461,41 7
Office of the City Manager
5200 Emerald Parkway • Dublin, OH 43017
Phone: 614 - 410 -4400 • Fax: 614 - 410 -4490
crrr of nuBim
Memo
TO: Members of Dublin City Council
FROM: Jane S. Brautigam, City Manager
DATE: May 31, 2007
INITIATED BY: Sara G. Ott, Senior Project Manager
RE: Ord. 33 -07: Bridge and High Streets Redevelopment Project —
Approval of a Development Agreement with The Stonehenge
Company
Executive Summary
Ordinance 33 -07 authorizes entering into a development agreement with The Stonehenge
Company for the Bridge and High Streets Redevelopment Project. The agreement provides for
the sale of city -owned property, the purchase of 37 Darby Street, lease of patio space, the
construction of a municipal parking lot with 103 spaces, the construction of two public plazas,
streetscape improvements and the construction of approximately 20,000 square feet of private
commercial office, restaurant and retail space. The estimated cost of the public improvements
total up to $3,026,000 including land acquisition costs of $690,000 paid in 2006 and anticipated
purchase of land for $375,000 in 2007. The private investment into the project is estimated to be
approximately $6.0 million.
Several items are attached to this staff report for your review. After this memorandum, there is a
Summary of the Development Agreement ( "Attachment A "), the authorizing ordinance, and the
full version Development Agreement, including conceptual design renderings and plans of the
plaza spaces and parking lot ( "Exhibit A ").
Background
This project is intended to increase visitors to Historic Dublin through creative design and land
use. Using a collaborative public - private partnership, the site will be redeveloped into a unique,
mixed -use space that provides economic opportunities, invites pedestrian traffic, creates an
attractive community destination point and blends with the historic nature of the surrounding
area. The project is intended to capture the energy and vision for the site as described in the
project's REP and RFQ, the 1997 Community Plan and the draft Historic Dublin Revitalization
Plan. This is accomplished through seven project objectives:
1. Anchor Historic Dublin as a unique community destination;
2. Provide mixed uses that support the economic vitality of Historic Dublin;
3. Include architectural features that blend with the historic nature of the area;
4. Include creative and engaging outdoor space that supports small scale public
gatherings and is inviting to pedestrians;
5. Address parking requirements adequately for the development, as finally approved by
the City;
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg 2
6. Work with the City to create 35 additional parking spaces to replace the parking lot
displaced by the development of the site; and
7. Provide sufficient private investment to ensure the continued viability of the
development.
Concept Plans
Proposed Town Center Site
The proposed town center site includes 20,000 square -feet of privately owned two -story retail,
restaurant and office space; 13,300 square -feet of plaza space; and 12,720 square -feet of
streetscape improvements. The privately owned space is located within two buildings positioned
along the periphery of the site. The plan features a future public art location and brick paved
plaza ( "lower plaza') directly at the intersection of Bridge and High streets with two water walls,
raised planting beds and limestone seating walls. The lower plaza then links to an upper plaza
through a series of steps and gathering platforms surrounded by public seating areas,
landscaping, and outdoor patio dining.
The upper plaza creates a park atmosphere by creating formal and informal spaces connected by
walking areas. The formal space is formed by linking walkways adjacent to building footprints,
patio dining and rights of way on Darby Street and Wing Hill. This space then transitions into an
interior public green of approximately 2,200 square feet surrounded by limestone seating walls
and landscaping.
For the private buildings, Stonehenge anticipates maintaining the architectural details from its
original submission. This architecture incorporates traditional small town storefronts in Ireland
and the overall character of Dublin, Ohio. Buildings are characterized by extensive use of
natural materials, common walls, colorful store fronts and appear to be 2 to 2 1 /2 stories tall. The
facades show extensive use of window space for the proposed first floor retail uses. These
architectural details will be included in an upcoming concept plan submission for further
discussion with the Planning Commission and Architectural Review Board.
Proposed Municipal Parkinz Lot
The proposed municipal parking lot is situated on 35 and 37 Darby Street and is approximately 1
acre. The lot will contain 103 parking spaces, a net gain of 68 spaces in this area of the Historic
District. The lot is code compliant, including all necessary lighting and landscaping.
Development Agreement
The development agreement provides the framework for formally establishing the partnership
between The Stonehenge Company and the City of Dublin for this project. The agreement
provides guidance, defines roles and articulates obligations for each party. The major terms of
the agreement are as follows:
Land Sale, Land Acquisition, and Patio Lease
Building Footprints - The City will sell Stonehenge two building footprints on the future town
center site for $25.30 per square foot. The Bridge Street building will be approximately 4,000
square feet and the High Street building will be approximately 6,000 square feet. The exact size
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg3
of each footprint will be finalized based upon the approved plans and would be determined after
the property has undergone the rezoning process.
37 Darby Street - Stonehenge will sell the City of Dublin 37 Darby Street for the City's
appraised value of $375 within a short time period after approval of the development
agreement. Stonehenge will incur approximately $100,000 in expenses to make this property
available to the City for purchase.
Patio Lease — The City will lease Stonehenge patio space. The amount of patio space will be
determined based upon the approved final development plan. Staff and Stonehenge are still
negotiating the lease rate and will present the rate for consideration at second reading.
Once plans are approved, Stonehenge and the City will enter into a land lease agreement to
memorialize the lease terms including Stonehenge's agreement to pay for necessary
improvements to make the space usable as a primarily private area and to ensure the space is
maintained to high quality standards.
Finances
The City and Stonehenge will be making considerable investments in Historic Dublin as part of
this project. Stonehenge will be responsible for financing all private improvements on the future
town center site. Early indications estimate the cost of these private improvements to be
approximately $6.0 million.
Public Improvements
The public improvements can be broken into three distinct projects.
Proposed Parking Lot — Preliminary design work has been completed for the future parking lot.
Construction of a code compliant parking lot is estimated to cost approximately $400,000.
Including land acquisition costs of $690,000 for 35 Darby Street and $375,000 for 37 Darby
Street, the City's investment in public parking is estimated to total $1,500,000.
Proposed Plazas — Construction costs for the plazas are conservatively estimated due to only
completing work towards a concept plan submission. Plaza elements include an urban park
concept in the upper plaza and a public art focal point and water walls in the lower plaza.
Elements also include a turf area, trees and tree grates, raised planters, brick pavers installed over
a concrete base, retaining walls, lighting, stonewalls, water service extension, irrigation, storm
water management for public areas, and site preparation.
Preliminarily, staff and the design team estimate the cost of the plazas to be between $885,000 -
$1,200,000. Two specific plaza elements contribute significantly to this cost variation from the
low to the high end of the range. The two water walls and associated utilities are estimated to
cost approximately $125,000 - $150,000, in the aggregate, and the focal point platform for future
public art is estimated to be $52,000.
Streetscape Elements — Finally, staff recommends the City invest in streetscape improvements
along West Bridge Street, North High Street, Wing Hill Alley, and Darby Street as part of this
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg 4
project to improve the existing site conditions and to secure the probable cost savings from the
economies of scale in handling these projects in conjunction with the plaza construction. These
improvements include installing new brick pavers on a concrete base, adding new curb where
needed along all four roadways, installing new street trees, and installing tree grates.
Preliminarily, staff and the design team estimate the cost of the streetscape elements to be
between $340,000 - $460,000. The cost variation is due to an option to extend electrical service
to the street trees, possible replacement of street lights and the extent to which street furniture is
incorporated into the design.
In summary, based upon conservative estimates, the preliminary cost for the recommended
public improvements total between $2,831,000 - $3,026,000. Once feedback is obtained from
the concept plan review and further design work is complete, staff and Stonehenge will work
diligently to refine this number and seek ways to reduce the cost while meeting City Council's
intent with this project.
The preliminary estimate of $2,831,000 - $3,026,000 is above the initially anticipated cost of
approximately $1,700,000 for a number of reasons. These include the 37 Darby Street
acquisition, increasing the number of lights in the public parking lot, adding streetscape
improvements, utilizing two water walls, and constructing the public art platform. Additionally,
estimates include the use of raised planting beds for minimizing maintenance and the use
concrete base for setting brick pavers to prevent heaving and extend the life of the plaza
materials.
Preliminary Revenue Sources for Public Improvements
In anticipation of this project, City Council has programmed funding in the Capital
Improvements Program (CIP) in 2007 and years prior. Further, staff anticipates using funds
generated from the sale of building footprints, Stonehenge's contribution towards parking
construction, existing tax increment financing district funds, and requesting funding in the 2008
CIP to finance these improvements.
Prior Year Revenue Sources
- Capital Improvement Program (CIP)- Years Prior $ 790,000
Current and Future Year Revenue Sources
- CIP - 2007 500,000
- Sale of Building Footprints 253,000
- Developer Parking Contribution (paying in 2008) 100,000
- Town Center I & 11 Tax Increment Financing District Fund t 75,000
- CIP — 2008 up to 1,308,000
Grand Total 3
t Assumes City Council approval to modify the Town Center I& II TIF to include the future parking lot site and
future town center site.
Tax Increment Financing
The development agreement anticipates the creation of a tax increment financing (TIF) district
for the future town center site and future parking lot site (in addition to modifying the Town
Center I & 11 TIF) to allow service payments to offset the cost of public improvements. While
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg5
the TIF district will contribute significantly to reimbursing the City's capital fund allocation to
this project, it is not currently anticipated that the TIF districts will generate service payments
sufficient to fully reimburse the capital fund until additional private investment occurs in the
area.
Land Use Approvals and Timeline
Staff and Stonehenge propose constructing the municipal parking lot in 2007 in support of City
Council's commitment to Historic Dublin and in recognition of the desire of many businesses to
increase the availability of convenient public parking. To accomplish this, the development
agreement grants permission to Stonehenge to demolish structures at 35 and 37 Darby Street.
According to records on file and analysis by a city -hired preservation specialist, the 35 Darby
Street structure has characteristics of a historical building, but has been subject to multiple
renovations utilizing modern materials and therefore no longer contributes to the historical
character of the District. The 37 Darby Street building was constructed post -World War II and
contributes minimally to the character of Historic Dublin and possess no known historical
significance.
Further, staff has filed an application with the Planning and Zoning Commission requesting that
future parking lot site be rezoned to Historic Business with a conditional use for a stand alone
parking lot. Additionally, an application has been filed requesting the Architectural Review
Board's (ARB) approval of the proposed parking lot design. Assuming this case meets with the
approval of these bodies, the rezoning application will be before City Council at its June 18,
2007 and July 2, 2007 meetings. Construction can then commence in late August or early
September after final zoning approval from City Council is obtained.
The future town center site will undergo a concept plan review by Planning Commission and
ARB throughout summer 2007. Stonehenge will then submit a combined preliminary and final
development plan for approval by the Planning Commission, ARB and City Council throughout
the remainder of 2007. Once all approvals are obtained, the City would transfer title of the
building footprints in fee simple to Stonehenge and construction would commence in spring
2008.
Contingencies
City staff and Stonehenge have agreed to a contingency period of the first of either 1) the
rezoning or denial of rezoning for the future town center site or 2) December 31, 2007. During
this period each party would work cooperatively to seek the necessary land use approvals,
transfer title on 37 Darby Street, complete necessary survey work, and continue work on design
and construction details of the public and private improvements.
In the unlikely event that the rezoning of the future town center is denied and Stonehenge has
made all reasonable efforts to satisfy the requirements necessary to successfully rezone,
including addressing architecture, transportation, phasing and design conditions in good faith,
then the City would reimburse Stonehenge for some incurred costs. These costs include 1) up to
$25,000 of the actual documented out of pocket costs incurred for architectural and engineering
fees in preparation for elevations, plans and specifications, 2) up to $100,000 for the costs
incurred, beyond the City's purchase price, in the acquisition of 37 Darby Street, and 3) up to
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg 6
$5,000 in documented interest payments on any funds loaned to Stonehenge for the purchase of
37 Darby Street.
Other Terms
Further information is included in the attached summary of the development agreement and the
development agreement in its entirety.
Recommendation
Staff recommends approval of ordinance 33 -07 at City Council's June 18, 2007 meeting.
Further, staff will seek City Council's approval to waive the 30 day waiting period of this
ordinance and allow it to go in effect immediately upon passage at second reading to ensure
timely closing on 37 Darby Street.
If you have any questions regarding this project, please do not hesitate to contact Sara Ott at 410-
4448.
ATTACHMENT A
SUMMARY OF
DEVELOPMENT AGREEMENT FOR TOWN CENTER
AND PUBLIC PARKING AREA
• Parties — The Stonehenge Company ( "Stonehenge ") and the City of Dublin ('City ").
• Properties —
• The City is the owner of the following tracts of improved real property located in
the Historic District: (i) an approximate 0.41 acre parcel known as Tax Parcel No.
273- 000148, (ii) an approximate 0.08 acre parcel known as Tax Parcel No. 273-
000064, (iii) an approximate 0.04 acre parcel known as Tax Parcel No. 273-
000002, and (iv) an approximate 0.17 acre parcel known as Tax Parcel No. 273-
000065 (collectively, the "Future Town Center Site ").
• The City also owns an approximate 0.68 acre tract of improved real property
located in the Historic District comprising Tax Parcel Nos. 273- 003680 and 273-
000310 (collectively, the "35 Darby Site ").
• Upon approval of this Agreement by City Council Stonehenge will purchase 37
Darby Street, containing approximately 0.322 +/- acres of improved real property,
which comprises Tax Parcel No. 273 - 000018 (the "37 Darby Site ") for a purchase
price of approximately $475,000.00. Stonehenge will then sell the 37 Darby Site
to the City for $375,000.00. The 35 Darby Site and the 37 Darby Site are
collectively referred to herein as the "Future Parking Lot Site."
• Background — Stonehenge will construct the Town Center at the corners of High and
Bridge streets in the Historic District of Dublin at the Future Town Center Site and will
construct a public parking area at the Future Parking Lot Site. To accomplish this,
Stonehenge will acquire two non- contiguous portions of the Future Town Center Site (the
'Building Footprints "), upon which it will construct two buildings, fronting High and
Bridge streets (Buildings "). Stonehenge will also construct the public improvements
within the area of the Future Town Center Site which will be retained by the City
(`Public Area ").
• Price - Stonehenge will pay the City a purchase price of $25.30 per square foot of the
Building Footprints, which will be determined by ALTA surveys to be obtained by
Stonehenge. Stonehenge will also lease certain portions of the Public Area from the City
for use as patio areas, which will only be those portions of the Public Area that are
positioned to primarily benefit the occupants of the Buildings within the Future Town
Center Site as will be depicted on the final approved Town Center plans. The City will
lease the patio areas to Stonehenge for an amount not yet determined, and the lease will
be upon terms and conditions mutually agreeable to the City and Stonehenge.
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg8
• City Contingencies - The Agreement is contingent upon: (a) obtaining City Council
approval of the Agreement and the City's purchase agreement with Stonehenge for the
purchase of the 37 Darby Site; (b) receiving confirmation from Stonehenge that
Stonehenge has obtained fee simple title to the 37 Darby Site within five (5) days after
Dublin City Council approves this Agreement (c) the execution of a purchase agreement
with Stonehenge for the purchase of 37 Darby Street; (d) the City closing on the purchase
of the 37 Darby Site from Stonehenge simultaneously with Stonehenge's purchase of the
same or within five (5) days thereafter; (e) reaching agreement (or satisfying itself that it
will reach agreement) with Stonehenge on the location and dimensions of the Building
Footprints and the elevations, plans and specifications and other details (such as
materials, layouts, configurations, etc.) for the Buildings; (f) obtaining Dublin City
Council approval, and any other required approvals by the ARB, P &Z, or otherwise, of
the plans and specifications for the construction of the Future Town Center Site and the
Future Public Parking Lot Site; (g) approval of the rezoning of the Future Town Center
Site and Future Parking Lot Site to a zoning classification desired by the City, in its sole
discretion, for the use of the Future Town Center Site and the Future Parking Lot Site for
the City's and Stonehenge's intended purposes; and (h) receiving from Stonehenge,
within thirty (30) days following the date agreement is reached on the location thereof,
ALTA surveys and legal descriptions of the Building Footprints and Public Area.
• Stonehenge Contingencies — The Agreement is contingent upon: (a) reaching agreement
(or satisfying itself that it will reach agreement) with the City on the location and
dimensions of the Building Footprints and the elevations, plans and specifications and
other details (such as materials, layouts, configurations, etc.) for the Buildings, including
any changes thereto required by other governmental bodies responsible for the review
thereof, such as the ARB, P &Z and Dublin City Council; (b) obtaining rezoning approval
and all other required governmental approvals for the construction of the Future Town
Center Site as set forth above; (c) approval from the City of the lot splits which will be
required to split the Building Footprints from the Future Town Center Site so that the
City can transfer fee simple title to the Building Footprints to Stonehenge at the Closing;
and (d) obtaining financing satisfactory to Stonehenge on or before August 1, 2007, for
the development of the Buildings.
• Contingency Period — Unless otherwise specified, the parties will have until the earlier of
(a) the date that City Council approves rezoning for the Town Center, or (b) December
31, 2007, to satisfy their respective contingencies.
• Parking Lot Plans The City will submit a rezoning application and conditional use
application for the Future Parking Lot Site to the appropriate governmental agencies for
approval. The goal is to commence and complete construction of the public parking lot
in 2007 so that it will be open to the public prior to the construction of the other
improvements at the Future Town Center Site. Stonehenge will meet its parking
requirements for the Town Center site by financially contributing to the construction
costs of the parking lot.
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg9
• Building Demolition — The City will grant Stonehenge permission to demolish structures
at 35 and 37 Darby Street as part of the construction of the public parking lot,
• Town Center Plans — On the first day of the month after the effective date of the
Agreement, the City will submit a Concept Plan application for the Future Town Center
Site, and thereafter a preliminary /final development plan application for the Future Town
Center Site, including the plans for the Buildings and the public improvements to be
constructed in the Public Area,
• Building Sizes - The Buildings must contain, in the aggregate, between 19,000 — 22,000
square feet of leaseable space, and the Buildings must have, in the aggregate, Building
Footprints totaling between 9,500 — 11,000 sf.
• Title - The City will convey fee simple title to the Building Footprints to Stonehenge.
The City will retain ownership of 35 Darby Street and will purchase 37 Darby Street
from Stonehenge for the Future Parking Lot Site.
• Building Footprint Closing - The closing will take place ninety (90) days after the
contingency period ends (i.e., all approvals have been obtained).
• Tax Increment Financing — It is anticipated that the Dublin City Council will pass an
ordinance creating a Tax Increment Financing arrangement to facilitate the construction
of the public improvements benefiting the Future Parking Lot Site and the Future Town
Center Site. The TIF ordinance will exempt from taxation any improvements in the
Future Town Center Site and require the current and future property owners of the
Buildings to pay service payments in lieu of real estate taxes with respect to the
improvements exempted from taxation.
• Closing Documents - At the closing, Stonehenge and the City will enter into a
Declaration that encumbers the Future Town Center Site. The purpose of the Declaration
is to establish how the Public Area will be used and maintained. In the Declaration, the
City will grant access easements for vehicular and pedestrian access, and parking, utility,
general use, construction and maintenance easements to Stonehenge (which will run to
successive owners of the Buildings) over certain portions of the Public Area necessary to
construct the Buildings and public improvements, to provide access to and from the
Buildings, and to provide utility service to the Buildings.
The Declaration will also address maintenance and repair obligations. The City will be
responsible for the maintenance, repair and replacement of the Public Area other than the
area located within the immediate proximity of the Buildings and areas reserved
primarily for the benefit of such Buildings (such as the patio seating areas to be leased to
Stonehenge). The City will be responsible for the maintenance of the Future Parking Lot
Site.
• Development Work - Stonehenge is responsible for the construction of: (a) the Buildings
at the Future Town Center Site (including all walkways, sidewalks, landscaping,
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg 10
hardscape, and access ways); (b) the public improvements within the Public Area; and (c)
the public parking lot at the Future Parking Lot Site. The development work includes the
demolition of existing structures, utility and /or traffic control structure relocations,
engineering, grading, filling compaction drainage and permitting.
• Commencement of Construction —
• Parking Lot Stonehenge must provide the City with a construction schedule no
later than ten (10) days after the public parking lot plans are approved. Within
fourteen (14) days after the plans are approved, Stonehenge must submit a
proposal for the development of the public parking lot or obtain third party bids.
After the City selects the contractor to be used for the project, Stonehenge must
commence construction within ten (10) days after the later of (i) receipt of
building permits or (ii) execution of the construction contract with the general
contractor. The public parking lot work should be completed within three (3)
months after the commencement of construction.
• Town Center Upon approval of the plans for the Town Center, Stonehenge must
provide the City with a proposed construction schedule. Within thirty (30) days
after approval of the Town Center plans, Stonehenge must submit a proposal to
the City for the construction of the public improvements in the Town Center
and /or obtain bids from third party contractors for such work. Within five (5) days
after the Closing, Stonehenge will award the contract for the construction of the
public improvements to the contractor approved by the City. Within ten (10) days
after the later of (a) the Closing on the sale of the Building Footprints or (ii)
receipt of building permits, Stonehenge will commence construction of the Town
Center, including the Buildings and the public improvements, all of which will be
completed within eighteen (18) months. Within thirty (30) days prior to the
issuance of the final occupancy permit for the Buildings, the City and Stonehenge
will enter into a maintenance agreement for the upkeep of the exterior portions of
the Buildings, the patio areas leased to Stonehenge, and the public improvements
within the Public Area, upon terms and conditions mutually agreeable to both
parties.
• Stonehenge's Costs - Stonehenge will pay for all work related to the construction of the
Buildings and areas within the Building Footprints and will give the City a One Hundred
Thousand Dollar ($100,000.00) credit toward the construction of the public
improvements, which credit will be given in the last draw requests submitted by
Stonehenge at the end of the project.
• City's Costs and Reimbursement - The City will reimburse Stonehenge for the cost of the
public parking lot work and the construction of the public improvements within the
Public Area. The City is not required to reimburse Stonehenge for its legal or accounting
fees, and it is not responsible for any costs not set forth in the approved bids for any of
the foregoing work. Reimbursements take place through monthly draw requests. The
City will make reimbursements within fifteen (15) days after receipt of a draw request
Memo —Bridge and High Dev. Agreement
May 30, 2007
Pg 11
from Stonehenge, together with evidence that all of the work applicable to such draw
request has been paid for and completed.
• Construction Management Fee The City will pay Stonehenge a management fee of
three percent (3 %) of the total cost of the parking lot work and the public improvement
work within the Public Area as compensation for overseeing and managing these portions
of the development.
• Denial of Zoning If zoning is denied, despite the good faith efforts of Stonehenge to
accommodate changes to the Town Center plans requested by the City, the City will
reimburse Stonehenge as follows: (a) up to $25,000.00 toward the documented out -of-
pocket fees incurred by Stonehenge for architectural and engineering fees; (b) up to
$100,000.00 for the loss which Stonehenge will incur by purchasing the 37 Darby Site for
an amount greater than the City purchase price of $375,000.00; and (c) interest payments
(but no other carrying costs) incurred by Stonehenge on the amount set forth in
subsection (b), above, not to exceed an amount of Five Thousand Dollars ($5,000.00).
• Default - If Stonehenge defaults, then the City may cure the same and seek
reimbursement. Upon a default by either party, the other party may pursue any remedies
available to such party at law.
• Prevailing Wage - The parking lot work and public improvement work are subject to
prevailing wage requirements.
DEVELOPMENT AGREEMENT D
This DEVELOPMENT AGREEMENT (this "Agreement') is made and entered into on
the day of , 2007, by and between THE STONEHENGE COMPANY, a(n)
( "Stonehenge "), whose mailing address is 147 North High Street,
Gahanna, Ohio 43230, and the CITY OF DUBLIN, OHIO, an Ohio municipal corporation (the
"City"), whose address is 5200 Emerald Parkway, Dublin, Ohio 43017.
Background Information D
A. The City is the owner of the following tracts of improved real property located in
the Historic District of the City of Dublin, Ohio (the "Historic District'): (i) an approximate 0.41
acre parcel known as Tax Parcel No. 273 - 000148, (ii) an approximate 0.08 acre parcel known as
Tax Parcel No. 273 - 000064, (iii) an approximate 0.04 acre parcel known as Tax Parcel No. 273-
000002, and (iv) an approximate 0.17 acre parcel known as Tax Parcel No. 273 - 000065
(collectively, the "City Site "). The City Site is sometimes referred to herein as the "Future Town
Center Site."
B. The City also owns an approximate 0.68 acre tract of improved real property
located in the Historic District of the City comprising Tax Parcel Nos. 273 - 003680 and 273-
0003 10 (collectively, the "35 Darby Site ").
C. Prior to or contemporaneously with the execution of this Agreement, Stonehenge
has entered or shall enter into a real estate purchase agreement with 37 Darby Co., Ltd., for the
purchase of a certain parcel of land located at 37 Darby Street, Dublin, Ohio, containing
approximately 0.322 +/- acres of improved real property, which comprises Tax Parcel No. 273-
000018 (the "37 Darby Site "). The 35 Darby Site and the 37 Darby Site are sometimes referred
to herein collectively as the "Future Parking Lot Site."
D. Within five (5) days following approval of this Agreement and the Darby
Purchase Agreement (as hereinafter defined) by Dublin City Council ( "Effective Date "), but in
no event later than June 27, 2007, Stonehenge shall close on the purchase of the 37 Darby Site
with 37 Darby Co., Ltd. ( "First Darby Closing"), and prior to or contemporaneously therewith,
enter into a real estate purchase agreement with the City, in which the City shall agree to
purchase the 37 Darby Site from Stonehenge upon the terms and conditions set forth in the Real
Estate Purchase Agreement attached hereto as Exhibit "A " , and made a part hereof ( "Darby
Purchase Agreement ").
E. Simultaneously with the First Darby Closing, but in no event later than five (5)
days thereof, the City shall close on the purchase of the 37 Darby Site from Stonehenge, pursuant
to the terms of this Agreement and as set forth in the Darby Purchase Agreement;
F. The City Site is outlined in red, the 35 Darby Site is outlined in purple, and the 37
Darby Site is outlined in yellow on the preliminary site plan attached hereto as Exhibit `B " ,
attached hereto and incorporated by this reference herein (the "Site Plan ").
(H0706750,9 }
G. Stonehenge desires to acquire from the City, and the City agrees to convey to
Stonehenge, two non - contiguous portions of the City Site (sometimes collectively referred to
herein as the `Building Footprints ") upon which Stonehenge shall construct or cause to be
constructed a mixed -use commercial building fronting North High Street (the "High Street
Building") and a mixed -use commercial building fronting Bridge Street (the "Bridge Street
Building")(the High Street Building and the Bridge Street Building are collectively referred to
herein as the `Buildings "), which buildings shall be constructed in a manner consistent with the
character and quality of other buildings located in the Historic District, recommendations in the
1997 Dublin Community Plan, and plans and specifications approved of by the City. The City
Site less the area occupied by the Building Footprints is hereinafter referred to as the "Public
Area."
H. In addition to the High Street Building and the Bridge Street Building,
Stonehenge shall also construct and/or cause to be constructed in accordance with the terms
hereof: (i) a public parking lot, which shall contain approximately one hundred (100) public
parking spaces, and associated improvements and landscaping on the Future Parking Lot Site
(the "Public Parking Lot "), and (ii) certain public improvements, including, without limitation,
landscaping, planters, sidewalks, benches, parking plazas, access ways, curb cuts, elevated
gathering plazas, lighting, parking spaces and other improvements typically associated with a
town center on the Public Area (as hereinafter defined) (collectively, the "Public
Improvements "), all of which shall be constructed in a manner consistent with the character and
quality of other buildings and improvements located in the Historic District, recommendations in
the 1997 Dublin Community Plan, and plans and specifications approved of by the City.
Preliminary conceptual site plans showing the Building Footprints for the Buildings, the Public
Improvements and the configuration of the Public Parking Lot is attached hereto as Exhibit "C"
and hereby made a part hereof (collectively, the "Concept Plan "). Further, preliminary
conceptual building elevations for the Buildings are attached hereto as Exhibit "D" and hereby
made a part hereof (the "Conceptual Elevations ").
I. In consideration of the City's desire to have the Future Town Center Site and
Future Parking Lot Site developed for the uses and purposes set forth herein, and Stonehenge's
desire to acquire the Building Footprints for commercial development, the City has agreed to
convey to Stonehenge, the Building Footprints, and Stonehenge has agreed to sell the 37 Darby
Site to the City (once owned in fee simple title by Stonehenge) and to develop the Future Town
Center Site and Future Parking Lot Site, all upon the terms and conditions more fully set forth
herein.
Statement of Agreement
NOW THEREFORE, for Ten and 00 /100 Dollars ($10.00) and other 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:
(H0706750,9 1 2
ARTICLE I
TRANSFERS AND CONVEYANCES
1. Transfer of the Building Footprints; Purchase Price The City shall cause the
Building Footprints to be transferred and deeded to Stonehenge upon the terms and conditions of
this Agreement. The purchase price for the Building Footprints shall be Twenty -Five and 30/100
Dollars ($25.30) per square foot of the Building Footprints ( "Purchase Price "). Stonehenge
represents and warrants that the Building Footprints shall contain, in the aggregate, between
9,500 and 11,000 square feet, with the total square footage of the completed Buildings being
between 19,000 and 22,000 square feet; provided, however, the determination of the actual
square footage of the Building Footprints for purposes of calculating the Purchase Price shall be
determined by the surveys thereof to be obtained by Stonehenge pursuant to Section 3 below.
The Purchase Price shall be payable to the City at the Closing, in immediately available funds or
by cashier's check, adjusted by all prorations, credits, allowances and other adjustments
specifically provided for herein.
2. Transfer of the 37 Darby Site to the City Prior to or contemporaneously with the
execution of this Agreement, Stonehenge has entered or shall enter into a real estate purchase
agreement with 37 Darby Co., Ltd., for the purchase of the 37 Darby Site. Stonehenge shall
provide a copy of said contract to the City upon request. Stonehenge shall, within five (5) days
following the Effective Date, but in no event later than June 27, 2007, consummate the First
Darby Closing, and prior to or contemporaneously therewith, enter into the Darby Purchase
Agreement with the City for the purchase from Stonehenge of the 37 Darby Site, the purchase
price of which shall be Three Hundred Seventy -Five Thousand Dollars ($375,000.00), upon the
terms and conditions set forth in the Darby Purchase Agreement. Simultaneously with the First
Darby Closing, Stonehenge and the City shall close on the sale and purchase of the 37 Darby
Site. Prior to the Effective Date, Stonehenge shall order, and as soon thereafter as practicable,
obtain a Phase I environmental site assessment and an asbestos inspection for the 37 Darby Site,
and Stonehenge agrees to provide copies of the Phase I and asbestos report to the City upon
receipt of the same. The City shall reimburse Stonehenge for its actual, documented out -of-
pocket expenses incurred in the procurement of the Phase I and the asbestos report, and each
report shall be certified to the City. In the event either the Phase I or the asbestos report identify
any environmental hazards, which in the sole discretion of the City, would become too costly to
abate or remediate, Stonehenge shall, upon direction of the City, terminate the Darby Purchase
Agreement under the applicable contingency language set forth therein. In the event the City
agrees to abate any asbestos, or remediate any environmental condition, identified upon the 37
Darby Site, all such abatement or remediation shall be undertaken by a contractor working under
the direction of Stonehenge; provided, however, the City shall reimburse Stonehenge for all
documented out -of- pocket costs incurred from such work. Stonehenge agrees that it shall obtain
the City's approval of any bid for such work prior to such time that the work is commenced.
3. City Contingencies This Agreement shall be contingent upon the City:
(i) Obtaining Dublin City Council approval of this Agreement and the Darby
Purchase Agreement;
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(H070650,9 1 3
Receiving confirmation from Stonehenge that Stonehenge has obtained fee
simple title to the 37 Darby Site within five (5) days after Dublin City
Council approves this Agreement and the Darby Purchase Agreement; the
execution of the Darby Purchase Agreement by Stonehenge and the City;
and the City closing on the purchase of the 37 Darby Site from
Stonehenge pursuant to the terms of the Darby Purchase Agreement,
which closing shall take place simultaneously with the First Darby
Closing, but in no event later than five (5) days thereafter;
Reaching agreement (or satisfying itself that it will reach agreement) with
Stonehenge on the location and dimensions of the Building Footprints and
the elevations, plans and specifications and other details (such as
materials, layouts, configurations, etc.) for the Buildings, including any
changes thereto required by other governmental bodies responsible for the
review thereof, such as the building department, Architectural Review
Board (the "ARB ") and Planning and Zoning ("P&Z"); provided however,
that the foregoing shall not confer upon Stonehenge any approval rights as
to the plans and specifications of the Public Area and the Public
Improvements other than with respect to the location of the Building
Footprints;
(iv) Obtaining Dublin City Council approval of the matters set forth in Item
3(iii) immediately above;
(v) Obtaining Dublin City Council approval, and any other required approvals
by the ARB, P&Z, or otherwise, of the plans and specifications for the
construction of the Future Town Center Site and the Future Parking Lot
Site;
(vi) Receiving from Stonehenge, within thirty (30) days following the date
agreement is reached on the location thereof, ALTA surveys and legal
descriptions, satisfactory to the City, of the Future Parking Lot Site and of
the Building Footprints and Public Area consistent with the locations
thereof approved by the City and changes required by any other
governmental bodies responsible for the review thereof (including Dublin
City Council, the ARB and P&Z) which surveys and legal descriptions
shall be (a) prepared by a surveyor acceptable to the City and upon terms
and conditions acceptable to the City, (b) certified to the City and the title
company closing this transaction (as to the Public Area only), and (c)
approved by any governmental authorities as may be necessary to split the
Building Footprints from the City Site. Stonehenge shall, upon its receipt
of any surveys and legal descriptions, promptly provide the City with
duplicate copies thereof for review and approval. Stonehenge shall keep
the City advised of its progress in obtaining such approvals; and
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(H070650,9 1 4
(vii) Approval of the rezoning of the Future Town Center Site and Future
Parking Lot Site to a zoning classification desired by the City, in its sole
discretion, for the use of the Future Town Center Site and the Future
Parking Lot Site for the City's and Stonehenge's intended purposes. The
City agrees to be the lead applicant for the Future Parking Lot application,
and Stonehenge agrees to be the lead applicant for the Future Town
Center, of any such rezoning and approval applications (collectively, the
"City Contingencies ").
The City Contingencies shall be deemed to have been satisfied or waived, unless
on or before the date which is the earlier of: (i) the date upon which P &Z, ARB, and City
Council have approved or denied the rezoning of the Future Town Center Site and the Future
Parking Lot Site, or (ii) December 31, 2007 (the "Contingency Date "), the City provides to
Stonehenge written notice of the failure to satisfy same, in which event, this Agreement shall
terminate and thereafter both parties shall be released from liability hereunder. The Contingency
Date may be extended by the mutual agreement of the parties. The City agrees to cooperate with
Stonehenge to obtain any lot split approvals and /or combinations contemplated herein.
4. Stonehenge Contingencies This Agreement shall be contingent upon:
(i) Reaching agreement (or satisfying itself that it will reach agreement) with
the City on the location and dimensions of the Building Footprints and the
elevations, plans and specifications and other details (such as materials,
layouts, configurations, etc.) for the Buildings, including any changes
thereto required by other governmental bodies responsible for the review
thereof, such as the ARB, P &Z and Dublin City Council;
(ii) Obtaining rezoning approval and all other required governmental
approvals for the construction of the Future Town Center Site as set forth
above;
(iii) Approval from the City of the lot splits which will be required to split the
Building Footprints from the Pubic Area so that the City can transfer fee
simple title to the Building Footprints to Stonehenge at the Closing; and
(iv) Obtaining financing satisfactory to Stonehenge on or before August 1,
2007, for the development of the Buildings (collectively, the "Stonehenge
Contingencies ").
The Stonehenge Contingencies shall be deemed to have been satisfied or waived,
unless on or before the Contingency Date, Stonehenge provides the City with written notice of its
failure to satisfy the same, in which event this Agreement shall be terminated and thereafter both
parties shall be released from liability hereunder.
If the City (i) denies any rezoning application or other required approvals for the
Future Town Center Site submitted by Stonehenge (provided Stonehenge has made its best
(H0706750,9 1 5
efforts to work with and accommodate the requests of the ARB, P&Z, the Dublin City Council
and any other governmental bodies from which approvals are required), or (ii) terminates this
Agreement as permitted by the terms hereof, which termination is not due to any breach on
behalf of Stonehenge of its obligations under this Agreement, then the City shall reimburse
Stonehenge for (a) up to Twenty -Five Thousand Dollars ($25,000.00) of the actual, documented
out -of- pocket costs incurred by Stonehenge with respect to architectural and engineering fees in
the preparation of the elevations, plans and specifications for such work, and (b) provided
Stonehenge has purchased the 37 Darby Site from 37 Darby Co., Ltd., for an amount greater than
Three Hundred Seventy -Five Thousand Dollars ($375,000.00), the City shall reimburse
Stonehenge for an amount which is equal to the difference between the actual purchase price of
the 37 Darby Site and Three Hundred Seventy -Five Thousand Dollars ($375,000.00), but in no
event shall such reimbursement exceed an amount of One Hundred Thousand Dollars
($100,000.00). Based on the forgoing, the City shall reimburse Stonehenge up to the total
amount of One Hundred Twenty -Five Thousand Dollars ($125,000.00) within thirty (30) days
following receipt of copies of invoices documenting Stonehenge's payment of all applicable
architectural and engineering fees for which Stonehenge is seeking reimbursement and a copy of
the settlement statement for the closing with 37 Darby Co., Ltd., evidencing the purchase price
paid for the 37 Darby Site. The right of Stonehenge to receive the foregoing reimbursements
from the City shall be subject to Stonehenge's continued obligation following such
reimbursement to complete the Parking Lot Work (as hereinafter defined) as set forth in Article
III, Section 1, below.
Stonehenge represents that, upon the expiration of the Contingency Period,
Stonehenge shall have made all investigations of the Future Town Center Site necessary to
satisfy itself that the development thereof is commercially reasonable. Such inspections may
include, but not be limited to, soil conditions, subsurface, drainage, surface and groundwater
quality, environmental conditions and physical characteristics; availability of permits and
approvals; availability and adequacy of utilities; compliance with governmental laws and
regulations; access; and other matters relating to the character and suitability of the Future Town
Center Site for the intended development thereof. Stonehenge shall keep the City apprised of its
investigations and promptly provide the City with a copy of any reports obtained by Stonehenge.
Stonehenge hereby acknowledges receipt of the documents listed on Exhibit "E " ,
attached hereto and made a part hereof (collectively, the "Due Diligence Materials "). If
Stonehenge desires to perform any additional investigations of the Future Town Center Site or
Future Parking Lot Site (other than any investigations requested by the City, as set forth above),
then Stonehenge may, at its sole cost and expense, obtain such other investigations as it
reasonably requires. Stonehenge acknowledges that the City has made no representations or
warranties, nor shall it be requested or required to make any representations or warranties, with
regard to such Due Diligence Materials, or with regard to the condition of the Future Parking Lot
Site and the Future Town Center Site.
5. Submissions
(a) Future Parking Lot Site: The City shall submit to the appropriate
governmental agencies for approval a rezoning application and a conditional use application for
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the Future Parking Lot Site. Within thirty (30) days after receipt of such submissions, the City
staff shall review the same, schedule case reviews with ARB and P &Z, and notify Stonehenge of
any objections to such plans, which shall also include proposed modifications thereto. The City
reserves the right to object to matters shown on such submissions even though they are
consistent with the Concept Plan and Conceptual Elevations attached hereto. Stonehenge agrees
that it shall work cooperatively and in good faith with the City to modify the Future Parking Lot
Site plans and specifications upon request by the City and /or based upon the review of the same
by City staff, ARB, and P &Z. This process of reviewing and submitting shall continue until the
rezoning and conditional use submissions for the Future Parking Lot Site have been approved by
the City staff, Stonehenge acknowledges that all submissions shall be subject to modification
based upon the review thereof by such governmental bodies. If the City is unable, despite its
good faith efforts to resolve any differences with respect to the modifications requested by the
ARB, P &Z, or otherwise, then the City shall have the right to terminate this Agreement prior to
the expiration of the Contingency Period. Upon obtaining all such approvals for the Parking Lot
Work, such plans shall hereinafter be collectively referred to as the "Approved Parking Lot
Plans ". The Approved Parking Lot Plans shall be attached hereto as Exhibit "G ", as soon as they
are completed by Stonehenge and have received all approvals required by the City and this
Agreement.
(b) Future Town Center Site Stonehenge shall, on the first day of the month
following the Effective Date, submit to the City for approval a completed Concept Plan
application for the Future Town Center Site. Stonehenge represents and warrants to the City that
the Buildings shall, in the aggregate, contain between 19,000 and 22,000 square feet of building
area with the Building Footprints, in the aggregate, containing between 9,500 and 11,000 square
feet of building area.
Within thirty (30) days after receipt of such submission, the City staff shall review
the same, schedule case reviews with ARB and P &Z, and notify Stonehenge of any objections to
such plans, which shall also include proposed modifications thereto. The City reserves the right
to object to matters shown on such submissions even though they are consistent with the Concept
Plan and Conceptual Elevations attached hereto. The City and Stonehenge hereby agree to work
cooperatively and in good faith to make any necessary modifications to the plans based upon the
review by City staff, ARB, and P &Z and the comments provided thereby. This process of
reviewing and submitting shall continue until the Concept Plan submission for the Future Town
Center Site have been approved by the City staff, provided, however, if the parties are unable,
despite their good faith efforts to resolve any differences with respect to the modifications
requested by the City or otherwise, then each party shall have the right to terminate this
Agreement prior to the expiration of the Contingency Period.
After the Concept Plan has been reviewed and commented upon by ARB and
P &Z, Stonehenge shall, with the City as co- applicant, promptly submit a preliminary /final
development plan application for the Building Work and Public Improvement Work (as
hereinafter defined) to all applicable governmental bodies that will be required to review and
approve the same, such as the ARB, P &Z, and City Council, and Stonehenge shall diligently
pursue all such approvals in good faith (upon obtaining all such approvals for the Building Work
and the Public Improvement Work, such plans shall hereinafter be collectively referred to as the
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"Approved Town Center Plans "). Stonehenge acknowledges that all submissions shall be subject
to modification based upon the review thereof by such governmental bodies. The Approved
Town Center Plans with respect to the Building Work and Public Improvement Work shall be
attached hereto as Exhibit "H" and Exhibit "I ", respectively, as soon as they are completed by
Stonehenge and have received all approvals required by the City and this Agreement. With
respect to the foregoing submittals and approvals, the City hereby acknowledges and agrees that
Stonehenge may include the number of parking spaces which will be located within the Public
Parking Lot as part of the number of parking spaces required to be provided by Stonehenge
under the applicable zoning regulations for the Future Town Center Cite and the construction of
the Buildings; provided that the foregoing shall not be construed to restrict such parking spaces
for use by the occupants of the Buildings to the exclusion of the public. Stonehenge agrees that
the Public Parking Lot shall be open at all times for public parking, and there shall be no
reserved parking spaces within the Public Parking Lot.
6. Access For and during the entire period that this Agreement is in effect,
Stonehenge shall, at its sole risk, have the right, at reasonable times and upon reasonable advance
notice to the City, to enter upon the City Site, the 35 Darby Site and, once owned in fee simple
by the City, the City shall permit Stonehenge continued access to the 37 Darby Site and any
buildings located thereon, as applicable. Stonehenge shall indemnify and hold the City harmless
for any losses that the City, or any of the City's employees, contractors, or agents may suffer as a
result of Stonehenge's exercise of its rights to inspect such sites as set forth herein, and
Stonehenge agrees to repair any damage thereto resulting from such inspections. For and during
the entire period that this Agreement is in effect, the City shall at its risk, have the right, at
reasonable times to enter upon the Future Town Center Site and Future Parking Lot Site during
all periods of construction, to review the condition of such sites and the progress and quality of
all work being performed thereon by Stonehenge.
7. Title; Conveyance On the Closing Date (as hereinafter defined), the City shall
convey to Stonehenge fee simple title to the Building Footprints by transferable and recordable
limited warranty deed. Within fifteen (15) days after the Effective Date, the City shall, at its sole
cost and expense, deliver to Stonehenge an American Land Title Association (ALTA)
Commitment for Title Insurance (1966) (the "Title Commitment ") issued by Stewart Title
Guaranty Company through its agent, Stewart Consolidated Title Agency, 259 Schrock Road,
Westerville, Ohio 43081 (the "Title Insurance Company"), pursuant to which the Title Insurance
Company shall commit to issue an ALTA Owner's Title Insurance Policy (6/17/06). The title
evidence shall be certified to at least the Effective Date of this Agreement with an endorsement
as of 8:00 A.M. on the business day prior to the Closing Date (as defined below), and shall show
in the City fee simple to the Building Footprints free and clear of all liens and encumbrances
except:
(i) those created by Stonehenge;
(ii) those specifically set forth in this Agreement;
(iii) general real estate taxes and special assessments which are a lien but are not then
payable or delinquent;
(iv) easements and restrictions of record which do not unreasonably interfere with
Stonehenge's proposed development and use of the Building Footprints; and
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(v) monetary liens which are the obligation of the City to discharge prior to or at
closing without further objection from Stonehenge.
If an examination of either the title insurance commitment (including any endorsements)
or any survey obtained hereunder discloses any matter materially and adversely affecting title to
the Building Footprints, or if title to the Building Footprints is not marketable, as determined by
Ohio law with reference to the Ohio State Bar Association's Standards of Title Examination, or
if the Building Footprints are subject to liens, encumbrances, easements, conditions, restrictions,
reservations or other matters not specifically excepted by the terms of this Agreement, or in the
event of any encroachment or other defect shown by the survey (the foregoing collectively
referred to as "Defects "), then Stonehenge shall, within thirty (30) days following receipt of the
Title Commitment, notify the City thereof. Stonehenge agrees that any request it makes to the
City for the cure or removal of Defects shall be commercially reasonable and consistent with the
standards set forth above. Upon receipt of such notice, the City shall have thirty (30) days after
receipt of such notice, within which to cure or remove any such Defects. Notwithstanding
anything to the contrary contained herein, a lack of access to the Building Footprints shall not
constitute grounds for Stonehenge to object so long as the City and Stonehenge, at the Closing,
enter into the Declaration (as defined in Section 9 below). Stonehenge shall not be required to
object to any monetary liens, all of which are the responsibility of the City to remove prior to or
at Closing. If the City is unable or unwilling to cure or remove the Defects within said thirty
(30) day period, and such time period is not extended by mutual agreement of the parties, the
City shall give notice thereof to Stonehenge, and thereafter, Stonehenge shall have ten (10) days
after receipt of such notice within which to make its election either (a) to accept title to the
Building Footprints, subject to such Defects, or (b) to withdraw from this transaction and
terminate this Agreement, and thereafter both parties shall be released from liability hereunder;
provided, however, the City shall be obligated to reimburse Stonehenge for up to Twenty -Five
Thousand Dollars ($25,000.00) of the actual, documented out -of- pocket costs incurred by
Stonehenge with respect to architectural and engineering fees in the preparation of the elevations,
plans and specifications for such work pursuant to Section 4, above.
At the Closing, the City shall provide Stonehenge with endorsements to the Title
Commitment updating the commitment to the Closing date and showing no change in the state of
the title to the Building Footprints. After Closing, a final owner's title insurance policy shall be
issued in the amount of the Purchase Price, at the City's cost; provided, however, that
Stonehenge shall pay the cost of any endorsements desired by Stonehenge with respect to such
owner's policy, and Stonehenge shall pay the premium for any lender's title insurance policy and
any endorsements thereto required by Stonehenge's lender.
8. Closing Documents On the Closing Date (as defined in Section 10, below), the
City shall deliver to Stonehenge duly and properly executed originals of the following
documents:
(a) A limited warranty deed from the City to Stonehenge conveying fee simple title to
the Building Footprints (the "Deed ").
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(b) A standard Seller's affidavit regarding liens (mechanics' or others), unrecorded
matters and parties in possession;
(c) A 10995 and other IRS reporting requirements (including a FIRPTA affidavit);
(d) A conveyance fee statement;
(e) An original, executed Declaration, referenced in Section 9 below, in recordable
form; and D
(f) Such other documents as may be reasonably necessary or appropriate to carry out
the terms of this Agreement (including, without limitation, a settlement
statement).
9. Declaration and Option At the Closing, the parties shall enter into a declaration
encumbering the Future Town Center Site in substantially the form attached hereto as Exhibit
"F ", and hereby made a part hereof (the "Declaration "). At the Closing, the Declaration shall be
filed of record (at Stonehenge's expense) in the Franklin County, Ohio, Recorder's Office
following the recordation of the Deed but prior to the filing of any mortgage, lien or other
security interest in the Building Footprints by any lender or mortgagee of Stonehenge so that the
Declaration shall at all times be superior in priority to any such mortgage, lien, or security
interest.
10. Closing Date Unless this Agreement is terminated by one of the parties pursuant
to Section 3, Section 4 and /or Section 7 above, the transfer of the Building Footprints shall be
closed (the "Closing") within ninety (90) days after the Contingency Date, which Closing date
may be extended by agreement of the parties and shall be extended by such time, if any, as is
necessary to cure any Defects (as set forth in Section 7 hereof), or as is necessary for the City to
review and approve the City's or Stonehenge's submissions to the City pursuant to Section 5
above (the "Closing Date "). The Closing shall be at such time and place as the City and
Stonehenge may mutually agree upon.
11. Possession Stonehenge shall be entitled to full and exclusive possession of the
Building Footprints as of the Closing Date.
12. Adjustments at Closing On the Closing Date, the City and Stonehenge shall
apportion, adjust, prorate and pay the following items in the manner hereinafter set forth:
(a) Real Estate Taxes- Building Footprints The City and Stonehenge have
agreed not to prorate real estate taxes at the Closing with respect to the Building Footprints, and
the payment of any real estate taxes levied upon the land comprising the Building Footprints
which shall become due and payable after the Closing shall be the obligation of Stonehenge.
(b) Stonehenge Expenses Stonehenge shall, at the Closing (unless previously
paid) pay the following: (i) the recording fees required for recording the Deed and Declaration,
(ii) the surveys required hereunder, (iii) one -half the fee charged by the title agency conducting
(H0706750,9 1 10
the Closing, (iv) the cost of any lender's title insurance policy and the cost of any endorsements
to the final owner's or lender's policy of title insurance required by Stonehenge or its mortgagee,
and (v) its attorneys' fees. If Stonehenge elects to obtain an update of any of the Due Diligence
Materials, then Stonehenge shall be responsible for the cost thereof.
(c) City Expenses The City shall, at the Closing, pay (i) one -half the fee
charged by the title agency conducting the Closing, (ii) the cost of furnishing the Title
Commitment and final policy for the Building Footprints; and (iii) its attorneys' fees.
(d) Brokers The City hereby warrants and represents to Stonehenge that the City has
not engaged or dealt with any broker or agent in regard to this Agreement. The City hereby
agrees to indemnify Stonehenge and hold Stonehenge harmless from and against any liability,
loss, cost, damage, claim and expense (including, but not limited to, attorneys' fees and costs of
litigation) which Stonehenge shall ever incur or be threatened with because of any claim of any
broker or agent claiming by, through, or under the City, whether or not meritorious, for any such
fee or commission. Stonehenge hereby represents and warrants to the City that Stonehenge has
not engaged or dealt with any broker or agent in regard to this Agreement. Stonehenge agrees to
indemnify the City and hold the City harmless from and against any liability, loss, cost, damage,
claims and expense (including, but not limited to, attorneys' fees and cost of litigation) which the
City may ever suffer, incur, or be threatened with because of any claim by any broker or agent
claiming by, through or under Stonehenge, whether or not meritorious, for any such fee or
commission.
ARTICLE II
TAX INCREMENT FINANCING
1. General Provision Relating to Tax Increment Financing The Parties agree that
the City shall undertake a tax increment financing pursuant to Sections 5709.40 through 5709.43
of the Ohio Revised Code and those sections as each may be amended from time to time (the
"TIF Statute ") to facilitate the construction of certain public improvements benefiting the Future
Town Center Site and Future Parking Lot Site, all as more particularly described herein.
2. TIF Legislation Following the Effective Date, the City anticipates that the
Dublin City Council will pass an ordinance (the "TIF Ordinance ") pursuant to the TIF Statute
thereby exempting from taxation (the "TIF Exemption ") any improvements to the Future Town
Center Site (hereinafter collectively, "Improvements ", as the term is defined in the TIF Statute)
and requiring the current and future property owners to pay service payments in lieu of taxation
in respect of the Improvements exempted from taxation.
3. Service Payments Stonehenge hereby agrees to make service payments in lieu of
taxes (the "Service Payments ") attributable to its period of ownership of portions of the Future
Town Center Site, all pursuant to and in accordance with the requirements of the TIF Statute, the
TIF Ordinance and any subsequent amendments or supplements thereto, and such obligation
shall be binding upon any successive owners of the Buildings and /or the Building Footprints so
long as the TIF Ordinance remains in effect.
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Service Payments will be made semiannually to the Franklin County Treasurer on or
before the date on which real property taxes would otherwise be due and payable for the portions
of the Future Town Center Site owned by Stonehenge. Any late payments shall bear penalties
and interest at the then current rate established under Ohio Revised Code Sections 323.121 and
5703.47, or any successor provisions thereto, as the same may be amended from time to time.
Service Payments shall be made in accordance with the requirements of the TIF Statute
and the TIF Ordinance and shall be in the same amount as the real property taxes that would
have been charged and payable against the Improvements (after credit for any other payments
received by the City under Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, or
any successor provisions thereto, as the same may be amended from time to time, and are referred to
herein as the "Property Tax Rollback Payments ") had the TIF Exemption not been granted,
including any penalties and interest. Stonehenge shall not, under any circumstances, be required
for any tax year to pay both real property taxes and Service Payments with respect to the
Improvements, whether pursuant to Ohio Revised Code Section 5709.42 or this Agreement.
4. Enforceability The terms of this Article II shall be legally binding to the fullest
extent permitted by law and equity for the benefit and in favor of and enforceable by the City and
any third party beneficiaries against any owner of a portion of the Future Town Center Site with
respect to that owner's period of ownership of that portion of the Future Town Center Site,
whether or not this Agreement remains in effect or whether or not such provision is included by
an owner in any deed to such owner's successors and assigns. It is further intended and agreed
that these agreements and covenants will remain in effect for the full period of exemption
permitted in accordance with the requirements of the TIF Statute and the TIF Ordinance enacted
pursuant thereto.
5. Exemption Applications The City and Stonehenge agree to cooperate in the
preparation, execution and filing of all necessary applications and supporting documents to
obtain from time to time the TIF Exemption and to enable the City to collect Service Payments
with respect to the Future Town Center Site and Future Parking Lot Site. The City will perform
such acts as are reasonably necessary or appropriate to effect, claim, reserve and maintain the
TIF Exemption and collect the Service Payments including, without limitation, joining in the
execution of all documentation and providing any necessary certificate required in connection
with the TIF Exemption or the Service Payments. Stonehenge authorizes the City to file any
applications necessary to obtain from time to time the TIF Exemption as may be provided in the TIF
Ordinance.
6. Estoppel Certificate Within thirty (30) days after a request from any owner of a
portion of the Future Town Center Site the City will execute and deliver to that owner or any
proposed purchaser, mortgagee or lessee of such portion of the Future Town Center Site and/or
Future Parking Lot Site, as applicable, a certificate stating that, with respect to such portion of
the Future Town Center Site and /or Future Parking Lot Site, if the same are true: (a) that this
Agreement is in full force and effect; (b) that the requesting owner is not in default under any of
the terms, covenants or conditions of this Agreement, or, if that owner is in default, specifying
same; and (c) such other matters as that owner reasonably requests.
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7. Tax Incentive Review Council Stonehenge agrees to cooperate in all reasonable
ways with, and provide necessary and reasonable information to, the designated Tax Incentive
Review Council to enable the Tax Incentive Review Council to review and determine annually
during the term of this Agreement the compliance of Stonehenge with the terms of this
Agreement. Any information supplied to such Tax Incentive Review Council will be provided
solely for the purpose of monitoring Stonehenge's compliance with this Agreement.
ARTICLE III
PARKING LOT DEVELOPMENT
1. Parking Lot Development Stonehenge shall be responsible for the construction
of any and all necessary site development work for the Public Parking Lot on the Future Parking
Lot Site ( "Parking Lot Work') as shown on the final plans and specification approved by ARB,
P&Z, City Council and any other applicable governmental bodies. For purposes of this
Agreement, the Approved Parking Lot Plans shall include, but not be limited to, the demolition
of existing improvements and /or structures on the Future Parking Lot Site (including the removal
of asbestos from any improvement on the 37 Darby Site in compliance with applicable
governmental requirements), utilities, if applicable, engineering work, grading, filling,
compaction, drainage and permitting applicable to such work.
Stonehenge shall, within ten (10) days following its receipt of the Approved Parking Lot
Plans, provide to the City a preliminary construction schedule. In the event that construction will
be delayed such that Stonehenge will materially deviate from any construction schedule provided
to the City, then Stonehenge shall notify the City thereof and provide a reasonable explanation of
same, together with a revised construction schedule. Stonehenge further agrees, from time to
time and as requested by the City, to keep the City fully apprised of the status of all construction
work.
Stonehenge acknowledges that the Future Parking Lot Site is located in the Historic
District and that the Parking Lot Work to be undertaken by Stonehenge hereunder will impact
adjoining property owners in the Historic District, including, but not limited to, the availability
of convenient parking. Stonehenge therefore agrees to perform such work in the least intrusive
manner as possible under the circumstances and to establish a program whereby Stonehenge
keeps property owners and tenants in the immediate vicinity of the project area continuously
apprised of the intended development and the timeframes within which various portions thereof
will be completed. Prior to commencing any construction work or phase thereof, Stonehenge, in
coordination with the City staff, shall submit a description of such program to the City for
approval. Such program shall include a method to establish continuous communication with
such property owners and tenants, such as periodic meetings, website updates and /or a site
coordinator to whom questions and/or concerns about the project are to be directed.
Unless otherwise directed by the City, Stonehenge shall commence and diligently pursue
the construction of the Parking Lot Work to completion. Stonehenge shall reasonably determine
the timing of and coordinate the Parking Lot Work with the City and all appropriate
governmental offices of the City.
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It is anticipated by the parties that the Parking Lot Work will be completed prior to
receipt by Stonehenge of the Approved Town Center Plans and the commencement of the Town
Center Work. Notwithstanding, if circumstances change such that Stonehenge could commence
construction of the Town Center Work prior to the time that the Parking Lot Work is complete,
in order to minimize the interference with parking in the Historic District, the City reserves the
right to require Stonehenge to complete the construction of the Public Parking Lot to such a stage
that a majority of the Public Parking Lot can be conveniently used by the public for parking prior
to the commencement of the Town Center Work.
Subject to the review and approval by the applicable department of the City, Stonehenge
shall install, or cause to be installed, a temporary construction fence around the Public Parking
Lot construction site. The cost for such construction fence shall be included in the proposal or
bid submitted to the City for the Parking Lot Work by Stonehenge, and therefore, all such costs
shall be paid by Stonehenge as the same are incurred. at the time expenses are incurred, the same
shall be paid exclusively by Stonehenge. Stonehenge may (and shall upon the City's request)
provide a police officer from the City's Police Department to direct traffic around the
construction site during peak traffic hours, which shall be defined to minimally include 7:00
A.M. to 9:00 A.M. and 4:00 P.M. to 6:00 P.M., Monday through Friday (but only to the extent
that the City reasonably determines that such traffic direction is needed as a direct result of the
Parking Lot Work). Stonehenge agrees to use its best efforts to have construction equipment and
supplies for the Parking Lot Work delivered during non -peak traffic hours. The City agrees that
it shall reimburse Stonehenge in the event Stonehenge is required by the City to provide a police
officer at the Future Parking Lot Site during construction of the Public Parking Lot.
2. Bids and Permitting After receipt of the Approved Parking Lot Plans,
Stonehenge shall, within fourteen (14) days thereafter, submit a proposal to complete the Parking
Lot Work in accordance therewith and use its best efforts to obtain all necessary governmental
permits to commence such work. The City has the right to accept or reject the proposal. In the
event the proposal is rejected, then Stonehenge shall, within fourteen (14) days thereafter, obtain
bids from general contractors for the completion of the Parking Lot Work. Copies of all bid
specifications for the Parking Lot Work shall be submitted to the City for review and approval.
Each party shall have the right to submit names of contractors to be sent invitations to bid for all
or any part of the Parking Lot Work. If either the City or Stonehenge disapproves of any
contractor submitted by the other party for the Parking Lot Work, then such contractor shall not
be invited to bid. Stonehenge shall notify the City in writing of the lowest and best bidder(s)
prior to a contract being awarded, and the City shall notify Stonehenge which contractor(s) are
acceptable to the City for such work. Within five (5) days following receipt of the same,
Stonehenge shall award said contract(s) to a contractor and/or contractors approved by the City.
Upon request, Stonehenge shall provide the City with a copy of all awarded contracts for the
Parking Lot Work.
Notwithstanding anything herein to the contrary, the City hereby agrees to the following:
(a) The City hereby agrees to pay all application fees for all required
applications to ARB, P&Z and any other governmental body from which Stonehenge is
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required to obtain permits and approvals for the construction of the Future Parking Lot
Site; and
(b) The City hereby waives any requirement of any governmental agency of
the City that Stonehenge apply for and obtain any permit in connection with the
demolition of any structures currently located upon the Future Parking Lot Site in order
for Stonehenge to commence and complete the Parking Lot Work; and
3. Awarding of Construction Contracts Upon the City's approval of the general
contractor selected by Stonehenge in accordance with Section 2 of this Article III ( "Parking Lot
Contractor"), Stonehenge shall contract with the Parking Lot Contractor to commence and
perform such work. Prior to the contracting for such work (and as a condition precedent to the
City's liability for any part of the Cost as defined in Article V), Stonehenge shall furnish to the
City a complete and true copy of all construction contracts executed with the Parking Lot
Contractor, which contracts shall contain a provision permitting the City to take an assignment of
same in the event of a default by Stonehenge under this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, in the event
Stonehenge breaches its obligations under this Agreement, the City may, at its option, but shall
not be obligated, to elect to perform and complete the Parking Lot Work. In such event,
Stonehenge agrees that it shall assign to the City all of its rights and interest in and to all
applicable contracts applicable to the Parking Lot Work.
4. Commencement and Completion of Parking Lot Work Unless otherwise agreed
to in writing by the City and Stonehenge, Stonehenge shall, within ten (10) days after the later of
(i) its receipt of all required building permits, and (ii) execution of all applicable construction
contracts with the Parking Lot Contractor, oversee and manage the Parking Lot Work in
accordance with the terms of this Agreement and use its best efforts to complete the same within
three (3) months thereafter (the "Parking Lot Completion Date "); provided, however, that
Stonehenge shall not commence the Parking Lot Work until after the City has approved the
Parking Lot Contractor, and any other contractors or subcontractors who will be performing such
work in accordance with Article III, Section 3 above. If Stonehenge fails to promptly commence
and /or complete the Parking Lot Work within the time frames set forth in this Agreement (taking
into consideration unforeseen issues or delays which are beyond the reasonable control of
Stonehenge) and /or use its best efforts to obtain all necessary permits for same, then the City
shall have the option to either extend the date for completion, or upon written notice and the
expiration of a thirty (30) day cure period, to declare a default under this Agreement.
Stonehenge shall provide written notice to the City upon its commencement and
completion of any material portion of the Parking Lot Work, which shall be deemed completed
when (a) the City inspects the Parking Lot Work and determines that it has been completed in
accordance with the Approved Parking Lot Plans; (b) the City has received a final lien release
from Stonehenge's general contractor and any subcontractors and /or materialmen for the Parking
Lot Work; (c) the City has received copies of paid invoices for the Parking Lot Work; and (d)
Stonehenge has assigned to the City all warranties, guarantees and similar undertakings which
Stonehenge has received with respect to the Parking Lot Work from contractor(s), subcontractors
(H0706750,9 1 15
and materialmen, if any, in a form and substance satisfactory to the City, including a warranty on
construction workmanship and materials for a duration of not less than one (1) year from the
completion thereof.
If, as a result of the Parking Lot Work, any mechanics' liens have been filed against the
Future Parking Lot Site, Stonehenge shall within thirty (30) days from the date of such filing,
take such steps as are required to remove or bond off such liens. In the event Stonehenge fails to
remove or bond off any such liens within such thirty (30) day period, the City may, in its
discretion, take whatever steps, including, but not limited to the commencement of legal action
or the payment of money, that it determines necessary or advisable to remove said liens, and in
connection therewith, Stonehenge shall, upon demand, advance to the City all funds necessary,
including all costs, attorneys' fees, and other expenses to effect the same. If the City shall sustain
or incur loss or damages because Stonehenge failed to provide sufficient funds, Stonehenge shall
become indebted to the City in an amount equal to the amount of such loss or damages sustained
or incurred by the City and agrees to repay the City such amount on demand, together with
interest thereon at the rate of twelve percent (12 %) per annum from the date of demand.
Notwithstanding anything in this Agreement to the contrary, Stonehenge acknowledges
and agrees that its obligations with respect to the construction of the Public Parking Lot shall in
no way be dependent or contingent upon Stonehenge receiving the requisite governmental
approvals from the City for the Town Center Work, as set forth in Article IV, below. In the
event Stonehenge or the City terminates this Agreement at any time up to and including the
Contingency Date for any reason, including as a result of the City not approving the Town
Center Work, Stonehenge agrees that such termination shall not apply to its obligations
hereunder for the commencement or completion of the Parking Lot Work, unless the City has
also terminated this Agreement with respect to the Parking Lot Work. Therefore,
notwithstanding such termination as to the Town Center Work, Stonehenge agrees that this
Agreement shall remain in full force and effect and that Stonehenge shall remain obligated to
complete construction of the Public Parking Lot, as provided by this Agreement and subject to
Stonehenge's right to reimbursement as set forth in Article V, hereof. The terms of this Article
III shall survive any termination of this Agreement by Stonehenge or the City at any time
following the Effective Date, effectuated by Stonehenge pursuant to the Stonehenge
Contingencies, effectuated by the City pursuant to the City Contingencies, or resulting from
Stonehenge's or the City's failure to receive approval from the City for the Town Center Work,
or for any other permitted reason hereunder.
5. Construction Standards Stonehenge shall cause to be furnished all equipment,
labor, expertise, materials and other work necessary to complete the Parking Lot Work, and
Stonehenge warrants that the same shall be completed in a good, workmanlike and lien -free
manner, in accordance with the Approved Parking Lot Plans and all applicable laws, ordinances,
and City requirements.
6. Modification of Approved Parking Plans The Approved Parking Lot Plans may
be modified by Stonehenge only with the prior written consent of the City. If Stonehenge desires
to revise the Approved Parking Lot Plans, Stonehenge shall notify the City in writing of the
proposed change and the reason therefor. Any negative response to Stonehenge's proposed
(H0706750,9 1 16
changes shall state the reasons therefor and the revisions necessary for the City's approval.
Stonehenge shall conform the Approved Parking Lot Plans as required by the City, or the process
shall continue until the City has approved the revisions.
7. Inspection The City shall be entitled to inspect the Parking Lot Work at any
reasonable time. All inspection fees shall be paid by the City. If the City, in good faith,
reasonably believes that any completed work is defective or is not in conformity with the
Approved Parking Lot Plans, then Stonehenge shall use commercially reasonable efforts to cause
the Parking Lot Contractor to promptly rectify such defective or nonconforming work.
Stonehenge represents and warrants to the City that any contract it has for the construction of the
Parking Lot Work shall obligate the Parking Lot Contractor, or other applicable contractor,
subcontractor, or materialmen, at their sole cost and expense, to remedy any defective work or
work which is not in conformity with the Approved Parking Lot Plans. The City agrees that any
objections to the Parking Lot Work shall be given to Stonehenge in writing within a reasonable
time following the City's inspection.
ARTICLE IV
TOWN CENTER DEVELOPMENT
1. Town Center Work Stonehenge shall be responsible for any and all necessary
site investigations and for the development work for (a) the Buildings at the Future Town Center
Site, together with all walkways, sidewalks, landscaping, hardscape areas, access ways, outdoor
seating and/or patio areas, trash receptacle areas, directories, parking areas and the like which, in
the City's reasonable opinion, are used primarily for the benefit of the occupants of the Buildings
as shown on the Approved Town Center Plans (collectively, the `Building Work"), and (b) the
Public Improvements within the Public Area as shown on the Approved Town Center Plans (the
"Public Improvement Work" )(collectively, the "Town Center Work"). For purposes of this
Agreement, the Town Center Work shall include, but not be limited to, the demolition of existing
improvements and /or structures located thereon, utility and /or traffic control structure
relocations, engineering work, grading, filling, compaction, drainage and permitting applicable
to such work.
Stonehenge shall, promptly upon its receipt of the Approved Town Center Plans, provide
to the City a preliminary construction schedule. In the event that construction will be delayed
such that Stonehenge will materially deviate from any construction schedule provided to the
City, then Stonehenge shall notify the City thereof and provide a reasonable explanation of same,
together with a revised construction schedule. Stonehenge further agrees, from time to time and
as requested by the City, to keep the City fully apprised of the status of all construction work.
Stonehenge acknowledges that the Future Town Center Site is located in the Historic
District and that the Town Center Work to be undertaken by Stonehenge hereunder will impact
adjoining property owners in the Historic District, including, but not limited to, the availability
of convenient parking. Stonehenge therefore agrees to perform such work in the least intrusive
manner as possible under the circumstances and to establish a program whereby Stonehenge
keeps property owners and tenants in the immediate vicinity of the project area continuously
apprised of the intended development and the timeframes within which various portions thereof
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will be completed. Prior to commencing any construction work or phase thereof, Stonehenge,
in coordination with the City staff, shall submit a description of such program to the City for
approval. Such program shall include a method to establish continuous communication with
such property owners and tenants, such as periodic meetings, website updates and /or a site
coordinator to whom questions and/or concerns about the project are to be directed.
Subject to the review and approval by the applicable department of the City, Stonehenge
may (and shall upon such department's request) install or cause to be installed, at Stonehenge's
sole expense, a temporary construction fence around the construction site. Stonehenge may (and
shall upon the City's request) provide, at Stonehenge's sole expense, a police officer from the
City's Police Department to direct traffic around the construction sites during peak traffic hours,
which shall be defined to minimally include 7:00 A.M to 9:00 A.M and 4:00 P.M. to 6:00 P.M.,
Monday through Friday (but only to the extent that the City reasonably determines that such
traffic direction is needed as a direct result of the construction of the Town Center Work).
Stonehenge agrees to use its best efforts to have construction equipment and supplies for the
Town Center Work delivered during non -peak traffic hours. If, in the City's reasonable opinion,
it is necessary for Stonehenge to relocate any traffic control structures on the Future Town
Center Site, then any such relocation shall be coordinated with the City and the costs thereof
shall be borne by Stonehenge.
2. Bids and Permitting After receipt of the Approved Town Center Plans,
Stonehenge shall, within thirty (30) days thereafter, submit a proposal to complete the Public
Improvement Work in accordance therewith and use its best efforts to seek all necessary
governmental permits to commence such work. The City has the right to accept or reject the
proposal. In the event the proposal is rejected, then Stonehenge shall, within thirty (30) days
thereafter, obtain bids from general contractors to perform the Public Improvement Work.
Copies of all bid specifications for the Town Center Work shall be submitted to the City for
review and approval. Stonehenge may obtain bids for individual portions of the Public
Improvement Work or for all of such work, at Stonehenge's option. Each party shall have the
right to submit names of contractors to be sent invitations to bid for all or any part of the Public
Improvement Work. If either the City or Stonehenge disapproves of any contractor submitted by
the other party for the Public Improvement Work, then such contractor shall not be invited to bid.
Stonehenge shall notify the City in writing of the best bidder(s) prior to a contract being
awarded, and the City shall notify Stonehenge which contractor(s) are acceptable to the City for
such work. Within five (5) days after the Closing, Stonehenge shall award said contract(s) to a
contractor and /or contractors approved by the City. Upon request, Stonehenge shall provide the
City with a copy of all awarded contracts for the Public Improvement Work.
Notwithstanding anything herein to the contrary, the City and Stonehenge hereby agree to
the following provisions relating to Stonehenge's permitting process:
(a) The City hereby agrees to pay all application fees for the City's permit
review for the improvements to be made to the Public Improvements; provided, however,
Stonehenge shall be required to pay all application fees for the City's permit review and all other
approvals required to be obtained by Stonehenge with respect to the plans for the construction of
the Buildings (including applications and approvals by City Council, ARB and P &Z); and
(H0706750,9 1 18
(b) Within thirty (30) days prior to the issuance of a final occupancy permit
by the City, the City and Stonehenge shall, in good faith, negotiate and enter into a maintenance
agreement which shall govern the maintenance and upkeep of the exterior portions of the
Buildings, Public Area, and Public Improvements upon terms and conditions reasonably
satisfactory to the City, provided that such maintenance obligations are consistent with the terms
and obligations of the parties as set forth in the Declaration.
3. Awarding of Construction Contracts Upon the City's approval of the general
contractor selected by Stonehenge in accordance with Section 2 of this Article IV to construct
the Town Center Work (hereinafter, the "Town Center Contractor"), Stonehenge shall contract
with the Town Center Contractor to perform such work or applicable portion thereof. Prior to
the contracting for such work (and as a condition precedent to the City's liability for any part of
the Cost as defined in Article V, below):
(a) If at any time requested by the City, Stonehenge shall secure or shall cause
to be secured bonds guaranteeing completion of such work and payment of all of the Town
Center Contractor's subcontractors and materialmen who may furnish labor, equipment, supplies
or material to the work, in a form, in such amounts and with such financially responsible sureties
as may be required by the City; and
(b) Stonehenge shall furnish to the City a complete and true copy of all
construction contracts executed with the Town Center Contractor, which contracts shall contain a
provision permitting the City to take an assignment of same in the event of a default by
Stonehenge under this Agreement, subject to any rights reserved by Stonehenge's lender for the
Town Center Work.
Notwithstanding anything to the contrary contained in this Agreement, in the event
Stonehenge breaches its obligations under this Agreement, the City may, at its option, elect to
perform the Town Center Work, in which event Stonehenge shall reimburse the City for the
portions of the Town Center Work comprising the Buildings and the exterior improvements
appurtenant thereto, subject to any contributions otherwise required to be made by the City to
Stonehenge hereunder.
4. Commencement and Completion of Town Center Work Unless otherwise agreed
to in writing by the City and Stonehenge, Stonehenge shall, within ten (10) days after the later of
(a) the Closing, and (b) its receipt of all required building permits, commence, manage, and
diligently pursue to completion the Town Center Work in accordance with the terms of this
Agreement and use its best efforts to complete the same within eighteen (18) months thereafter
(the "Town Center Completion Date "). If Stonehenge fails to promptly commence and /or
complete the Town Center Work within the time frames set forth in this Agreement (taking into
consideration unforeseen issues or delays which are beyond the reasonable control of
Stonehenge) and /or use its best efforts to obtain all necessary permits for same, then the City
shall have the option to either extend the date for completion, or upon written notice and the
expiration of a thirty (30) day cure period, to declare a default under this Agreement. As a
material inducement to City for entering into this Agreement, Stonehenge shall make its best
(H0706750,9 1 19
efforts to construct and coordinate the Town Center Work with the City and all appropriate
governmental offices of the City to ensure that the Building Work shall be completed at
approximately the same time as the Public Improvement Work. The remedies as set forth herein
shall be in addition to any and all other remedies to which the City may be entitled pursuant to
Article VI, below.
Stonehenge shall provide written notice to the City upon its commencement and
completion of any material portion the Town Center Work. The Town Center Work shall be
deemed completed when (a) the City inspects the Town Center Work and determines that it has
been completed in accordance with the Approved Town Center Plans; (b) the City has received a
final lien release from the Town Center Contractor and any subcontractors and /or materialmen
for the Public Improvement Work; (c) the City has received copies of paid invoices for the
Town Center Work; and (d) Stonehenge has assigned to the City all warranties, guarantees and
similar undertakings which Stonehenge has received with respect to the Public Improvement
Work from the Town Center Contractor and all other contractor(s), subcontractors and
materialmen, if any, in a form and substance satisfactory to the City, and including a warranty on
construction workmanship and materials for a duration of not less than one (1) year from the
completion thereof.
If, as a result of the Town Center Work, any mechanics' liens have been filed against the
Future Town Center Site, Stonehenge shall within thirty (30) days from the date of such filing,
take such steps as are required to remove or bond off such liens. In the event Stonehenge fails to
remove or bond off any such liens within such thirty (30) day period, the City may, in its
discretion, take whatever steps, including, but not limited to the commencement of legal action
or payment of money, that it determines reasonably necessary or advisable to remove said liens,
and in connection therewith, Stonehenge shall, upon demand, advance to the City all funds
necessary, including all costs, attorneys' fees, and other expenses to effect the same. If the City
shall sustain or incur loss or damages because Stonehenge failed to provide sufficient funds,
Stonehenge shall become indebted to the City in an amount equal to the amount of such loss or
damages sustained or incurred by the City and agrees to repay the City such amount on demand,
together with interest thereon at the rate of twelve percent (12 %) per annum from the date of
demand.
5. Construction Standards Stonehenge shall cause to be furnished all equipment,
labor, expertise, materials and other work necessary to complete the Town Center Work, and
Stonehenge warrants that the same shall be completed in a good, workmanlike and lien -free
manner, in accordance with the Approved Town Center Plans and all applicable laws,
ordinances, and City requirements.
6. Modification of Approved Town Center Plans The Approved Town Center Plans
may be modified by Stonehenge only with the prior written consent of the City. If Stonehenge
desires to revise the Approved Town Center Plans, Stonehenge shall notify the City in writing of
the proposed change and the reason therefor. Any negative response to Stonehenge's proposed
changes shall state the reasons therefor and the revisions necessary for the City's approval.
Stonehenge shall conform the Approved Town Center Plans as required by the City, or the
process shall continue until the City has approved the revisions.
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7. Inspection The City shall be entitled to inspect the Town Center Work at any
reasonable time. If the City, in good faith, reasonably believes that any completed work is
defective or is not in conformity with the Approved Town Center Plans, then Stonehenge shall
use commercially reasonable efforts to cause the Town Center Contractor to promptly rectify
such defective or nonconforming work. Stonehenge represents and warrants to the City that any
contracts between Stonehenge and the Town Center Contractor, or any other contractor,
subcontractor or materialmen, shall obligate each respective contractor or subcontractor, at its
sole cost and expense, to remedy any defective work or work which is not in conformity with the
Approved Town Center Plans. The City agrees that any objections to the work shall be given to
Stonehenge in writing within a reasonable time following the City's inspection.
8. Patio Seating Areas [Reserved]
ARTICLE V
COSTS AND REIMBURSEMENTS
1. Purchase of 37 Darby Site (a) The City agrees that it shall reimburse
Stonehenge for its actual, documented, out -of- pocket costs incurred in closing the purchase of
the 37 Darby Site with 37 Darby Co., Ltd., as evidenced on the HUD -I Settlement Statement at
the closing; provided, however, that such closing costs (i) shall not exceed an amount of Five
Thousand Dollars ($5,000.00); and (ii) shall not include any costs incurred by Stonehenge in
financing the purchase of the 37 Darby Site ( "Darby Closing Costs "). The City shall reimburse
Stonehenge for the Darby Closing Costs within thirty (30) days following the date upon which
title to the 37 Darby Site vests in the City.
(b) In addition, the City agrees that it shall reimburse Stonehenge, up to a
maximum amount of Five Thousand Dollars ($5,000.00), for all interest payments (but no other
carrying costs incurred in obtaining financing for the purchase of the 37 Darby Site) made by
Stonehenge on the principal sum of any loan borrowed from a lender for the purchase of the 37
Darby Site; provided, however, the City shall only reimburse Stonehenge for payments of
interest which are applicable to the principle amount of such loan in excess of Three Hundred
Seventy -Five Thousand Dollars ($375,000.00), but in no event greater than Four Hundred
Seventy -Five Thousand Dollars ($475,000.00). The City shall reimburse Stonehenge for all
such interest payments within thirty (30) days following (i) the denial of the rezoning
application or other required approvals for the Future Town Center Site submitted by
Stonehenge, subject to the criteria set forth in Article I, Section 4, above, and (ii) receipt of
written documentation from Stonehenge of the amount of interest paid on such portions of the
loan principle.
2. Building Work Stonehenge shall, at its sole cost and expense, complete the
Building Work (and all of the Town Center Work applicable thereto) in accordance with the
Approved Town Center Plans.
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3. Public Improvement Work. Stonehenge shall, subject to reimbursement from the
City as hereinafter provided, complete the Public Improvement Work (including all Town
Center Work applicable thereto) in accordance with the Approved Town Center Plans. The
City shall be responsible for reimbursing Stonehenge for all allowable costs, approved in
advance by the City, to prosecute such work to completion.
4. Parking Lot Work. Stonehenge shall, subject to reimbursement from the City as
hereinafter provided, complete the Parking Lot Work in accordance with the Approved Parking
Lot Plans. All costs incurred in the design and construction of the Parking Lot Work shall be
paid by the City, provided that all such costs were included in the original bid approved by the
City for such work. All parking spaces in the finished parking lot shall be for public use, and
neither party shall have the right to designate any portion of the Public Parking Lot for private
or reserved parking, other than handicapped parking as may be required by law. In
consideration of the forgoing, Stonehenge agrees that, notwithstanding anything herein to the
contrary, Stonehenge shall pay for and provide a credit to the City for a portion of the approved
costs incurred by Stonehenge in the construction and completion of the Public Improvement
Work, which credit shall be equal to one -third (1/3) of the costs for the design and construction
of the Parking Lot Work ( "Stonehenge Contribution "); provided, however, (i) such costs shall
be based upon the costs required to construct a code compliant parking lot only, and (ii) such
credit to the City shall in no event exceed One Hundred Thousand Dollars ($100,000.00). Such
credit shall be given to the City for the last One Hundred Thousand Dollars ($100,000.00) of
draw requests submitted by Stonehenge to the City, pursuant to Section 7, below, until the credit
to the City has been satisfied in full. In the event of a default by Stonehenge under this
Agreement, which default results in the City completing the construction of the Buildings on
behalf of Stonehenge, any unpaid portion of the credit shall be immediately due and payable by
Stonehenge to the City and shall bear interest at the rate of twelve percent (12 %) until paid to
the City in full.
5. Reimbursement Limitation Subject to the foregoing, and subject to the
Stonehenge Contribution, the City shall be responsible for all allowable, approved costs of
completing the Parking Lot Work and Public Improvement Work, in accordance with the terms
hereof (collectively, the "Cost"). The City shall not, however, be responsible for reimbursing
Stonehenge for any additional costs which were not set forth in the original bids for the Parking
Lot Work and /or Public Improvement Work approved by the City, unless the City agrees to pay
for such additional costs in writing prior to the time such costs are incurred by Stonehenge.
Stonehenge agrees that it shall not encumber the Future Parking Lot Site or Public Area in
connection with the performance of the Parking Lot Work and /or Public Improvement Work or
otherwise without first obtaining the City's prior written approval.
6. Additional Expenses In the event the City determines it to be in the best interest
of the public, in the City's sole opinion, to deviate from the Concept Plan, the Conceptual
Elevations, and /or the Approved Future Town Center plans attached hereto, in order to enhance
the aesthetic appeal of the development (such as public art, a sculpture or similar public
improvement), then the City may, in its discretion, elect to incur such additional expenses.
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7. Construction Management Fee As compensation to Stonehenge for the
management of the construction of the Parking Lot Work and Public Improvement Work, the
City shall pay to Stonehenge a construction management fee equal to three percent (3 %) of the
total cost of such improvements approved by the City ( "Construction Management Fee "). The
City shall pay to Stonehenge a proportionate amount of the Construction Management Fee upon
the payment of each draw request as set forth in Section 7, below, with each incremental
payment of the Construction Management Fee being equal to three percent (3 %) of the amount
paid by the City in each applicable draw period. The Construction Management Fee shall
include Stonehenge's costs, including but not limited to costs incurred in prevailing wage
administration, billing and payment activities, draw request preparation and submissions,
bidding and contract negotiations with the general contractor, the awarding of the construction
contracts, oversight of the general contractor, and the work undertaken with the City to
coordinate a communication program with neighboring property owners and the community in
general as set forth in Article III, Section 1 and Article IV, Section 1, above.
8. Payment of Funds; Draws The City shall reimburse Stonehenge for the
construction costs for the Parking Lot Work and the Public Improvement Work through a series
of draw requests, which shall be submitted by Stonehenge to the City on a monthly basis as
Stonehenge completes the balance of each respective project, commencing on the first day of
the month following commencement of construction of the Parking Lot Work or the Public
Improvement Work, as the case may be. Each written draw request for disbursement of funds
shall be accompanied by conditional lien waivers and releases from all subcontractors and
suppliers to be paid from the written requisition and unconditional lien waivers and releases
from all subcontractors and suppliers for which Stonehenge was required to provide a
conditional lien waiver in connection with a prior draw request. Unless the City objects to any
written draw request, the City shall, within fifteen (15) business days after receipt of a draw
request, together with evidence satisfactory to the City detailing the Parking Lot Work or Public
Improvement Work applicable to such request, reimburse Stonehenge for the cost thereof and
Stonehenge shall promptly pay the applicable subcontractors and suppliers the amounts payable.
The City may object to all or a part of a written draw request by giving written notice of and
specific reasons for the objection(s) and of the amounts subject to the objection(s) within ten
(10) business days of receipt. Objections may be made because of a good faith belief that there
is a material defect in the work performed or the percentage of completion of the work in
question in the written draw request is materially overstated. Any amount objected to shall not
be payable until the objection is resolved.
Written draw requests may not be submitted more often than monthly for the portion(s)
of the Parking Lot Work and the Public Improvement Work completed since the previous draw
request. If Stonehenge fails to provide a monthly draw request to the City for amounts required
to be reimbursed to Stonehenge by the City or evidence reasonably satisfactory to the City
detailing the Parking Lot Work or the Public Improvement Work by the first day of any month
(or the next business day if the first day of the month falls on a weekend or upon a holiday in
which the City offices are closed), the City shall not be obligated to reimburse Stonehenge for
any interest or other carrying costs on said amounts. Further, the City shall pay no interest or
any other form of carrying costs on the costs of construction of the Parking Lot Work or the
Public Improvement Work.
(H070650,9 1 23
ARTICLE VI
DEFAULT
1. Default by Stonehenge The following shall be deemed to be events of default by
Stonehenge:
(a) Failure to comply with the terms and conditions of this Agreement,
including a declaration of default by the City because of Stonehenge's
failure to complete the Parking Lot Work or Town Center Work in
accordance with the terms of this Agreement and /or by the Parking Lot
Completion Date and /or by the Town Center Completion Date;
(b) Failure to cause any liens to be removed from the Future Parking Lot Site
and /or Public Area within thirty (30) days after notice of the filing of such
lien or failure to discharge any other claim for payment alleged to be due
on account of the work performed;
(c) Failure to comply with the terms of any contract related to the Parking Lot
Work or Town Center Work or with any provision of the contract with the
Parking Lot Contractor or Town Center Contractor regarding payments to
be made to the same, including the manner in which such payments are to
be made;
(d) Filing of a petition by or against Stonehenge under any chapter of the
Bankruptcy Reform Act of 1978, as amended, or successor legislation
thereto, if the trustee or debtor in possession does not, within sixty (60)
days of such filing expressly accept this Agreement and provide adequate
assurances to the City of Stonehenge's performance hereunder;
(e) Insolvency of Stonehenge, the appointment under the laws of any state of
a receiver or a trustee of the property of Stonehenge or any application by
Stonehenge under any state law for protection from creditors; and
(f) An assignment by Stonehenge for the benefit of creditors or the filing by
or against Stonehenge of any proceeding for the dissolution or liquidation
of Stonehenge if the same is not released or corrected within sixty (60)
days.
2. The City shall be deemed to be in default under the terms of this Agreement in the
event the City fails or refuses to comply with any of its duties and obligations under the terms
and conditions of this Agreement within the time period set forth herein.
3. If an event of default occurs, then Stonehenge and the City shall, prior to pursuing
their remedies hereunder, notify the other party of such default, and the defaulting party shall
have thirty (30) days thereafter to cure such default (or if a cure cannot reasonably be completed
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within such thirty (30) day period, then such party shall have such reasonable period as may be
required to diligently prosecute a cure to completion), bond off the same, or provide evidence
satisfactory to the other party that there was no event of default. If the event of default remains
uncured within such time period, then the other party may, but shall not be required, to cure the
same. In addition to the foregoing, in the event of a default by Stonehenge, the City shall be
entitled to take an assignment of all agreements with the Parking Lot Contractor, and all
subcontractors and materialmen, who have performed or will perform any of the Parking Lot
Work which assignment shall be deemed to be self - operative upon the City's election, and which
shall require no further agreement between the City and Stonehenge. In addition, subject to any
rights reserved by Stonehenge's lender, the City shall be entitled to take an assignment of all
agreements with the Town Center Contractor, and all subcontractors and materialmen, who have
performed or will perform any of the Town Center Work. In any event, the defaulting party shall
be responsible for all reasonable costs and expenses incurred by the non - defaulting party for
which the defaulting party would otherwise be responsible. In addition to the above, Stonehenge
and the City shall be entitled to terminate this Agreement and pursue any and all other remedies
available at law or in equity, including the right to seek specific performance, which remedies
shall be cumulative and non - exclusive. w
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
1. Warranties and Representations of Stonehenge In addition to any other
representation or warranty contained in this Agreement, Stonehenge hereby represents and
warrants that the execution, delivery and performance by Stonehenge of this Agreement and the
performance by Stonehenge of the transactions contemplated hereunder have each been duly
authorized by such persons or authorities as may be required, and on the Closing Date,
Stonehenge shall provide the City with a resolution, or other instrument, in form satisfactory to
the title insurer, evidencing such authorization.
2. Warranties and Representation by the City In addition to any other
representation or warranty contained in this Agreement, the City hereby represents and warrants
that, unless this Agreement is sooner terminated, on the Closing Date, the City shall provide
Stonehenge with a copy of an ordinance evidencing the City's authorization to enter into and
perform this Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
1. Notice Procedure Any notices required hereunder shall be in writing, shall be
transmitted by certified U.S. mail, postage prepaid, return receipt requested, or by nationally
recognized overnight courier, and shall be deemed given when received or when receipt is
refused, and shall be addressed to the parties at the address set forth in the first paragraph of this
Agreement. Copies of all notices sent to the City shall be simultaneously sent to: Gregory
Baker, Esq., Schottenstein, Zox & Dunn Co., LPA, 250 West Street, Columbus, Ohio 43215.
(H0706750,9 1 25
2. 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. For
all litigation, disputes and controversies which may arise out of or in connection with this
Agreement, the undersigned hereby waive the right to trial by jury and consent to the jurisdiction
of the courts in the State of Ohio.
3. 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.
4. Time of Essence [Note: Stonehenge to provide lender criteria to be
incorporated, subject to approval by the City] Time is of the essence in all respects of this
Agreement. Stonehenge agrees that it shall complete all work and perform all obligations as
required in this Agreement within the specific time frames required herein. No permitted time
periods may be extended by Stonehenge as a result of any alleged adverse prevailing market
conditions, unless otherwise agreed to in writing with the City.
5. Force Majeure (a) If either party hereto is delayed or hindered in or prevented
from the performance of any obligation required hereunder by Force Majeure, the time for
performance of such obligation shall be extended for the period of the delay. However, no delay
shall be excused by this Section unless (i) the delayed party notifies the other party in writing of
the delay within ten (10) business days of the event giving rise to such delay, (ii) the delayed
party has exhausted all other resources available at reasonable costs to avoid such delay, and (iii)
the delayed party diligently pursues completion of the activity which was delayed. In no event
shall any delay due to the occurrence of any Force Majeure event extend the performance of any
obligation beyond a period of ninety (90) days.
(b) "Force Majeure" means a material delay beyond the reasonable control of the
delayed party caused by labor strikes, lock -outs, industry -wide inability to procure materials,
extraordinary restrictive governmental laws or regulations (such as gas rationing), mass riots,
war, military power, sabotage, material fire or other material casualty, Severe Weather, or an
extraordinary and material act of God (such as a tornado or earthquake), but excludes inadequacy
of insurance proceeds, litigation or other disputes, financial inability, lack of suitable financing,
delays of the delayed party's contractor and failure to obtain approvals or permits unless
otherwise caused by an event of Force Majeure. "Severe Weather" means weather that a
reasonable person would find unusual and unanticipated at the time of the scheduling of the
activity based on recent weather patterns for the period in question in the vicinity of the City of
Dublin, Ohio, provided that the delayed party delivers to the other party, upon request,
reasonable documentation from an unbiased weather authority substantiating such claim.
Notwithstanding anything to the contrary in this Lease, under no circumstances shall Force
Majeure extend the time for performance of any obligation by more than a period of three (3)
months.
6. Successor and Assigns This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns.
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(H0706750,9 1 26
7. Invalidity In the event that any provision of this Agreement shall be held to be
invalid, the same shall not affect in any respect whatsoever the validity of the remaining
provisions of this Agreement.
8. Waiver No waiver of any of the provisions of this Agreement shall be deemed,
nor shall any waiver of any one provision 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.
9. Headings The section headings contained in this Agreement are for convenience
only and shall not be considered for any purpose in construing this Agreement. As used in this
Agreement, the masculine, feminine and neuter genders, and the singular and plural numbers
shall be each deemed to include the other whenever the context so requires.
10. No Partnership Nothing contained in this Agreement shall be construed to make
Stonehenge and the City partners or joint venturers, or to render them liable for the debts or
obligations of the other, except as otherwise expressly provided herein.
11. No Waiver No delay or omission by either party to exercise any right or power
accruing upon any failure of performance by the other party under the provisions of this
Agreement shall impair any such right or power, or shall be construed to be a waiver thereof.
Any waiver by either party of any of the covenants, conditions or agreements herein to be
performed by the other party shall not be construed to be a waiver of any subsequent breach
thereof or of any other covenants, conditions or agreements herein contained.
12. Compliance with Law If the terms of this Agreement do not in any material
respect comply with any present or future laws, ordinances or other regulations of any
governmental authority with jurisdiction, then the City and Stonehenge shall take such actions as
are necessary to modify the terms of this Agreement such that the performance of this
Agreement is in compliance with said laws, ordinances and other regulations.
13. Assignment The parties hereby agree that Stonehenge shall have the right, in its
sole discretion, to assign this Agreement to any other limited liability company owned in whole
or in part by Stonehenge, and following such assignment, Stonehenge shall notify the City of
such assignment in writing within ten (10) days thereof. Stonehenge agrees that,
notwithstanding such assignment, Stonehenge shall remain liable for the performance of all
obligations of Stonehenge hereunder.
14. Prevailing Wage The City and Stonehenge acknowledge and agree that the
Parking Lot Work and Public Improvement Work are subject to the prevailing wage
requirements of the Ohio Revised Code Chapter 4115, and all wages paid to laborers and
mechanics employed to perform the Parking Lot Work and Public Improvement Work shall be
paid not less than the prevailing rates of wages of laborers and mechanics for the classes of work
called for by the Parking Lot Work and Public Improvement Work, which wages shall be
determined in accordance with the requirements of Chapter 4115. The City and Stonehenge
shall comply, and Stonehenge shall require compliance by all subcontractors working on the
(H0706750,9 1 27
Parking Lot Work and Public Improvement Work, with all applicable requirements of Chapter
4115 including, without limitation, (i) obtaining from the Ohio Department of Industrial
Relations its determination of the prevailing rates of wages to be paid for all classes of work
called for by the Parking Lot Work and Public Improvement Work; (ii) obtaining the designation
of a prevailing wage coordinator for the Parking Lot Work and Public Improvement Work; and
(iii) ensuring that all subcontractors receive notification of changes in prevailing wage rates as
required by Chapter 4115. The City and Stonehenge agree that the Building Work shall not be
subject to the requirements of Ohio Revised Code Chapter 4115.
15. Regulatory Considerations Stonehenge hereby acknowledges that the Future
Parking Lot Site and Future Town Center Site are located in a Historic District subject to special
architectural controls and reviews, and overseen by a historic commission. Stonehenge shall, at
its sole cost and expense, obtain all required approvals for the Town Center Work and abide by all
controls and rules imposed as a result of the Future Parking Lot Site and the Future Town Center
Site being located in such Historic District.
Nothing herein constitutes the approval of the City in its regulatory capacity of any of the
Town Center Work, and upon submission of any required approvals in connection with the Town
Center Work, Stonehenge acknowledges that same shall be subject to the then existing procedures
and guidelines applicable to other development projects in the Historic District.
Notwithstanding the foregoing, the City agrees that the parking spaces which will be
available in the Public Parking Lot, once completed, shall satisfy the parking requirements for the
Buildings under the applicable zoning regulations of the Planned District zoning classification,
and such spaces shall be available to the occupants, customers, guests and invitees of the Future
Town Center Site, in common with the general public.
16. Survival The terms and conditions of this Agreement which are not performed as
of the Closing shall survive the Closing and delivery of the Deed hereunder.
17. Alley Closure If, in the opinion of the City, the development of the Future Town
Center Site will be enhanced by the closure of a portion of Wing Hill Alley (located immediately
north of and adjacent to the City Site), then the City agrees to use good faith efforts to cause such
portion of Wing Hill Alley to be closed from public use to accommodate said development, on
terms and conditions acceptable to the City.
IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day
and year first aforesaid.
STONEHENGE & COMPANY, LLC,
an Ohio limited liability company
U. a
(H0706750,9 1 28
Print Name:
Its: D
CITY OF DUBLIN, OHIO,
an Ohio municipal corporation
Jane Brautigam, City Manager 2
EXHIBIT A: Darby Purchase Agreement
EXHIBIT B: Site Plan
EXHIBIT C: Concept Plan
EXHIBIT D: Conceptual Elevations
EXHIBIT E: Due Diligence Materials
EXHIBIT F: Declaration
EXHIBIT G: Public Parking Lot Plans
EXHIBIT H: Building Plans
EXHIBIT I: Public Improvement Plans
(H0706750,9 1 29
EXHIBIT "A"
DARBY PURCHASE AGREEMENT
[See attached]
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(H0706750,9 }
REAL ESTATE PURCHASE AGREEMENT D
THIS REAL ESTATE PURCHASE AGREEMENT (the "Agreement ") is made and
entered into on the day of 2007 (the "Effective Date "), by and between the
City of Dublin, an Ohio municipal corporation ('Buyer "), and The Stonehenge Company, an
Ohio corporation ( "Seller ").
B ackaround Information
A. Seller is the owner of a certain tract of real property located in Franklin County,
Ohio, containing approximately 0.322 acres and being generally depicted on Exhibit "A ",
attached hereto and made a part hereof (said real property, together with all appurtenances and
hereditaments thereto, shall be referred to as the 'Real Property "). The Real Property is
commonly known as 37 Darby Street, Dublin, Ohio 43017 (Tax Parcel No. 273 - 000018).
B. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, all of
Seller's right, title and interest in the Real Property, at the price and on the terms and conditions
hereinafter set forth.
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
PURCHASE AND SALE OF REAL PROPERTY
1.01 AA2reement Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, the Real Property. This Agreement is contingent upon Seller's acquisition
of the Real Property on or prior to the date which is ten (10) days following the approval of the
Dublin City Council of this Agreement. If Seller fails to acquire the Real Property by such date,
then at anytime thereafter but prior to such acquisition, Buyer may terminate this Agreement by
written notice to Seller.
ARTICLE II
PURCHASE PRICE
2.01 Amount of Purchase Price The purchase price for the Real Property shall be
$375,000.00, payable to Seller at Closing, in immediately available funds or by cashier's check,
adjusted by all prorations, credits, allowances and other adjustments specifically provided for
herein.
(H0706750,9 }
ARTICLE III
CONTINGENCIES
3.01 Contingent Agreement This Agreement shall be completely contingent upon
Buyer's satisfaction or waiver of the contingencies set forth in Section 3.02 below (the
"Contingencies "), at any time prior to the time that Seller has acquired fee simple title to the Real
Property (the "Contingency Period "). During the Contingency Period, Seller shall promptly
provide Buyer with copies of all due diligence reports obtained by Seller with respect to the Real
Property. The date upon which all Contingencies are either satisfied or waived, pursuant to
Section 3.03 or otherwise, shall be referred to as the "Contingency Date ".
3.02 Contingencies The Contingencies are as follows:
(a) Buyer shall obtain Dublin City Council Approval of this Agreement.
(b) Buyer shall be satisfied with the physical and environmental condition of the Real
Property, including the building and all due diligence materials provided to Buyer
by Seller, in Buyer's sole judgment; and
(c) Buyer shall have determined, in its sole judgment, that the development of the
Real Property for Buyer's intended use is economically and physically practical
for Buyer.
3.03 Notice of Satisfaction or Waiver The Contingencies above shall be deemed to
have been satisfied or waived, unless on or before the expiration of the Contingency Period,
Buyer gives to Seller notice of Buyer's failure to satisfy the Contingencies. Upon delivery of
such notice, this Agreement shall terminate, in which case both parties shall be fully released
from all further liability and obligations hereunder.
ARTICLE IV
SUBMISSION MATERIALS
4.01 Seller's Cooperation In addition to the title insurance commitment described in
Article V hereof and the materials set forth in Article VI hereof, Seller shall, within ten (10) days
after the Effective Date, also submit to Buyer the following information and/or materials, to the
extent the same is available, for use by Buyer in preparation for the purchase of the Real
Property.
(a) Surveys, site plans, topographical studies, plat maps, property descriptions and
zoning maps of the Real Property and all engineering drawings for the utilities
and public services servicing the Real Property, including, by way of example,
but not of limitation, the sanitary sewers, water lines and street improvements for
the Real Property;
(b) Soils reports for the Real Property;
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(c) Environmental studies of the Real Property; and
(d) A copy of the title insurance policy issued upon Seller's acquisition of the Real
Property.
Seller hereby agrees to cooperate with Buyer in all respects during the term of this
Agreement, including Seller's joining in the execution of any and all reasonable applications,
instruments, licenses and documents contemplated pursuant hereto.
ARTICLE V
EVIDENCE OF TITLE
5.01 Title Commitment Within seven (7) days after the Effective Date, Seller shall, at
its sole cost and expense, deliver to Buyer an American Land Title Association (ALTA)
Commitment for Title Insurance (1966) (the "Title Commitment') issued by a title company
reasonably selected by Seller (the "Title Insurance Company"), pursuant to which the Title
Insurance Company shall commit to issue an ALTA Owner's Title Insurance Policy (10/17/92),
certified to at least the Effective Date of this Agreement, in the full amount of the purchase price,
showing in Seller good and marketable title to the Real Property, free and clear of the standard
printed exceptions contained in Schedule B of said commitment and final policy, and free and
clear of all liens, charges, encumbrances and clouds of title, whatsoever, except the following:
(a) Those created or assumed by Buyer;
(b) Zoning ordinances, legal highways and public rights -of -way which do not
interfere with Buyer's proposed development and operation of the Real Property;
(c) Real estate taxes which are a lien on the Real Property but which are not yet due
and payable; and
(d) Easements and restrictions of record acceptable to Buyer which do not interfere
with the Buyer's proposed development and operation of the Real Property.
The title commitment shall fully and completely disclose all easements, negative or
affirmative, rights -of -way, ingress or egress or any other appurtenances to the Real Property, and
shall provide insurance coverage in respect to all of such appurtenant rights. The title
commitment shall include the results of a special tax search and examination for any financing
statements filed of record which may affect the Real Property.
5.02 Endorsement at Closing Within ten (10) days after the Contingency Date (if this
Agreement is not then terminated) and at the Closing, Seller shall provide Buyer with
endorsements to the title commitment updating the commitment to the respective date and
showing no change in the state of the title to the Real Property. After Closing, a final owner's
title insurance policy shall be issued in the amount of the purchase price. The entire cost of all
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commitments and final title insurance policies provided in accordance with this Agreement, and
all costs of title examinations made for such purposes, shall be paid for by Seller.
5.03 Survey Buyer may, at its sole cost and expense, obtain a current survey of the Real
Property, prepared by a surveyor registered in the State of Ohio. The survey shall include a legal
description of the Real Property and shall be certified by the surveyor to Buyer and the title
insurance company. Subject to the approval of the title insurance company, the legal description
set forth on the survey shall be used in the title insurance commitment and policy and in all
documents of transfer contemplated hereby. The survey shall be sufficient to waive or insure
over any and all questions or survey. The survey shall show:
(a) The Real Property is not subject to any discrepancies, conflicts in boundaries,
shortages in area, nor subject to any encroachments of any kind;
(b) Total acreage of the Real Property, all perimeter lines, all easements and rights -
of -way (whether underground, surface or other and whether recorded or
observable by physical inspection) for access, travel, transmission of energy or for
drainage purposes; and
(c) All roads or highways abutting the Real Property or providing access thereto, and
all adjacent landowners.
5.04 Defects In the event that an examination of either the title insurance commitment
(including any endorsements) or the survey obtained hereunder discloses any matter adversely
affecting title to the Real Property, or if title to the Real Property is not marketable, or if the Real
Property is subject to liens, encumbrances, easements, conditions, restrictions, reservations or
other matters not specifically excepted by the terms of this Agreement, or in the event of any
encroachment or other defect shown by the survey (the foregoing collectively referred to as
"Defects "), Seller shall have a reasonable time, not to exceed thirty (30) days after written notice
thereof, within which to cure or remove any such Defects. In the event Seller is unable to cure or
remove the Defects within said thirty (30) day period, Seller shall immediately give notice of
Seller's inability to Buyer and thereafter, Buyer shall have ten (10) days after receipt of such
notice within which to make its election either:
(a) To accept title to the Real Property subject to such Defects; or
(b) To withdraw from this transaction and terminate this Agreement, without
prejudice, however, to any rights or remedies which Buyer may have at law or in
equity.
ARTICLE VI
DEED AND OTHER DOCUMENTS
6.01 General Warranty Deed Seller shall, at the Closing, convey fee simple title to the
Real Property to Buyer by a duly and validly executed, recordable general warranty deed, free
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and clear of all liens and encumbrances, except those permitted pursuant to the provisions of
Section 5.01 hereof.
6.02 Other Documents Buyer and Seller 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, Seller's affidavit regarding liens, unrecorded matters and possession and,
if requested, Seller's affidavit regarding the warranties and representations set forth in Article XI
hereof.
ARTICLE VII
POSSESSION AND INSPECTION
7.01 Possession at Closing Buyer shall be entitled to full and exclusive possession of
the Real Property as of the Closing Date. For and during the continuance of this Agreement,
Seller shall afford all representatives of Buyer free and full access to the Real Property, for
inspection and examination, at reasonable times. This privilege shall include the right to make
surveys, site plans, renderings, soil tests, environmental inspections, borings, percolation tests
and other tests to obtain any relevant information necessary to determine subsurface, topographic
and drainage conditions and the suitability of the Real Property for use and development by
Buyer.
ARTICLE VIII
CLOSING
8.01 Closing Date The purchase and sale of the Real Property shall be closed (the
"Closing ") within ten (10) days after the Contingency Date, which Closing date may be extended
by agreement of the parties and shall be extended by such time, if any, as is necessary to cure
Defects, as set forth in Section 5.04 hereof (the "Closing Date "). The Closing shall be at such
time and place as Buyer and Seller may mutually agree upon.
ARTICLE IX
APPORTIONMENTS AND ADJUSTMENTS
9.01 Adjustments at Closing On the Closing Date, Buyer and Seller shall apportion,
adjust, prorate and pay the following items in the manner hereinafter set forth:
(a) Real Estate Taxes and Assessments Seller 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 Real 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 years through the year of Closing. The proration of
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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 Buyer a credit as
close in amount as possible to the amount which Buyer will be required to remit
to the County Treasurer for the period of time preceding the Closing Date hereof.
Upon making the proration provided for herein, Seller and Buyer 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 Buyer
after Closing. Seller warrants and represents that all assessments now a lien are
shown on the County Treasurer's records and that to the best of Seller's
knowledge, no improvement, site or area, has been installed by any public
authority, the cost of which is to be assessed against the Real Property in the
future. Seller further warrants and represents that neither Seller nor any of its
agents, employees or representatives have received notice, oral or written, or have
knowledge of any proposed improvement, any part of the cost of which would or
might be assessed against the Real Property. 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)
(c)
(H0706750,9 }
Seller's Expenses Seller shall, at the Closing (unless previously paid), pay by
credit against the purchase price the following:
(i) The cost of furnishing the title commitment and policy referred to in
Section 5.01 hereof;
(ii) The cost of any transfer or conveyance fee required to be paid in
connection with the recording of the General Warranty Deed from Seller
to Buyer;
(iii) The cost of all municipal services and public utility charges (if any) due
through the Closing Date; and
(iv) One -half (1/2) the fee, if any, charged by the title insurance company for
closing the transaction contemplated herein; and
Buyer's Expenses Buyer shall, at the Closing (unless previously paid), pay the
following:
(i) The recording fees required for recording the General Warranty Deed;
(ii) One -half (1/2) the fee, if any, charged by the title insurance company for
closing the transaction contemplated herein; and
11Cl-2
(d) Brokers Seller hereby warrants and represents to Buyer that Seller has not
engaged or dealt with any broker or agent in regard to this Agreement. Seller hereby agrees to
indemnify Buyer and hold Buyer harmless against any liability, loss, cost, damage, claim and
expense (including, but not limited to, attorneys' fees and costs of litigation) which Buyer shall
ever incur or be threatened with because of any claim of any broker or agent claiming through
Seller, whether or not meritorious, for any such fee or commission. Buyer hereby represents and
warrants to Seller that Buyer has not engaged or dealt with any broker or agent in regard to this
Agreement. Buyer agrees to indemnify Seller and hold Seller harmless against any liability, loss,
cost, damage, claims and expense (including, but not limited to, attorneys' fees and cost of
litigation) which Seller may ever suffer, incur, or be threatened with because of any claim by any
broker or agent claiming by, through or under Buyer, whether or not meritorious, for any such
fee or commission.
ARTICLE X
EMINENT DOMAIN AND CASUALTY
If, prior to the Closing, eminent domain proceedings shall be threatened or commenced
against the Real Property, or any part or portion thereof, Buyer shall have the option (a) to elect
to proceed with this transaction, in which event any compensation award paid or payable as a
result of such eminent domain proceedings shall be the sole property of Buyer, or (b) to
terminate this Agreement. Seller agrees that it shall give to Buyer written notice of any such
threatened or actual eminent domain proceedings within ten (10) days after Seller first becomes
aware thereof, and upon the giving of such notice, Buyer shall then have thirty (30) days within
which to exercise the options granted in this Section 10.01. If Buyer fails to exercise such
options within said thirty (30) day period, this Agreement shall terminate, in which event neither
party shall have further liability or obligation hereunder.
ARTICLE XI
WARRANTIES AND REPRESENTATIONS OF SELLER
11.01 Warranties and Representation In addition to any other representation or
warranty contained in this Agreement, Seller hereby represents and warrants as follows:
(a) Neither Seller nor any agent, employee or representative of Seller, has received
any notice or notices, either orally or in writing, from any municipal, county, state
or any other governmental agency or body, of any zoning, fire, health,
environmental or building violation, or violation of any laws, ordinances, statutes
or regulations relating to pollution or environmental standards, which have not
heretofore been corrected;
(b) The execution, delivery and performance of this Agreement, and the
consummation of the transaction contemplated hereby, will not result in any
breach of, or constitute any default under, or result in the imposition of any lien or
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encumbrance against, the Real Property, under any agreement or other instrument
to which Seller is a party or by which Seller or the Real Property might be bound;
(c) Neither Seller, nor any agent, employee or representative of Seller, has received
any notice, either orally or in writing, of any change contemplated in any
applicable laws, ordinances or restrictions, or any judicial or administrative
action, or any action by adjacent landowners, which would prevent, limit or in any
manner interfere with the proposed use of the Real Property;
(d) Seller has no knowledge of any fact or condition which would result in the
termination or limitation of the existing pedestrian and /or vehicular access to the
Real Property from abutting public roads;
(e) No other person or entity other than Seller currently owns or has any legal or
equitable interest in the Real Property and no other person or entity other than
Buyer has or will have any right to acquire the Real Property, or any portion
thereof,
(f) All taxes payable with respect to the operation, ownership or control of the Real
Property which are allocable to the period ending on the Closing Date, and all
prior periods, shall be or have been paid by Seller, and Seller shall be responsible
for the timely filing of all returns or other documents required by any taxing
authority claiming jurisdiction with respect to any such taxes;
(g) The execution, delivery and performance by Seller of this Agreement and the
performance by Seller of the transactions contemplated hereunder, and the
conveyance and delivery by Seller to Buyer of possession and title to the Real
Property have each been duly authorized by such persons or authorities as may be
required, and on the Closing Date, Seller shall provide Buyer with certified
resolutions, or other instruments, in form satisfactory to Buyer, evidencing such
authorization;
(h) Through and until the Closing Date, Seller shall not enter into any easement, lease
or other contract pertaining to the Real Property;
(i) There are no hazardous wastes, hazardous substances, or hazardous materials
located in, on or about or generated from the Real Property which may require
remediation or which may result in penalties under any applicable law;
(j) Seller shall not, without the prior written consent of Buyer, alter the natural
topography and vegetation currently existing on, in or about the Real Property,
including, but not limited to the cutting, burning or removal of any trees,
removing any minerals or topsoil, dumping of any soil, fill or other matter, or
altering the natural flow of any water courses located on the Real Property;
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(k) There are no laws, ordinances, regulations, covenants, conditions or restrictions
pertaining to or encumbering the Real Property which would, in any way, impair,
interfere with or prevent Buyer's intended use of the Real Property; and
(1) Seller is not a "Foreign Person" as that term is defined in the Foreign Investment
in Real Property Tax Act.
The warranties, representations, 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. All representations and warranties set forth in
this Article XI shall be true and correct as of the date hereof and as of the Closing Date, and at
Closing, if requested by Buyer, Seller shall so certify, in writing, in form reasonably requested
by Buyer. Seller hereby agrees to indemnify and hold Buyer harmless from and against any and
all claims, demands, liabilities, costs and expenses of every nature and kind (including attorneys'
fees) which Buyer may sustain at any time (i) as a result of, arising out of or in any way
connected with the operation, ownership, custody or control of the Real Property prior to the
Closing Date; or (ii) by reason of the untruth, breach, misrepresentation or nonfulfillment of any
of the covenants, representations, warranties or agreements made by Seller in this Agreement or
in any documents or agreements delivered in connection with this Agreement or with the closing
of the transaction contemplated hereby.
11.02 Breach of Warranties Prior to Closing If, during the pendency of this Agreement,
Buyer determines that any warranty or representation given by Seller to Buyer under this
Agreement shall be untrue, incorrect or misleading, in whole or in part, the same shall constitute
a default by Seller hereunder. In such event, Buyer may give written notice thereof and shall
thereafter have such rights and remedies as may be available to Buyer as provided herein, at law
or in equity, including, but not limited to, the right to receive compensation for damages and /or
the right to terminate this Agreement.
ARTICLE XII
NOTICES
12.01 Notice Procedure Any notices required hereunder shall be in writing, shall be
transmitted by certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight courier, and shall be deemed given when received or when receipt is
refused, and shall be addressed to the parties as follows:
(a) If intended for Seller, to:
The Stonehenge Company
147 North High Street
Gahanna, Ohio 43230
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(b) If intended for Buyer, to:
CITY OF DUBLIN,
5200 Emerald Parkway
Dublin, Ohio 43017
ARTICLE XIII
GENERAL PROVISIONS D
13.01 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. For
all litigation, disputes and controversies which may arise out of or in connection with this
Agreement, the undersigned hereby waive the right to trial by jury and consent to the jurisdiction
of the courts in the State of Ohio.
13.02 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.
13.03 Time of Essence Time is of the essence of this Agreement in all respects.
13.04 Assignment This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their respective heirs, legal representatives, successors and assigns. Buyer shall
have the right to assign this Agreement without the prior written consent of Seller. In the event
of such assignment, Buyer shall provide written notice thereof to Seller and from and thereafter,
Seller shall look to Buyer's assignee as buyer under this Agreement.
13.05 Invalidity In the event that 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.
13.06 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.
13.07 Headings The section headings contained in this Agreement are for convenience
only and shall not be considered for any purpose in construing this Agreement. As used in this
Agreement, the masculine, feminine and neuter genders, and the singular and plural numbers
shall be each deemed to include the other whenever the context so requires.
13.08 Memorandum Upon request of either party hereto, Buyer and Seller shall execute
a recordable memorandum of the terms hereof, which memorandum may be placed of record in
any public office within the county wherein the Real Property is situated.
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IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day
and year first aforesaid.
SELLER:
THE STONEHENGE COMPANY., an Ohio
corporation
BY:
PRINT NAME:
ITS:
0
Date:
BUYER:
CITY OF DUBLIN, OHIO, an Ohio
Municipal corporation
BY:
PRINT NAME:
ITS:
Date:
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-41-
EXHIBIT `B"
SITE PLAN
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EXHIBIT "C"
CONCEPT PLAN D
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OUTDOOR SEATING/131.
PEDESTRIAN WALKWP
PS TO BLDG. (TYR)
RAMP DOS
STEPS DOWN T(
VALET AREA (VEHICULAR
CONCRETE PAVERS)
BOLLARDS TO SEPER
VEHICULAR SPACE FF
PEDESTRIAN PL
RAMP DOVE
STREET SIDE OUTDOOR DINING.
(TYR )
)CAL POINT (TO BE DETER -
NED)
Modified Concept
Plan
BIRD HOUK
6375 riverside dublin, ohio 43017 suite 100
614.764.1122 design @bird- houk.com
Drawings are for conceptual and planning purposes only. Dimensions and layout may change with final design and engineering.
BRIDGE AND HIGH STREET
CONCEPTUAL PLAN
CITY OF DUBLIN, OHIO
May 21, 2007
Stonehenge
Company
L�
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ARJ BIRD HOUK
6375 riverside dublin, ohio 43017 suite 100
614.764,1122 1 design @bird - houk.com
BRIDGE AND HIGH STREET
Drawings are for conceptual and planning purposes only. Dimensions and layout may change with final design and engineering.
CONCEPTUAL PLAN
CITY OF DUBLIN, OHIO
May 21, 2007
Stonehenge
Company
Model Vignettes
EXHIBIT "D"
CONCEPTUAL ELEVATIONS
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This exhibit is intended to be a representative example of the proposed architecture for the private buildings. The final architecture will be reviewed by the appropriate governing bodies.
This exhibit is not intended to depict any specific public improvements.
B r i d g e S t r e e t E l e v a t i o n
BIRD HOUK E x h i b i t 7 13s The
collaborative company
This exhibit is intended to be a representative example of the proposed architecture for the private buildings. The final architecture will be reviewed by the appropriate governing bodies.
This exhibit is not intended to depict any specific public improvements.
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EXHIBIT "E"
DUE DILIGENCE MATERIALS D
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EXHIBIT "F"
DECLARATION
[See attached]
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_2_
DECLARATION
THIS DECLARATION (this "Agreement') is executed, delivered and made effective as
of , 2007 (the "Effective Date "), by and between THE STONEHENGE
COMPANY, a(n) , and its successors and assigns, whose address is
147 North High Street, Gahanna, Ohio 43230 ( "Stonehenge "), and the CITY OF DUBLIN,
OHIO, an Ohio municipal corporation, whose address is 5200 Emerald Parkway, Dublin, Ohio
43017, and its successors and assigns (the "City"). Stonehenge and the City are collectively
referred to herein as the "Parties."
WITNESSETH
Bound Information
A. The Parties; General Location of the Properties The Parties each own certain tracts of
real property located in the City of Dublin, County of Franklin, and State of Ohio. A
copy of a site plan depicting the properties owned by each of the parties is attached hereto
and made a part of this Agreement as Exhibit "A" and is hereinafter called the "Site
Plan ".
B. The Stonehenge Properties Stonehenge is the owner of two non - contiguous tracts of
real property containing approximately acres and acres respectively,
which tracts are legally described on Exhibit `B " , attached hereto and made a part hereof
(collectively, the `Building Footprints "), which do not have access to any public street.
The Building Footprints are depicted and designated as such on the Site Plan.
C. The City Properties The City is the owner of a tract of real property containing
approximately acres and legally described on Exhibit "C" attached hereto and
made a part hereof (the "Public Area "), as depicted on the Site Plan. The Building
Footprints and Public Area are collectively referred to herein as the "Future Town Center
Site."
D. General Description of Development Stonehenge shall be responsible for and pay for
the construction of (a) certain buildings on the Building Footprints, together with
landscaping, sidewalks, outdoor seating areas, trash receptacle areas, service court and
related improvements and appurtenances in the immediate vicinity thereof, all as more
particularly shown on the plans and specifications therefor prepared by
, dated 2007 (the `Building Plans "), attached hereto as
Exhibit "F" and made a part hereof (collectively, the `Buildings "), and (b) certain public
improvements, including, but not limited to, walkways, sidewalks, driveways, access
ways, parking areas (including related curbing and striping), outdoor seating areas, trash
receptacle areas and landscaping within the Public Area, all as shown on the plans and
specifications therefor prepared by , dated 2007 (the
"Public Improvement Plans "), attached hereto as Exhibit "G" and made a part hereof
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(collectively, the "Public Improvements "). The Buildings and Public Improvements are
collectively referred to herein as the "Improvements."
E. General Description of Easements To provide for the coordinated use of the
Improvements, and to allow for ingress, egress and access to and from the Buildings and
the Public Areas, the City has agreed to grant certain easements over the Public Area, for
vehicular and pedestrian access, utility, general use, construction and maintenance
easements to Stonehenge over portions of the Public Area for constructing the Buildings
and Public Improvements, providing access to and from the Buildings, providing utility
services for the Buildings and using the other areas located thereon for public use for the
purposes for which they are designated.
AGREEMENT
NOW, THEREFORE, in consideration of the easements, as set forth in the foregoing
Background Information, and of the mutual promises herein set forth, and for Ten and 00 /100
Dollars ($10.00) and other good and valuable consideration paid, the parties do hereby agree as
follows:
ARTICLE I
Grant of Easements
Section 1.01. Easements Over the Public Area Subject to the terms and conditions set
forth in this Agreement, the City hereby grants and conveys to Stonehenge, as easements
appurtenant to the Building Footprints: (a) a non - exclusive easement within the Public Area for
vehicular ingress, egress, passage and traffic upon, over, across and through the driveways and
vehicular access ways as may be located within the Public Area from time to time; provided,
however, that the foregoing shall not obligate the City to provide vehicular ingress, egress and
passage within the Public Area; (b) a non - exclusive easement within the Public Area for
vehicular parking upon, over, across and through the parking areas as may be located within the
Public Area from time to time; provided, however, that the foregoing shall not obligate the City
to provide for vehicular parking areas within the Public Area; (c) a non - exclusive easement upon
the Public Area for pedestrian ingress, egress, passage and usage upon, over, across and through
pedestrian walkways and other areas of the Public Area intended to be open to the public as they
may exist from time to time, including for the purpose of accessing the Buildings; (d) non-
exclusive easements under portions of the Public Area designated by the City for such utility
service lines as are necessary for the operation of the Buildings; and (e) non - exclusive easements
upon portions of the Public Area approved by the City in writing from time to time for outdoor
seating /patios, screened trash collection and such other matters as may be approved by the City
in writing ( "Occupancy Easement Areas ")(such areas shall initially be as shown on Exhibit "I"
attached hereto and hereby made a part hereof and may be modified upon obtaining the City's
prior written consent thereto, in which event the attached Exhibit "I" shall be replaced with a
revised Exhibit "I" reflecting such changes). The initial improvements to be constructed within
the Public Area are identified on the Public Improvement Plans. The City hereby reserves the
right (for itself and for the benefit of the general public, if the City so elects) to modify and use
the Public Areas for any purposes which do not unreasonably interfere with the rights of
Stonehenge hereunder. For purposes hereof, the use of the Public Area by the City for special
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events (including, without limitation, public festivals, gatherings, ceremonies and markets) shall
not be deemed to be an interference with the rights of Stonehenge hereunder. The use of the
Public Area for special events shall initially be subject to the rules and regulations attached
hereto as Exhibit "J" and hereby made a part hereof, which rules and regulations shall be subject
to modification and amendment by the City from time to time.
Section 1.02. Conditions It is specifically agreed that the rights and easements granted
in Section 1.01 are granted upon the condition that (a) the City shall have the right to build upon,
develop and /or re- develop the Public Area (and thereby modify the location of any easements
granted hereunder) so long as the Building Footprints shall, at all times, have reasonable
pedestrian access thereto; provided, however, that the cost of any relocation of the utility
easements (including the physical relocation of such lines) requested by the City shall be the
responsibility of the City; (b) the City may sell the Public Area so long as such sale is made
subject to the terms of this Declaration, and (c) the City may, from time to time, impose such
rules and regulations governing the use of the Public Area as the City deems necessary.
ARTICLE II
Temporary Construction Easement and Maintenance Easement
Section 2.01 Temporary Construction Easements Over Public Area Subject to the terms
and conditions set forth in this Agreement, the City hereby grants and conveys to Stonehenge
and its respective contractors a non - exclusive temporary construction easement and right -of -way,
to the extent required during the period of construction of the Improvements in accordance with
good construction practices, upon, over, across and through such portions of the Public Area as
are reasonably necessary to construct the Improvements and any other improvements approved
by the City. Upon completion of construction of the Improvements, all easement rights granted
to Stonehenge under this Section 2.01 shall cease and terminate and be of no further force and
effect, and Stonehenge shall have no further rights under this Section 2.01 after such date of
completion. Stonehenge shall carry on such construction in a manner as to not unreasonably
interfere with the use of the Public Area and/or neighboring properties. Notwithstanding the
foregoing, Stonehenge acknowledges that the initial construction of the Public Improvements
within the Public Area may preclude Stonehenge's use thereof until such construction is
complete. It is specifically agreed that the rights and easements granted in this Section 2.01 are
granted upon the condition that the City may, from time to time, impose such rules and
regulations governing construction within the Future Town Center Site as the City deems
necessary.
Section 2.02 Timing of Construction of Improvements All Improvements shall be
constructed in accordance and within the timeframes set forth in that certain Development
Agreement dated , 2007, between Stonehenge and the City. All construction activity
shall be carried on in a manner as to not unreasonably interfere with the use of neighboring
properties in the Historic District and /or the Public Area. Notwithstanding the foregoing,
Stonehenge acknowledges that the initial construction of the Public Improvements within the
Public Area may preclude Stonehenge's use thereof until such construction is complete.
Section 2.03 Maintenance Easements Subject to the terms and conditions set forth in
this Agreement, the City hereby grants and conveys to Stonehenge a maintenance easement over
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so much of the Public Area as is reasonably necessary from time to time to perform any
maintenance, repairs, alterations and replacements of the Buildings, or any improvements
appurtenant to the Buildings, including but not limited to, the replacement of any steps,
walkways, sidewalks, patio and/or outdoor seating areas used primarily by the occupants of the
Buildings or other improvements necessary to access the Buildings. Stonehenge shall carry on
such maintenance in a manner as to not unreasonably interfere with the use and enjoyment of the
Public Area. It is specifically agreed that the rights and easements granted in this Section 2.03
are granted upon the condition that the City may, from time to time, impose such rules and
regulations governing maintenance within the Future Town Center Site as the City deems
necessary. MD
ARTICLE III A \
Maintenance, Repairs and Replacements U
Section 3.01. Public Areas - Maintenance Responsibility Except as otherwise provided
herein, the City shall pay and be responsible for the maintenance, repair and replacement of the
walkways, sidewalks, landscaping, hardscape, benches, memorials and plaques, access ways and
parking areas (and related curbing and striping) within the Public Area. The City shall carry on
such maintenance, repairs and replacements in a manner as to not unreasonably interfere with the
use and enjoyment of the Buildings. Stonehenge shall pay and be solely responsible for the
maintenance, repair and replacement of all Occupancy Easement Areas, as they exist from time
to time, and all walkways, sidewalks, landscaping, hardscape, access ways and parking areas
shown on Exhibit "I" attached hereto (including mowing and grooming of all seeded, sodded,
grass or ground covered areas). It is the intent of this provision that Stonehenge be solely
responsible for the maintenance, repair and replacement of any areas which (irrespective of their
location) in the City's reasonable opinion, are used primarily for the benefit of the occupants of
the Buildings. Notwithstanding the foregoing, the City shall be responsible for any outdoor
seating areas, trash receptacle areas and such other areas which are designated for the use of the
general public. All areas shall be kept in a first -class condition and state of repair. The Parties
shall carry on any maintenance, replacement and repair activity in a good, workmanlike and lien -
free manner and in such a manner as to not unreasonably interfere with the use and enjoyment of
the Public Area. The City shall from time to time, but in no event more than one (1) time per
calendar year, provide Stonehenge with a document setting forth each party's respective
maintenance obligations of the Public Areas pursuant to this Section 3.01, which obligations
shall be determined by the City in its reasonable discretion.
Section 3.02. Buildings- Maintenance Responsibility Stonehenge shall be solely
responsible and pay for the maintenance, repair and replacement of the Buildings located on their
respective properties (including any areas located under building overhangs). Stonehenge shall
carry on such maintenance, replacement and repair activity in a good, workmanlike and lien -free
manner and in such a manner as to not unreasonably interfere with the use and enjoyment of the
Public Area. Stonehenge further agrees to keep the Buildings in a first -class condition and state
of repair.
Section 3.03 Maintenance Definition For purposes of this section, the term
"Maintenance" shall include, without limitation: (a) maintenance of paved surfaces in good
condition, (b) removal of all trash and debris and washing or sweeping as required, (c) removal
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of snow and ice from paved surfaces and sidewalks, (d) restriping as necessary, (e) maintenance
of all landscaping and hardscape, and (f) mowing and grooming of all seeded, sodded, grass or
ground covered areas.
ARTICLE IV
Insurance; Indemnification
Section 4.01. Insurance Each party shall, at its own expense, obtain, carry and keep in
force commercial general public liability insurance against any liability or claim for personal
injury, wrongful death or property damage for which such party is responsible to the other under
this Agreement or by law, with financially responsible insurers authorized to transact insurance
business in Ohio, with a commercially reasonable combined single limit of not less than Two
Million Dollars ($2,000,000.00) per occurrence. Such insurance shall include all of the
coverages typically provided by a commercial general liability policy and a contractual liability
endorsement to cover each party's obligations under Section 4.02 below. Such insurance may be
written by additional premises endorsement on any master policy of insurance which may cover
other property in addition to the properties which form the subject of this Agreement; provided
that the insurer shall provide a schedule to each party showing that the coverage provided by
such policy shall (a) meet the requirements of this Agreement; (b) not be reduced by any claims
made with respect to other properties; and (c) be in such amount as will preclude the insureds
from being held to be co- insurers. Each policy shall name the other party hereunder as an
additional insured and shall provide that it may not be canceled without thirty (30) days' prior
written notice to the other party. Upon request, each party shall provide to the other a certificate
of insurance evidencing such coverage.
Section 4.02. Indemnification
(a) By the City Except for injuries, deaths, losses, damages, or other matters
resulting from the acts or omissions of Stonehenge or the respective agents or employees
thereof, the City shall indemnify Stonehenge and save it 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 the City or the respective agents or employees thereof in respect of the matters set
forth in this Agreement, and from and against any and all costs, expenses or liabilities (including
reasonable fees of attorneys, paralegals, experts, court reporters and others) incurred by
Stonehenge in connection with any claim, action or proceeding in respect of any such loss,
liability, damage or claim.
(b) By Stonehenge Except for injuries, deaths, losses, damages, or other matters
resulting from the acts or omissions of the City or the respective agents or employees thereof,
Stonehenge shall indemnify the City and save it 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
Stonehenge or the respective agents or employees thereof in respect of the matters set forth in
this Agreement, and from and against any and all costs, expenses or liabilities (including
reasonable fees of attorneys, paralegals, experts, court reporters and others) incurred by the City
in connection with any claim, action or proceeding in respect of any such loss, liability, damage
or claim.
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ARTICLE V
Defaults and Remedies
Section 5.01. Defaults If any Party (the "defaulting party") should fail to observe any of
the terms, conditions, restrictions or provisions of, or should fail to perform any of its covenants
or obligations under this Agreement within a period of thirty (30) days after the other party (the
"non- defaulting party") has given to the defaulting party written notice thereof, then the
defaulting party shall be in default under this Agreement; provided that if the obligation is of
such a nature that the same cannot, with due diligence, be reasonably performed within such 30-
day period, then such default shall be deemed to have been cured if the defaulting party
commences such performance within such 30 -day period and thereafter undertakes and proceeds
with due diligence to complete the same and does complete the same within a reasonable time.
If a breach has occurred and is not cured within the time period specified in this Section 5.01,
then the non - defaulting party shall have all of the rights and remedies afforded to it at law and in
equity and also all of the rights and remedies set forth in Section 5.02 hereof (whether or not they
are expressly provided by statute or recognized by judicial precedent), any one or more of which
may be exercised and enforced independently or concurrently at any time after such default,
without further notice to the defaulting party and without waiving any of the non - defaulting
party's other rights and remedies, and all of which shall, to the extent applicable, survive the
termination of any right granted in this Agreement.
Section 5.02. Remedies
(a) Cure The non - defaulting party may cure any default of the defaulting party
under this Agreement; and if the non - defaulting party should do so, then it shall be entitled to be
reimbursed within thirty (30) days of demand delivered to the defaulting party for all costs and
expenses incurred by it in connection therewith, plus interest at the rate of twelve percent (12 %)
per annum from the date of demand.
(b) Civil Actions The non - defaulting party may sue the defaulting party for the
specific performance of any obligation of the defaulting party in this Agreement, for injunctive
or other equitable relief, or for damages in any court of competent jurisdiction in order to recover
any such amount as may be due and payable to the non - defaulting party.
ARTICLE VI
Force Majeure
The time periods by which a party is required to perform its obligations under this
Agreement shall be extended by the period of any delays arising by reason of terrorism, war,
nuclear disaster, insurrection, strikes, or other labor disputes, unavailability of materials, riot,
rationing, civil disobedience, fire, flood, hurricane, earthquake, any act of God and acts, failures
to act, actions and proceedings or regulations of any governmental authority (whether legislative,
executive, administrative or judicial) but not, without limitation, the lack of sufficient funds.
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ARTICLE VII
Notices; Notice of Transfer
Section 7.01. Notices Any notice or other communication required or permitted to be
given to a party under this Agreement shall be in writing and shall be given by one of the
following methods to such party at the address set forth at the end of this Section 7.01: (i) by
prepaid registered or certified U.S. mail, return receipt requested, (ii) hand delivery in person, or
(iii) by a nationally recognized overnight courier. Any such notice shall be deemed to have been
given upon receipt or refusal of receipt. Either party may change its address for notice by giving
written notice thereof to the other party. The address of each party for notice initially is as
follows:
Stonehenge:
Attn:
The City: City of Dublin
5200 Emerald Parkway
Dublin, Ohio 43017
Attn: Jane Brautigam
With a copy to:
Gregory S. Baker, Esq.
Schottenstein, Zox & Dunn Co., LPA
250 West Street
Columbus, Ohio 43215
Section 7.02. Notice of Conveyance If any party should convey its property to another
person, it shall immediately notify the other party of such conveyance in the manner provided in
Section 7.01 hereof. Such notice shall contain the name of the grantee and the address of such
grantee for purposes of receiving notices hereunder. If a party fails to notify the other of a
conveyance of its property, or fails to include the address of the grantee in a conveyance notice,
the other party may send notices hereunder to such grantee, at the tax mailing address listed for
such grantee on the books of the county treasurer in which the grantee resides, until such time as
the grantee has notified the other party of a different notice address in the manner provided in
Section 7.01 hereof.
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ARTICLE VIII
Miscellaneous Provisions
Section 8.01. Successors and Assigns This Agreement shall inure to the benefit of and
be binding upon the respective successors and assigns (including successive, as well as
immediate, successors and assigns) of the parties hereto.
Section 8.02. Governing Law This Agreement shall be governed by and construed m
accordance with the laws of the State of Ohio.
Section 8.03. Remedies Cumulative All rights and remedies of the parties hereto
enumerated in this Agreement shall be cumulative and, except as specifically contemplated
otherwise by this Agreement, none shall exclude any other right or remedy allowed at law or in
equity, and said rights or remedies may be exercised and enforced concurrently. No waiver by
either party of any covenant or condition of this Agreement, to be kept or performed by the other
party to this Agreement, shall constitute a waiver by the waiving party of any subsequent breach
of such covenant or conditions, or authorize the breach or non - observance on any other occasion
of the same or any other covenant or condition of this Agreement.
Section 8.04. Duplicate Originals This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be a duplicate original, but all of which, taken
together, shall constitute a single instrument.
Section 8.05. Article and Section Captions The Article and Section captions contained
in this Agreement are included only for convenience of reference and do not define, limit,
explain or modify this Agreement or its interpretation, construction or meaning and are in no
way to be construed as a part of this Agreement.
Section 8.06. Severability If any provision of this Agreement or the application of any
provision to any person or any circumstance shall be determined to be invalid or unenforceable,
then such determination shall not affect any other provision of this Agreement or the application
of said provision to any other person or circumstance, all of which other provisions shall remain
in full force and effect.
Section 8.07. Amendments in Writing No change, amendment, termination or
attempted waiver of any of the provisions of this Agreement shall be binding upon any party
unless in writing and signed by both of the parties hereto.
Section 8.08. AA2reement for Exclusive Benefit of Parties The provisions of this
Agreement are for the exclusive benefit of the parties hereto and not for the benefit of any other
person, nor shall this Agreement be deemed to have conferred any rights, express or implied,
upon any third person.
Section 8.09. No Partnership, Joint Venture or Principal -Mency Relationship Nothing
contained in this Agreement nor any acts of the parties hereto shall be deemed or construed by
the parties hereto or by any third person, to create the relationship of principal and agent, or of
partnership, or of joint venture, or of any association between the parties to this Agreement.
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Section 8.10. Written Consent Required Whenever a party is requested to consent to or
approve of any matter with respect to which its consent or approval is required by this
Agreement, such consent or approval, if given, and unless a shorter time period is specified
herein, shall be given in writing within thirty (30) days of request therefor.
Section 8.11. Covenants Run With the Land It is intended that the covenants,
easements, agreements, promises and duties of each party, as set forth in this Agreement, shall be
construed as covenants and not as conditions and that, to the fullest extent legally possible, all
such covenants shall run with and be enforceable against both the covenantor and the land or
constitute equitable servitudes as between the parcel of the respective covenantor, as the servient
tenement, as the parcel of the respective covenantee, as the dominant tenement. Any owner of a
property which is the subject hereof may grant the benefit of, or allow the use of, any right,
easement or interest hereunder to any permittee of any owner from time to time; provided that
any such permittee shall look solely to its permittor, in each case, for the enforcement of the
provision of this Agreement.
Section 8.12. No Merger All of the provisions of this Agreement are for the mutual
benefit and protection of the present and all future owners of the properties which are the subject
hereto; and if there should at any time be common ownership of any of said properties, or any
estate therein, then it is the intention of the parties hereto that there be no merger into the
respective fee simple estates of the rights and benefits and the obligations and burdens of this
Agreement, but rather that such rights and benefits and such obligations and burdens shall be
separately preserved for the benefit of all future owners of the fee simple estates in said
properties.
Section 8.13. No Dedication Nothing in this Agreement shall be deemed to constitute a
gift, grant or dedication of any portion of the Building Footprints or the Public Area to the
general public or for any public purpose, other than the purposes set forth in this Agreement;
provided that the parties shall have the right to extend the benefit of any of the easements granted
herein to any governmental unit, public body and/or utility company for the purpose of the
construction, installation, operation, maintenance, repair, relocation, modification, extension or
alteration of utility lines and related facilities, but such grant shall be subject to the terms and
conditions hereof.
Section 8.14. Termination of Liability Upon Transfer If Stonehenge or the City should
transfer its fee simple interest in and ownership of its property subject to this Agreement, then
the liability of the transferor for the breach of any covenant or provision contained in this
Agreement, occurring after the date of such transfer, shall automatically be terminated; and the
transferee, by the acceptance of the conveyance of such fee simple interest, shall automatically
be deemed to have accepted, assumed and agreed to observe and perform such covenant or
provision after the date of such transfer.
Section 8.15. Definition of Certain Terms As used in this Agreement, the term
"person" means a corporation, association, partnership, trust, estate, governmental agency or
other entity, as well as an individual or natural person, unless the context otherwise requires, and
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the term "permittee" means the respective employees, agents, customers, tenants, subtenants,
contractors, licensees, guests and invitees of Stonehenge and the City.
Section 8.16. Compliance With Laws Stonehenge and the City shall, at its sole cost and
expense, obtain any necessary licenses and permits and otherwise shall comply with any and all
federal, state, local and other governmental statutes, laws, rules, orders, regulations and
ordinances affecting or relating to its respective property which is the subject of this Agreement,
including, without limitation, any requirements or obligations set forth in any applicable zoning
ordinance or limitation text.
Section 8.17. Restoration If, as a result of the exercise of any easement rights created
under this Agreement, a party shall damage or disturb the improvements of another party, the
party causing such damage or disturbance shall promptly repair or restore the property of such
other party to, as near as possible, the condition existing prior to such damage or disturbance.
Section 8.18. Re2ulatory Considerations Nothing herein constitutes the approval of the
City in its regulatory capacity, including but not limited to, the City's Development Department,
Code Regulation personnel, licensing or the like.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives, to be effective as of the date first above written.
THE STONEHENGE COMPANY
an Ohio limited liability company
By:
Print Name:
Its:
CITY OF DUBLIN, OHIO,
an Ohio municipal corporation
Jane Brautigam, City Manager
[Acknowledgements on Next Page]
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STATE OF
COUNTY OF
The foregoing instrument was
2006, by
Company, an Ohio limited liability compan y
company.
STATE OF
COUNTY OF
D
acknowledged before me this day of
of The Stonehenge
, for and on behalf of said limited liability
SS.
SS.
Notary Public
My Commission Expires:
The foregoing instrument was acknowledged before me this day of
, 2006, by Jane Brautigam, the City Manager of the City of Dublin, Ohio, an
Ohio municipal corporation, for and on behalf of said municipal corporation
Index of Exhibits:
Notary Public
My Commission Expires:
A. Site Plan
B. Legal Description of Building Footprints
C. Legal Description of Public Area
D. Building Plans
E. Public Improvement Plans
F. Occupancy Easement Areas
G. Rules and Regulations
This instrument was prepared by:
Gregory S. Baker, Esq.
Schottenstein, Zox & Dunn Co., LPA
250 West Street
Columbus, Ohio 43215
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EXHIBIT "G"
PUBLIC PARKING LOT PLANS
[To be attached]
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EXHIBIT "H"
BUILDING PLANS
[To be attached]
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EXHIBIT "P'
PUBLIC IMPROVEMENT PLANS
[To be attached]
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