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HomeMy WebLinkAbout55-05 Ordinance RECORD OF ORDINANCES Dayton LeealBlank Inc. Fonn No. 30043 55-05 Ordinance No. Passed _ , 20 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ECONOMIC DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND UMC PARTNERS TO INDUCE UMC PARTNERS TO FACILITATE THE DEVELOPMENT OF A HEALTH AND INNOVATION PARK IN THE CITY OF DUBLIN. WHEREAS, consistent with its Economic Development Strategy approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted July 6, 2004, the City desires to encourage commercial development and provide for the creation of employment opportunities within Dublin; and WHEREAS, UMC Partners is desirous of locating a medical and technology development within the City (the "Health and Innovation Parr'); and WHEREAS, this Council has determined to offer certain economic development incentives, the terms of which are set forth in a substantially final form of Economic Development Agreement presently on file in the office of the Clerk of Council, to induce UMC Partners to develop the Health and Innovation Park, and thereby create additional jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and the City, all as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, this Council finds that it is in the best interest of the City to provide those economic development incentives to induce UMC Partners to develop the Health and Innovation Park and to provide for the execution and delivery of that Economic Development Agreement with UMC Partners; NOW, THEREFORE, BE IT ORDAINED b the Council of the City of Dublin, Franklin, Union and Delaware Counties, Ohio, ~ of the elected members concurring, that: Section 1. The Economic Development Agreement by and between the City and UMC Partners, in the form presently on file with the Clerk of Council, providing for, among other things, the provision of incentives to UMC Partners in consideration for UMC Partners' agreement to develop the Health and Innovation Park, 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 Economic Development Agreement, provided further that 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 Economic Development Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 2. 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 maybe appropriate to implement this Ordinance. Section 3. This Council 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. RECORD OF ORDINANCES Dayton Legal Blank, Inc. Form No. 30043. _ 55-OS Page 2 Ordinance No. Passed . 20 Section 4. This Ordinance shall be in full force and effect on the earliest date permitted by law. igned: Mayor -Presiding Officer Attest: Clerk of Council Passed: ~e~o~e~~ , 2005 Effective: ~ D U e h1.b , 2005 I hereby certify that copies of this Ordinance/Resolution were posted in the City of Dublin in accordance with Section 731.25 of the Ohio Revised Code. De Clerk of Council, Dublin, Ohio a. F ~ ~ j' g k - ~ ~ • _ ~~~i~ ~ { X15 ~ ~ ~ b F 4(Ij ~ ~ ` ~ ~ . e ~ i' . * yq p { ~M~ {,lF ~ W~ W Ya I b L"R,y~,.~.. ~~hf" 'R, 3 4-~':; `J Lam. ; ~ n. _ _ n `°-.,;~-r"'__" ~ 19 { ~,"Y~ F * ttaf I , n t a J~ ~ I ~ 1 ~ a { "kj ~ ~ _ ~ ~ I ~ 1. ~ A ~ 1 ~ t~ ~ ~ gg r ~ ~ ~r ~ ~ ~ \l\~ _ , a , n~ c ~-~^•i `iS. t~ 1..]]~~E _ . . _ r ( ~r'~ f' yam, ( t ~ s R j , 4r ( f N ' ~ N ~ Cam:. L1. s Yf. Y t ..w. `...-Y-~ S.s,~O'~'_Ml~~. 'til ~ ~~~~r~' ~ ~ \\1'` ``i YaS~ S' A 5": eii 23' 6 ~ 1 ~ ~ 'MSS' T .v:.Ab ~ ~ ~ ~S _ r 1 , yry ~ R. i ~ ~ :-r ~ <~x ~ i"" ` ~ ~ Her ,S.~l'~~ 'TC~-~~ A`_. i (P~, ~ , _ cx _ S~ ~y off- ~ y .1 ~ ~ ~ ~ ' J ~ ,1 i. h~ ff ~ " ~ "7+. ~ ~ - - ' . µ Y F r i ~ ~ _ p r ~ ~ , _ - i -may ice''~~ _ ~ ~ ~ j ~ .5 ~ yl ~ 1+ ~ _ a ~t ~ i ~ _ X71 ( i 1 `T \ { t" 'I I { - -_ru is ly 5 - .S fi L } y _~1 \ ~y ~ -14_~. ~ ' i, , ! ~ ~ fr ~ ~ _-c----~ - ~ ' ' t'~1*=.t* . dry ~ ~n,~,~~~~; JJ ` ! - ~ f .f . ~ 1.. i$?e.. ~.~x+.reu.en~r ;-~.wK.ee.rr.. ~iT f 1 { ~ ~ ~ ~ q r { ) ~ Z . - _ Section 5.3 Naming Rights The Parties further agree that UMC shall retain the right to name that area of the park they are developing and, subject to approval by Dublin City Council, may have the right to place such name or names on the water tower located at or near the Property. City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 CITY OF DUBLIN M e m o To: Members of Dublin City Council From: Jane S. Brautigam, City Manager rj, (~J,~,,,, Date: September 29, 2005 Initiated By: Marsha I. Grigsby, Director of Finance Stephen J. Smith, Law Director Re: Ordinance No. 55-05, An Ordinance Authorizing the Execution of an Economic Development Agreement with UMC Partners (iTMC) SUMMARY: As stated when this Ordinance was introduced on September 19, 2005, Ordinance No. 55-OS authorizes the execution of an economic development agreement with UMC, an Ohio nonprofit corporation, which has been established to facilitate business opportunities for science and research coming out of The Ohio State University and the OSU Medical Center. The Economic Development Agreement (the EDA) has been finalized and is attached for your review. The EDA provides for incentives from the City to UMC based on certain development commitments by UMC as discussed at the September 19, 2005 City Council meeting. The incentives from the City to UMC are as follows: Land The City has agreed to convey to UMC the two (2) parcels of land south of SR 161/Post Road and west of US 33/SR 161 acquired by the City earlier this year and a portion of the public right-of--way for Eiterman Road when the roadway is realigned and existing roadway vacated. The City will retain certain rights to the property until UMC has met all of the following four conditions: (a) entered into a binding contract to provide for the design and construction of the Particle Therapy Center, (b) made a payment of at least $20 million pursuant to the design build contract, (c) received a building permit for the construction of the Particle Therapy Center, and (d) construction of the Particle Therapy Center has commenced. If the Particle Therapy Center has not been completed prior to June 30, 2013, or at such later date approved by the City, the City will have the right to re-acquire for the total purchase price of $10 any undeveloped property for which a building permit has not been issued by the City. With regard to limitations for encumbrances on the property conveyed by the City to UMC, UMC and/or any successor can not create a mortgage or other encumbrance on the property in an amount exceeding 33.33% of the fair market value of the conveyed property not released by the terms of the agreement. Public Infrastructure Improvements As discussed at the September 19, 2005 City Council meeting, the EDA includes a commitment by the City to complete the US 33/SR 161 interchange improvement project. As you are aware, the City's 2006-2010 Capital Improvement Program as adopted on September 6, 2005 included programming this project for construction in 2008. This is a critical transportation improvement that is needed for continued quality economic development of the area. The interchange improvement will also include the improvement to SR 161/ Post Road from Hyland Croy Road to Eiterman Road. Memorandum September 29, 2005 Page Two The funding for this project has been programmed in the CIP. The funding is available as a result of City Council's foresight and direction to modify the allocation of the property tax revenues that the City receives from its "inside millage" and to defer the construction of a new municipal building. The City will also provide for the internal roadway improvements necessary to provide access to UMC's Health and Innovation Park and the future realignment of Eiterman Road. The master planning of the area is being completed and the location of these roadways has not been finalized. Both the City and UMC are utilizing O'Brien/Adkins Associates (OBA) to master plan the area. OBA is assisting the City in the master planning of the approximate 1,500 acre Central Ohio Innovation Center (COIC) and UMC in the master planning of their Health and Innovation Park which is included within the COIC. The use of OBA by both parties will provide for coordinated efforts in the development of the area. The EDA provides that the City and UMC agree that a tax increment financing (TIF) district will be established and that UMC and/or any future property owners agree to pay service payments based on the private improvements made. It is estimated that annual service payments in the amount of $405,000 will be generated from the private investment in the Particle Therapy Center and the James Care Facilities. These service payments will be utilized to fund a portion of the costs associated with City's public improvement commitments. City staff has been and will continue to seek grant opportunities to assist in the funding of the public infrastructure improvements. Income Tax Incentive Payments This incentive tool is frequently used by the City. The incentive for this project is based on the withholding and net profit income tax revenues generated by the Particle Therapy Center and the Institute for Personalized Healthcare. An annual cap of $250,000 and a maximum cap of $2.5 million has been established. Acquisition of the Stream Corridor on the Land Currently Owned by OSU The City has agreed to acquire the stream corridor on the OSU land for $250,000. This acquisition will be made from the Parkland Acquisition Fund. Industrial Revenue Bonds The City has also agreed to work with UMC to explore options for financing the Health and Innovation Park. This would not result in any financial liability for the City. Fiber Use The EDA will provide for the extension of DubLink from its existing terminus on Perimeter Drive to the proposed development site. This will also benefit the area and is needed for the continued development of the COIC. Acquisition of Additional Land The City owns approximately 100 acres to the west of the proposed UMC Health and Innovation Park. The EDA provides for a three (3) year option period to UMC to acquire the property at the then current fair market value. At the termination of the option period, the City will provide UMC with the right of first refusal for a three (3) year period. It is important to keep in mind, the incentives offered by the City are, for the most part, performance based and the majority of the public infrastructure improvements included in the EDA are improvements the City would be completing if this opportunity had not occurred. Memorandum September 29, 2005 Page Three UMC has committed to develop a Health and Innovation Park, an integrated medical campus, within the COIC which will include the following: • Institute for Personalized Healthcare -this will be an approximate 25,000 square foot facility used for the purpose of exploring and growing research and development opportunities in the emerging systems of information-based and patient-centric health care. • James Care Facilities -this will be an approximate 100,000 square foot facility which shall be used for the relocation and expansion of various outpatient clinical care operations currently located at the Stoneridge Medical Center in Dublin. • Particle Therapy Center -this will be an approximate 90,000 square foot facility used for the purpose of delivering ahigh-energy particle beam for the treatment of cancer. UMC's investment in these facilities, considered to be the initial phase of the Health and Innovation Park, are estimated to be $200 million. It is estimated these facilities will result in the retention and creation of approximately 350 jobs. The income tax revenues (withholding and net profit) generated from these facilities is estimated to be approximately $750,000 annually or a net of $500,000 after the maximum annual income tax incentive payment is made to UMC. Staff believes this is a great opportunity for the City and that the UMC project provides an opportunity to set the standard for the future development of the Central Ohio Innovation Center. Jeff Wilkins, President and CEO of UMC Partners and Chris Franzmann of Squire Sanders and Dempsey, the City's bond counsel, will be at the City Council meeting to discuss the project and the EDA. RECOMMENDATION: Staff recommends that Ordinance No. 55-OS be adopted at the October 3, 2005 City Council meeting. T:\2005\059-ORD-55-OS MEMO.doc City Manager 5200 Emerald Parkway • Dublin, OH 43017 Phone: 614-410-4400 • Fax: 614-410-4490 OF DLBLIIV 1VI e m o To: Members of Dublin City Council From: Jane S. Brautigam, City Manager Date: September 15, 2005 Initiated By: Marsha I. Grigsby, Director of Finance Stephen J. Smith, Law Director Re: Ordinance No. 55-OS Authorizes the Execution of an Economic Development Agreement with UMC Partners (UMC) SUMMARY: In early 2005, City Council authorized the acquisition of two (2) parcels of land south of SR 161/Post Road and west of US 33/ SR 161. The parcels were acquired because of their importance in preserving the City's economic development opportunities of the area near the US 33/SR 161 interchange and the larger Central Ohio Innovation Center (COIC) planning area. Prior to the acquisition of these parcels, the City began working with O'Brien/Adkins Associates (OBA), a firm most known for their master planning of the Research Triangle Park in North Carolina, on the development of a master plan of the COIC. OBA identified the two (2) parcels acquired by the City and having a connection to a university as critical to the development of the COIC. Ordinance No. 55-OS authorizes the execution of an economic development agreement with UMC Partners (UMC), an Ohio nonprofit corporation, established to facilitate business opportunities for science and research coming out of The Ohio State University and the OSU Medical Center. The Economic Development Agreement (EDA) is being finalized and is not available for review at the time. The EDA will be presented to City Council prior to the second reading of the legislation that is scheduled for October 3, 2005. The proposed incentives to be offered by the City are as follows: Donation of Land -the aforementioned two (2) parcels of land acquired by the City will be dedicated to UMC. There will be performance conditions and limitations on the encumbrances that can be placed on the land. The details of the conditions are being finalized. Construction of Public Improvements - as previously discussed and authorized by City Council in the City's 2006-2010 Capital Improvements Program (CIP) adopted on September 6, the EDA will include the City's commitment to complete improvements to the US 33/SR 161 interchange. This is a critical transportation improvement project that is needed for continued quality economic development of the area. The interchange improvement will also include the improvement to SR 161/Post Road from Hyland Croy Road to Eiterman Road. The funding for this project has been programmed in the CIP. The necessary funding is available as a result of City Council's foresight and direction to modify the allocation of the property tax revenues that the City receives from it "inside millage" and to defer the construction of a new municipal building. City staff has been and will continue to seek grant opportunities to assist in funding this project. In addition to potential grant funding, we will be proposing that a tax increment financing (TIF) district be established for the future UMC development. Memorandum September 15, 2005 Page Two The City will also construct the main internal roadway for the future development. This project is not in the recently adopted CIP because the CII' was finalized prior to this project going forward. Sufficient debt capacity is available for this roadway if other grant funds can not be secured. Income Tax Incentive Payments -this is an incentive that has been utilized many times in the past by the City. The incentive is based entirely on UMC's performance. An annual cap of $250,000 and a maximum cap of $2.5 million will be established. Acquisition of the Stream Corridor on Existing Land Owed by OSU -the City will acquire the stream corridor on the OSU land based on fair market value. Fiber Use -the EDA will provide for the extension of DubLink from its existing terminus on Perimeter Drive to the proposed development site. This will also benefit the area and is needed for the continued development of the COIC. Acquisition of Additional Land -the City owns approximately 100 acres to the west of the proposed UMC development. The EDA will provide an option period for UMC to acquire the property at fair market value. UMC will develop a health and innovation park within the COIC which will provide advanced cancer treatment and therapies which is anticipated to attract other health-care and research projects. The details of the investment to be made by UMC will be provided in the EDA once it is finalized. The initial phase of development by UMC is anticipated to result in facilities with an estimated value of $200 million being constructed in the next few years. The development will also bring new jobs to the City and to the region. The employment numbers will be provided in the EDA. These facilities are also projected to result in significant income tax revenues from net profits by the businesses. It is important to keep in mind the proposed incentives that will be in the EDA are performance based. Staff feels this is a great opportunity for the future development of the COIC, the City, and the region from an economic development and a medical treatment perspective. Many meetings have taken place in a short period of time; however, the details of the EDA are not yet finalized. Additional information of UMC's development will be presented at the second reading. RECOMMENDATION: This Ordinance is scheduled for a second reading on October 3, 2005. / ~oi3,o~ ECONOMIC DEVELOPMENT AGREEMENT by and between CITY OF DUBLIN, OHIO and UMC PARTNERS relating to The Ohio State University Health and Innovation Park dated as of ,2005 COLUMBUS/451908.4 ECONOMIC DEVELOPMENT AGREEMENT THIS ECONOMIC DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into this day of , 2005 (the "Effective Date"), by and between the CITY of DUBLIN, OHIO (the "Dublin"), a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State") and its Charter whose address is 5200 Emerald Parkway, Dublin, Ohio 43017, and LTMC PARTNERS ("UMC" and collectively with Dublin, the "Parties") an Ohio nonprofit corporation whose address is 200 Meiling Hall, 370 West Ninth Avenue, Columbus, Ohio 43210-1238, under the circumstances summarized in the following recitals (the capitalized terms not defined in the recitals are being used therein as defined in Article I hereof). RECITALS: WHEREAS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 20, 1994, and the updated strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, Dublin desires to encourage commercial development and provide for the creation of employment opportunities within Dublin; and WHEREAS, LTMC is the owner of, or will become the owner of, certain real property located in Dublin (the "UMC Property", which LJMC Property is generally depicted on Exhibit A-1 attached hereto and incorporated herein by reference); and WHEREAS, Dublin is the owner of three parcels of real property located in Dublin (with those parcels individually referred to as "Dublin Parcel One", "Dublin Parcel Two" and the "Eiterman Road Parcel", which Parcels are collectively referred to herein as the "Dublin Property" and are generally depicted on Exhibit A-2 attached hereto and incorporated herein by reference); and COLUMBUS/451908.4 WHEREAS, IJMC was created for the purpose of, among others, facilitating the development of a health and innovation park, which will provide advanced cancer treatment and other medical facilities (collectively, the "Health and Innovation Park"); and WHEREAS, UMC is desirous of locating the Health and Innovation Park on the UMC Property and the Dublin Property (with the UMC Property and the Dublin Property being collectively referred to herein as the "Property"); and WHEREAS, Dublin has heretofore designated a certain area within Dublin as the "Central Ohio Innovation Center" (which area is generally depicted on Exhibit B attached hereto and incorporated herein by reference) and is desirous of UMC locating the Health and Innovation Park on the Property and within the Central Ohio Innovation Center; and WHEREAS, the Parties each acknowledge that the development of the Health and Innovation Park will create jobs and employment opportunities and stimulate medical and technological development within Dublin; and WHEREAS, the Parties heretofore executed a Letter of Intent, dated August 23, 2005, whereby UMC and Dublin agreed to work cooperatively to (i) locate the primary facilities of the Institute for Personalized Healthcare, the Particle Therapy Center and the James Care Facilities, upon the Property and (ii) identify and provide incentives to encourage the location on the Property of additional medical and health related institutions and businesses; and WHEREAS, Dublin has, in consideration of UMC's agreement to develop the Health and Innovation Park, agreed to provide certain economic incentives to UMC to facilitate the development of the Health and Innovation Park; and WHEREAS, Dublin, by passage of Ordinance No. on 2005 (the "Authorizing Legislation"), has determined that it is necessary and appropriate and in the best -2- COLUMBUS/451908.4 interests of Dublin to provide certain economic incentives to LTMC for the purpose of creating and preserving jobs and employment opportunities and to improve the economic welfare of the people of the State of Ohio and Dublin as authorized in Article VIII, Section 13 of the Ohio Constitution; and WHEREAS, the Parties have determined to enter into this Agreement to provide the incentives to induce UMC to proceed with the development of the Health and Innovation Park thereby creating jobs and promoting medical and technological development within Dublin; Now, THEREFORE, in consideration of the premises and covenants contained herein, and to induce UMC to proceed with the Health and Innovation Park, the Parties hereto agree and obligate themselves as follows: ARTICLE I DEFINITIONS Section 1.1 Use of Defined Terms. In addition to the words and terms defined elsewhere in this Agreement or by reference to another document, the words and terms set forth in Section 1.2 shall have the meanings set forth in Section 1.2 unless the context or use clearly indicates another meaning or intent. Section 1.2 Definitions. As used herein: "Agreement" means this Economic Development Agreement by and between Dublin and UMC and dated as of the Effective Date. "Bona Fide Purchaser" means any purchaser of a portion of the Dublin Property that is approved by Dublin pursuant to Section 4.8(a) of this Agreement. "Central Ohio Innovation Center" means the area in Dublin generally depicted on Exhibit B attached hereto and incorporated herein by reference. -3- COLUMBUS/451908.4 "Core Facilities" means the Institute for Personalized Healthcare, the Particle Therapy Center and the James Care Facilities. "Dublin" means the City of Dublin, Ohio. "Dublin Property Reversion Release Date" means the first date by which all of the following have occurred: (i) UMC shall have entered into a binding contract to provide for the design, construction and commission of the Particle Therapy Center (the "Particle Therapy Center Design/Build Contract"), (ii) UMC shall have made a payment of at least $20 million pursuant the Particle Therapy Center Design/Build Contract which payment shall be evidenced in a form satisfactory to Dublin, (iii) iJMC shall have applied to Dublin and received a building permit for the construction of the Particle Therapy Center, and (iv) iJMC shall have commenced construction of the Particle Therapy Center. "Effective Date" means the date as defined in the preambles of this Agreement. "Fair Market Value" means the fair market value of property as determined pursuant to the procedure set forth in Section 4.11. "Health and Innovation Park" means an integrated medical campus which shall be constructed on the Property consisting of, but not necessarily limited to, the Institute for Personalized Healthcare, the Particle Therapy Center, the James Care Facilities and supporting facilities which may include research and development facilities, office buildings, hotels, restaurants and related employee and patient support facilities. "Institute for Personalized Healthcare" means an approximate 25,000 square foot facility which shall be used for the purpose of exploring and growing research and development opportunities in the emerging systems of information-based and patient-centric health care. -4- COLUMBUS/451908.4 ".lames Care Facilities" means an approximate 100,000 square foot facility which shall be used for the relocation and expansion of various outpatient clinical care operations currently located at the Stoneridge Medical Center. "Maximum Payment Amount" shall mean Two Million Five Hundred Thousand Dollars ($2,500,000). "Non-Tax Revenues" means any revenues collected by Dublin and derived from sources other than taxation. "Notice Address" means: as to Dublin: City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attention: City Manager copy to: Stephen J. Smith Schottenstein Zox & Dunn Co., LPA 250 West Street Columbus, Ohio 43215 as to LJMC: UMC Partners 200 Meiling Hall 370 West Ninth Avenue Columbus, Ohio 43210-1238 Attention: Mr. Jeffrey Wilkins copy to: William E. Nakasian Jones Day 325 John H. McConnell Boulevard Columbus, Ohio 43215 "Particle Therapy Center" means an approximate 90,000 square foot facility which shall be used for the purpose ofdelivering ahigh-energy particle beam for the treatment of cancer. "Particle Therapy Center Actual Completion Date" means the date on which Dublin issues a certificate of occupancy for the Particle Therapy Center. -5- COLUMBUS/451908.4 "Particle Therapy Center Latest Permitted Completion Date" means June 30, 2013, or such later date as maybe approved by Dublin. "Public Improvements" means approximately $25 million of public infrastructure improvements including but not limited to (a) the following public infrastructure improvements identified in Dublin's 2006-2010 Capital Improvement Plan as approved by the Dublin City Council on September 6, 2005 - (i) the reconstruction of the U.S. Route 33 /Post Road Interchange and (ii) the construction of a boulevard treatment along State Route 161 /Post Road from Hyland Croy Road to Eiterman Road, (b) the construction of necessary public road systems internal to the Health and Innovation Park and Property, (c) any other road improvements, including but not limited to the realignment of Eiterman Road (temporary or permanent), necessary to facilitate and improve traffic flow proximate to the Health and Innovation Park, and (d) such other improvements, including but not limited to, curbs and gutters, public utilities which include water mains, sanitary sewer, and storm sewer, burial of utility lines, street lighting, sidewalks, bikeways, and landscaping, traffic signalization, and including design and other related costs, any right-of--way acquisition, erosion and sediment control measures, grading and other related work, survey work, soil engineering and construction staking, and in each case, all other costs and improvements necessary and appurtenant thereto which Dublin, with input from UMC, may in Dublin's sole discretion, determine are necessary for the development of the Health and Innovation Park and the Property. "State" means the State of Ohio. "Stream Corridor Property" means the real property generally depicted on Exhibit C attached hereto and incorporated herein by reference. -6- COLUMBUS/451908.4 "Stream Corridor Property Purchase Price" means Two Hundred Fifty Thousand Dollars ($250,000). "TIF Statute" means Sections 5709.40 through 5709.43 of the Ohio Revised Code and those sections as each maybe amended from time to time. "UMC"' means UMC Partners, an Ohio nonprofit limited liability corporation. Section 1.3 Interpretation. Any reference in this Agreement to Dublin or to any officers of Dublin includes those entities or officials succeeding to their functions, duties or responsibilities pursuant to or by operation of law or lawfully performing their functions. Any reference to a section or provision of the Constitution of the State, or to a section, provision or chapter of the Ohio Revised Code shall include such section, provision or chapter as modified, revised, supplemented or superseded from time to time; provided, that no amendment, modification, revision, supplement or superseding section, provision or chapter shall be applicable solely by reason of this paragraph if it constitutes in any way an impairment of the rights or obligations of the Parties under this Agreement. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa; the terms "hereof', "hereby", "herein", "hereto", "hereunder" and similar terms refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before, the date of this Agreement. Words of any gender include the correlative words of the other gender, unless the sense indicates otherwise. References to articles, sections, subsections, clauses, exhibits or appendices in this Agreement, unless otherwise indicated, are references to articles, sections, subsections, clauses, exhibits or appendices of this Agreement. -7- COLUMBUS/451908.4 Section 1.4 Captions and Headings. The captions and headings in this Agreement are solely for convenience of reference and in no way define, limit or describe the scope of the intent of any article, section, subsection, clause, exhibit or appendix of this Agreement. (END OF ARTICLE I~ -g- COLUMBUS/451908.4 ARTICLE II GENERAL AGREEMENT AND TERM Section 2.1 General Agreement Among Parties. For the reasons set forth in the Recitals hereto, which Recitals are incorporated herein by reference as a statement of the public purposes of this Agreement and the intended arrangements among the Parties, the Parties shall cooperate to facilitate the construction of the Health and Innovation Park and the Public Improvements. Section 2.2 Term of Agreement. This Agreement shall become effective as of the Effective Date and shall continue until the Parties have satisfied their respective obligations as set forth in this Agreement, unless sooner terminated in accordance with the provisions set forth herein. Section 2.3 Recordation of Agreement. This Agreement shall be filed with the Recorder of Franklin County, Ohio for recordation in the Official Records of Franklin County as soon as practicable following the Effective Date. (END OF ARTICLE II~ -9- COLUMBUS/451908.4 ARTICLE III REPRESENTATIONS AND COVENANTS OF THE PARTIES Section 3.1 Representations and Covenants of Dublin. Dublin represents and covenants that: (a) It is a municipal corporation duly organized and validly existing under the Constitution and applicable laws of the State and its Charter. (b) It is not in violation of or in conflict with any provisions of the laws of the State or of the United States of America applicable to Dublin which would impair its ability to carry out its obligations contained in this Agreement. (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of Dublin, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to Dublin, including its Charter, and do not and will not conflict with or result in a default under any agreement or instrument to which Dublin is a party or by which it is bound. (d) This Agreement to which it is a party has, by proper action, been duly authorized, executed and delivered by Dublin and all steps necessary to be taken by Dublin have been taken to constitute this Agreement, and the covenants and agreements of Dublin contemplated herein are valid and binding obligations of Dublin, enforceable in accordance with their terms. (e) There is no litigation pending or to its knowledge threatened against or by Dublin wherein an unfavorable ruling or decision would materially adversely affect Dublin's ability, to carry out its obligations under this Agreement. -10- COLUMBUS/451908.4 (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor public body. (g) The Authorizing Legislation has been duly passed and shall be in full force and effect on the earliest date permitted by law. Section 3.2 Representations and Covenants of UMC. UMC represents and covenants that: (a) It is nonprofit limited liability corporation duly organized and validly existing under the applicable laws of the State. (b) It is not in violation of or in conflict with any provisions of the laws of the State or of the United States of America applicable to UMC which would impair its ability to carry out its obligations contained in this Agreement. (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of UMC, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to UMC, and do not and will not conflict with or result in a default under any agreement or instrument to which UMC is a party or by which it is bound. (d) This Agreement to which it is a party has, by proper action, been duly authorized, executed and delivered by UMC and all steps necessary to be taken by UMC have been taken to constitute this Agreement, and the covenants and agreements of UMC contemplated herein are valid and binding obligations of UMC, enforceable in accordance with their terms. -11- COLUMBUS/451908.4 (e) There is no litigation pending or to its knowledge threatened against or by LTMC wherein an unfavorable ruling or decision would materially adversely affect iJMC's ability to carry out its obligations under this Agreement. (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor entity. Section 3.3 Disclaimers Related to Conveyance of Real Property. (a) Except as otherwise specifically stated in Section 3.1 or the warranties set forth in the Dublin Property Deed, Dublin hereby specifically disclaims any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning (i) the nature and condition of the Dublin Property, including, without limitation, the water, soil and geology, and the suitability thereof and of the Dublin Property for any and all activities and uses which UMC may elect to conduct thereon, and the existence of any environmental hazards or conditions thereon or compliance with all applicable laws, rules or regulations; (ii) the nature and extent of any right-of--way, lease, possession, lien encumbrance, license, reservation, condition or otherwise; and (iii) the compliance of the Dublin Property or its operation with any laws, ordinances or regulations of any governmental or other body. LTMC acknowledges that it will inspect the Dublin Property and LTMC will rely solely on its own investigation of the Dublin Property and not on any information provided or to be provided by Dublin relating to the physical condition of the Dublin Property, except as otherwise specified in Section 3.1. UMC further acknowledges that the information provided and to be provided with respect to the Dublin Property was obtained from a variety of sources and Dublin has not made any independent investigation or verification of such information; and Dublin does not make -12- COLUMBUS/451908.4 any representations as to the accuracy or completeness of such information, except as otherwise specified in Section 3.1. The sale of the Dublin Property as provided for herein is made on an "as is," "where is" basis and with all faults, and UMC expressly acknowledges that, in consideration of the agreements of Dublin herein, except as otherwise specified in Section 3.1 or the Dublin Property Deed, Dublin makes no warranty or representation, express or implied, or arising by operation of law, including, but not limited to, any warranty of condition, habitability, merchantability, suitability, tenantability or fitness for a particular purpose, in respect of the Dublin Property. (b) Except as otherwise specifically stated in Section 3.2 or the warranties set forth in the Stream Corridor Property Deed, UMC hereby specifically disclaims any warranty, guaranty or representation, oral or written, past, present or future, of, as to, or concerning (i) the nature and condition of the Stream Corridor Property, including, without limitation, the water, soil and geology, and the suitability thereof and of the Stream Corridor Property for any and all activities and uses which Dublin may elect to conduct thereon, and the existence of any environmental hazards or conditions thereon or compliance with all applicable laws, rules or regulations; (ii) the nature and extent of any right-of--way, lease, possession, lien encumbrance, license, reservation, condition or otherwise; and (iii) the compliance of the Stream Corridor Property or its operation with any laws, ordinances or regulations of any governmental or other body. Dublin acknowledges that it will inspect the Stream Corridor Property and Dublin will rely solely on its own investigation of the Stream Corridor Property and not on any information provided or to be provided by LTMC relating to the physical condition of the Stream Corridor Property, except as otherwise specified in Section 3.2. Dublin further -13- COLUMBUS/451908.4 acknowledges that the information provided and to be provided with respect to the Stream Corridor Property was obtained from a variety of sources and UMC has not made any independent investigation or verification of such information; and UMC does not make any representations as to the accuracy or completeness of such information, except as otherwise specified in Section 3.2. The sale of the Stream Corridor Property as provided for herein is made on an "as is," "where is" basis and with all faults, and Dublin expressly acknowledges that, in consideration of the agreements of UMC herein, except as otherwise specified in Section 3.2 or the Stream Corridor Property Deed, LTMC makes no warranty or representation, express or implied, or arising by operation of law, including, but not limited to, any warranty of condition, habitability, merchantability, suitability, tenantability or fitness for a particular purpose, in respect of the Stream Corridor Property. (END OF ARTICLE III) -14- COLUMBUS/451908.4 ARTICLE IV CONVEYANCE OF DUBLIN PROPERTY Section 4.1 Conveyance of Dublin Property. Dublin agrees to sell and UMC agrees to purchase the Dublin Property. UMC will pay to Dublin the purchase price of Ten Dollars ($10.00) (the "Dublin Property Purchase Price") for the Dublin Property at the time of conveyance of title of the Dublin Property to UMC. The Parties agree and acknowledge that the Eiterman Road Parcel presently consists of a public right-of--way for Eiterman Road. Dublin agrees to act expeditiously to construct, or cause the construction of, an alternate route for Eiterman Road and to vacate, or cause the vacation of, the Eiterman Road Parcel in order that such Parcel maybe conveyed to LTMC. The Parties agree that if the Eiterman Road Parcel is conveyed subsequent to Dublin Parcel One and Dublin Parcel Two, then the Dublin Property Purchase Price will be paid at the time of the conveyance of Dublin Parcel One and Dublin Parcel Two. Section 4.2 Form of Dublin Property Deeds; Title. Dublin will convey fee simple title to the Dublin Property to UMC by a good, sufficient and recordable limited warranty deed for each of the Parcels comprising the Dublin Property, each in a form reasonably satisfactory to the Director of Law of Dublin and UMC (collectively, the "Dublin Property Deed"). The conveyance of the Dublin Property Deed is referred to herein as the "Dublin Property Closing" and the date on which the Dublin Property Closing occurs is referred to as the "Dublin Property Closing Date". If the Eiterman Road Parcel is required to be conveyed subsequent to Dublin Parcel One and Dublin Parcel Two as described in Section 4.1, the terms "Dublin Property Closing" and "Dublin Property Closing Date" shall separately apply to the conveyance of the Eiterman Road Parcel. The Dublin Property Closing Date shall occur no later than forty-five (45) days following the Effective Date, or such later date that may be mutually agreed upon by the -15- COLUMBUS/451908.4 Parties, and with respect to the conveyance of the Eiterman Road Parcel, on the earliest date practicable following the vacation of the related public right-of--way as described in Section 4.1. The conveyance and title for the Dublin Property shall, in addition to the conditions subsequent provided for in Sections 4.8, 4.9 and 8.3 of this Agreement and all other conditions, covenants, and restrictions set forth or referred to elsewhere in this Agreement, be subject to: (a) Easements and rights-of--way of record for public utility service, and such additional easements or rights-of--way as are necessary for public utility service, or for other public infrastructure improvements for the benefit of the Health and Innovation Park, including but not limited to easements or rights-of--way as may be required to temporarily realign Eiterman Road and to construct a water tower proximately to the Dublin Property. At Dublin's option, such easements or rights-of--way (if any) which must be created after the date of this Agreement for the benefit of the Health and Innovation Park will be created either by reservation in the Dublin Property Deed to UMC, or by UMC's execution and delivery of easements or such other instruments to Dublin in a form satisfactory to the Director of Law of Dublin and at no cost to Dublin, provided, however, that in either event any easements or rights-of--way that must be created after the date of this Agreement must be acceptable to UMC, which acceptance shall not be unreasonably withheld, conditioned or delayed; (b) The covenants contained herein which are by the terms of this Agreement required to be covenants running with the land; (c) Unpaid taxes and assessments, not delinquent; (d) Zoning ordinances; and -16- COLUMBUS/451908.4 (e) Such additional title exceptions as will not materially and adversely affect the construction of the Health and Innovation Park or the use of the Dublin Property. Section 4.3 Apportionment of Current Taxes. The portion of the real estate taxes, if any, for the tax year in which the Dublin Property Closing occurs (which year's taxes are in this Section 4.3 called "Dublin Property Current Taxes"), on the Dublin Property shall be apportioned between Dublin and UMC as of the Dublin Property Closing Date on a calendar year basis. Real estate taxes for the tax years previous to the tax year in which the Dublin Property Closing occurs, if any, will be paid by Dublin. Prior to or after the Dublin Property Closing, Dublin may, at its expense, seek a reduction of the assessed valuation of the Dublin Property, and UMC shall reasonably cooperate with Dublin in such efforts, including joining in any complaint against assessed valuation to be filed by Dublin. Dublin shall be entitled to any refund for real estate taxes paid by Dublin (whether by direct payment or as a result of proration at the Dublin Property Closing) for any time period prior to the applicable Dublin Property Closing Date. If any such refund is paid directly to iJMC or credited to UMC on subsequent tax bills, then UMC shall promptly pay such amounts to Dublin. Section 4.4 Recordation of Deed. LTMC shall promptly file each Dublin Property Deed with the Recorder of Franklin County, Ohio, for recordation in the Official Records of Franklin County. UMC shall pay all costs for so recording each Dublin Property Deed. Section 4.5 Title Insurance. Simultaneously with the delivery of each Dublin Property Deed, if requested by UMC, Dublin shall provide, at the expense of UMC, an owner's policy of title insurance (the "Dublin Property Title Insurance Policy") issued by a title insurance company which shall be reasonably acceptable to the Parties ("Dublin Property Title Company"), providing for title insurance in the amount of the Fair Market Value of the Dublin Property, -17- COLUMBUS/451908.4 insuring in UMC good title in fee simple, free and clear of all liens, encumbrances, restrictions, reservations, easements and conditions of record, except those created or permitted by this Agreement (including those referred to in Sections 4.2, 4.8, 4.9 and 8.3). If such Dublin Property Title Insurance Policy is not available to be delivered to UMC at the time of the Dublin Property Closing, Dublin shall provide simultaneously with the delivery of the Dublin Property Deed and at UMC's expense the Dublin Property Title Company's commitment (the "Dublin Property Title Commitment") for the Dublin Property Title Insurance Policy, and which Dublin Property Title Insurance Policy shall be delivered to UMC promptly after the Dublin Property Closing. Section 4.6 Survey. Dublin will, at its expense, cause to be performed with respect to the Dublin Property an ALTA survey (the "Dublin Property Survey"). Such Dublin Property Survey shall be certified to UMC, the Dublin Property Title Company, and to Dublin. Section 4.7 Dublin Property Closing. (a) Dublin shall deliver each Dublin Property Deed and possession of such Dublin Property to UMC on the Dublin Property Closing Date. Upon Dublin's tender of delivery of the Dublin Property Deed, and the Dublin Property Title Policy or Dublin Property Title Commitment, UMC shall accept delivery of the Dublin Property Deed and make payment of the Dublin Property Purchase Price for the Dublin Property. Payment of the Dublin Property Purchase Price shall be made by wire transfer of funds to Dublin, or by such other means as is approved by Dublin in writing. (b) The conveyance of the Dublin Property shall be closed in escrow with the Dublin Property Title Company, who will serve as escrow agent ("Dublin Property Escrow Agent") for Dublin and UMC. This Agreement, together with the Dublin -18- COLUMBUS/451908.4 Property Escrow Agent's usual conditions of acceptance, shall serve as escrow instructions for such Closing; provided, however, that in the event of any conflict between the provisions of this Agreement and the Dublin Property Escrow Agent's usual conditions of acceptance, the provisions of this Agreement shall govern. The Dublin Property Title Company's usual conditions for closing shall be submitted to and approved in writing by the Parties hereto prior to the Dublin Property Closing. (c) All documents necessary for the completion of the Dublin Property Closing transaction shall be deposited with the Dublin Property Escrow Agent on or before five days before the Dublin Property Closing Date. Upon the satisfaction of the document requirements for the Dublin Property Closing under this Agreement, UMC shall deposit the amount of the Dublin Property Purchase Price with the Dublin Property Escrow Agent, and the Dublin Property Escrow Agent shall promptly notify Dublin of such deposit. In the event that any conditions precedent to the Dublin Property Closing have not been satisfied, or have not been waived in writing, the Dublin Property Closing maybe extended for an additional period until such conditions have been satisfied, if and to the extent it is mutually agreed to in writing by the Parties hereto. Section 4.8 Restrictions Relating to Dublin Property Prior to Dublin Property Reversion Release Date. (a) Permitted Transfer or Assignment of the Dublin Property. UMC represents and agrees for itself, and its successors and assigns, that prior to the Dublin Property Reversion Release Date, and except only by way of security for, (a) the purpose of obtaining financing necessary to enable UMC to operate and perform its obligations with respect to constructing the Health and Innovation Park under this Agreement, and -19- COLUMBUS/451908.4 furnishing and equipping the same, and paying any other costs associated with such financing, and (b) any other purpose authorized by this Agreement, LTMC will 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 this Agreement or the Dublin Property, without the prior written approval of Dublin, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the preceding paragraph, UMC may, upon receipt of prior written approval of Dublin which will not be unreasonably withheld, transfer or assign any portion of the Dublin Property which is not required to complete the Core Facilities within the Health and Innovation Park. The Parties agree that prior to determining whether approval shall be granted, Dublin may consider the proposed use of the portion of the Dublin Property to be transferred or assigned, the number of employment opportunities proposed to be created thereby and the overall suitability of the use in relation to the Central Ohio Innovation Center. None of the limitations on encumbrances under Section 4.8(b) of this Agreement shall apply to the portion of the Dublin Property acquired by a Bona Fide Purchaser, and upon the request of LTMC or a Bona Fide Purchaser, Dublin shall release the parcel that is conveyed, or to be conveyed, to the Bona Fide Purchaser from the provisions of Sections 4.8 and 8.3 of this Agreement, which release shall be in such form as will enable it to be recorded in the Franklin County Recorder's office. (b) Limitation on Encumbrance of Dublin Property. Except as otherwise provided in this Section 4.8(b), prior to the Dublin Property Reversion Release Date, neither LTMC nor any successor in interest to the Dublin Property or any part thereof -20- COLUMBUS/451908.4 other than a Bona Fide Purchaser shall engage in any financing or any other transaction creating any mortgage or other encumbrance or lien upon the Dublin Property or any part thereof, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Dublin Property or any part thereof. Prior to the Dublin Property Reversion Release Date, i1MC, and any successor in interest to the Dublin Property or any part thereof, shall be permitted to create a mortgage or mortgages upon all or part of the Dublin Property for the purpose of operating UMC and for the purpose of constructing, furnishing and equipping the Health and Innovation Park on the Dublin Property; provided, however, the aggregate value of such mortgage or mortgages, at any time prior to the Dublin Property Reversion Release Date may not exceed an amount equal to thirty-three and thirty-three one-hundredths percent (33.33%) of the Fair Market Value of the Dublin Property not theretofore released to a Bona Fide Purchaser pursuant to Section 4.8(a), except as may otherwise be agreed to by Dublin. (c) Dublin's Right to Cure; Mortgagee's Right to Cure. (i) LTMC agrees that it shall, in connection with the provision of any encumbrance permitted by Section 4.8(b), require that the documentation prepared in connection therewith include provisions which (A) require any mortgagee to provide notice to Dublin of any default by UMC in connection with the provision of such mortgage and (B) grant to Dublin the right, but not the obligation, to cure any such default of UMC within a reasonable period of time following notification of such default. (ii) Dublin agrees that it shall, upon the request of any mortgagee of the Dublin Property or any portion thereof, commit to provide such mortgagee -21- COLUMBUS/451908.4 with (A) a simultaneously delivered copy of any notice of default sent to UMC pursuant to Section 8.3 of this Agreement, and (B) the right, but not the obligation, to cure, or to cause UMC to cure, any default by UMC of its obligations under this Agreement within the ninety (90) day cure period provided to UMC under Section 8.3 of this Agreement. Section 4.9 Option to Purchase Undeveloped Dublin Property. Upon the terms and subject to the conditions set forth in this Agreement and in consideration of Dublin's agreements set forth herein, UMC hereby grants to Dublin an exclusive option to purchase (the "Dublin Option") all right, title and interest in and to any and all parcels of the Dublin Property for which a building permit has not been issued by Dublin (collectively, the "Undeveloped Dublin Property"). The foregoing Option may be exercised by Dublin at any time during the Dublin Option Period (as that term is hereafter defined). For the purposes of this Agreement, the "Dublin Option Period" will be deemed to refer to the period beginning on the day immediately following the Particle Therapy Center Latest Permitted Completion Date and continuing for one (1) year thereafter. Dublin will exercise the Dublin Option, if at all, by delivering written notice thereof (the "Dublin Exercise Notice") to the then current owner(s) of record of the Undeveloped Dublin Property. The closing of Dublin's purchase of the Undeveloped Dublin Property will occur at the time and in the manner as determined by Dublin. The purchase price of the Undeveloped Dublin Property shall be equal to Ten Dollars ($10.00). After the issuance of a building permit by Dublin for any parcel of the Dublin Property and upon the request of the owner of the record of that parcel, Dublin will furnish that owner with an appropriate instrument certifying such issuance. The certification by Dublin shall be (and it shall be so provided in the Dublin Property Deed and in the certification) a conclusive -22- COLUMBUS/451908.4 determination of satisfaction and termination of the covenants in this Section 4.9 and the Dublin Property Deed with respect to the obligations of that property owner and its successors and assigns. The certification provided for in this Section shall be in such form as will enable it to be recorded in the Franklin County Recorder's office in the records for the recordation of the Dublin Property Deed and other instruments pertaining to the Dublin Property. The certification of issuance provided for in this Section may be given on behalf of Dublin by the City Manager of Dublin. Section 4.10 Mortgagees Not Obligated to Construct. Notwithstanding any of the provisions of this Agreement, including but not limited to those which are or are intended to be covenants running with the land, the holder of any mortgage authorized by this Agreement (including any holder who obtains title to the Dublin Property or any part thereof as a result of foreclosure proceedings, or action in lieu thereof) shall not be obligated by the provisions of this Agreement to construct or complete the Health and Innovation Park on such Dublin Property or to guarantee such construction or completion; nor shall any covenant or any other provision in the Dublin Property Deed be construed to so obligate such holder. Section 4.11 Determination of Fair Market Value. Whenever the determination of the Fair Market Value of a parcel of land is required hereunder, the Fair Market Value shall be determined pursuant to the procedures set forth in this Section 4.11 (the "Appraisal Procedure"). Such Fair Market Value shall be determined by an M.A.I. real estate appraiser acceptable to Dublin and LTMC. If Dublin and LTMC are unable to agree upon an appraiser within thirty (30) days following the date on which an appraisal is required hereunder, such Fair Market Value shall be determined by two (2) M.A.I. real estate appraisers, one selected by Dublin and one by -23- COLUMBUS/451908.4 UMC (the "First Appraisers"). Each of Dublin and UMC shall select their respective First Appraisers within sixty (60) days following the date on which an appraisal is required hereunder and shall promptly notify the other party of the name and qualifications of such First Appraiser. Within thirty (30) days following delivery of notice of the appointment of the second First Appraiser to be appointed, the First Appraisers shall attempt to determine in good faith the Fair Market Value of the parcel required under the applicable provisions of this Agreement and, if the First Appraisers are unable to agree upon such value, the Appraisers shall select a similarly qualified third appraiser (the "Third Appraiser"). If the two appraisers are unable to agree on the designation of the Third Appraiser within ten (10) days after the expiration of the foregoing thirty (30) day period, the Third Appraiser shall be selected by the American Arbitration Association upon application of either party. Within thirty (30) days following the selection of the Third Appraiser, the First Appraisers and the Third Appraiser (collectively, the "Appraisers") shall determine in good faith the Fair Market Value, and so notify Dublin and LTMC. If agreement is not unanimous, the decision of a majority of the Appraisers shall be determinative. Any appraiser selected by the Parties shall be disinterested, shall have had not less than ten (10) years experience in the valuation of commercial properties in the area in which the parcel is located, and shall have been a member of the American Institute of Real Estate Appraisers for at least ten (10) years. Both Parties shall be afforded the opportunity to present evidence to the Appraisers in such manner as the Appraisers may determine, but no party shall be bound by strict rules of evidence. Each Party shall provide such information with respect to the Fair Market Value as the arbitrators shall request. The decision of the Appraisers shall be final and binding upon the Parties. Each Party shall pay any fees due its First Appraiser, and Dublin and iJMC shall share equally the fees and costs of the Third Appraiser. -24- COLUMBUS/451908.4 (END OF ARTICLE IV~ -2$- COLUMBUS/451908.4 ARTICLE V CONSTRUCTION OF THE HEALTH AND INNOVATION PARK AND RELATED PUBLIC IMPROVEMENTS Section 5.1 Construction of the Health and Innovation Park. Based upon the foregoing Section 2.1, upon and subject to the terms and conditions of this Agreement and in consideration of Dublin's agreements set forth herein, UMC, together with such other entities as maybe required, agrees to (a) finance, acquire, construct, improve, develop and operate the Core Facilities, and (b) use commercially reasonable efforts to develop, or cause others to develop, the remaining portion of the Health and Innovation Park. IJMC shall use its best efforts to cause the Particle Therapy Center to be completed with all reasonable dispatch no later than the Particle Therapy Center Latest Permitted Completion Date. UMC shall pay, or cause to be paid, all costs incurred in connection with the financing, acquisition, construction, improvement and development of the Health and Innovation Park. Except as otherwise provided in this Agreement, Dublin shall have no responsibility with respect to the financing, acquisition, construction, improvement and development of the Health and Innovation Park. In prosecuting the development of the Health and Innovation Park and in performing its obligations under this Agreement, UMC shall comply with, and cause all of its employees, agents, contractors and consultants to comply with, all applicable federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of any court, board, agency, commission, office or other authority of any nature whatsoever for any goverrunental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence affecting the Dublin Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and -26- COLUMBUS/451908.4 regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to LJMC, at any time in force affecting the Dublin Property or any part thereof. Section 5.2 Zonin .Dublin will use its best efforts to facilitate the applicable zoning necessary to effectuate this Agreement, including the development of the Health and Innovation Park as contemplated hereby. Section Namin Ri hts. The Parties further agree that e right to name the Health and Innovation ct to approval by Dublin, the right to place such n or names on the water tower located at or near the Property. Section 5.4 Certificate of Completion for Health and Innovation Park (Excluding Particle Therapy Center). (a) After completion of each Core Facility other than the Particle Therapy Center, which is addressed in Section 5.5 of this Agreement (each completed Core Facility being referred to as a "Component Facility"), upon the request of UMC, Dublin will furnish UMC with an appropriate instrument certifying such completion. The certification by Dublin shall be (and it shall be so provided in the Dublin Property Deed and in the certification) a conclusive determination of satisfaction and termination of the covenants in this Agreement and the Dublin Property Deed with respect to the obligations of UMC and its successors and assigns to construct the specific Component Facility as part of the Health and Innovation Park on the Dublin Property, and the dates for the beginning and completion thereof. The certification provided for in this Section shall further release solel the parcel or parcels of the Dublin Property upon which the -27- COLUMBUS/451908.4 Component Facility was constructed from the provisions of Sections 4.8, 4.9 and 8.3 of this Agreement. (b) The certification provided for in this Section shall be in such form as will enable it to be recorded in the Franklin County Recorder's office in the records for the recordation of the Dublin Property Deed and other instruments pertaining to the Dublin Property. If Dublin shall refuse or fail to provide any certification in accordance with the provisions of this Section, Dublin shall, within thirty (30) days after written request by UMC, provide UMC with a written statement, indicating in adequate detail in what respects UMC has failed to complete the Component Facility of the Health and Innovation Park on the Dublin Property, in accordance with the provisions of this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of Dublin, for UMC to take or perform in order to obtain such certification. (c) The certification of completion provided for in this Section may be given on behalf of Dublin by the City Manager of Dublin. Section 5.5 Certificate of Completion for Particle Therapy Center. (a) After the Dublin Property Reversion Release Date and upon the request of UMC, Dublin will furnish UMC with an appropriate instrument certifying such commencement. The certification by Dublin shall be (and it shall be so provided in the Dublin Property Deed and in the certification) a conclusive determination of satisfaction and termination of the covenants in this Agreement and the Dublin Property Deed with respect to the obligations of UMC and its successors and assigns to construct the Health and Innovation Park on the Dublin Property, and the dates for the beginning and completion thereof; provided, however, such certification shall not release the provisions -28- COLUMBUS/451908.4 set forth in Section 4.9 and such provisions shall remain in effect until otherwise terminated pursuant to Section 4.9. The certification provided for in this Section shall further release all of the Dublin Property from the provisions of Sections 4.8 and 8.3 of this Agreement. (b) The certification provided for in this Section shall be in such form as will enable it to be recorded in the Franklin County Recorder's office in the records for the recordation of the Dublin Property Deed and other instruments pertaining to the Dublin Property. If Dublin shall refuse or fail to provide any certification in accordance with the provisions of this Section, Dublin shall, within thirty (30) days after written request by UMC, provide UMC with a written statement, indicating in adequate detail in what respects UMC has failed to complete the Particle Therapy Center on the Dublin Property, in accordance with the provisions of this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the opinion of Dublin, for iJMC to take or perform in order to obtain such certification. (c) The certification of completion provided for in this Section may be given on behalf of Dublin by the City Manager of Dublin. Section 5.6 Construction of the Public Improvements. (a) The Parties acknowledge and agree that the Public Improvements will greatly enhance access to the Health and Innovation Park and expedite commercial development in proximity to the Health and Innovation Park. Based upon the foregoing Section 2.1, upon and subject to the terms and conditions of this Agreement and in consideration of UMC's agreements set forth herein, Dublin agrees, subject to making arrangements to provide for the necessary financing to pay the cost thereof, including, -29- COLUMBUS/451908.4 without limitation, issuance by Dublin of its bonds or other obligations, to finance, acquire, construct, improve and maintain the Public Improvements. (b) Dublin shall use its best efforts to cause the Public Improvements to be completed with all reasonable dispatch on or before the Particle Therapy Center Actual Completion Date. Such Public Improvements shall be in conformity with the requirements of Dublin's usual standards and specifications for such Public Improvements. (c) Prior to undertaking any such Public Improvements, and at Dublin's option, Dublin shall reserve from its conveyance of the Dublin Property to LJMC, and UMC shall convey or dedicate to Dublin with respect to the Dublin Property or any other real property hereafter acquired by LTMC or any of its affiliates within the Central Ohio Innovation Center, at no cost to Dublin, fee simple title to such property, free and clear of any liens, encumbrances or other title exceptions except those satisfactory to Dublin, as is necessary for the public rights of way for all public street improvements included within the Public Improvements, and in addition, such fee simple title or permanent easements (at Dublin's option, and in such forms satisfactory to Dublin) as Dublin may require for the construction of such part of the Public Improvements as are not located within public rights of way. Any such permanent easements requested by Dublin shall be in such forms as are satisfactory to Dublin and UMC and as are necessary to enable Dublin to carry out the construction, operation, inspection, maintenance, repair, improvement, and replacement of any part of such Public Improvements as are not located within public rights of way. UMC hereby grants such temporary construction easements as are reasonably necessary from time to time to enable Dublin to construct and complete the -30- COLUMBUS/451908.4 Public Improvements, and agrees to execute and deliver to Dublin from time to time temporary construction easements in forms satisfactory to Dublin. (d) Dublin shall pay, or cause to be paid, all costs incurred in connection with the financing, acquisition, construction, improvement and maintenance of the Public Improvements. Except as otherwise provided in this Agreement (specifically but not limited to UMC's obligations to convey or dedicate property necessary for public rights of way and to make Service Payments as described herein), UMC shall have no responsibility with respect to the financing, acquisition, construction, improvement and maintenance of the Public Improvements. (END OF ARTICLE V) -31- COLUMBUS/451908.4 ARTICLE VI ADDITIONAL FINANCIAL AND RELATED INCENTIVES Section 6.1 General Provision Relating to Additional Financial and Related Incentives. In consideration of UMC's agreements set forth herein, Dublin agrees to make or provide for the additional incentives described in this Article VI for the purpose of facilitating the development of the Health and Innovation Park. Section 6.2 Incentive Payments. Dublin agrees to make certain incentive payments to UMC in accordance with this Section 6.2. (a) Calculation of Income Tax Revenues. On or before March 15 of each year, commencing with the first year following the issuance of a certificate of completion for the Institute for Personalized Healthcare or the Particle Therapy Center and continuing until the Maximum Payment Amount has been paid by Dublin to UMC, Dublin shall calculate the actual payroll withholding taxes (the "Actual Withholdings") and net profits taxes (the "Net Profits Taxes") collected in respect of the Particle Therapy Center and the Institute for Personalized Healthcare during the preceding calendar year. UMC agrees that, in accordance with the Dublin City Code, the annual payroll reconciliation relating to persons employed at the Particle Therapy Center will be provided to Dublin prior to February 28 of each calendar year. (b) Payments to UMC. Dublin shall, on or before April 15 of the then current calendar year, pay to UMC, solely from Nontax Revenues, an amount equal to the product of (A) an amount equal to the Actual Withholdings (net of refunds) plus an amount equal to the Net Profits Taxes, multiplied by (B) fifty percent (50%). -32- COLUMBUS/451908.4 (c) Maximum Incentive Pavments. In no event shall the aggregate amount of incentive payments made by Dublin to UMC pursuant to this Section 6.2 exceed Two Hundred Fifty Thousand Dollars ($250,000) per year. (d) Dublin Deficiency Carry forward Amounts. If and to the extent the amount of Nontax Revenues is insufficient in a particular calendar year for appropriation and payment to UMC, Dublin will make payment to UMC in the amount of Nontax Revenues available for appropriation and payment to UMC. The difference between the amount required to be paid by Dublin to LTMC pursuant to this Section 6.2 and the amount actually paid (referred to herein as a "Dublin Deficiency Carryforward Amount") shall be carried forward to the next succeeding calendar year and paid to LTMC in addition to any other payment for that succeeding year required by this Section 6.2. This Agreement shall not terminate until Dublin has paid to UMC all Dublin Deficiency Carryforward Amounts required to be paid to UMC in accordance with this Section 6.2; provided, however, the aggregate of all payments to UMC pursuant to this Agreement shall not exceed the Maximum Payment Amount. (e) Method of Payment. The payments provided for in this Section 6.2 shall be made by electronic funds transfer or by such other manner as is mutually agreed to by Dublin and UMC. (f) Maximum Incentive Pavments. In no event shall the aggregate amount of payments made by Dublin to LJMC pursuant to this Section 6.2 during the term of this Agreement exceed the Maximum Payment Amount. (g) Obligation to Make Pavments Not Debt; Pavments Limited to Nontax Revenues. Notwithstanding anything to the contrary herein, the obligations of Dublin -33- COLUMBUS/451908.4 pursuant to this Agreement shall not be a general obligation debt or bonded indebtedness, or a pledge of the general credit or taxes levied by Dublin, and LJMC shall have no right to have excises or taxes levied by Dublin, the State or any other political subdivision of the State for the performance of any obligations of Dublin herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by Dublin pursuant to this Section 6.2 shall be payable solely from Dublin's Non-Tax Revenues. Further, since Ohio law limits Dublin to appropriating monies for such expenditures only on an annual basis, the obligation of Dublin to make payments pursuant to this Section 6.2 shall be subject to annual appropriations by the City Council and certification by the Director of Finance of Dublin as to the availability of such Nontax Revenues. Section 6.3 Commercial Activity Tax. Dublin and iJMC agree to evaluate the Ohio commercial activity tax to determine the application of that tax to the Health and Innovation Park and to explore other financial incentives that may reduce the economic impact of the commercial activity tax on the Health and Innovation Park. Section 6.4 Acquisition of Stream Corridor Property. UMC agrees to sell to Dublin and Dublin agrees to purchase from UMC the Stream Corridor Property. Dublin will pay to UMC the Stream Corridor Property Purchase Price for the Stream Corridor Property at the time of conveyance of title of the Stream Corridor Property to Dublin. (a) Form of Dublin Property Deed; Title. UMC will convey fee simple title to the Stream Corridor Property to Dublin by good, sufficient and recordable limited warranty deed in a form satisfactory to the Director of Law of Dublin (the "Stream Corridor Property Deed"). The conveyance of the Stream Corridor Property Deed is -34- COLUMBUS/451908.4 referred to herein as the "Stream Corridor Property Closing" and the date on which the Stream Corridor Property Closing occurs is referred to as the "Stream Corridor Property Closing Date". The conveyance and title for the Stream Corridor Property shall, in addition to all other conditions, covenants, and restrictions set forth or referred to elsewhere in this Agreement, be subject to: (i) Easements of record for public utility service, and such additional easements as are necessary for public utility service, or for other public infrastructure improvements. (ii) Unpaid taxes and assessments, not delinquent; (iii) Such additional title exceptions as will not materially and adversely affect the use of the Stream Corridor Property. (b) Apportionment of Current Taxes. The portion of the real estate taxes, if any, for the tax year in which the Stream Corridor Property Closing occurs (which year's taxes are in this Section 6.4 called "Stream Corridor Property Current Taxes"), on the Stream Corridor Property shall be apportioned between UMC and Dublin as of the Stream Corridor Property Closing Date on a calendar year basis. Real estate taxes for the tax years previous to the tax year in which the Stream Corridor Property Closing occurs, if any, will be paid by UMC. Prior to or after the Stream Corridor Property Closing, UMC may, at its expense, seek a reduction of the assessed valuation of the Stream Corridor Property, and Dublin shall reasonably cooperate with UMC in such efforts, including joining in any complaint against assessed valuation to be filed by UMC. UMC shall be entitled to any refund for real estate taxes paid by UMC (whether by direct payment or as a result of proration at the Stream Corridor Property Closing) for any time -35- COLUMBUS/451908.4 period prior to the applicable Stream Corridor Property Closing Date. If any such refund is paid directly to Dublin or credited to Dublin on subsequent tax bills, then Dublin shall promptly pay such amounts to LTMC. (c) Recordation of Deed. Dublin shall promptly file the Stream Corridor Property Deed with the Recorder of Franklin County, Ohio, for recordation in the Official Records of Franklin County. Dublin shall pay all costs for so recording the Stream Corridor Property Deed. (d) Title Insurance. Simultaneously with the delivery of the Stream Corridor Property Deed, if requested by Dublin, UMC shall provide, at the expense of Dublin, an owner's policy of title insurance (the "Stream Corridor Property Title Insurance Policy") issued by a title insurance company which shall be reasonably acceptable to the Parties ("Stream Corridor Property Title Company"), providing for title insurance in the amount of the Stream Corridor Property Purchase Price for the conveyance of the Stream Corridor Property, insuring in Dublin good title in fee simple, free and clear of all liens, encumbrances, restrictions, reservations, easements and conditions of record, except those created or permitted by this Agreement (including those referred to in Section 6.4(a)). If such Stream Corridor Property Title Insurance Policy is not available to be delivered to Dublin at the time of the Stream Corridor Property Closing, UMC shall provide simultaneously with the delivery of the Stream Corridor Property Deed and at Dublin's expense the Stream Corridor Property Title Company's commitment (the "Stream Corridor Property Title Commitment") for the Stream Corridor Property Title Insurance Policy, and which Stream Corridor Property Title Insurance Policy shall be delivered to Dublin promptly after the Stream Corridor Property Closing. -36- COLUMBUS/451908.4 (e) Surve UMC will, at its expense, cause to be performed with respect to the Stream Corridor Property an ALTA survey (the "Stream Corridor Property Survey"). Such Stream Corridor Property Survey shall be certified to Dublin, the Stream Corridor Property Title Company, and to UMC. (f) Stream Corridor Property Closing. (i) UMC shall deliver the Stream Corridor Property Deed and possession of such Stream Corridor Property to Dublin on the Stream Corridor Closing Date. Upon UMC's tender of delivery of the Stream Corridor Property Deed, and the Stream Corridor Property Title Policy or Stream Corridor Property Title Commitment, Dublin shall accept delivery of the Stream Corridor Property Deed and make payment of the Stream Corridor Property Purchase Price for the Stream Corridor Property. Payment of the Stream Corridor Property Purchase Price shall be made by wire transfer of funds to UMC, or by such other means as is approved by UMC in writing. (ii) The conveyance of the Stream Corridor Property shall be closed in escrow with the Stream Corridor Property Title Company, who will serve as escrow agent ("Stream Corridor Property Escrow Agent") for Dublin and UMC. This Agreement, together with the Stream Corridor Property Escrow Agent's usual conditions of acceptance, shall serve as escrow instructions for such Closing; provided, however, that in the event of any conflict between the provisions of this Agreement and the Stream Corridor Property Escrow Agent's usual conditions of acceptance, the provisions of this Agreement shall govern. The Stream Corridor Property Title Company's usual conditions for closing shall be submitted to and -37- COLUMBUS/451908.4 approved in writing by the Parties hereto prior to the Stream Corridor Property Closing. (iii) All documents necessary for the completion of the Stream Corridor Property Closing transaction shall be deposited with the Stream Corridor Property Escrow Agent on or before five days before the Stream Corridor Property Closing Date. Upon the satisfaction of the document requirements for the Stream Corridor Property Closing under this Agreement, Dublin shall deposit the amount of the Stream Corridor Property Purchase Price with the Stream Corridor Property Escrow Agent, and the Stream Corridor Property Escrow Agent shall promptly notify UMC of such deposit. In the event that any conditions precedent to the Stream Corridor Property Closing have not been satisfied, or have not been waived in writing, the Stream Corridor Property Closing may be extended for an additional period until such conditions have been satisfied, if and to the extent it is mutually agreed to in writing by the Parties hereto. Section 6.5 Industrial Revenue Bonds. Dublin agrees to work in a reasonable and cooperative mariner with UMC to explore options for financing the Health and Innovation Park, which option may include but would not necessarily be limited to, the issuance of bonds pursuant to Chapters 140 or 165 of the Ohio Revised Code. Section 6.6 Fiber Use Agreement. Dublin will provide to UMC two fibers in its Dublink fiber optic network pursuant to the Fiber Use Agreement attached as Exhibit D. Section 6.7 Acquisition of Additional Dublin Real Property. (a) Upon the terms and subject to the conditions set forth in this Agreement and in consideration of UMC's agreements set forth herein, Dublin hereby grants to UMC -38- COLUMBUS/451908.4 an exclusive option to purchase (the "UMC Option") all of Dublin's right, title and interest (except the Reserved Water Rights as defined below) in and to the approximately 100 acre tract of real property located at (the "Additional Dublin Property", which Additional Dublin Property is generally depicted on Exhibit E attached hereto and incorporated herein by reference). The foregoing UMC Option may be exercised by UMC at any time during the UMC Option Period (as that term is hereafter defined). For the purposes of this Agreement, the "UMC Option Period" will be deemed to refer to the period beginning on the Effective Date hereof and continuing for three (3) years thereafter. UMC will exercise the UMC Option, if at all, by delivering written notice thereof (the "UMC Exercise Notice") to Dublin during the UMC Option Period. The closing of UMC's purchase of the Additional Dublin Property will occur at the time and in the manner as maybe mutually agreeable to the Parties. The purchase price of the Additional Dublin Property shall be equal to the greater of (i) the amount originally paid by Dublin for the Additional Dublin Property or (ii) the Fair Market Value. (b) Commencing on the termination of the UMC Option Period and continuing for three (3) years thereafter (the "Right of First Refusal Period"), Dublin hereby grants to UMC the right of first refusal with respect to any sale of all or any part of the Additional Dublin Property. If at any time or times during the Right of First Refusal Period, Dublin receives an offer acceptable to Dublin for the purchase of all or any part of the Additional Dublin Property (which shall not include the Reserved Water Rights as defined below), then, Dublin shall forthwith forward a copy of such offer (the "Acceptable Offer") to UMC. UMC shall have a period of 30 days after receiving such -39- COLUMBUS/451908.4 copy of the Acceptable Offer (the "Election Period") within which to notify Dublin that UMC elects to purchase the Additional Dublin Property (or the portion thereof covered by the Acceptable Offer) on the terms contained therein. Any such notice from UMC shall be accompanied by any earnest money required under the terms of the Acceptable Offer, which shall then constitute a contract between Dublin and UMC even though neither has signed it. If UMC does not notify Dublin within the Election Period of UMC's election to purchase such Additional Dublin Property, Dublin shall be free to sell such Additional Dublin Property to the person who submitted the Acceptable Offer (or to such person's permitted assigns) on the terms specified therein, and UMC shall upon request execute and deliver an instrument in recordable form appropriate to evidence UMC's relinquishment of its rights under this instrument with respect to such transaction. Notwithstanding any such relinquishment, UMC's rights under this instrument shall remain in effect with respect to any part of the Additional Dublin Property not covered by the Acceptable Offer, and, if the transaction contemplated by the Acceptable Offer fails for any reason to close, with respect to any subsequent offer to purchase all or any part of the Additional Dublin Property covered by such Acceptable Offer. (c) The "Reserved Water Rights" shall mean the exclusive right reserved in favor of Dublin to any and all water, water rights or interest therein, appurtenant or relating to the Additional Dublin Property, whether such water, water rights or interest therein, shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the right and power to explore, drill, redrill, remove and store the same from or in the Additional Dublin Property or to divert or otherwise utilize such water, water rights or interest therein, but without, however, any -40- COLUMBUS/451908.4 right to enter upon the surface of the Additional Dublin Property in the exercise of such rights. Section 6.8 Additional Efforts. Dublin agrees to work in a reasonable and cooperative manner with UMC to facilitate the development of the Health and Innovation Park. Dublin will use reasonable efforts to continue to assist iJMC and its affiliates in securing further funding from governmental and/or other sources in furtherance of the viability of the Health and Innovation Park. If UMC or its affiliates acquire the Additional Dublin Property or other land in close proximity to the Health and Innovation Park, Dublin will use its best efforts to facilitate the applicable zoning necessary to allow such additional land to be developed in a manner that furthers the viability of the Health and Innovation Park. (END OF ARTICLE VI) -41- COLUMBUS/451908.4 ARTICLE VII TAX INCREMENT FINANCING Section 7.1 General Provision Relating to Tax Increment Financing. The Parties agree that Dublin shall undertake a tax increment financing pursuant to the TIF Statute to facilitate the construction of the Public Improvements, all as more particularly described in this Article VII. Section 7.2 TIF Legislation. Following the Effective Date, Dublin anticipates that the Dublin City Council will pass an ordinance (the "TIF Ordinance") pursuant to the TIF Statute thereby exempting from taxation (the "TIF Exemption") any Improvements to the Property (as the term Improvements is defined in the TIF Statute) and requiring the current and future property owners to pay service payments in lieu of taxation in respect of the Improvements exempted from taxation. Section 7.3 Service Payments. UMC hereby agrees to make service payments in lieu of taxes (the "Service Payments") attributable to its period of ownership of the Property, all pursuant to and in accordance with the requirements of the TIF Statute, the TIF Ordinance and any subsequent amendments or supplements thereto. Service Payments will be made semiannually to the Franklin County Treasurer (or to such treasurer's designated agent for collection of the Service Payments) on or before the date on which real property taxes would otherwise be due and payable for the Property. Any late payments will bear penalties and interest at the then current rate established under Ohio Revised Code Sections 323.121 and 5703.47 or any successor provisions thereto, as the same may be amended from time to time. Service Payments will be made in accordance with the requirements of the TIF Statute and the TIF Ordinance and will be in the same amount as the real property taxes that would have -42- COLUMBUS/451908.4 been charged and payable against the Improvements (after credit for any other payments received by Dublin under Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, or any successor provisions thereto, as the same may be amended from time to time, and are referred to herein as the "Property Tax Rollback Payments") had the TIF Exemption not been granted, including any penalties and interest. UMC will not, under any circumstances, be required for any tax year to pay both real property taxes and Service Payments with respect to the Improvements, whether pursuant to Ohio Revised Code Section 5709.42 or this Agreement. Further, iJMC will not, under any circumstance, be required for any tax year to pay Service Payments with respect to any Improvements which are exempt from real property taxation pursuant to any section of the Ohio Revised Code other than the TIF Statute. Section 7.4 Declaration of Covenants; Priority of Lien. It is intended and agreed, and it will be so provided by UMC in a declaration relating to the Property (the "Declaration") that the covenants provided in Sections 7.3, 7.4, 7.5 and 7.9 of this Agreement are covenants running with the land and that they will, in any event and without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit and in favor of and enforceable by Dublin and any third party beneficiaries against any owner of a portion of the Property with respect to that owner's period of ownership of that portion of the Property, whether or not this Agreement remains in effect or whether or not such provision is included by an owner in any deed to such owner's successors and assigns. It is further intended and agreed that these agreements and covenants will remain in effect for the full period of exemption permitted in accordance with the requirements of the TIF Statute and the TIF Ordinance enacted pursuant thereto. -43- COLUMBUS/451908.4 Such covenants running with the land will have priority over any other lien or encumbrance on the Property and any improvements thereon, except for such title exceptions as are approved in writing by Dublin, and UMC will, upon Dublin's request, cause any and all holders of mortgages or other liens existing on the Property as of the time of recording of the Declaration to subordinate such mortgage or lien to those covenants running with the land. The parties acknowledge that the provisions of Ohio Revised Code Section 5709.91, which specify that the Service Payments will be treated in the same manner as taxes for all purposes of the lien described in Ohio Revised Code Section 323.11 including, but not limited to, the priority of the lien and the collection of Service Payments, will apply to this Agreement and to the Property and any improvements thereon. Section 7.5 Exemption Applications. Dublin and iIMC agree to cooperate in the preparation, execution and filing of all necessary applications and supporting documents to obtain from time to time the TIF Exemption and to enable Dublin to collect Service Payments with respect to the Property. Dublin will perform such acts as are reasonably necessary or appropriate to effect, claim, reserve and maintain the TIF Exemption and collect the Service Payments including, without limitation, joining in the execution of all documentation and providing any necessary certificate required in connection with the TIF Exemption or the Service Payments. iJMC authorizes Dublin to file any applications necessary to obtain from time to time the TIF Exemption as may be provided in the TIF Ordinance. Section 7.6 Title Evidence. At Dublin's option and at its request, UMC hereby agrees to provide such title evidence, at no cost to Dublin, as is necessary to demonstrate to Dublin's satisfaction that the covenants running with the land provided the Declaration are prior and -44- COLUMBUS/451908.4 superior to any other liens, encumbrances or other title exceptions, except for those which are approved in writing by Dublin. Section 7.7 Release. Upon satisfaction of UMC's obligations under this Agreement with respect to the Tax Exemption and termination of the UMC's obligation to make the Service Payments, Dublin will, upon the request of UMC, execute an instrument in recordable form evidencing such termination and releasing the covenants running with the land set forth in the Declaration. Section 7.8 Estoppel Certificate. Within thirty (30) days after a request from any owner of a portion of the Property, Dublin will execute and deliver to that owner or any proposed purchaser, mortgagee or lessee of such portion of the Property, a certificate stating that with respect to such portion of the Property, if the same is true: (a) that this Agreement is in full force and effect; (b) that the requesting owner is not in default under any of the terms, covenants or conditions of this Agreement, or, if that owner is in default, specifying same; and (c) such other matters as that Owner reasonably requests. Section 7.9 Tax Incentive Review Council. UMC agrees to cooperate in all reasonable ways with, and provide necessary and reasonable information to, the designated Tax Incentive Review Council to enable that Tax Incentive Review Council to review and determine annually during the term of this Agreement the compliance of UMC with the terms of this Agreement. Any information supplied to such Tax Incentive Review Council will be provided solely for the purpose of monitoring UMC's compliance with this Agreement. (END OF ARTICLE VII) -45- COLUMBUS/451908.4 ARTICLE VIII REMEDIES Section 8.1 General. 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, 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. Section 8.2 Termination by Dublin Prior to Conveyance of Dublin Property. In the event that: (a) Prior to conveyance of the Dublin Property to UMC and in violation of this Agreement LTMC assigns or attempts to assign this Agreement or any rights therein without the prior written approval of Dublin, or (b) iJMC does not pay the Dublin Property Purchase Price for the Dublin Property and take title to the Dublin Property on tender of conveyance by Dublin pursuant to this Agreement, and if any default or failure referred to in the aforesaid subdivisions (a) or (b) of this Section 8.2 shall not be cured or remedied within thirty (30) days after the date of written demand by Dublin, then the Agreement and all rights of -46- COLUMBUS/451908.4 UMC under the Agreement shall be terminated at the option of Dublin. In the event of any such termination, UMC shall not have any further rights under this Agreement In the event that Dublin is unable to tender conveyance or possession of the Dublin Property or any part thereof in the manner and condition provided in this Agreement, by reason of Dublin being enjoined or prevented, or being otherwise unable, by reason of any order or decision or action of any judicial body having authority in the premises, then this Agreement may, at the option of UMC, be canceled in its entirety or canceled with respect to that portion of the Dublin Property not conveyed to UMC at the time of such cancellation, and neither Dublin nor UMC shall have any further rights against or liability to the other under this Agreement as to the Dublin Property or the part thereof not conveyed to UMC. Section 8.3 Revertiog Title to the Dublin Property in Dublin. In the event that subsequent to conveyance of the Dublin Property to UMC and prior to the Dublin Property Reversion Release Date: (a) UMC shall default in or violate its obligations under this Agreement with respect to the construction of the Particle Therapy Center on such Property, or the dates for the beginning and completion thereof, or shall abandon or substantially suspend construction of the Particle Therapy Center, and any such default, violation, abandonment, or suspension shall not be cured, ended, or remedied within ninety (90) days after written demand by Dublin so to do; or (b) UMC shall place or permit to be placed on the Dublin Property or any part thereof any encumbrance or lien not authorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanics' lien, or any other unauthorized encumbrance or lien to attach, and such encumbrance or lien shall not have -47- COLUMBUS/451908.4 been removed or discharged or provision satisfactory to Dublin made for such payment, removal, or discharge, within ninety (90) days after written demand by Dublin so to do; provided, however, any such mechanic's or materialmen's lien may continue during the period in which UMC is diligently and in good faith contesting such lien, unless or until Dublin determines, and delivers written notice to LJMC, that the continuation of the lien will jeopardize the Dublin Property or part thereof or completion of the Health and Innovation Park thereon; or (c) There is, in violation of this Agreement, any transfer of the Dublin Parcel or any part thereof, and such violation shall not be cured within ninety (90) days after written demand by Dublin, then, provided that any holder of a mortgage authorized by this Agreement has not foreclosed on such Dublin Property, Dublin shall have the right to reenter and take possession of the Dublin Property (except for any portion theretofore released pursuant to Section 5.4) and to terminate (and revert in Dublin) the estate conveyed therein by the Dublin Property Deed to UMC, it being the intent of this provision, together with other provisions of this Agreement, that the conveyance of the Dublin Property to LTMC shall be made upon, and that the Dublin Property Deed shall contain, a condition subsequent to the effect that in the event of any default, failure, violation or other action or inaction by iJMC specified in clauses (a), (b) or (c) of this Section 8.3, and failure on the part of UMC to remedy, end, or abrogate such default, failure, violation or other action or inaction, within the period and in the manner stated in such clauses, Dublin at its option may declare a termination in favor of Dublin of the title, and of all the rights and interests in the Dublin Property conveyed by the Dublin Property Deed to UMC, and that such title and all rights and interests of UMC, and any assigns or successors in interest to and in the Dublin Property, shall revert to Dublin; -48- COLUMBUS/451908.4 provided, that such condition subsequent and any revesting of title as a result thereof in Dublin shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way (i) the lien of any mortgage authorized by this Agreement, and (ii) any right or interest provided in this Agreement for the protection of the holder of such mortgage. In the event of a foreclosure by the holder of any permitted mortgage hereunder a$er Dublin has revested title to the Dublin Property in Dublin, the lien and foreclosure rights under such mortgage shall be limited solely to the Dublin Property or part thereof foreclosed upon, and Dublin shall have no obligation or liability to such mortgage holder. Section 8.4 Other Rights and Remedies; No Waiver by Delay. Dublin and LJMC shall each have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of, and its remedies under, this Agreement; provided, that any delay by either party in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Agreement shall not operate as a waiver of such rights or to deprive it of or limit such right in any way (it being the intent of this provision that neither party should be constrained, so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Agreement because of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope otherwise to resolve the problems created by the default involved); nor shall any waiver in fact made by either party with respect to any specific default by the other party under this Agreement be considered or treated as a waiver of the rights of such party with respect to any other defaults by the other party this Agreement or with respect to the particular default except to the extent specifically waived in writing. Dublin shall also have the right to enforce the remedy set forth in Section 8.3 by executing and recording or filing among the public land records in the office in which the Dublin -49- COLUMBUS/451908.4 Property Deed is recorded a written declaration of the termination of all the right, title and interest of UMC, and (subject to such mortgage liens as provided in Section 8.3), their successors in interest and assigns, in the Dublin Property, as the case may be, and the reverting of title thereto in Dublin. Section 8.5 Force Maieure. Except as otherwise provided herein, neither Dublin nor UMC shall be considered in default in its obligations to be performed hereunder, if delay in the performance of such obligations is due to unforeseeable causes beyond its control and without its fault or negligence, including but not limited to, acts of God or of the public enemy, acts or delays of the other party, fires, floods, unusually severe weather, epidemics, freight embargoes, unavailability of materials, strikes or delays of contractors, subcontractors or materialmen but not including lack of financing capacity; it being the purpose and intent of this paragraph that in the event of the occurrence of any such enforced delay, the time or times for performance of such obligations shall be extended for the period of the enforced delay; provided, however, that the Party seeking the benefit of the provisions of this Section 8.5 shall within fourteen (14) days after the beginning of such enforced delay, notify the other Party in writing thereof and of the cause thereof and of the duration thereof or, if a continuing delay and cause, the estimated duration thereof, and if the delay is continuing on the date of notification, within thirty (30) days after the end of the delay, notify the other Party in writing of the duration of the delay. (END OF ARTICLE VIII) -50- COLUMBUS/451908.4 ARTICLE IX MISCELLANEOUS Section 9.1 Notice. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand-delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have previously notified the sender of in writing, and shall be deemed received upon actual receipt, unless sent by certified mail, in which event such notice shall be deemed to have been received when the return receipt is signed or refused. Any process, pleadings, notice of other papers served upon the Parties shall be sent by registered or certified mail at their respective Notice Address, or to such other address or addresses as may be furnished by one party to the other. Section 9.2 Extent of Covenants; No Personal Liability. All covenants, obligations and agreements of the Parties contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of Dublin or UMC other than his or her official capacity, and neither the members of the legislative body of Dublin nor any official executing this Agreement shall be liable personally under this Agreement or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of Dublin and LTMC contained in this Agreement. -51- COLUMBUS/451908.4 Section 9.3 Severability. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. Section 9.4 Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. Section 9.5 Recitals. The Parties acknowledge and agree that the facts and circumstances as de scribed in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. Section 9.6 Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties relating to the subject matter herein and therein and may not be amended, waived or discharged except in an instrument in writing executed by the Parties. Section 9.7 Executed Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Section 9.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio or applicable federal law. All claims, counterclaims, disputes and other matters in question between Dublin, its agents and employees, -52- COLUMBUS/451908.4 and UMC, its employees and agents, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. Section 9.9 Assignment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties. Section 9.10 Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. (END OF ARTICLE IX -SIGNATURE PAGES TO FOLLOW -53- COLUMBUS/451908.4 IN WITNESS WHEREOF, the Parties 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 By: Printed: Jane Brautigam Title: Cit~Manager By: Printed: Marsha I. Grigsby Title: Director of Finance Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) On this day of 2005, before me a Notary Public personally appeared Jane Brautigam and Marsha I. Grigsby, the authorized representatives of the City of Dublin, Ohio, and acknowledged the execution of the foregoing instrument, and that the same is their voluntary act and deed on behalf of the City of Dublin, Ohio and the voluntary act and deed of the City of Dublin, Ohio. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public -54- COLUMBUS/451908.4 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective names by their duly authorized representatives, all as of the date first written above. UMC PARTNERS By: Printed: Title: STATE OF OHIO ) SS: COUNTY OF FRANKLIN ) On this day of 2005, before me a Notary Public personally appeared ,the authorized representatives of UMC Partners, and acknowledged the execution of the foregoing instrument, and that the same is his voluntary act and deed on behalf of UMC Partners and the voluntary act and deed of UMC Partners. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public -55- COLUMBUS/451908.4 FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City of Dublin, Ohio under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City during the year 2005 under the foregoing Agreement have been appropriated lawfully for that purpose, and are 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: , 2005 Marsha I. Grigsby Director of Finance City of Dublin, Ohio -56- COLUMBUS/451908.4 EXHIBIT A-1 UMC PROPERTY A-I-1 COLUMBUS/451908.4 EXHIBIT A-2 DUBLIN PROPERTY A-2-1 COLUMBUS/451908.4 EXHIBIT B CENTRAL OHIO INNOVATION CENTER B-I COLUMBUS/451908.4 EXHIBIT C STREAM CORRIDOR PROPERTY C-1 COLUMBUS/451908.4 EXHIBIT D FIBER USE AGREEMENT D-1 COLUMBUS/451908.4 EXHIBIT E ADDITIONAL DUBLIN PROPERTY F-1 COLUMBUS/451908.4 ~ { + a ~ f N -r - _ ~ . ~ V~ tY i _ 4 ~ ~ ~ ~ rtc j~. 1. JS , s i ' ,S , ~~f^ ~ t i~ I 1~ ~i ~ r ' ~ , ' ~ a i E x _ _ ,y J :h"i & ~ r t ~ ~ ~ n4 g ~ 11 -~,1 ' - x y - „s~~ m. ~ I ar r. f.. ~ R _ '1 j 1 jy? :w , T P ~ ~ - . I f t „ _ F i r / t ? ` ~ ~ _ -v ~c~ ~ ~ ~ ,l ~ ~ ~ y ~ ~ I ~ ~ l~ • a Al ~ J _ T ;v ' 1 'J ` ~ ~ i T- 7 q _ ~ I - j ~ y ` ~ ' 7 f•. = ~ r: ' ~ R ~ - 1 II ~ • ' y i~ ' ~ I .ti ti _ ti; a .i ~ ~ l , ~ ~ ~ - - y. ~ -a . - _ - - • R j ~ r ~ s. ..r ~ ~ ~ i ~ t