98-01 OrdinanceRECORD OF ORDINANCES
Dayton Legal Blank, Inc.
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Ordinance No. 9R-O1 Passed
20
AN ORDINANCE APPROVING AND AUTHORIZING
THE CITY MANAGER AND DIRECTOR OF FINANCE
TO EXECUTE A PARK DEVELOPMENT AGREEMENT
WITH MULTICON DEVELOPMENT CO., WAIVING
RELATED COMPETITIVE BIDDING REQUIREMENTS,
AND DECLARING AN EMERGENCY.
WHEREAS, the City is desirous of encouraging and promoting development within the
City of open space, parkland and public recreation facilities, all generally designed to
improve the quality of life of residents of the City; and
WHEREAS, in connection with the proposed development of certain property in the
southwestern portion of the City known as the "Ballantrae" development (the "Property"),
the City and Edwards Golf Communities LLC ("Edwards") previously entered into a
Development Agreement dated August 14, 2000 (the "Development Agreement") in
connection with that development; and
WHEREAS, the Development Agreement provides that Edwards and the City are each
responsible for a portion or the cost of designing and constructing a City park as generally
described in the Development Agreement; and
WHEREAS, this Council has further found that the provision of the public park
improvements would best be undertaken by entering into an agreement (the "Park
Development Agreement") for the construction of the public park improvements; and
WHEREAS, this Council finds that it is in the best interest of the City to enter into that
Park Development Agreement with Multicon Development Co. ("Multicon") to provide
for the construction of the public park improvements and has determined to provide for the
execution and delivery of that Park Development Agreement with Multicon;
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
Franklin, Union and Delaware Counties, Ohio, that:
Section 1. The Park Development Agreement by and between the City and Multicon, in
the form presently on file with the Clerk of Council, providing for, among other things, the
construction of the public park improvements, is hereby approved and authorized with
changes therein not inconsistent with this Ordinance and not substantially adverse to this
City and which shall be approved by the City Manager and Director of Finance. The City
Manager and Director of Finance, for and in the name of this City, are hereby authorized to
execute that Park Development Agreement, and the approval of changes thereto by those
officials, and their character as not being substantially adverse to the City, shall be
evidenced conclusively by their execution thereof. This Council further authorizes the City
Manager and the Director of Finance, for and in the name of the City, to execute any
amendments to the Park Development Agreement, which amendments are not inconsistent
with this Ordinance and not substantially adverse to this City.
Section 2. This Council finds and determines that it is in the best interest of the City to
waive any competitive bidding requirement with respect to entering into and implementing
the Park Development Agreement, and directs that those requirements be so waived as
permitted by Section 8.04 of the City's Charter.
Section 3. This Council further hereby authorizes and directs the City Manager, the Clerk
of Council, the Director of Law, the Director of Finance, or other appropriate officers of the
City to prepare and sign all agreements and instruments and to take any other actions as may
be appropriate to implement this Ordinance.
RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No.:iUU43
Attest:
Ordinance No. 9R-O1 Passed Page 2 . 20.
Section 4. This Council further hereby finds and determines that all formal actions of this
Council concerning and relating to the passage of this Ordinance were taken in an open
meeting of this Council and that all deliberations of this Council that resulted in those
formal actions were in meetings open to the public in compliance with the law.
Section 5. This Ordinance is declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, safety and welfare of the City, and for
the further reason that this Ordinance is required to be immediately effective in order to
proceed with the execution and delivery of the Park Development Agreement, which is
necessary to timely begin construction and completion of the public park improvements in
compliance with the City's commitments under the Development Agreement thereby
preserving and improving the health and welfare of the citizens of the City; wherefore, this
Ordinance shall be in full force and effect immediately upon its passage.
- Presiding Officer
/ / /.
CaG `vL~ ~ l..' -~~ ~~--.
Clerk of Council
Passed: ~~'`''~ ~ ' ~ ~ 2001
Effective: - ? , 2001
~ he.Eeby CE:"t?fy that codes of this Ordnance/Resolution were posted in thr~
City of Dublin in accordnnce wah Sectiofl 731.25 of the tl~~io Revised Code.
`~~5~
~,,p~ rk of Council, Dublin. Ohio
PARK DEVELOPMENT AGREEMENT
THIS PARK DEVELOPMENT AGREEMENT (the "Agreement") dated , 2001, by and
between the CrrY of DUBLIN, OHIO (the "City"), a municipal corporation duly organized and validly
existing under the Constitution and laws of the State of Ohio (the "State") and its Charter, and
MuLTICON DEVELOPMENT CO. ("Multicon", and collectively with the City, the "Parties" and each
individually a "Parry"), an Ohio corporation duly organized and validly existing under the laws of
the State of Ohio, having its principal office in Columbus, Ohio.
WITNESSETH:
WHEREAS, Edwards Golf Communities LLC ("Edwards Golf') owns certain parcels of real
property in the southwestern sector of the City on which it is developing a high quality residential
community development; and
WHEREAS, the City also owns certain parcels of real property in the Southwestern sector of
the City on which it is causing to be developed a public golf course, including aneighteen-hole golf
course, club house facility, practice facilities and parking, and a public park, all of which parcels are
located in proximity to Edwards Golf residential community development; and
WHEREAS, the City and Edwards Golf have heretofore entered into a Development
Agreement, dated August 14, 2000 (the "Development Agreement"), to provide for the simultaneous
development of the residential community development and the golf course development and to
further provide for the construction and development of an approximately 46.9± acre community
public park (the "City Park"); and
WHEREAS, the Development Agreement provides that Edwards Golf and the City are each
responsible for a portion or the cost of designing and constructing the City Park, all as more
particularly described in the Development Agreement; and
WHEREAS, the Parties have determined that it would be in the best interests of the City and
Edwards Golf to provide for the efficient and coordinated design and development of the City Park
~"` described in the Development Agreement; and
WHEREAS, the City has determined pursuant to Ordinance No. 90-01, passed on ,
2001, that it would be in the best interest of the City to contract with Multicon to provide for the
construction and installation of certain of the park improvements identified in the Development
Agreement (as such park improvements are more fully described on Exhibit A attached hereto and
collectively referred to herein as the "Park Improvements");
Now THEREFORE, the Parties covenant, agree and obligate themselves as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Unless otherwise defined herein, words and terms used in this
Agreement with initial capital letters shall have the meanings set forth in this Section 1.1.
"Agreement" means this Park Development Agreement dated 2001, by and
between the City and Multicon, as duly amended or supplemented from time to time in accordance
with its terms.
"Agreement Term" means the period commencing with the delivery of this Agreement and
ending on the Termination Date.
"Authorized City Representative" means initially the Director of Development of the City.
The City may from time to time provide a written certificate to Multicon signed on behalf of the
City by the City Manager designating an alternate or alternates who shall have the same authority,
duties and powers as the initial Authorized City Representative.
"Authorized Multicon Representative" means initially Debbie Rurik-Goodwin. Multicon
may from time to time provide a written certificate to the City signed on behalf of Multicon by any
authorized Multicon official designating an alternate or alternates who shall have the same
authority, duties and powers as the initial Authorized Multicon Representative.
"City" means the City of Dublin, Ohio.
"City Documents" means this Agreement and the Ordinance.
"Completion Date" means the date specified in a certificate given pursuant to Section 2.3 of
this Agreement.
"Construction Documents" means the detailed construction documents for the Park
Improvements including, without limitation, working drawings, plans and specifications for the
'~ Park Improvements dated , 2001 and on file with and approved by the Authorized
City Representative on behalf of the City, as the same may be revised or supplemented from time to
time with the approval of the Authorized City Representative.
"Construction Period' means the period beginning with the commencement of the
construction of the Park Improvements and ending on the Completion Date therefor.
"Cost of Work" means the total consideration paid or to be paid for the construction or
installation of the Park Improvements pursuant to Article II, and, except as otherwise provided
herein, excluding the costs of any easements or rights-of-way necessary for the construction of the
Park Improvements.
"Event of Default" means an Event of Default under Section 6.1 of this Agreement.
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"Force Majeure" means acts of God; fires; epidemics; landslides; floods; strikes; lockouts or
other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental
authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or
accidents to machinery, transmission pipes or canals; partial or entire failures of utilities; shortages
of labor, materials, supplies or transportation; lightning, earthquakes, hurricanes, tornadoes, storms
or droughts; periods of unusually inclement weather or excessive precipitation; or any cause or
event not reasonably within the control of Multicon or the City, as the case may be.
!!w"' "Guaranteed Maximum Sum" means $1,752,000 with respect to the Park Improvements.
The Parties acknowledge that a portion ($452,000) of the Guaranteed Maximum Sum will be repaid
+~ to the City by Edwards Golf in accordance with the installment provisions set forth in Section
3(c)(2) of the Development Agreement. The Parties further acknowledge that pursuant to the
Infrastructure Agreement, the Parties have agreed that certain Excess Roadway Monies (as defined
in the Infrastructure Agreement) may, by agreement of the Parties, be applied towards the Cost of
Work. The Parties agree that to the extent such Excess Roadway Monies are applied to the Cost of
Work, the Guaranteed Maximum Sum shall be increased by a similar amount.
"Infrastructure Agreement" means the Infrastructure Agreement dated Apri14, 2001, by and
between the City and Multicon, as duly amended or supplemented from time to time in accordance
with its terms.
"Multicon" means Multicon Development Co., an Ohio corporation duly organized and
validly existing under the Constitution and laws of the State of Ohio, having its principal office in
Columbus, Ohio.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5800 Shier-Rings Road
Dublin, Ohio 43016-7295
"'~' Attention: Director of Development
(b) As to Multicon:
Multicon Development Co.
500 South Front Street
Suite 770
Columbus, Ohio 43215-7619
Attention: Deborah Rurik-Goodwin
or a different address as to which notice is given pursuant to Section 7.1 of this Agreement.
"Ordinance" means Ordinance No. 90-O1 passed by the Council of the City on ,
2001.
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"Park Improvements" means any real and/or personal property as described on Exhibit A
attached to this Agreement and specifically described in the Construction Documents.
"Park Improvement Fund" means the Golf Course Park Fund created under the Ordinance.
"Park Improvements Site "means the real estate described in Exhibit B of this Agreement.
«•~• "Person" shall mean an individual, a corporation, a partnership, an association, a limited
liability company, a joint stock company, a joint venture, a trust, an unincorporated organization, or
a government or any agency or political subdivision thereof.
"State" means the State of Ohio, one of the United States of America.
"Termination Date" means the date which is one (1) year after the Completion Date.
"Work" means the construction of the Park Improvements in accordance with Articles 2 and
3 of this Agreement.
Section 1.2. Certain Words Used Herein; References. Any reference herein to the City,
any members or officers thereof, or other public boards, commissions, departments, institutions,
agencies, bodies or other entities, or members or officers thereof, includes without limitation,
entities or officials succeeding to their respective functions, duties or responsibilities pursuant to or
by operation of law or performing their functions lawfully.
Any reference to a section or provision of the Constitution of the State, the Act, a section,
provision or chapter of the Ohio Revised Code, federal or State laws includes without limitation,
that section, provision or chapter, or those laws or regulations, as amended, modified, revised,
supplemented or superseded from time to time.
~.. Words of any gender include the correlative words of any other gender. Unless the context
indicates otherwise, words importing the singular number include the plural number, and vice versa.
"""" The terms "hereof," "herein," "hereby," "hereto" and "hereunder", and similar terms, refer to this
Agreement; and the term "hereafter" means after, and the term "heretofore" means before the date
of delivery of this Agreement.
ARTICLE II
CONSTRUCTION OF THE PARK IlVIPROVEMENTS
Section 2.1. General Considerations. In consideration of Multicon's promise to cause to
be developed the Park Improvements, the City agrees to finance the Cost of Work, up to but not
exceeding the Guaranteed Maximum Sum, in accordance with this Agreement.
Section 2.2. Construction of the Park Improvements. Multicon covenants and agrees that
it will contract for the construction of the Park Improvements in Multicon's name with a contractor
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or contractors, and the City covenants and agrees to finance the costs of the Park Improvements
from the funds deposited in the Park Improvement Fund in accordance with the terms and
provisions of this Agreement and the Ordinance.
Multicon covenants and agrees:
(a) to make, execute, acknowledge and deliver any contracts, orders, receipts,
writings and instructions hereafter delivered, and do all other things which may be necessary
~- or advisable for the construction, improvement and equipping of the Park Improvements, all
in conformity with all then applicable governmental laws, rules and regulations;
(b) pursuant to the provisions of this Agreement, to provide for the payment of
all fees, costs and expenses incurred in the construction, improvement and equipping of the
Park Improvements from funds made available therefor in accordance with this Agreement,
by the City or otherwise; and
(c) to the extent commercially reasonable, to ask for, demand, sue for, levy
upon, recover and receive all sums of money, indebtedness and other demands whatsoever
which may be due, owing or payable to Multicon under the terms of each contract,
agreement, obligation, bond, performance security, order and receipt in connection with the
construction, improvement and equipping of the Park Improvements and to enforce the
provisions of each contract, agreement, obligation, bond, performance security, order and
receipt in connection therewith.
Section 2.3. Completion Date and Certifications. The Parties agree to cooperate
hereunder in order that the Park Improvements may be substantially complete on or before July 1,
2002. The Parties further agree that the Work may be completed in several phases as mutually
agreed upon in writing by the Authorized City Representative and the Authorized Multicon
Representative. Finally, the Parties agree that such completion date may be extended by mutual
written agreement of the Authorized City Representative and the Authorized Multicon
Representative.
The Completion Date of each phase of the Work shall be specified to the City in a certificate
signed by the Authorized Multicon Representative, which certificate (a) shall describe all property
acquired or installed as part of that completed phase of the Work from the monies deposited in the
Park Improvement Fund, (b) shall state the Cost of Work allocable to that completed phase, and (c)
shall state that:
(i) the construction, improvement and equipping of that phase of the Work have
been completed substantially in accordance with the related Construction Documents, all
costs then due and payable in connection therewith have been paid, and all obligations, costs
and expenses in connection with that phase of the Work and payable out of the Park
Improvement Fund or otherwise have been paid or discharged except for any amounts
retained in the Park Improvement Fund as provided below;
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(ii) all other facilities necessary in connection with that phase of the Work have
been constructed, improved and equipped; and
(iii) the construction, improvement and equipping of that phase of the Work have
been accomplished in a manner which conforms to all then applicable governmental laws,
rules and regulations.
The certificate also shall specify (d) the date by which the foregoing events shall have occurred, (e)
~-- which costs and expenses, if any, are not yet due, or are being contested by Multicon, and (f) what
amounts should be retained for any other reasons. In reliance thereon, the City may retain in the
rwr Park Improvement Fund an amount equal to the aggregate of those costs and expenses.
Notwithstanding the foregoing, the certificate shall state that it is given without prejudice to any
rights against third parties which then exist or which may come into being subsequently.
Section 2.4. Acceptance of Park Improvements. Acceptance by the City of the Park
Improvements in one or more phases shall not relieve Multicon of its responsibility for defects in
material or workmanship as set forth in Section 5.5.
ARTICLE III
FURTHER PROVISIONS RELATING TO
THE CONSTRUCTION OF THE PARK IlVIPROVEMENTS
Section 3.1. Construction Documents. Multicon covenants and agrees that the
construction, improvement and equipping of the Park Improvements will be accomplished in
accordance with the Construction Documents as approved by the Authorized City Representative,
as those Construction Documents may be revised or supplemented from time to time, provided such
revisions or supplements are approved by the Authorized City Representative.
Section 3.2. Prevailing Wage. The Parties acknowledge and agree that the Park
""~" Improvements are subject to the prevailing wage requirements of Ohio Revised Code Chapter 4115
and all wages paid to laborers and mechanics employed on the Park Improvements shall be paid at
~• not less than the prevailing rates of wages of laborers and mechanics for the classes of work called
for by the Park Improvements, which wages shall be determined in accordance with the
requirements of that Chapter 4115. The Parties shall comply, and Multicon shall require
compliance by all contractors and shall require all contractors to require compliance by all
subcontractors working on the Park Improvements, with all applicable requirements of that Chapter
4115.
Section 3.3. Awarding of Contracts. The City has prepared or caused to be prepared the
Plans and Specifications for the Park Improvements and has submitted them to Multicon for review.
The Parties agree that Multicon may request and receive bids on the Park Improvements in one or
more packages, the number and form of which shall be subject to the reasonable approval of the
Authorized City Representative. Multicon agrees that with respect to each bid package, Multicon
shall request and receive no less than three (3) responsible bids, except as may otherwise be
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approved in writing by the Authorized City Representative. Multicon shall award the contract for
each bid package subject to the reasonable approval of the Authorized City Representative.
Section 3.4. Traffic Control Requirements. Multicon shall be responsible for ensuring
the provision, through contractors or otherwise, of all traffic control devices, flaggers and police
officers required to properly and safely maintain traffic. All traffic control devices shall be
furnished, erected, maintained and removed in accordance with the "Ohio Manual of Traffic
Control Devices for Construction and Maintenance Operation."
Section 3.5. Securityfor Performance. Multicon shall furnish or require all contractors
performing Work to furnish prior to commencement of construction of that Work, one of the
following types of project guarantees:
(a) Contract Bonds. A surety bond which shall name Multicon and the City as
obligee in the form provided by Section 153.57 of the Ohio Revised Code. The performance
and materialman's bond shall cover all Costs of Work, including a guarantee period of one
(1) year set forth in Section 5.5 hereof.
(b) Irrevocable Letter of Credit. A letter of credit naming Multicon and the City
as obligee in the form provided by 153.57 of the Ohio Revised Code. The letter of credit
shall be subject to the Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500. The letter of credit
shall cover all Costs of Work, including a guarantee period of one (1) year set forth in
Section 5.5 hereof.
Any bond shall be executed by sureties that are licensed to conduct business in the State and are
named in the current list of "companies Holding Certificates of Authority as Acceptable Securities
on Federal Bonds and as Acceptable Insurance Companies" as published in Circular 570 (amended)
by the Audit Staff Bureau of Accounts, U.S. Treasury Department or as may be otherwise approved
in writing by the Authorized City Representative. All bonds signed by an agent must be
"" accompanied by a certified copy of the authority to act. If the surety of any bond so furnished by a
contractor declares bankruptcy, become insolvent or its right to do business is terminated in the
State, Multicon shall within five (5) days thereafter cause the contractor to substitute another bond
and surety, both of which shall be acceptable to the City and Multicon. Multicon shall provide to
the City prior to commencement of any Work by each contractor a copy of the Contract Documents
relating to the Work to be performed by that contractor and the security for performance provided
by the contractor pursuant to this Section.
Section 3.6. Cost of Work in Excess of Guaranteed Maximum Sum. Multicon agrees to
assume and pay the Cost of Work in excess of the Guaranteed Maximum Sum and to indemnify the
City against any Cost of Work in excess of the Guaranteed Maximum Sum. The Parties further
acknowledge that a portion ($452,000) of the Guaranteed Maximum Sum will be repaid to the City
by Edwards Golf in accordance with the installment provisions set forth in Section 3(c)(2) of the
Development Agreement and that such repayments shall not act as a credit against Multicon's
obligation hereunder to pay the Cost of Work in excess of the Guaranteed Maximum Sum.
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Section 3.7. Public Use. Multicon agrees that, upon satisfactory completion of the Park
Improvements in accordance with this Agreement, such Park Improvements shall be dedicated to
the City for public use.
Section 3.8. Equal Opportunity Clause. Multicon will, in all solicitations or
advertisements for employees placed by or on behalf of Multicon, state that Multicon is an equal
opportunity employer. Multicon shall require all contractors and shall require all contractors to
require all subcontractors to include in each contract a summary of this equal opportunity clause.
Section 3.9. Insurance Requirements. Multicon shall require all contractors and shall
+~.~ require all contractors to require all subcontractors to take out or cause to be taken out and
maintained until such time as that contractor or subcontractor has completed its portion of the Work,
such insurance as is required by the Construction Documents, which insurance shall protect the
Parties and any contractor or subcontractor performing Work covered by this Agreement from the
types of claims for damages as set forth in the Construction Documents. Such insurance policy or
policies shall include the Parties as additional named insureds. Such insurance policies shall further
provide that any attorney fees accruing or payable with respect to a claim under such policy shall be
paid by the insurer and shall not count against the coverage limits of such policy. Prior to
commencement of any portion of the Work by any contractor or subcontractor, such contractor or
subcontractor, as the case may be, shall provide to the Parties an original certificate of insurance as
proof of such insurance coverage.
Such insurance shall remain in full force and effect during the Agreement Term. Insurance
may not be changed or canceled unless all insureds, including the Parties, are notified in writing not
less than thirty days prior to such change or cancellation.
Section 3.10. City Income Tax Withholdings. Multicon shall withhold and pay, shall
require all contractors to withhold and pay, and shall require all contractors to require all
subcontractors to withhold and pay, all City Income Taxes due or payable with respect to wages,
salaries, commissions and any other income subject to the provisions of Chapter 35, Dublin City
Codes.
•~ Section 3.11. Compliance with Occupational Health and Safety Act of 1970. Multicon
and all contractors and subcontractors shall be solely responsible for their respective compliance
with the Occupational Safety and Health Act of 1970 under this Agreement.
Section 3.12. Provision of Security for Mechanic's Liens. To the extent any materialman,
contractor, or subcontractor files and records a mechanic's lien against the Park Improvements,
Multicon shall, or shall require the appropriate contractor to, provide any security required by
Ohio Revised Code Section 1311.11 to cause that mechanic's lien to be released of record with
respect to the Park Improvements.
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ARTICLE IV
PAYMENT OF COSTS
Section 4.1. Deposit of Monies in the Park Improvement Fund. Upon the execution of
this Agreement, the City covenants and agrees to deposit monies into the Park Improvement Fund
in an amount equal to the Guaranteed Maximum Sum payable from the Park Improvement Fund,
for the purpose of financing the Cost of Work.
Section 4.2. Disbursements from Park Improvement Fund.
`" (a) The City agrees to pay the Cost of Work up to a maximum amount of the
Guaranteed Maximum Sum and with those payments made in accordance with the
Construction Documents, including any retainage as provided for therein, based on written
requisitions executed by the Authorized Multicon Representative substantially in the form
attached hereto as Exhibit C. The Authorized City Representative, with the concurrence of
the Director of Law, may agree to vary the lien waiver requirements in paragraph (vii) of
attached Exhibit C. All disbursements requested pursuant to this section shall be subject to
the prior approval of the Director of Finance. All disbursements pursuant to this Section
shall be made solely from the Park Improvement Fund.
(b) Pursuant to the Ordinance, the City has established the Park Improvement
Fund for the payment of the Cost of Work, up to but not exceeding the Guaranteed
Maximum Sum for the Park Improvements. The monies on deposit in the Park
Improvement Fund shall be disbursed from time to time to make payments to persons
designated by Multicon in respect of portions of the Cost of Work, upon receipt by the City
of a written requisition executed by the Authorized Multicon Representative substantially in
the form attached hereto as Exhibit C. Upon request of the Authorized City Representative,
Multicon shall furnish invoices or other documentation in connection with each such
Written Requisition. Any Written Requisition under this Section 4.2 may be in the form of
a communication by telegram, telex, or facsimile transmission, but if in such form, it shall
be promptly confirmed by a Written Requisition executed by an Authorized Multicon
Representative and approved by the Authorized City Representative.
(c) In paying any Written Requisition under this Section 4.2, the City shall be
entitled to rely as to the completeness and accuracy of all statements in such Written
Requisition upon the approval of such Written Requisition by an Authorized Multicon
Representative, execution thereof, and communication thereof by telegram, telex, or
facsimile transmission, to be conclusive evidence of such approval, and Multicon shall
indemnify and save harmless the City from any liability incurred in connection with any
Written Requisition so executed or communicated by an Authorized Multicon
Representative.
(d) Multicon shall not submit or cause to be submitted to the City any Written
Requisition pursuant to this Section 4.2 and shall have no claim upon any monies in the Park
Improvement Fund, so long as there shall have occurred and be continuing any Event of
Default.
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(e) The City shall remit payment in accordance with a Written Requisition
submitted in compliance with this Agreement within twenty-one (21) days following receipt
of such Written Requisition.
(f) Multicon acknowledges and agrees that the City may, from time to time,
expend monies on deposit in the Park Improvement Fund. The City agrees that it shall,
prior to the time any such payments are made, notify Multicon of such proposed payment,
""'"'" the amount of such payment and the Park Improvement Fund from which such payment will
be made.
Section 4.3. Multicon Required to Pay Costs if Amounts in Park Improvement Fund
Insufficient. The City represents and warrants that it will deposit the Guaranteed Maximum Sum
into the Park Improvement Fund in accordance with the terms of this Agreement. In the event that
the monies in the Park Improvement Fund are not sufficient as needed to pay in full the Cost of
Work in accordance with the Guaranteed Maximum Sum, Multicon covenants and agrees, for the
benefit of the City, to pay that portion of the Cost of Work necessary to complete the construction,
improvement and equipping to be accomplished pursuant to this Agreement which may be in excess
of the monies available therefor in the Park Improvement Fund.
The City does not make any representation or warranty, either express or implied, that the
monies which will be paid into the Park Improvement Fund, and which under the provisions of this
Agreement will be available for payment of the costs of the construction, improvement and
equipping to be accomplished pursuant hereto, will be sufficient to pay all of the costs thereof or
costs and expenses which will be incurred in connection therewith.
Multicon covenants and agrees that if, after exhaustion of the monies in the Park
Improvement Fund which shall not be less than the Guaranteed Maximum Sum, Multicon pays
pursuant to this Section any portion of the costs and expenses necessary for the completion of the
Park Improvements as required under this Agreement, Multicon will not be entitled to any
reimbursement therefor from the City.
ARTICLE V
CERTAIN REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Section 5.1. Certain Representations, Warranties, Covenants and Agreements of City.
The City represents and warrants as of the date of delivery of this Agreement that:
(a) It is a municipal corporation and political subdivision duly organized and
validly existing under the Constitution and laws of the State.
(b) It will have duly accomplished all conditions necessary to be accomplished
by it prior to the execution and delivery of the City Documents and to constitute such City
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Documents as valid and binding instruments enforceable in accordance with their respective
terms.
(c) It is not in violation of or in conflict with any provision of the laws of the
State which would impair its ability to observe and perform its covenants, agreements and
obligations under the City Documents.
(d) It has and will have full power and authority (i) to execute, deliver, observe
and perform the City Documents and all other instruments and documents executed and
delivered by the City in connection therewith and (ii) to enter into, observe and perform the
transactions contemplated in the City Documents and those other instruments and
documents.
(e) It has or will have duly authorized the execution, delivery, observance and
performance of the City Documents.
Section 5.2. Certain Representations Warranties Covenants and Agreements of
Multicon. Multicon represents and warrants as of the date of delivery of this Agreement that:
(a) Multicon (i) is an Ohio corporation duly organized, validly existing and in
good standing under the laws of the State and (ii) has all requisite power and authority and
all necessary licenses and permits to own and operate its properties and to carry on its
business as now being conducted and as presently proposed to be conducted.
(b) There are no actions, suits, proceedings, inquiries or investigations pending,
or to the knowledge of Multicon threatened, against or affecting Multicon in any court or
before any governmental authority or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the transactions contemplated by this
Agreement or the ability of Multicon to perform its obligations under this Agreement.
`~`~ (c) The execution and delivery by Multicon of this Agreement and the
compliance by Multicon with all of the provisions hereof (i) are within the authority and
"°~ powers of Multicon, (ii) will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, any agreement, articles of organization,
operating agreement or other instrument to which Multicon is a party or by which it may be
bound, or any license, judgment, decree, law, statute, order, rule or regulation of any court
or governmental agency or body having jurisdiction over Multicon or any of its activities or
properties, and (iii) have been duly authorized by all necessary action on the part of
Multicon.
(d) No event has occurred and no condition exists with respect to Multicon that
would constitute a default under this Agreement or which, with the lapse of time or with the
giving of notice or both, would become an Event of Default under this Agreement.
Section 5.3. Multicon to Maintain Legal Existence. Multicon covenants and agrees that it
will maintain its legal existence so long as Multicon remains liable under this Agreement.
-ll-
~,».~
Section 5.4. Indemnification. Multicon shall indemnify, defend and hold harmless the
City, its agents, and employees from and against any and all suits or claims for damages or losses
arising or allegedly arising out of, or resulting from performance of the Work by Multicon, its
contractors, subcontractors, agents, employees or representatives. Multicon shall require that all
contractor agreements, and shall require all contractors to require that all subcontractors agreements,
include indemnification language as found above. Multicon shall promptly reimburse the City and
its successors and assigns, for any cost, expense or attorney's fees incurred on account of any such
suit or claim incurred in enforcing the terms of this Agreement. This indemnification provision is
agreed by Multicon to expressly waive Multicon's immunity, if any, as a complying employer
under Section 35, Article II of the Ohio Constitution and Worker's Compensation laws of the Ohio
Revised Code from indemnifying and holding the City harmless from claims by employees, agents
or contractors of Multicon. This indemnity does not cover (a) any injuries or damages occurring
after the completion of construction of the Work by Multicon, or (b) any injuries or damages arising
out of the actions or inactions of the City or its agents or employees.
Section 5.5. Further Multicon Guaranties Relating to the Park Improvements. Multicon
warrants that it will cause to be exercised in the performance of the Work the standard of care
normally exercised by nationally recognized engineering and construction organizations engaged in
performing comparable services. Multicon further warrants that each phase of the Work shall be
free from defects in materials and workmanship (without regard to the standard of care exercised in
its performance) for a period of one (1) year after final written acceptance of that phase of the Work.
Multicon shall at its own expense:
(a) Correct or re-execute, or cause to be corrected or re-executed, any of the
Work that fails to conform with the requirements of the Construction Documents and
appears during the prosecution of the Work;
(b) Correct, or cause to be corrected, any defects in materials and workmanship
of the Work (without regard to the standard of care exercised in its performance) which
'`~ appear within a period of one (1) year after final written acceptance of that Work or within
such longer period of time as may be set forth in the Construction Documents; and
(c) Replace, repair, or restore, or cause replacement, repair or restoration of,
any parts of the Work or any of the fixtures, equipment, or other items placed therein that
are injured or damaged as a consequence of any such failure or defect, or as a consequence
of corrective action taken pursuant hereto. Should Multicon fail to make, or cause to be
made, corrections required by this Section, then the City may do so at the expense and for
Multicon.
Section 5.6. Multicon Representations as to Personal Property Taxes. Multicon
represents that at the time of the execution of this Agreement, Multicon was not charged with any
delinquent personal property taxes on the general tax list of personal property of Franklin County.
Further, Multicon shall require all contractors to execute an affidavit in the form attached as Exhibit
D, a copy of which certificate shall be delivered to the Authorized City Representative prior to the
commencement of any work by that contractor or subcontractor.
-12-
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default and Remedies. (a) Except as otherwise provided in this
Agreement, in the event of any default in or breach of this Agreement, or any of its terms or
conditions, by either Party hereto, or any successor to such Party, such Party or successor shall,
upon written notice from the other, proceed promptly to cure or remedy such default or breach. In
case such remedial action is not taken or not diligently pursued within thirty (30) days of such
written notice, the Party asserting default or breach may institute such proceedings at law or in
equity, or in the case of a claim against the City, an action in mandamus, as may be necessary or
desirable in its opinion to remedy such default or breach.
(b) Notwithstanding the preceding paragraph, if by reason of Force Majeure any Party
fails in the observance or performance of any of its agreements, duties or obligations to be observed
or performed under this Agreement, the Party shall not be deemed to be in default under this
agreement. The Party will give notice promptly to the other of any event of Force Majeure and will
use its best efforts to remedy that event with all reasonable dispatch; provided that a Party will not
be required to settle strikes, lockouts or other industrial disturbances by acceding to the demands of
any opposing Person, when in that Party's judgment, that course would be unfavorable to it; and no
suspension will constitute an Event of Default if that suspension is a result of the application of
federal or State wage, price or economic stabilization controls, cost containment requirements,
restrictions on rates, charges or revenues of Multicon, which prevents Multicon from observing and
performing the applicable covenant, agreement or obligation.
(c) The declaration of an Event of Default hereunder and the exercise of rights,
remedies and powers upon the declaration are subject to any applicable limitations of federal
bankruptcy law affecting or precluding the declaration or exercise during the pendency of or
immediately following any bankruptcy, liquidation or reorganization proceedings.
Section 6.2. No Remedy Exclusive. Unless provided expressly otherwise herein, no
"""° right, remedy or power conferred upon or reserved to either Party under this Agreement is intended
to be exclusive of any other available right, remedy or power, but each right, remedy and power
shall be cumulative and concurrent and shall be in addition to every other right, remedy and power
available under this Agreement or existing at law, in equity or by statute or otherwise now or
hereafter.
No exercise, beginning of the exercise, or partial exercise by either Party of any one or more
rights, remedies or powers shall preclude the simultaneous or later exercise by that Party of any or
all other rights, remedies or powers. No delay or omission in the exercise of any right, remedy or
power accruing upon any Event of Default hereunder shall impair that or any other right, remedy or
power or shall be construed to constitute a waiver of any Event of Default hereunder, but any right,
remedy or power may be exercised from time to time and as often as may be deemed to be
expedient.
-13-
Section 6.3. No Additional Waiver Implied by One Waiver. In the event that any
covenant, agreement or obligation under this Agreement shall be breached by either Multicon or the
City and the breach shall have been waived thereafter by Multicon or the City, as the case may be,
the waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other or any subsequent breach thereunder.
No failure by either Party to insist upon the strict observance or performance by the other
Party of any covenant, agreement or obligation under this Agreement and no failure to exercise any
'~" right, remedy or power consequent upon a breach thereof, shall constitute a waiver of any right to
strict observance or performance or a waiver of any breach. No express waiver shall be deemed to
`"'~ apply to any other breach or to any existing or subsequent right to remedy the breach.
Section 6.4. Waiver of Appraisement, Valuation and Other Laws. In the event that there
is an Event of Default under this Agreement and the defaulting Party does not contest the existence
of the Event of Default, the defaulting Party covenants and agrees to waive, and waives hereby, the
benefit of all appraisement, valuation, stay, extension or redemption laws in force from time to time,
all right of appraisement and redemption to which it may be entitled, and all rights of marshaling, all
to the extent that the defaulting Party may effect that waiver lawfully. Neither the defaulting Party,
nor anyone claiming through it, shall set up, claim or seek to take advantage of any of those laws or
rights.
Section 6.5. Right to Observe and Perform Covenants, Agreements and Obligations. If
Multicon shall fail to observe or perform any covenant, agreement or obligation, under this
Agreement, without demand upon Multicon and without waiving or releasing any covenant,
agreement, obligation or Event of Default, upon thirty (30) days' written notice to Multicon, the
City may observe or perform that covenant, agreement or obligation for the account of Multicon,
provided that the City shall have no obligation to take any of those actions. Any expenses incurred
by the City under this Section 6.5 shall be payable first from the Park Improvement Fund in
accordance with this Agreement, and second shall be charged to and payable by Multicon.
'"~'~~ Section 6.6. Provisions Subiect to Applicable Law. All rights, remedies and powers
hereunder may be exercised only to the extent permitted by applicable law. Those rights, remedies
""'" and powers are intended to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable or not entitled to be recorded, registered or filed under any
applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Notices. Except as otherwise specifically set forth in this Agreement, all
notices, demands, requests, consents or approvals given, required or permitted to be given hereunder
shall be in writing and shall be deemed sufficiently given if actually received or if hand-delivered or
sent by recognized, overnight delivery service or by certified mail, postage prepaid and return
receipt requested, addressed to the other Party at the address set forth in this Agreement or any
addendum to or counterpart of this Agreement, or to such other address as the recipient shall have
-14-
previously notified the sender of in writing, and shall be deemed received upon actual receipt,
unless sent by certified mail, in which event such notice shall be deemed to have been received
when the return receipt is signed or refused. A duplicate copy of each notice, certificate, request or
other communication given hereunder to the City or Multicon shall be given also to the others. The
Parties, by notice given hereunder, may designate any further or different addresses to which
subsequent notices, certificates, requests or other communications shall be sent.
Section 7.2. Extent of Provisions Regarding City. All representations, warranties,
covenants, agreements and obligations of the City under this Agreement shall be effective to the
extent authorized and permitted by applicable law. None of those representations, warranties,
covenants, agreements or obligations shall be deemed to be a representation, warranty, covenant,
agreement or obligation of any present or future member, officer, agent or employee of the City in
other than his or her official capacity.
Section 7.3. Extent of Provisions Regarding the City and Multicon; No Personal
Liability. No representation, warranty, covenant, agreement, obligation or stipulation contained in
this Agreement shall be deemed to constitute a representation, warranty, covenant, agreement,
obligation or stipulation of any present or future trustee, member, officer, agent or employee of the
City or Multicon in an individual capacity, and to the extent authorized and permitted by applicable
law, no official executing or approving the City's or Multicon's participation in this Agreement
shall be liable personally under this Agreement or be subject to any personal liability or
accountability by reason of the issuance thereof.
Section 7.4. Bindin Eg ffect. This Agreement shall inure to the benefit of and shall be
binding upon the Parties, and their respective permitted successors and assigns, subject, however, to
the specific provisions hereof; provided that any covenant, agreement or obligation of the City
which requires the expenditure of funds shall not be a general debt of the City.
The Parties will observe and perform faithfully at all times all covenants, agreements and
obligations under this Agreement.
Each covenant, agreement and obligation of the City under this Agreement is binding upon
each officer of the City who may have the authority or duty from time to time under law to take any
action which may be necessary or advisable to observe or perform that covenant, agreement or
obligation.
Section 7.5. Execution Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which shall constitute but one
and the same agreement. It shall not be necessary in proving this Agreement to produce or account
for more than one of those counterparts.
Section 7.6. Severability. In case any section or provision of this Agreement, or any
covenant, agreement, obligation or action, or part thereof, made, assumed, entered into or taken, or
any application thereof, is held to be illegal or invalid for any reason,
-15-
(a) that illegality or invalidity shall not affect the remainder hereof or thereof,
any other section or provision hereof, or any other covenant, agreement, obligation or
action, or part thereof, made, assumed, entered into or taken, all of which shall be construed
and enforced as if the illegal or invalid portion were not contained herein or therein,
(b) the illegality or invalidity of any application hereof or thereof shall not affect
any legal and valid application hereof or thereof, and
(c) each section, provision, covenant, agreement, obligation or action, or part
thereof, shall be deemed to be effective, operative, made, assumed, entered into or taken in
~°`~ the manner and to the full extent permitted bylaw.
Section 7.7. Cations. The captions and headings in this Agreement are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
Section 7.8. Governing Law and Choice of Forum. This Agreement shall be governed by
and construed in accordance with the laws of the State. All claims, counterclaims, disputes and
other matters in question between the City, its agents and employees, and Multicon, its employees,
contractors, subcontractors and agents arising out of or relating to this Agreement or its breach will
be decided in a court of competent jurisdiction within the State.
Section 7.9. Survival of Representations and Warranties. All representations and
warranties of Multicon and the City in this Agreement shall survive the execution and delivery of
this Agreement.
(This Space Intentionally Left Blank)
by WITrrESS WHEREOF, the City and Multicon have caused this Agreement to be executed in
their respective names by their duly authorized representatives, all as of the date first written above.
CITY OF DUBLIN, OHIO
B y:
Printed: Timothy C. Hansley
-16-
,~~,,~
Title: City Manager
B y:
Printed: Marsha I. Gri~sby
Title: Director of Finance
Approved as to Form:
....
By:
Printed: Stephen J. Smith
Title: Director of Law
MULTICON DEVELOPMENT CO.
By:
Printed: Peter H. Edwards
Title: Chairman
FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City under the foregoing Agreement, certifies
'"~~' hereby that the monies required to meet the obligations of the City during the year 2001 under the
foregoing Agreement have been appropriated lawfully for that purpose, and is in the Treasury of the
City or in the process of collection to the credit of an appropriate fund, free from any previous
encumbrances. This Certificate is given in compliance with Sections 5705.41 and 5705.44, Ohio
Revised Code.
Dated: , 2001
Director of Finance
-17-
r.
EXHIBIT A
PARK IMPROVEMENTS
The Park Improvements shall consist of the following improvements as described in greater
detail in the Construction Documents:
A-1
EXHIBIT B
PARK IlVIPROVEMENTS SITE
B-1
EXHIBIT C
WRITTEN REQUISITION
The City of Dublin, Ohio
5800 Shier-Rings Road
Dublin, Ohio 43016-7295
~•
Attention: ,Authorized City Representative
'~" Re: Certificate and Request for Disbursement of Funds From the City of Dublin Park
Improvement Fund
You are hereby requested to disburse from the Park Improvement Fund described above,
which was created by Ordinance No. 90-01, and in accordance with the provisions of Section 4.2
of the Park Development Agreement, dated _, 2001 (the "Agreement") between the
City and Multicon Development Co. ("Multicon"), the amount of $ as more fully set
forth on Schedule A attached hereto to be paid pursuant to this Written Requisition No. to
the payee(s) listed on such Schedule A for the purposes therein set forth.
The undersigned Authorized Multicon Representative does hereby certify in compliance
with Section 4.2 of that certain Agreement that:
(i) I have read the Agreement and definitions relating thereto and have reviewed
appropriate records and documents of Multicon relating to the matters covered by this Written
Requisition.
(ii) The amount and nature and the name and address of the payee of each item of the
Cost of Work hereby requested to be paid are shown on Schedule A attached hereto;
,tee, ~ (iii) The disbursement herein requested is for an obligation properly incurred, is a
proper charge against the Park Improvement Fund as a Cost of Work (as defined in the
Agreement), has not been the basis of any previous withdrawal from the Park Improvement
Fund, and, if for acquisition or installation of the Park Improvements, was made in accordance
with the Construction Documents;
(iv) The Park Improvements have not been materially injured or damaged by fire or
other casualty in a manner which, if not repaired or replaced, would materially impair the ability
of Multicon to meet its obligations under the Agreement;
(v) Multicon is in material compliance with all provisions and requirements of the
Agreement;
C-1
(vi) No Event of Default set forth in Article VI of the Agreement, and no event which
but for the lapse of time or the giving of notice or both would be such an Event of Default, has
occurred and is continuing;
(vii) Attached hereto as Schedule B are lien waivers from any materialmen, contractors
and subcontractors who have provided services or materials to the Park Improvements in excess
of Five Hundred Dollars ($500) and who were paid pursuant to the previous Written Requisition
~• and Multicon acknowledges its obligation to require, or require provision of, certain security
pursuant to Section 3.12 of the Park Development Agreement in the event any mechanic's liens
~,, are filed in connection with the Park Improvements;
(viii) The Park Improvements are being and have been installed substantially in
accordance with the Construction Documents for the Park Improvements, and all materials for
which payment is requested have been delivered to and remain on the Park Improvements Site;
(ix) The payment requested hereby does not include any amount which is not entitled
to be retained under any holdbacks or retainages provided for in any agreement;
(x) Multicon has asserted its entitlement to all available manufacturer's warranties to
date upon acquisition of possession of or title to such improvements or any part thereof which
warranties have vested in Multicon and shall be wholly transferable to the City; and
(xi) All proceeds of the Park Improvement Fund heretofore disbursed have been spent
in accordance with the Written Requisition applicable thereto.
EXECUTED this day of ,
B y:
Authorized Multicon Representative
C-2
SCHEDULE A
Requisition No. for the City of Dublin, Ohio
For the purpose of making the following payments in respect of work performed by the
following Payee(s):
~.•
Payee
Address of Payee
Amount of Payee Invoice : $
Purpose of Payment
Payment Requested by this Requisition $
EXHIBIT D
PERSONAL PROPERTY TAX AFFIDAVIT
STATE OF OHIO )
ss
FRANKLIN COUNTY )
The afiant being first duly sworn states that he or she is the
of _ ,and that he or she or
(Title)
(check one):
(Company Name) (Company Name)
1. Was not charged, at the time the bid for
(Park Improvements)
was submitted, with any delinquent personal property taxes on the general tax list
of personal property of any county in which the taxing district has territory; or
2. Was charged at the time the bid for
(Park Improvements)
was submitted, with delinquent personal property taxes on the general tax list of
personal property of any county, in which the taxing district has territory, and
attached hereto is a statement setting forth the amount of such due and unpaid
delinquent taxes and any due and unpaid penalties and interest thereon.
Further Affiant sayeth not.
Sworn to before me, a Notary Public, this the
Company
B y:
Affiant and Title
day of
Notary Public
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