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The Heights - Land Assembly Agreement     23 Oct 2011 w/ 24 Oct update

 Monday 24 Oct 2011 Council will voted to establish the LAA for the first phase of the new Development Plan                            


Again council has chosen to hold all discussions on this subject outside of public view.  The first opportunity we got to review occurred with the publishing of the agenda Friday afternoon giving us only the weekend to digest and offer suggestions.


Update:  During Monday's (24 Oct) meeting I asked council to give us details about a few of the items I mention in the article below.  The mayor made a statement that was part and parcel to saying that the reason council had to go into executive session when they discussed the LAA on Oct 6th was because council didn't want Mr Todd to know that on Sept 26th the city decided to try and buy his land.  As always the rest of the responses failed to address the points made so the questions posed below are still unanswered.  The one that is most concerning is that the city/developer haven't finished the reports telling us what infrastructure the city needs to build, the projected amount of tax (TIF) revenue the work is suppose to generate, nor have they prepared a budget.  When I pointed out these were required documents of the 201/202 Corridor Development Agreement the mayor told us they were unimportant because "we can't look into the future".  The video of the meeting is up the LAA discussion starts 1 hour 11 minutes into the meeting.  The time on the video shows 20:18:16  


Summary:  (written prior to the council meeting).

1.  Why wasn't this (LAA) done in an open meeting?  

2.  The ordinance states the city will pay any and all attorney fees associated with this LAA.  Does this include the developer's attorney fees?

3.  The LAA is only part of what is needed to understand the city's commitment.  The Infrastructure Analysis is also required.  Isn't pre-mature to commit to buying the land before we know why we are buying it?

4.  The city will be giving the developer credit for the infrastructure improvements the city will make to the property. 


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On the agenda this Monday is "The Heights" Land Assembly Agreement.  This agreement was first revealed to the public when the agenda came out Friday afternoon.  This means we have until Monday evening to review it to see if it makes sense.  I believe this was discussed during the executive session of the administration committee meeting held on Oct 13th.  I attended this meeting and waited outside the room the entire 11/2 hours of discussion.  I was the only person they had to ask to leave the room.  This appears to be another instance where council inappropriately used a clause in the Sunshine Law to hold an unwarranted executive session. 

A full discussion of the caveat they use to go into executive session can be found at  Basically it boils down to my argument that in order to go into executive discussion for the purpose of purchasing property, the council has to show that "premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest." I do not believe they can even remotely believe this caveat applies for this Land Assembly Agreement.  


In my first reading of the Land Assembly Agreement to be undertaken in accord with the 201/202 Corridor Development Agreement.   I found only a few things that I would have asked questions about if I would have had the opportunity.  This combined with the fact that there wasn't anyone (other than me) at the committee meeting  really gets me wondering why council thinks they need to hide the details.  It seems counter productive.  But in my first read, if I were to have had the opportunity to ask questions I would have looked for more details on:

1.  The company chosen as the escrow agent.  Are they related to anyone in the city or the city attorney?  What are the costs associated with this arrangement?

2.  Where is the Infrastructure Analysis?

3.  Under what circumstances do developers usually get paid when the city builds roads in support of their projects?


The  Land Assembly Agreement  states "if all or any part thereof is used for the development of Infrastructure Improvements, then Developer reserves the right to obtain a credit and/or reimbursement from City for the fair market value of those portions of the First Phase Property which are so used for Infrastructure Improvements"

This hit me as peculiar.  I don't have council member knowledge so my resident knowledge may be off but it has always been my impression that when a developer want to do a project the developer normally owns the land and then builds the roads.  After the roads are built they then turn them over to the city and the city agrees to maintain them.  Sometimes it is possible that the city might build the roads but it seems peculiar that the council is signing up to both build the roads and pay for the property the roads fall on. What is even worse is we have no idea what the infrastructure improvements are that the city might build.  Initially we might limit our thoughts to roads and sewers but in fact it could mean things like parking garages.  So it may be that the council is planning to build the parking garage for complex before we even get a business committed to the area.


The Ordinance States   "including without limitation to pay any all costs including legal fees, incurred in the preparation of the 201/202 Corridor Development Agreement and this Land Assembly Agreement and any amendments to the Land Assembly Agreement to be undertaken in accord with the 201/202 Corridor Development Agreement."

As written it looks like if the developer were to submit their attorney fees to the city the city would be required to pay those fees.  Not only that but if there were a disagreement in the interpretation of the agreement then the city would pay the developers attorney fee for any lawsuit the developer brought against the city.  Interesting inside the Land Assembly Agreement when it comes to closing on the properties the city was smart enough to put in language that makes it clear the developer will be paying the attorney fees associated with closing costs, but when it comes to creating or interpreting the LAA the city is signing up to pay for both the city and developer attorney fees (Update: one of the council members did address attorney fee and did not recognize the difference.  I'm giving him a pass though because as an audience member when it came down to voting I got the impression he was thinking about voting his conscience.  It will be interesting to see how it looks on the video)


The Ordinance States  "WHEREAS, the City anticipates that the Montgomery County TIF Payments will be sufficient to pay the costs of the Infrastructure Improvements related to the economic development projects which are expected to hereafter be constructed within and in proximity to the Development Site;" 

On what is council basing this assertion? As part of the 201/202 Corridor Development Agreement in Section 6.4(b) the city and developer are suppose to get together and develop an "Infrastructure Analysis" that will show what infrastructure will be needed for the project.  That analysis has not been done.  How does council make the assertion they will be able to pay for something when they haven't even established what it is they are required to do?

Also as part of the Development Agreement in Section 6.4(a), they developer is suppose to produce an  Updated Conceptual Development Plan.   This is where the city learns how much TIF money this piece of property will produce.  This is not done.

So the council is making an assertion that that project will be able to pay for the infrastructure work required (but they don't know what work is require) from the TIF funds they will receive (but they don't have any idea how much TIF money they expect to generate).  Seems crazy to me.  Although, the mayor has a different perspective. In the council meeting he indicated the analysis these sections require and the budget that was suppose to follow were unnecessary because "we can't look into the future and answer all these questions" (This response can be found at 1 hour 26 minutes 28 seconds into the video).

Below are some that I classify as minor observances; but still ones that I would address if given the opportunity     ******************************************************

Land Assembly Agreement   Section 2(b)i on pg 16 - Developer Option Period - is never ending if the city doesn't notify the developer that they failed to invoke the option.  Why was the language of the agreement chosen to make it seem like it would automatically expire on Aug 22, 2015?


Land Assembly Agreement  states "prior to any such entry, inspection or test, City shall cause Developer to be named as an additional insured on City’s comprehensive general liability insurance policy with limits of liability not less than $2,000,000.00."  I was wondering if this is common for the city to do?  If it is not something the city does regularly then it may not be possible and the city would lose it's ability to make inspections of the property. 


Huber Heights City Council Meets Monday 24 Oct 2011 at 7pm in town hall.   You can attend in person.  The city also provides live video so you can watch over the internet.  The link is only active during the meeting





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