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45-08 OrdinanceRECORD OF ORDINANCES 45-08 Ordinance No. Passed , ~0 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO ENTER INTO A LAND EXCHANGE AND DEVELOPMENT AGREEMENT WITH GRABILL & COMPANY, LLC FOR THE EXCHANGE OF 0.534 ACRES, MORE OR LESS, CURRENTLY OWNED BY GRABILL, LOCATED NEAR THE DUBLIN BRIDGE STREET CEMETERY, WITH 0.623 ACRES, MORE OR LESS, WHICH IS CURRENTLY OWNED BY THE CITY OF DUBLIN, LOCATED AT THE SOUTHEAST CORNER OF BRIDGE STREET AND MONTEREY DRIVE. WHEREAS, the City of Dublin ("City") currently owns .623 acres, more or less, at the southeast corner of Bridge Street and Monterey Drive (the "Commercial Property"); and WHEREAS, Grabill & Company, LLC ("Grabill") currently owns .534 acres, more or less, near the Dublin Bridge Street Cemetery (the "Cemetery Property"); and WHEREAS, the City has been in communication with Grabill regarding the exchange of the aforementioned properties for the purpose of economic development of the BriHi district and City expansion of the Dublin Bridge Street Cemetery; and WHEREAS, in consideration for the exchange of the aforementioned properties, Grabill will pay to City a sum of money equal to the difference in value between the Cemetery Property and Commercial Property, which such values are based upon the appraisals for each that were prepared by Ohio Real Estate Consultants, Inc; and WHEREAS, as additional consideration for the land exchange, Grabill will be required to construct on the Commercial Property an approximately twelve thousand (12,000) square foot retail/commercial building and all related improvements, including parking areas, access drives, sidewalks and traffic control devices; and WHEREAS, Grabill will also be required to construct on its property located on either side of Monterey Drive and adjacent to the Commercial Property a condominium development containing twenty-five (25) condominium units and all related improvements; and WHEREAS, Council finds it is in the best interest of the City to enter into a Land Exchange and Development Agreement (the "Agreement") memorializing these terms with Grabill as set forth above. 1\TOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring that: Section 1. Council hereby authorizes the City Manager to execute the Agreement attached hereto as "Exhibit A" and any other associated documentation necessary to effectuate the land exchange. Section 2. This Ordinance shall take effect and be in force from and after the earliest date permitted by law. Passed this l~ day of ~ , 2008. Mayor -Presiding Officer ATTEST: Clerk of Council SCHOTTENSTEIN ZOX& DU N N ~a.~P~ MEMORANDUM TO: Dublin City Council Jane S. Brautigam, City Manager ~ ~,s 3 FROM: Stephen J. Smith, Law Director Asim Z. Hague DATE: July 31, 2008 RE: Ordinance No. 45-08 Grabill Land Exchange and Development Agreement PROJECT BACKGROUND: The City of Dublin ("City") and Grabill & Company, LLC ("Grabill") have been negotiating an agreement whereby City and Grabill will exchange certain land and Grabill will engage in certain development within City's BriHi district (the "Agreement"). City owns 0.623 acres of land, more or less, located at the southeast corner of Bridge Street and Monterey Drive (the "Commercial Property") and will be exchanging ownership thereof with Grabill for 0.534 acres of land, more or less, controlled by Grabill and located adjacent to the Dublin Bridge Street Cemetery (the "Cemetery Property"). TERMS OF AGREEMENT The Agreement requires the City to transfer the Commercial Property to Grabill and Grabill to transfer the Cemetery Property to City. In consideration thereof, Grabill will pay the City approximately $373,000.00 (the "Exchange Credit"). This amount represents the difference in value between the Cemetery Property and Commercial Property and is subject to change, based upon survey results. The Agreement requires Grabill to construct on the Commercial Property aretail/commercial building and related improvements and a condominium development on both sides of Monterey Drive located south of the Commercial Property, which Grabill currently has options to purchase. Grabill has four years after the Agreement is executed to satisfy its contingencies under the Agreement, which include obtaining development plan approvals, permits and financing for the developments, among others. This timeframe is appropriate given the state of the economy and lenders' more rigorous lending requirements in effect today, which include receiving additional assurances from borrowers that projects are economically viable. Four years provide Grabill with sufficient time to obtain all approvals for the developments and leasing commitments from Memo to Council re Ordinance 45-08 - Grabill Land Exchange and Development Agreement July 31, 2008 Page Two i prospective tenants, which should assuage lender concerns. Grabill is motivated to diligently pursue the commercial development because it is expected to generate greater income than the condominium development and, after three years, the Exchange Credit is subject to increase based upon the then appraised values of the properties being exchanged. Further, if the City I determines that Grabill is not pursuing such matters in good faith, then the City may terminate the Agreement. If the commercial development is not completed within five years, then the City may declare a default under the Agreement. If Grabill and its lender fail to cure the default and the lender does not elect to foreclose on the commercial property, then the City may step into the lender's shoes (by buying the loan) and foreclose upon the commercial property. The City has less aggressive remedies if Grabill fails to commence and complete the condominium development. PROPOSED LEGISLATION The proposed legislation would authorize the City Manager to execute the Agreement. RECOMMENDATION The Law Department recommends approval of Ordinance No. 45-08. ~..;zo.~em Columbus Cleveland Cincinnati 250 West Street, Columbus, Ohio 43215-2538 ~ P.O. Box 165020. Columbus. OH 43216-5020 Voice: 614-462-2700 Fax: 614-462-5135 LAND EXCHANGE AND DEVELOPMENT AGREEMENT THIS LAND EXCHANGE AND DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into on the _ day of August, 2008 (the "Effective Date"), by and between GRABILL & CO., LLC, an Ohio limited liability company ("Grabill"), whose mailing address is 182 South High Street, Dublin, Ohio 43017, and the CITY OF DUBLIN, OHIO, an Ohio municipal corporation (the "City"), whose address is 5200 Emerald Parkway, Dublin, Ohio 43017. Grabill and the City are sometimes individually referred to herein as a "Party' and collectively as the ``Parties". Background Information A. The City is the owner of an approximate 0.623 acre tract of real property commonly known as 191 W. Bridge Street, Dublin, Ohio, being Franklin County Tax Parcel No. 273-000208 (the "Commercial Property"). B. Grabill and/or its affiliate is the owner of the following tracts of improved real property located near the intersection of Monterey Drive and W. Bridge Street in Dublin, Ohio: (i) an approximate 0.47 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000212; and (ii) an approximate 0.47 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-0002 1 3 (collectively, the "Grabill Property"). C. Grabill has an option to purchase the following tracts of improved and unimproved real property: (i) an approximate 0.54 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000209; (ii) an approximate 0.51 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000210; (iii) an approximate 0.48 acre tract of real property commonly known as Franklin County Tax Parcel No. 273- 000211; (iv) an approximate 0.61 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000214; (v) an approximate 0.61 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000215; (vi) an approximate 0.61 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000216; and (vii) an approximate 0.60 acre tract of real property commonly known as Franklin County Tax Parcel No. 273-000217 (collectively, the "Option Property"). The Commercial Property, the Grabill Property and the Option Property are generally depicted on Exhibit "A" attached hereto and incorporated by this reference herein (the "Site Plan"). D. The City desires to acquire from Grabill that portion of the Grabill Property and the Option Property outlined in green on the attached Site Plan, which such portion is hereinafter referred to as the "Cemetery Property". E. Grabill desires to acquire the Commercial Property and construct thereon and on the portion of the Option Property immediately adjacent to and east of the Commercial Property a retail/commercial building, which such building shall be designed and constructed in accordance with a final development plan approved by the City of Dublin Planning and Zoning Commission. jHI?88>~L>j F. Grabill desires to construct atwenty-five (25) unit condominium development on the portion of the Grabill Property and the Option Property outlined in blue on the Site Plan, which such portion is hereinafter referred to as the "Condominium Property" and shall be designed and constructed in accordance with a final development plan approved by the City of Dublin Planning and Zoning Commission. G. In consideration of the City's desire to acquire the Cemetery Property, Grabill's desire to acquire the Commercial Property and Option Property and develop portions of same as required herein, the City has agreed to convey the Commercial Property to Grabill, and Grabill has agreed to convey the Cemetery Property to the City, all on the terms and conditions set forth below. Statement of Agreement NOW THEREFORE, for Ten and 00/100 Dollars (510.00) 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: ARTICLE I LAND EXCHANGE 1. Transfer. The City shall cause the Commercial Property to be transferred and deeded to Grabill and Grabill shall cause the Cemetery Property to be transferred and deeded to the City upon the terms and conditions of this Agreement. The parties agree that no cash will be paid by or to either party except as otherwise provided for in this Agreement. 2. Contingencies. (a) City Contingencies. This Agreement shall be contingent upon the City: (i) Obtaining Dublin City Council approval of this Agreement; (ii) Obtaining a Phase I Environmental Site Assessment of the Cemetery Property indicating that the Cemetery Property is free of all hazardous wastes, substances and materials which may require remediation or which may result in penalties under applicable laws, rules or regulations (the "Cemetery Property Phase I"); (iii) Receiving from Grabill (within 30 days after the Effective Date) an ALTA survey and legal description of the Cemetery Property, which survey and legal description shall be approved by any governmental authorities as may be necessary to split the Cemetery Property from the Grabill Property and the Option Property; (iv) Approving the terms of any loan agreements and mortgages (the "Loan Documents") that Grabill may obtain for purposes of financing the ;Hizsss~is } 2 acquisition of the Commercial Property and that portion of the Option Property found adjacent to and east of the Commercial Property as well as for the development of the Commercial Development (as defined in Article II, Section 1(a) below), which approval shall not be unreasonably withheld so long as such documents are consistent with the terms of Article II, Sections 6(b) and (e) below; (v) Grabill receiving all necessary zoning and development plan approvals and permits to construct the structure to be found on the Commercial Property and the portion of the Option Property adjacent to and east of the Commercial Property; and (vi) Being satisfied with any other investigations of the Cemetery Property deemed necessary by the City and Grabill's continuous good faith efforts to obtain zoning, preliminary and final development plan approval by the City of Dublin Planning and Zoning Commission for the development of the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) and Condominium Property (collectively, the "City Contingencies") and permits and financing for the development thereof. The City Contingencies shall be deemed to have been satisfied and/or waived unless on or before the fourth (4"') anniversary of the Effective Date (the "Contingency Date"), the City provides to Grabill written notice of its failure to satisfy same, in which event this Agreement shall be terminated. The Contingency Date may be extended by the mutual agreement of the parties. The City agrees to cooperate with Grabill to obtain any lot split approvals required hereunder. (b) Grabill Contingencies. This Agreement shall be contingent upon Grabill: (i) Obtaining a Phase I Environmental Site Assessment of the Commercial Property indicating that the Commercial Property is free of all hazardous wastes, substances and materials which may require remediation or which may result in penalties under applicable laws, rules or regulations (the "Commercial Property Phase I"); (ii) Receiving all lot split approvals required to split the Cemetery Property from the Grabill Property and the Option Property; (iii) Obtaining zoning, preliminary development plan, and final development plan approval from the City to the proposed development of the Commercial Property (and on the portion of the Option Property immediately adjacent to and east of the Commercial Property) and Condominium Property on terms acceptable to Grabill, including the expiration of all referendum periods thereto; ~~~zsss~~s ~ 3 (iv) Receiving all necessary building permits and approvals to construct the structure to be found on the Commercial Property and the Option Property adjacent to and east of the Commercial Property; (v) Obtaining financing for the acquisition and construction of the Commercial Property (and the portion of the Option Property immediately adjacent to and east of the Commercial Property) and Condominium Property for the developments described herein; and (vi) Determining, at Grabill's sole cost and expense, that the Commercial Property (and the portion of the Option Property immediately adjacent to and east of the Commercial Property) and Condominium Property are suitable for the proposed development thereof (collectively, the "Grabill Contingencies"). The Grabill Contingencies shall be deemed to have been satisfied or waived, unless on or before the Contingency Date, Grabill provides the City with written notice of its failure to satisfy the same, in which event, this Agreement shall be terminated. Grabill represents that upon completion of Grabill's inspections of the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) and Condominium Property, Grabill will have made all investigations necessary, in Grabill's sole discretion, for the proposed development thereof. Such inspections may include, but not be limited to, the determination of the condition of soils, subsurface, drainage, surface and groundwater quality, and all other physical characteristics; availability of permits and approvals; availability and adequacy of utilities (including, but not limited to, water and sewer); compliance with governmental laws and regulations; access; encroachments; acreage and other survey matters; availability of curb cuts; and the character and suitability of the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) and Condominium Property for the proposed development thereof. Grabill shall use continuous good faith efforts to obtain preliminary and final development plan approval by the City of Dublin Planning and Zoning Commission for the development of the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) and Condominium Property. 3. Appraisals. On September 13, 2007, Grabill obtained an appraisal of the Cemetery Property from Ohio Real Estate Consultants, Inc. (the "Cemetery Property Appraisal"). On August 28, 2007, the City obtained an appraisal of the Commercial Property from Ohio Real Estate Consultants, Inc. (the "Commercial Property Appraisal"). The parties hereto agree that the purchase price and/or trade value of the Cemetery Property and the Commercial Property shall be their appraised values, and the parties agree to and accept the appraised values for the properties as determined by the Cemetery Property Appraisal and the Commercial Property Appraisal through the third (3Td) anniversary of the Effective Date (the "Initial Appraisal Expiration Date"). The appraised values as determined by the Cemetery Property Appraisal and the Commercial Property Appraisal are currently as follows: (a) The Cemetery Property Appraisal values the Cemetery Property at Four Hundred Twenty-Five Thousand Dollars ($425,000.00) per acre. The Cemetery Property ~x,zs85~ ~s r 4 contains approximately 0.534 acres and thus is valued at Two Hundred Twenty- Six Thousand Nine Hundred Fifty Dollars ($226,950.00). (b) The Commercial Property Appraisal values the Commercial Property at Nine Hundred Sixty-Three Thousand Eighty-One Dollars ($963,081.00) per acre. The Commercial Property contains approximately 0.623 acres and thus is valued at Six Hundred Thousand Dollars ($600,000.00). Based on the above appraisal values and provided that the Closing occurs on or before before the Initial Appraisal Expiration Date, Grabill shall, on the date of Closing, pay the City the amount of Three Hundred Seventy-Three Thousand Fifty Dollars ($373,050.00), in immediately available funds or by cashier's check, adjusted by all prorations, credits, allowances and other adjustments specifically provided for herein. The foregoing calculation shall be subject to adjustment based upon the acreage assessed in any boundary surveys of the respective properties obtained by Grabill hereunder and verified by the City. In the event that the Closing has not occurred on or before the Initial Appraisal Expiration Date, then Grabill shall obtain an updated appraisal of the Cemetery Property (the "Updated Cemetery Property Appraisal") and provide a copy of same to the City and the City shall obtain an updated appraisal of the Commercial Property (the "Updated Commercial Property Appraisal") and provide a copy of same to Grabill within thirty (30) days after the Initial Appraisal Expiration Date in order to ensure that the appraised values of the respective properties reflect current market conditions. The parties hereto agree that the purchase price and/or trade value of the Cemetery Property and the Commercial Property at any time after the Initial Appraisal Expiration Date shall be their appraised values as set forth in the Updated Cemetery Property Appraisal and the Updated Commercial Property Appraisal if mutually agreed upon by the City and Grabill. If a mutual agreement cannot be reached on the purchase price and/or trade value of one or both of these properties within thirty (30) days after such thirty (30) day period, then the party objecting to the relevant appraisal (or both) shall pay for and obtain another appraisal for the affected property and provide a copy of same to the other party within fifteen (l5) days after its receipt of the appraisal to which it objects. Should the parties be unable to agree on the purchase price and/or trade value of either the Cemetery Property or Commercial Property after the second appraisal is completed, then the City and Grabill shall obtain (within a mutually agreed-upon time frame) and equally share the costs of a third appraisal for the relevant property (or both) from an appraiser that they mutually select. The parties agree that the appraised value of the relevant property (or both) as determined by this third appraisal shall be the purchase price and/or trade value for the affected property. No Closing of the transaction(s) contemplated herein shall occur following the Initial Appraisal Expiration Date until the Updated Cemetery Appraisal and the Updated Commercial Property Appraisal have been obtained as set forth herein. Based on the appraisal values that are effective after the Initial Appraisal Expiration Date, Grabill shall, on a date of Closing occurring after the Initial Appraisal Expiration Date, pay to the City an amount equal to the difference between the relevant appraised value of the Commercial Property and the relevant appraised value of the Cemetery Property in immediately available funds or by cashier's check, adjusted by all prorations, credits, allowances and other adjustments ~H 1]85511.5) specifically provided for herein. The foregoing calculation shall be subject to adjustment based upon the acreage assessed in any boundary survey of the respective properties obtained by Grabill hereunder and verified by the City. 4. Access. For and during the entire period that this Agreement is in effect, the City shall, at its sole cost, have the right, at reasonable times, to enter upon the Cemetery Property and Grabill shall obtain any necessary consents from the owners thereof as is necessary to permit such access by the City. For and during the entire period that this Agreement is in effect, Grabill shall, at its sole cost, have the right, at reasonable times, to enter upon the Commercial Property. The City shall indemnify and hold Grabill harmless for any losses that Grabill, the City, or any of the City's employees, contractors, or agents may suffer as a result of the City's exercise of its right to inspect the Cemetery Property as set forth herein, and agrees to repair any damage to the Cemetery Property resulting from such inspection. Grabill shall indemnify and hold the City harmless for any losses that the City, Grabill, or any of Grabill's employees, contractors, or agents may suffer as a result of Grabill's exercise of its right to inspect the Commercial Property set forth herein and agrees to repair any damage to the Commercial Property resulting from such inspection. 5. Submission of Materials. Within seven (7) days after the execution hereof, both parties shall provide to the other any studies, site specific investigations and/or surveys in such party's possession pertaining to that party's property. 6. Evidence of Title. (a) Transfer of Option Property. Grabill shall, on or before the Closing (as defined in Section 8), cause the owner of the Option Property to transfer title to same to Grabill. Grabill shall at the Closing provide to the City a copy of the recorded deeds conveying the Option Property to Grabill. If Grabill fails to acquire title to the Option Property on or before the Closing, then the City shall have the right to terminate this Agreement. (b) Cemetery Property. Grabill shall convey to the City marketable title in fee simple to the Cemetery Property by transferable and recordable general warranty deed. Within thirty (30) days after the Effective Date, Grabill shall, at its sole cost and expense, deliver to the City an ALTA Commitment for Title Insurance through a title company mutually selected by the City and Grabill (the "Title Insurance Company"), pursuant to which the Title Insurance Company shall commit to issue an ALTA Owner's Title Insurance Policy, in the current appraised value of the Cemetery Property at Grabill's expense. The title evidence shall be certified to at least the Effective Date of this Agreement. The title shall be endorsed as of 8:00 A.M. on the date of Closing (as defined below), and shall show in Grabill good and marketable title in fee simple to the Cemetery Property free and clear of all liens and encumbrances except: (i) those created by the City; (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; ;xizsssiis s 6 (iv) easements and restrictions of record which do not unreasonably interfere with the City's proposed use of the Cemetery Property; and (v) monetary liens which are the obligation of Grabill to discharge prior to or at Closing without further objection from the City. If an examination of either the title insurance commitment (including any endorsements) or any survey provided to the City hereunder discloses any matter adversely affecting title to the Cemetery Property, or if title to the Cemetery Property is not marketable, as determined by Ohio law with reference to the Ohio State Bar Association's Standards of Title Examination, or if the Cemetery 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 "Cemetery Property Defects"), the City shall, on or before the date which is thirty (30) days prior to the expiration of the Contingency Period, notify Grabill thereof and thereafter Grabill shall have a reasonable time, not to exceed thirty (30) days after receipt of such notice, within which to cure or remove any such Cemetery Property Defects. The City shall not be required to object to any monetary liens, all of which are the responsibility of Grabill to remove prior to or at Closing, nor to the fact that a portion of the Cemetery Property is not currently owned by Grabill, which portion shall be conveyed to Grabill prior to the Closing as provided in Section 6(a) above. If Grabill is unable to cure or remove the Cemetery Property Defects within said thirty (30) day period, and such time period is not extended by mutual agreement of the parties, Grabill shall immediately give notice of Grabill's inability to the City and thereafter, the City shall have ten (10) days after receipt of such notice within which to make its election either (a) to accept title to the Cemetery Property subject to such Cemetery Property Defects or (b) to withdraw from this transaction and terminate this Agreement. Notwithstanding anything to the contrary contained herein, if the Closing occurs after the Initial Appraisal Expiration Date, then the amount of the owner's policy of title insurance shall be adjusted to reflect the then current appraised value of the Cemetery Property determined in accordance with Section 3 hereof. (c) Commercial Property. The City shall convey to Grabill marketable fee simple title to the Commercial Property by transferable and recordable general warranty deed. Within thirty (30) days after the Effective Date, the City shall, at its sole cost and expense, deliver to Grabill an ALTA Commitment for Title Insurance through the Title Insurance Company, pursuant to which the Title Insurance Company shall commit to issue an ALTA Owner's Title Insurance Policy, in the current appraised value of the Commercial Property at the City's expense. The title evidence shall be certified to at least the Effective Date of this Agreement. The title shall be endorsed as of 8:00 A.M. on the date of Closing (as defined below), and shall show in the City good and marketable title in fee simple to the Commercial Property free and clear of all liens and encumbrances except: (i) those created by Grabill; (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 Grabill's proposed use of the Commercial Property; and ~H 128851 LS , '~ (v) monetary liens which are the obligation of the City to discharge prior to or at closing without further objection from Grabill. If an examination of either the title insurance commitment (including any endorsements) or any survey obtained hereunder discloses any matter adversely affecting title to the Commercial Property, or if title to the Commercial Property is not marketable, as determined by Ohio law with reference to the Ohio State Bar Association's Standards of Title Examination, or if the Commercial 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 "Commercial Property Defects"), Grabill shall, on or before the date which is thirty (30) days prior to the expiration of the Contingency Period, notify the City thereof and thereafter the City shall have a reasonable time, not to exceed thirty (30) days after receipt of such notice, within which to cure or remove any such Commercial Property Defects. Grabill 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 to cure or remove the Commercial Property Defects within said thirty (30) day period, and such time period is not extended by mutual agreement of the parties, the City shall immediately give notice of the City's inability to Grabill and thereafter, Grabill shall have ten (10) days after receipt of such notice within which to make its election either (a) to accept title to the Commercial Property subject to such Commercial Property Defects or (b) to withdraw from this transaction and terminate this Agreement. Notwithstanding anything to the contrary contained herein, if the Closing occurs after the Initial Appraisal Expiration Date, then the amount of the owner's policy of title insurance shall be adjusted to reflect the then current appraised value of the Commercial Property determined in accordance with Section 3 hereof. 7. Closine Documents. On the date of Closing (as defined in Section 8 below), the City shall deliver to Grabill, and Grabill shall deliver to the City, as applicable, duly and properly executed originals of the following documents: (a) A general warranty deed from the City to Grabill conveying marketable fee simple title to the Commercial Property (the "Commercial Deed"). (b) A general warranty deed from Grabill to the City conveying marketable fee simple title to the Cemetery Property (the "Cemetery Deed"); (c) Seller's affidavits regarding liens (mechanics' or others), unrecorded matters and parties in possession; (d) 1099Ss and other IRS reporting requirements (including FIRPTA affidavits); (e) Conveyance fee statements; and (f) Such other documents as maybe reasonably necessary or appropriate to carry out the terms of this Agreement (including, without limitation, a settlement statement). ,H 1]88511.5) O 8. Closing Date. Unless this Agreement is terminated by one of the parties pursuant to Section 2 and/or Section 6 above, the transfer of the Commercial Property and Cemetery Property shall be closed (the "Closing") within thirty (30) 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 title defects, as set forth in Section 6 hereof, or as is necessary for Grabill to obtain the lot split necessary to split the Cemetery Property from the Grabill Property and the Option Property. The Closing shall be at such time and place as the City and Grabill may mutually agree upon. 9. Possession. The City shall be entitled to full and exclusive possession of the Cemetery Property as of the date of Closing. Grabill shall be entitled to full and exclusive possession of the Commercial Property as of the date of Closing. 10. Adiustments at Closine. On the date of Closing, the City and Grabill shall apportion, adjust, prorate and pay the following items in the manner hereinafter set forth: (a) Real Estate Taxes -Cemetery Property. Grabill shall pay all delinquent real estate taxes, together with penalties and interest thereon, if any, all current assessments which are a lien against the Cemetery Property as of the date of Closing (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 date of Closing. The proration of undetermined taxes shall be based upon a three hundred sixty-five (365) day year and on the last available tax rate and valuation applicable to the Cemetery Property. Upon making the proration provided for herein, the City and Grabill agree that the amount so computed shall be subject to later adjustment should the amount credited at Closing be incorrect based upon actual tax bills received by the City after Closing. (b) Real Estate Taxes -Commercial Property. The City and Grabill have agreed not to prorate real estate taxes at the Closing with respect to the Commercial Property because the Commercial Property is currently exempt from real property taxes. Grabill shall be responsible for any real estate taxes and assessments levied against the Commercial Property from and after the date of Closing. The City shall be solely responsible for taxes, if any, levied against the Commercial Property during its period of ownership of same. (c) Grabill Expenses. Grabill shall, at the Closing (unless previously paid), pay the following: (i) the recording fees required for recording the Commercial Deed; (ii) the cost of furnishing the title commitment and final policy for the Cemetery Property; (iii) the ALTA survey of the Cemetery Property and any survey of the Commercial Property and Option Property obtained by Grabill; CHI?88511.5 ~ 9 (iv) Commercial Property Phase I; and, (v) one-half the fee charged by the title agency conducting the Closing. (d) City Expenses. The City shall, at the Closing (unless previously paid), pay the following: (i) the recording fees required for recording the Cemetery Deed; (ii) the cost of furnishing the title commitment and final policy for the Commercial Property; (iii) the Cemetery Property Phase I; and, (iv) one-half the fee charged by the title agency conducting the Closing. (e) Brokers. Grabill hereby warrants and represents to the City that Grabill has not engaged or dealt with any broker or agent in regard to this Agreement. Grabill agrees to indemnify the City and hold the City harmless against any liability, loss, cost, damage, claim and expense (including, but not limited to, attorneys' fees and costs of litigation) which the City shall ever incur or be threatened with because of any claim of any broker or agent claiming through Grabill, whether or not meritorious, for any such fee or commission. The City hereby represents and warrants to Grabill that the City has not engaged or dealt with any broker or agent in regard to this Agreement. The City agrees to indemnify Grabill and hold Grabill harmless against any liability, loss, cost, damage, claims and expense (including, but not limited to, attorneys' fees and cost of litigation) which Grabill may ever suffer, incur, or be threatened with because of any claim by any broker or agent claiming by, through or under the City, whether or not meritorious, for any such fee or commission. ARTICLE II DEVELOPMENT 1. Development of the Commercial Property and Condominium Property. Grabill hereby agrees that development of the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) and Condominium Property shall occur in accordance with the terms and conditions contained herein. (a) Commercial Property. Grabill shall, at its sole cost and expense, construct on the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) aretail/commercial building and any and all other related improvements associated therewith, including, without limitation all site development work, parking areas, access drives, curb cuts, patios, garages, landscaping, utilities, bike and pedestrian paths, sidewalks and traffic control devices, in accordance with a final development plan approved by the City of Dublin's Planning and Zoning Commission (the "Commercial Development"), which such plan shall be attached hereto as Exhibit "B", as soon as same have been completed by Grabill and approved by the City. piizss~i ~s ~ 10 (b) Condominium Property. Grabill shall construct, at its sole cost and expense, on the Condominium Property a condominium development and any and all other related improvements associated therewith, including, without limitation all site development work, parking areas, access drives, curb cuts, patios, garages, landscaping, utilities, bike and pedestrian paths, sidewalks and traffic control devices, in accordance with a final development plan approved by the City of Dublin's Planning Commission (the "Condominium Development"), which such plan shall be attached hereto as Exhibit "C", as soon as same have been completed by Grabill and approved by the City. The Commercial Development and Condominium Development are collectively referred to herein as the "Development." 2. Construction of the Development. Promptly following the Effective Date of this Agreement, Grabill shall use good faith efforts to obtain all development plan approvals, both preliminary and final, by the City of Dublin's Planning and Zoning Commission necessary for the construction of the Commercial Development and Condominium Development. Following Grabill's receipt of final zoning and development plan approval by the City of Dublin's Planning and Zoning Commission for the Commercial Development and/or Condominium Development, as applicable, Grabill shall use good faith efforts to pursue financing for and obtain all necessary permits and approvals to commence construction of the applicable portions of the Development. Following receipt of such permits and approvals, Grabill shall use good faith efforts to promptly commence and diligently pursue to completion the construction of the applicable portions of the Development. Notwithstanding anything to the contrary contained herein, Grabill shall complete the Commercial Development on or before the fifth (5"') anniversary of the Effective Date hereof, subject to events of force majeure. The City approved plans and specifications for the Development may be modified by Grabill if approved by the City through a rezoning or an amended final development plan, as'the case may be. If Grabill desires to revise any such plans, Grabill shall notify the City in writing of the proposed change and the reason therefor. Any negative response to Grabill's proposed changes shall state the reasons therefore and the revisions necessary for the City's approval. Grabill shall conform such plans as required by the City or the process shall continue until the City has approved the revisions. 3. Inspection. The City shall have access to the project sites at all times during the site development work and the construction of the Development. The City agrees to act in good faith and shall not unreasonably withhold any and all permits and approvals necessary to construct the Development, including but not limited to the issuance of a building permit and occupancy permit. 4. Warranties and Representations of Grabill. In addition to any other representation or warranty contained in this Agreement, Grabill hereby represents and warrants as follows: (a) Neither Grabill nor any agent, employee or representative of Grabill, has knowledge of contamination or environmental conditions at the Cemetery Property or 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 ~x,>sss~~ s, 11 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 provided to the City; (b) To Grabill's knowledge, 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 encumbrance against, the Cemetery Property, under any agreement or other instrument to which Grabill is a party or by which Grabill or the Cemetery Property might be bound; (c) No other person or entity currently owns or has any legal or equitable interest in the Grabill Property and no other person or entity other than the City has or will have any right to acquire the Grabill Property, or any portion thereof; (d) From and after the date on which Grabill acquires the Option Property, no other person or entity shall own or have any legal or equitable interest in the Option Property and no other person or entity other than the City will have any right to acquire the Option Property, or any portion thereof; (e) The execution, delivery and performance by Grabill of this Agreement and the performance by Grabill of the transactions contemplated hereunder, and the conveyance and delivery by Grabill to the City of possession and title to the Cemetery Property have each been duly authorized by such persons or authorities as may be required, and on the date of Closing, Grabill shall provide the City with a resolution, or other instrument, in form satisfactory to the title insurer, evidencing such authorization; (f) Through and until the date of Closing, Grabill shall not enter into any easement, purchase or sale agreement, lease or other contract pertaining to the Cemetery Property unless such obligations thereunder are discharged prior to the Closing; (g) Grabill is not a "Foreign Person" as that term is defined in the Foreign Investment in Property Tax Act; and (h) As of the Closing, there shall be no leasehold interests in the Cemetery Property owned or claimed by any other person or entity. 5. Warranties and Representation by the City. In addition to any other representation or warranty contained in this Agreement, the City hereby represents and warrants as follows: (a) Except as shown on that certain Phase I Environmental Site Assessment provided by the City to Grabill, neither the City, nor any agent, employee or representative of the City, has knowledge of contamination or environmental conditions at the Commercial Property or has received any notice or notices, either orally or in jH12S8511.51 1 ~t writing, from any county, state, or federal governmental agency or body, of any violation of any laws, ordinances, statutes or regulations relating to pollution or environmental standards, which have not heretofore been provided to Grabill; (b) To the City's knowledge, 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 encumbrance against, the Commercial Property, under any law, ordinance, regulation, agreement or other instrument to which the City' is a party or by which the City or the Commercial Property might be bound; (c) No other person or entity currently owns or has any legal or equitable interest in the Commercial Property and no other person or entity other than the Grabill has or will have any right to acquire the Commercial Property, or any portion thereof; (d) The execution, delivery and performance by the City of this Agreement and the performance by the City of the transactions contemplated hereunder, and the conveyance and delivery by the City to Grabill of possession and title to the Commercial Property have each been or will be duly authorized by such persons as may be required, and on the date of Closing, the City shall provide Grabill with a resolution, ordinance, or other instrument, in form satisfactory to the title insurer, evidencing such authorization; (e) Through and until the date of Closing, the City shall not enter into any easement, purchase or sale agreement, lease or other contract pertaining to the Commercial Property; and (f) There are no leasehold interests in the Commercial Property owned or claimed by any other person or entity. 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 for a period of one (1) year. All representations and warranties set forth in this Agreement shall be true and correct as of the date hereof and as of the date of Closing. The parties hereby agree to indemnify and hold the other party harmless from and against any and all claims, demands, liabilities, costs and expenses of every nature and kind (including attorneys' fees) which the a party may sustain at any time (i) as a result of, arising out of or in any way connected with the use and/or ownership of the Cemetery Property or the Commercial Property which arises prior to the transfer thereof to the other party; or (ii) by reason of the untruth, breach, misrepresentation or non-fulfillment of any of the covenants, representations, warranties or agreements made by either party in this Agreement or in any documents or agreements delivered in connection with this Agreement or with the closing of the transaction contemplated hereby. {H~zass,~s ~ 13 If, during the pendency of this Agreement, either party reasonably determines that any warranty or representation given by the other under this Agreement shall be untrue or incorrect, in whole or in part, such party may terminate this Agreement. 6. Default and Remedies. (a) Events of Default b Grabill. The following shall be deemed to be events of default by Grabill: (i) Failure to comply with any of the terms and conditions of this Agreement; (ii) Filing of a petition by or against Grabill under any chapter of the Bankruptcy Reform Act of 1978, as amended, ("the Code"), 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 Grabill's performance hereunder; (iii) Insolvency of Grabill, the appointment under the laws of any state of a receiver or a trustee of the property of Grabill or any application by Grabill under any state law for protection from creditors; and (iv) An assignment by Grabill for the benefit of creditors or the filing by or against Grabill of any proceeding for the dissolution or liquidation of Grabill if the same is not released or corrected within sixty (60) days; and (v) Any act or omission by Grabill which constitutes an event of default under any of the terms and conditions of the Loan Documents. (b) The Lender's and Citv's Riaht to Cure. The City agrees that it shall, upon the request of Grabill's lender financing the construction of the Commercial Development, commit to provide such lender with (i) a simultaneously delivered copy of any notice of default sent to Grabill pursuant to the terms of this Agreement, and (ii) the right, but not the obligation, to cure, or to cause Grabill to cure, any default by Grabill of its obligations under this Agreement within thirty (30) days after the cure period provided to Grabill under this Agreement. Grabill shall, as a material inducement for the City to enter into this Agreement, cause Grabill's lender financing the construction of the Commercial Development to include the following language, or words of similar import satisfactory to the City, in the City's sole discretion, in the Loan Documents with such lender: "Each notice of a breach sent by [Name of Lender] to Borrower under the Loan Documents shall also be sent by [Name of Lender] to the City simultaneously with the notice sent to Borrower. Notwithstanding anything to the contrary contained in the Loan Documents, [Name of Lender] and Borrower hereby agree that in the event that Borrower fails to cure any Event of Default (as defined in the Loan Documents) within the applicable cure period, if any, then the City (in the City's discretion) shall ;eizsssns ~ 14 have thirty (30) days after the expiration of such cure period, if any, to cure such Event of Default. Notwithstanding anything to the contrary contained in the Loan Documents, Borrower and [Name of Lender] agree, with respect to this Section _ only, that the City shall be a third party beneficiary." (c) Cure Period. In the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party hereto, such Party shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach, and, in any event, within thirty (30) days after receipt of such notice. In the event such default or breach is of such nature that it cannot be cured or remedied within said thirty (30) day period, then in such event the Party shall upon written notice from the other commence its actions to cure or remedy said breach within said thirty (30) day period, and proceed diligently thereafter to cure or remedy said breach. In case such action is not taken or not diligently pursued, or the default or breach shall not be cured or remedied within a reasonable time, the aggrieved party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations. (d) Remedies Prior to Closing. If any default or failure referred to herein shall not be cured or remedied within the applicable cure period set forth herein, then this Agreement and all rights of the City and Grabill hereunder shall be terminated at the option of the non-defaulting Party. In the event of any such termination, neither Party shall have any further rights under this Agreement. Notwithstanding the foregoing, each Party reserves the right to pursue any and all other remedies available to them at law or in equity-for any and all damages incurred as a result of the other Party's default hereunder, including, but not limited to, the right to seek specific performance and damages, and all of such remedies shall be cumulative and non-exclusive. (e) Remedies after Closing. If, after the Closing, Grabill (a) defaults in or violates its obligations under this Agreement with respect to the construction of the Commercial Development, and any such default or violation shall not be cured, ended, or remedied within ninety (90) days after written demand by Dublin to do so; or (b) defaults in or violates its obligations under this Agreement with respect to any other matter and any such default or violation shall not be cured, ended, or remedied within the cure period set forth in Section (c) above, then, provided that any holder of a mortgage authorized by this Agreement has neither cured such default as provided herein nor elected to foreclose (and/or take a deed in lieu of foreclosure) on the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof), then the City shall have the right, but not the obligation, to take an ass ~munent of any or all of the Loan Documents and/or contracts between Grabill and any general contractor, subcontractor, materialmen or others who have performed or will perform any portion of the construction work for the Commercial Development ("Commercial Development Contracts"), which ass ~~mnent shall be deemed to be self-operative upon the City's election and shall require no further agreement between the City and Grabill (the "Take Back Rights"). If the City exercises its Take Back Rights hereunder, then Grabill shall be responsible for reimbursing the City for all reasonable, actual costs and expenses incurred as a result of such default, including, without limitation, taking assignment of the Loan Documents and/or Commercial Development ~HI288511.5 } t C Contracts. If the City does not elect to exercise its Take Back Rights hereunder, then the City may, but shall not be obligated to, perform Grabill's construction obligations hereunder, in which event, Grabill shall, within thirty (30) days after receipt of a written invoice therefore, reimburse the City for the costs thereof. Any amounts which are not timely reimbursed by Grabill to the City shall constitute a lien on the property and accrue interest at the then prime rate as published by the Wall Street Journal, plus two percent (2%). Notwithstanding the foregoing, each Party reserves the right to pursue any and all other remedies available to them at law or in equity-for any and all damages incurred as a result of the other Party's default hereunder, including, but not limited to, the right to seek specific performance and damages, and all of such remedies shall be cumulative and non-exclusive. Grabill shall, as a material inducement for the City to enter into this Agreement, cause Grabill's lender financing the construction of the Commercial Development to include the following language, or words of similar import satisfactory to the City, in the City's sole discretion, in the Loan Documents: "Upon the occurrence of an Event of Default which [Name of Lender] has neither elected to cure in accordance with the terms of that certain Land Exchange and Development Agreement dated , 2008 by and between Borrower and the City, nor elected to foreclose (and/or take a deed in lieu of foreclosure) on the Property secured by this [Insert document title], then the City shall have the right, but not the obligation, to purchase the Loan from [Name of Lender], upon terms and conditions mutually acceptable to [Name of Lender] and the City. Notwithstanding anything to the contrary contained in the Loan Documents, Borrower and [Name of Lender] agree, with respect to this Section _ only, that the City shall be a third party beneficiary." For purposes of this Article II, Section 7, Grabill represents and warrants to the City that Grabill has or shall make reasonable efforts to obtain commercial financing with a third party lender for the acquisition and construction of the Commercial Development, pursuant to which lender will be filing a mortgage or other security agreements against the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof) such that Grabill shall be in a position to comply with the foregoing construction obligations hereunder. Further, notwithstanding the expiration of the Contingency Period pursuant to Article I, Section 2(a) above, the City shall have the right to approve of all such Loan Documents, which approval shall not be unreasonably withheld so long as such documents are consistent with the terms of Article II, Sections 6(b) and (e) hereof. In the event Grabill determines not to obtain commercial financing with a third party lender for the Commercial Development, then Grabill shall promptly notify the City of same and shall provide the City with additional security satisfactory to the City, in the City's sole discretion, to guaranty that Grabill will diligently and timely complete the Commercial Development according to the plans approved by the City. ARTICLE III MISCELLANEOUS {HI?555115 ~ 1 L 1. Notice Procedure. Any notices required hereunder shall be in writing, shall be transmitted by certified mail, postage prepaid, return receipt requested, by nationally recognized overnight courier, or by facsimile and shall be deemed given when received or when receipt is refused, and shall be addressed to the parties at the address set forth on page 1 of the Agreement. Copies of all notices sent to the City shall be simultaneously sent to: Gregory Baker, Esq., Schottenstein, Zox & Dunn, 250 West Street, Columbus, Ohio 43215; fax: (614) 224-3154. Copies of all notices sent to Grabill shall be simultaneously sent to: Aaron Underhill, Esq., Smith & Hale, 37 W. Broad Street, Suite 725, Columbus, Ohio 43215; fax (614) 221-4409. 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. Time is of the essence of this Agreement in all respects. 5. 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. 6. 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. 7. Headines. 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. 8. No Partnership. Nothing contained in this Agreement shall be construed to make Grabill 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. 9. 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. {HI28851 LS I 1'~ 10. 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 Grabill 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. 11. Assi~mnent. The parties hereby agree that Grabill 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 Patrick M. Grabill, and following such assignment, Grabill shall notify the City of such assignment in writing within ten (10) days thereof. Any other assignment by Grabill shall require the prior written consent of the City, which shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, no assignment of this Agreement shall release Grabill from any liability hereunder unless otherwise agreed by the City. Except as provided above, Grabill shall not make or create, or permit to be made or created, any total or partial sale, assignment, conveyance, or lease, or transfer in any other form with respect to the Commercial Property (and the portion of the Option Property immediately adjacent to and east thereof), without the prior written approval of Dublin, which shall not be unreasonably withheld. 12. Survival. The parties hereby agree that the terms and conditions contained herein shall survive the closing and shall not merge with the deeds. 13. Recordation. A memorandum of this Agreement may be filed with the Recorder of Franklin County, Ohio for recordation in the Official Records of Franklin County, Ohio. 14. Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. 14. Force Majeure. The City and Grabill shall be excused from the performance of their obligations hereunder for such period of time as they are prevented from performing the same by reason of acts of God, strikes, and other causes beyond their reasonable control. For the purposes of the foregoing, financial inability shall never be deemed to be a cause beyond a party's reasonable control. ~N138851 t5 1 18 IN WITNESS WHEREOF, the parties have hereunto subscribed their names on the day and year first aforesaid. GRABILL & CO., LLC, an Ohio limited liability company By: Print Name: Its: CITI' OF DUBLIN, OHIO, an Ohio municipal corporation Jane Brautigam, City Manager EXHIBIT "A": Site Plan EXHIBIT "B": Approved Plans for the Building EXHIBIT "C": Approved Plans for the Condominium Development ~xixsasi ~s ~ 19