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HomeMy WebLinkAbout60-09 OrdinanceRECORD OF ORDINANCES 60-09 Ordinance No. 20 Passed AN ORDINANCE AUTHORIZING THE PROVISIONS OF CERTAIN INCENTIVES FOR THE PURPOSES OF ENCOURAGING THE LOCATION OF DELTA ENERGY HOLDINGS, LLC WITHIN THE CITY OF DUBLIN, WHICH INCLUDE DECLARING IMPROVEMENTS TO CERTAIN REAL PROPERTY TO BE DEVELOPED AS A DELTA ENERGY HOLDINGS, LLC FACILITY TO BE A PUBLIC PURPOSE, DESCRIBING THE PUBLIC INFRASTRUCTURE IMPROVEMENTS TO BE MADE TO BENEFIT THE PARCELS OF SUCH DEVELOPMENT, REQUIRING THE OWNERS THEREOF TO MAKE SERVICE PAYMENTS IN LIEU OF TAXES, PROVIDING FOR THE FRANKLIN COUNTY TREASURER TO DISTRIBUTE SERVICE PAYMENTS TO THE DUBLIN CITY SCHOOL DISTRICT IN THE AMOUNT IT WOULD OTHERWISE RECEIVE ABSENT THE EXEMPTION, CREATING A MUNICIPAL PUBLIC IMPROVEMENT TAX INCREMENT EQUIVALENT FUND FOR THE DEPOSIT OF THE BALANCE OF SUCH SERVICE PAYMENTS, AND AUTHORIZING THE EXECUTION OF A REAL ESTATE PURCHASE CONTRACT FOR THE SALE OF A PORTION OF PARCEL 273-010591-00 AND AN ECONOMIC DEVELOPMENT AND TAX INCREMENT FINANCING AGREEMENT, AND DECLARING AN EMERGENCY. WHEREAS, consistent with this City's Economic Development Strategy (the "Strategy") approved by Resolution No. 07-94 adopted on June 20, 1994, and the updated Strategy approved by Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial office development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, the City currently owns a certain parcel of real property located within the City (which parcel is depicted as the "Dublin Parcel" on Exhibit A attached hereto and referred to herein as the "Property"); and WHEREAS, Delta Energy Holdings, LLC (the "Company") has completed an examination of its workforce needs, and induced by and in reliance on the economic development incentives provided for in this Ordinance, the Company is desirous of constructing a new corporate headquarters in the City and relocating its workforce and operations to the City; and WHEREAS, to facilitate the Company's proposed expansion and to promote the creation of employment opportunities within the City, the City has determined to sell an approximate 4.0 - 5.08 acre portion of the Property (with such portion of the Property being referred to herein as the "Development Site") to the Company and to offer the various other economic development incentives to the Company as described in this Ordinance; and WHEREAS, Ohio Revised Code Sections 5709.40(B), 5709.42 and 5709.43 (collectively, the "TIF Statutes") authorize the legislative authority of a municipal corporation, by ordinance, to declare the improvement to certain parcels of real property located within the municipal corporation to be a public purpose and exempt from taxation, require the owner of each parcel to make service payments in lieu of taxes, establish a municipal public improvement tax increment equivalent fund for the deposit of the remainder of such service payments and specify public infrastructure improvements made, to be made or in the process of being made that directly benefit, or that once made will directly benefit those parcels; and WHEREAS, the Company expects to construct an approximate 22,000 to 35,000 square foot LEED certified office building and a related parking lot and improvements on the Development Site (collectively, the "Project"); and WHEREAS, this Council has determined to declare the Improvement (as defined in Section 2) to the Property to be a public purpose and exempt from taxation under the TIF Statutes and to require the owners of the Property to make Service Payments (as defined in Section 3) with respect to the Property; and WHEREAS, this Council has determined that the Project will promote commercial activity and create jobs within the City and therefore, the City will utilize the Service Payments to provide for the public infrastructure improvements described in Exhibit B attached hereto (the "Public Infrastructure Improvements") that once made will directly benefit the Property; and RECORD OF ORDINANCES Ordinance No. 60-09 Passed Form No. 30043 20 WHEREAS, the City has determined that a portion of the Service Payments shall be paid to the Dublin City School District (the "School District") in an amount equal to the real property taxes that the School District would have been paid if the Improvement to the Property had not been exempted from taxation pursuant to this Ordinance; and WHEREAS, notice of this Ordinance has been delivered to the boards of education of the School District and the Central Ohio Joint Vocational School District, each in accordance with and within the time periods prescribed in Ohio Revised Code Section 5709.83; and WHEREAS, this Council has determined to provide for the execution and delivery of a Real Estate Purchase Contract and an Economic Development and Tax Increment Financing Agreement, all to provide for the sale and development of the Development Site; NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of Ohio, ~ of the elected members concurring, that: Section 1. Sale of the Property and Provision of Other Economic Development Incentives. The sale and conveyance of the Development Site to the Company pursuant to the terms and provisions of the Real Estate Purchase Contract (as described in Section 7) is hereby authorized. Further, the provision of the various economic development incentives described in the EDTIF Agreement (as described in Section 8) is hereby authorized. Section 2. Authorization of Tax Exemption. This Council hereby finds and determines that 100% of the increase in assessed value of the Property subsequent to the effective date of this Ordinance (which increase in assessed value is hereinafter referred to as the "Improvement" as defined in Ohio Revised Code Section 5709.40(A)) is hereby declared to be a public purpose and shall be exempt from taxation for a period commencing with the first tax year that begins after the effective date of this Ordinance and in which an Improvement due to the construction of a new structure on that Property first appears on the tax list and duplicate of real and public utility property for such Property and ending on the earlier of (a) thirty (30) years after such commencement or (b) the date on which the City can no longer require service payments in lieu of taxes, all in accordance with the requirements of the TIF' Statutes. Section 3. Payment of Service Payments and Property Tax Rollback Pam. As provided in Ohio Revised Code Section 5709.42, the owners of any portion of the Property are hereby required to and shall make service payments in lieu of taxes with respect to the Improvement allocable thereto to the Treasurer of Franklin County, Ohio (the "County Treasurer") on or before the final dates for payment of real property taxes. Each service payment in lieu of taxes shall be charged and collected in the same manner and in the same amount as the real property taxes that would have been charged and payable against the Property if it were not exempt from taxation pursuant to Section 2 of this Ordinance, including any penalties and interest (collectively, the "Service Payments"). The Service Payments, and any other payments with respect to the Property that are received by the County Treasurer in connection with the reduction required by Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, as the same may be amended from time to time, or any successor provisions thereto as the same may be amended from time to time (the "Property Tax Rollback Payments"), shall be allocated and distributed in accordance with Section 5 of this Ordinance. Section 4. Creation of TIF Fund. This Council hereby establishes, pursuant to and in accordance with the provisions of Ohio Revised Code Section 5709.43, the Delta Energy Project Municipal Public Improvement Tax Increment Equivalent Fund (the "Fund'). The Fund shall be maintained in the custody of the City and shall receive all distributions to be made to the City pursuant to Section 5 of this Ordinance. Those Service Payments and Property Tax Rollback Payments received by the City with respect to the Improvement of the Property and so deposited pursuant to Ohio Revised Code Section 5709.42 shall be used solely for the purposes authorized in the TIF' Statutes or this Ordinance. The Fund shall remain in existence so long as such Service Payments and Property Tax Rollback Payments are collected and used for the aforesaid purposes, after which time the Fund shall be dissolved and any surplus funds remaining therein transferred to the City's General Fund, all in accordance with Ohio Revised Code Section 5709.43. Page 2 of 4 RECORD OF ORDINANCES Dayton Lcgal Blank,lne. 60-09 Ordinance No. Form No.300~3 Page 3 of 4 Passed , 20 to the School District, an amount equal to the amounts the School District would otherwise receive as real property tax payments (including the applicable portion of any Property Tax Rollback Payments) derived from the Improvement to the Property absent the passage of this Ordinance, and • to the City, all remaining amounts for further deposit into the Fund (as defined in Section 4 of this Ordinance). All distributions required under this Section 5 are requested to be made at the same time and in the same manner as real property tax distributions. Section 6. Public Infrastructure Improvements. This Council hereby designates the Public Infrastructure Improvements described in Exhibit B attached hereto as public infrastructure improvements made, to be made or in the process of being made that directly benefit, or that once made will directly benefit, the Property. Section 7. Real Estate Purchase Contract. The form of Real Estate Purchase Contract (the "Real Estate Purchase Contract") presently on file with the Clerk of this Council, providing for, among other things, the sale and conveyance of the Development Site to the Company, is hereby approved and authorized with changes therein and amendments thereto not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager. The City Manager, for and in the name of this City, is hereby authorized to execute the Real Estate Purchase Contract in substantially that form along with any amendments thereto, provided that the approval of such changes and amendments thereto by the City Manager, and the character of those changes and amendments as not being substantially adverse to this City, shall be evidenced conclusively by the City Manager's execution thereof. This Council further authorizes the City Manager, for and in the name of the City, to execute any amendments to the Real Estate Purchase Contract, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 8. Tax Increment Financing Agreement. The form of Economic Development and Tax Increment Financing Agreement (the "EDTIF Agreement") presently on file with the Clerk of this Council, providing for, among other things, the payment of Service Payments by the owners of any portion of the Property and the provision of certain economic development incentives to the Company, is hereby approved and authorized with changes therein and amendments thereto not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager. The City Manager, for and in the name of this City, is hereby authorized to execute the EDTIF Agreement with respect to the Property in substantially that form along with any amendments thereto, provided that the approval of such changes and amendments thereto by the City Manager, and the character of those changes and amendments as not being substantially adverse to this City, shall be evidenced conclusively by the City Manager's execution thereof. This Council further authorizes the City Manager, for and in the name of the City, to execute any amendments to the EDTIF Agreement, which amendments are not inconsistent with this Ordinance and not substantially adverse to this City. Section 9. Non-Discriminatory Hiring PolicX. In accordance with Section 5709.823 of the Ohio Revised Code, this Council hereby determines that no employer located upon the Property shall deny any individual employment based solely on the basis of race, religion, sex, disability, color, national origin or ancestry. Section 10. Further Authorizations. This Council 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 make such arrangements as are necessary and proper for the sale and conveyance of the Development Site, the provision of the various economic development incentives described in the EDTIF Agreement and the collection of the Service Payments. This Council further hereby authorizes and directs the City Manager, the Clerk of Council, the Director of Law, the Director of Finance or other appropriate officers of the City to prepare and sign all agreements and instruments and to take any other actions as may be appropriate to implement this Ordinance. Section 11. Filings with Ohio Department of Development. Pursuant to Ohio Revised Code Section 5709.40(I), the Clerk of Council is hereby directed to deliver a copy of this Ordinance RECORD OF ORDINANCES Ordinance No. 60-09 Page 4 of 4 Passed 20 Section 11. Filings with Ohio Department of Development. Pursuant to Ohio Revised Code Section 5709.40(I), the Clerk of Council is hereby directed to deliver a copy of this Ordinance to the Director of Development of the State of Ohio within fifteen days after its effective date. Further, and on or before March 31 of each year that the TIF Exemption remains in effect, the Economic Development Director or other authorized officer of the City shall prepare and submit to the Director of Development of the State of Ohio the status report required under Ohio Revised Code Section 5709.40(I). Section 12. Open Meetings. This Council finds and determines that all formal actions of this Council and any of its committees concerning and relating to the passage of this Ordinance were taken in an open meeting of this Council or its committees, and that all deliberations of this Council and any of its committees that resulted in those formal actions were in meetings open to the public, all in compliance with the law including Ohio Revised Code Section 121.22. Section 13. Effective Date. This Ordinance is declared to be an emergency ordinance necessary for the immediate preservation of the public peace, health, safety or welfare, and therefore shall be effective upon passage. Signed Presiding Officer Attest: Clerk of Council Passed: ~ Q (~.~jZ~ o~ , 2009 Effective: ~p ~~ /'~,(j~ ~ , 2009 CITY OF DUBLIN.. Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017-1090 Phone: 614-410-4400 • Fax: 614-410-4490 To: All Members Dublin City Council From: Terry Foegler, City Manager~~/ ~~ ~~ Date: October 29, 2009 Memo Initiated By: Marsha Grigsby, Deputy City Manager/Director of Finance Dana L. McDaniel, Deputy City Manager/Director of Economic Development Re: Additional information re Ordinance 60-09, Delta Energy Summary At the first reading of Ordinance 60-09 (Delta Energy), Council Members asked staff to address the following questions: Capital projects for similar Economic Development Agreements. As part of the proposed Economic Development Agreement for Delta Energy, certain infrastructure improvements are mentioned as incentives. The City agrees to finance, construct and install necessary road improvements including a traffic roundabout at the intersection of Commerce Parkway and Perimeter Drive, necessary improvements to Commerce Parkway and any guardrails that maybe required along Emerald Parkway. The City also agrees to finance, construct and install public bike paths, sidewalks and lighting in proximity to the property. First, it is important to point out that the City identified the intersection improvements at Perimeter and Commerce Parkway in its recently approved Five-Year Capital Improvements Program (CIP). These improvements are scheduled for 2014 and are estimated to cost $1.6 million. This project was identified and budgeted for construction, regardless of Delta Energy's project. Delta Energy's investment in this new project within a new Tax Increment Finance (TIF) district may enable the City to construct this planned improvement earlier than currently scheduled. Currently, staff is contemplating improvements to Commerce Parkway as a result of the Delta Energy project that may include a cul de sac, street lighting and bikepath. Additionally, guardrail maybe required along Emerald Parkway. These improvements are estimated to cost $300,000. Improvements previously mentioned are subject to Council approval as part of the annual CIl' update. The only exception maybe any guardrail project that may need installation for public safety purposes. Staff would likely approach Council separately for this authorization, depending on timing. The following two projects are examples of infrastructure improvements provided as part of Economic Development Agreements: a. Cardinal Health. The recent expansion of Cardinal Health included improvements to Emerald Parkway at both the entrances to the original headquarters building and to the new facility. This project included signalization, turn lane improvements, entryway improvements, utility setbacks and connections, and some right-of--way acquisition. The total cost of this project was $1,375,000. All improvements are funded through Tax Increment Financing. Memo re: Ordinance No. 60-09 October 29, 2009 Page 2 of 2 b. IGS Energy. The recent construction of the new IGS Energy headquarters facility required improvements to the intersection of Emerald Parkway and Innovation Drive. These improvements include turn lanes and signalization. The project is currently under construction and cost $361,000. Additionally, the City agreed to bury overhead power lines that cross I-270 at an estimated cost of $375,000. All improvements are funded through Tax Increment Financing. 2. Withholdings. Delta Energy provided staff their forecast of employees and associated payroll for the next fve years. Staff estimates payroll withholdings will be approximately $946,500 over this period. It is reasonable to assume that the City could experience withholdings for a period often years from a company who owns its own facility. Based on conservative growth, staff estimates the City could experience payroll withholdings from Delta Energy of $2,150,000 over aten-year period. Typically, for a project of this type the City would offer performance-based incentives of approximately 20% of annual withholdings for at least afive-year term. Such an incentive to the company would have equaled at least $190,000 over fve years. The City is not offering this incentive and is instead selling City-owned property equal to the price the City paid for it ($225,000/acre) in 2001. 3. LEED Certification. The proposed agreement with Delta includes a LEED Certification Grant in the amount of $40,000. The City previously included a $75,000 LEED Ceilification Grant agreement in the IGS Economic Development Agreement. Should IGS construct its second building, the City will pay a LEED Certification Grant of $50,000. In all cases, payment of the LEED Certification Grants are dependent upon the companies meeting certain requirements, including obtaining LEED Certification. Recommendation Staff recommends Council approve Ordinance 60-09 as an emergency at the second reading/public hearing on November 2"~ and waive the 30-day waiting period. Please address any questions you may have to Dana McDaniel. EXHIBIT A PROPERTY The following map specifically identifies and depicts the general vicinity of the Property and constitutes part of this Exhibit A. The Property includes tax parcel 273-010591-00. t} ' ~~ ~ Q r ~ s- s ~. ~ ~ 66z ~ 2 Dublin ~' Q .Z00 66~$ 663 Parcel 64 OR ~ ~ a a .~ _ ~C,i.LIM.E.S.ER-QR - - _ ~~ 3 ,~~ ~V .C 2 ~ DUBL Gy 0 s747 ~ ~v3~~ r~:_c_ 1N~ O O Q 5588 5579 ~na g~ ~ ~ Q c 5503 ~~ ~ ~~O 0 55 0 ~ Q 3 ,~.~~ • ~ _ ~ o n ~ ~!~i .oy~ EXHIBIT B PUBLIC INFRASTRUCTURE IMPROVEMENTS The Public Infrastructure Improvements include the construction of the following improvements and all related costs (as defined in Ohio Revised Code Section 133.15(B)): • constructing a traffic circle/roundabout at the intersection of Commerce Parkway and Perimeter Drive, • constructing a cul-de-sac and other improvements to Commerce Parkway, • constructing a guardrail on Emerald Parkway between certain termini, • constructing related storm water retention detention improvements, and • constructing improvements to Perimeter Drive from Emerald Parkway to Avery- Muirfield Drive, together with constructing and installing curbs and gutters, public utilities which include water mains, fire hydrants, sanitary sewer, and storm sewer, stormwater improvements, burial of utility lines, gas, electric and communications service facilities (including fiber optics), street lighting and signs, sidewalks, bikeways, and landscaping (including scenic fencing and irrigation), traffic signs and signalization, and including design and other related costs, any right-of--way or real estate acquisition, erosion and sediment control measures, grading, drainage and other related work, survey work, soil engineering, inspection fees and construction staking, any other necessary site improvements, and in each case, all other costs and improvements necessary and appurtenant thereto. CITY OF DUBLIN,. Office of the City Manager 5200 Emerald Parkway • Dublin, OH 43017-1090 Phone: 614-410-4400 • Fax: 614-410-4490 To: All Members Dublin City Council From: Terry Foegler, City Manager ~ Fl Date: October 15, 2009 Memo Initiated By: Marsha Grigsby, Deputy City Manager/Director of Finance Dana L. McDaniel, Deputy City Manager/Director of Economic Development Re: Ordinance 60-09, Economic Development Agreement with Delta Energy Summary Staff has been in discussions with Delta Energy, LLC. ("Delta") for several months regarding the attraction of its operations and workforce to the City of Dublin. Delta intends to construct a new 22,000 square-foot headquarters facility in Dublin. The construction of a new corporate headquarters facility demonstrates Delta's long-term commitment to Dublin. Delta is expected to locate to Dublin with 75 employees and expand its workforce to at least 100 employees by 2015. Delta desires to purchase property currently owned by the City (Enclosure 1) at the southwest corner of Emerald Parkway and Perimeter Drive and construct a new headquarters facility. Enclosure 2 provides the concept plan and elevations for Delta's proposed facility. Delta, currently located in the City of Columbus, offers customized energy management services for energy consumers and producers and provides competitively-priced natural gas supply and transportation to industrial end-users. Customers include multi-facility corporate accounts, single- site industrial consumers, independent producers, and utility companies. Delta's energy management services are provided throughout the continental United States and Canada, while natural gas sales and transportation are focused in the major consuming regions of the Northeast, Mid-Atlantic, Mid-Continent and Gulf Coast. Delta currently services numerous Fortune 500 accounts, manages electric and gas-consuming facilities across most industries, and provides customized energy services for energy suppliers, producers and utilities. Attached for your consideration is Ordinance 60-09, authorizing the City Manager to execute a Real Estate Purchase Contract (Enclosure 3). The Economic Development and Tax Increment Financing Agreements are included as Exhibit C to the Real Estate Purchase Agreement. Highlights of the Delta project include: 1. LEED Certification Grant. The City agrees to pay a LEED Certification Grant in the amount of $40,000, once all of the following has been satisfied: completion of up to 35,000 square feet of office building (currently approved for 14,386 sf); the City has issued a certificate of occupancy for the building; and the City receives a copy of the LEED certification for the building. 2. Conveyance of Property. The City agrees to convey the property in accordance with the Real Estate Purchase (Enclosure 3). If approved, the City will sell to Delta City- Memo re: Ordinance 60-09 - EDA -Delta Energy October 12, 2009 Page 2 of 3 owned land for $225,000 per acre. In 2001, the City purchased this property at the same cost per acre in order to construct Emerald Parkway from Perimeter Drive to Shier Rings Road. The land was considered to be part of the future Coffinan Park expansion plans because of its development limitations. After many months of searching the immediate area for the appropriate available site, Delta approached the City about the idea of purchasing this City-owned land on which it would construct its headquarters. In consideration for attracting 100 new jobs and causing investment in new facilities, staff recommends selling this property to Delta for S225,000 per acre. The exact amount of acreage is yet to be determined, pending the outcome of finite designs and surveys. At this time, staff estimates selling between 4.25 and 4.75 acres to Delta. 3. Infrastructure Improvements. The City agrees to finance, construct and install necessary road improvements including a traffic roundabout at the intersection of Commerce Parkway and Perimeter Drive, necessary improvements to Commerce Parkway and any guardrails that may be required along Emerald Parkway. The City also agrees to finance, construct and install public bike paths, sidewalks and lighting in proximity to the property. The roundabout at the intersection of Commerce Parkway and Perimeter Drive is currently programmed in the City's Five-Year Capital Improvements Program for construction in 2014. The establishment of the tax increment financing district as authorized by Ordinance 60-09 will likely accelerate the completion of the public improvement. The City and Delta agree to work cooperatively on the design and construction of a storm water retention pond to be constructed on the northeast comer of Commerce Parkway and Perimeter Drive. The retention pond will serve both the City and Delta's storm water retention needs and remain on City-owned property. Delta will construct the retention pond and the City will reimburse Delta for its proportionate share of the total capacity. 4. Easements. Delta agrees to grant to the City the necessary easements or rights-of--way on the property for the installation of public improvements, at no cost to the City. 5. Tax Increment Financing (TIF) District. Delta agrees to cooperate in the creation of a tax increment financing district on the property and covenants to make payments-in-lieu- of-taxes, or service payments, for the purpose of funding the public infrastructure improvements identified in Exhibit B to the Ordinance. The Ordinance provides for the establishment of anon-school TIF district. As provided for in the Ohio Revised Code, a non-school TIF district may be in place for a period of 30 years or until the City is reimbursed for the public infrastructure improvements. The proposed project is estimated to generate between $26,000 to $38,500 in annual service payments to the City. Based on the estimated cost of the intersection improvement project reflected in the CIP, the TIF district will likely be in place for the maximum time allowed by the Ohio Revised Code. As a result of the non-school TIF, the Dublin School District (the District) will receive service payments based on their effective millage. It is estimated they will receive between $40,000 to $60,000 in annual service payments. The new private improvement values are considered "exempt" for property tax purposes and therefore are not reflected in the District's assessed valuation total. This is beneficial to the District because as Memo re: Ordinance 60-09 -EDA - Delta Energy October 12, 2009 Page 3 of 3 assessed valuation increases, the State school foundation aid payments made to the District are decreased. It is important to highlight that the property, if continued to be owned by the City would have been farmed and maintained in the Current Agricultural Use Value program, resulting in less than $100 in annual property tax revenues, until such time as Coffman Park was expanded to include the City-owned land on the north side of Perimeter Drive. At that point in time, the City would have filed an application for property tax exemption on all of the City-owned property. The private development of this property will result in future property tax revenues for governmental entities within the taxing district that would not have been generated if the City continued to own the property. On Thursday, October 8`~', Delta's application for "Conditional Use" was reviewed and approved by the Dublin Planning and Zoning Commission. Recommendation Staff recommends Council approve Ordinance 60-09 as an emergency at the second reading/public hearing on November 2, waiving the 30-day waiting period. Please address any questions you may have to Dana McDaniel. Enclosure 1: Delta Energy Concept Plan & Elevation Drawings Enclosure 2: Concept Plan Enclosure 3: Real Estate Purchase Agreement w/ EDA & TIF Agreements m ~~~ DUBLIN 0 0 0 odo I d ~ °' ~ 4 Enclosure 1 ' ~~ ~3 "3 T o be ,G, ~- sy retained by _ ~, ~ ~ a To be purchased by Delta 4.25-4.75 5588 5579 zyo~~ city owned 3 33s~ .o ~ O Enclosure 2 (Concept Plan) Enclosure 2 Concept Plan (continued) Proposed Elevations ~_% 1. North Elevation -View from Perimeter Drive ~~~= 2. South Elevation -View from Emerald Parkway Enclosure 3 Real Estate Purchase Agreement w/ EDA & TIF Agreements Memo re: ®rdinance No. 60-09 ®ctober 12, 2009 Page 8 of 8 Enclosure 3 Real Estate Purchase Agreement w/ EDA & TIF Agreements Real Estate Purchase Contract Industrial --Investment -Commercial It is recommended that all parties be represented by legal counsel. Contract modified from Columbus Board of Realtors form with legs! counsel. 1. OFFER AND PROPERTY DESCRIPTION: The undersigned, Delta Energy Holdings, LLC, an Ohio limited liability company (hereinafter referred to as "Buyer'°), offers to purchase from the City of Dublin, Ohio (hereinafter referred to as "Seller"} through Broker, the following described real estate including, without limitation, all improvements, fixtures, appurtenant rights, privileges and easements: located in the County of Franklin, and the State of Ohio, and in the City of Dublin, and consisting of approximately 4.0 - 5.08 acres as generally shown on the attached Exhibit A (hereinafter the "Property"}, which Property is part of a larger tract of real property owned by Seller known as Franklin County Parcel # 273-010591-00 and legally described on the attached Exhibit B (the "Parent Parce}"). The Parent Parcel less the Property is hereinafter referred to as the "Retained Property". 2. PRICE AND TERMS: The purchase price of the Property shall be Two Hundred Twenty Five Thousand Dollars ($225,040.00) per acre of the Property, as determined by the Survey (as hereinafter defined), payable at closing with cash or other immediately available funds. 3. CONTINGENCIES: a) Environmental Inspection: Within ninety (90) days after the acceptance hereof, Seller agrees to permit the Buyer, the Buyer's lender and any qualified, professional environmental consultant or consultants retained by Buyer or its prospective fender(s) to conduct, at the expense of the Buyer, an environmental site assessment. Buyer agrees to indemnify and hold Seller harmless from any injury or damage to persons, property and crops caused by such inspection and to restore the Property to substantially the condition in which the same were found before such inspection. If such assessment is obtained and the consultant recommends further inspection to determine the extent of suspected contamination or recommends remedial action, the Buyer, at Buyer's option, may notify the Seller in writing, within the above- specified period, that this Contract is null and void. Failure of Buyer to so deliver written notice and copy of the environmental report(s) within such time periad shall constitute a waiver of Buyer's right to terminate this Contract pursuant to this provision. The indemnification herein shall survive the termination of this Contract. b) Property Inspection: Buyer, at Buyer's expense, shall have ninety (90) days after the acceptance hereof to have the Property and all improvements, fixtures and equipment inspected. Buyer shall be permitted to complete any inspection including but not limited to soil sampling and testing, soil boring and soil compaction tests. Seller shall cooperate in making the Property reasonably available for such inspection(s). Buyer agrees to indemnify and hold Seller harmless from any injury or damage to persons, property and crops caused by such inspection(s) and to restore the Property to substantially the condition in which the same were found before such inspection. If Buyer is not, in good faith, satisfied with the condition of the Property as disclosed by such inspection(s), Buyer may terminate this Contract by delivering written notice of such termination to Seller, along with a written copy of such inspection report(s), within the time period specified above, such notice and report{s} shall specify the unsatisfactory conditions. Failure of Buyer to so deliver written notice and copy of the inspection report(s) within such time period shall consti#ute a waiver of Buyer's right to terminate this Contract pursuant to this provision. The indemnification herein shall survive the termination of this Contract. c) Z_ oninq Contingency: Buyer, at its sole expense, shat! have up to ninety (90) days from the Effective Date of this Contract (the "Zoning Contingency Period") to obtain from the City of Dublin or any other applicable zoning, building or engineering department, commission or board, zoning changes and/or approvals reasonably satisfactory to Buyer to allow Buyer to use the Property for office uses. If delays in obtaining satisfactory approval are not caused by any fault of Buyer, but are caused by events or factors beyond the reasonable contro{ of Buyer, Buyer shalt be entitled to four (4} additional thirty (30} day extensions of the Zoning Contingency Period by providing, in each case, written notice to Seller that Buyer requires such extensions} on or before the expiration of the Zoning Contingency Period ar applicable extension thereof, and providing Seller with evidence of the cause or causes of such delay. Buyer, at its sole cost and expense, shall submit to the Dublin Planning and Zoning Commission (`°PZC") an application for a conditional use permit in time for the PZC's October 2009 meeting. Seller will cooperate with Buyer in the completion of any application needed in order for Buyer to seek zoning and building approval, but shall incur no expense in connection with Buyer's efforts to seek and obtain approvals. If Buyer is unable to obtain the approval of the City of Dublin or applicable zoning commission or board for zoning changes or approvals to allow the Buyer to use the property for the intended use described herein, Buyer may terminate this Contract by delivering written notice to the Seller prior to the expiration of the Zoning Contingency Period or applicable extension thereof. Failure of Buyer to so deliver written notice of termination prior to the expiration of the Zoning Contingency Period or extension thereof, if applicable, shall constitute a waiver of Buyer's righ# to terminate the Contract pursuant to this provision. d) Intentional) deleted. e~ Financing: Buyer's obligations hereunder are contingent upon Buyer obtaining financing acceptable to Buyer, in Buyer's sale discre#ion, within ninety (90) days after the acceptance hereof. In the event that Buyer does not obtain such acceptable financing, Buyer may provide written notice to Seller that Buyer wishes to terminate this Contract within such ninety (90) day period. Failure to deliver such written notice within such ninety (90) day period shall constitute a waiver of Buyer's right to terminate the Contract pursuant to this provision. f) Governmental Approvals: Buyer shall have ninety (90) days after the acceptance hereof (the "Governmental Approval Contingency Period") to obtain approval of its final development plan, including, but not limited to the approval of two curb cuts providing access to and from the Property to Commerce Parkway, the dimensions and boundaries of the Property and the address of the Property, from all governmental bodies needed to permit Buyer to complete and operate its proposed development, which proposed development shall include an office building comprising no less than 22,000 nor more than 35,000 square feet of building area, together with associated parking lots, retention ponds, water features, landscaping and other improvements typically found in a first-class office complex (hereinafter, the "Project"). Unless this Contract is sooner terminated, Buyer shalt submit its application to PZC in time for the PZC's October meeting. If delays in obtaining satisfactory approval are not caused by any fault of Buyer, but are caused by events or factors beyond the reasonable control of Buyer, such as, for example, the PZC either tabling or failing to complete hearings upon Buyer's planning commission application in a timely manner, then Buyer shall be entitled to four (4) additional thirty (30) day extensions of the Governmental Approval Contingency Period by providing, in each case, written notice to Seiler that Buyer requires such extension(s) on or before the expiration of the Governmental Approval Contingency Period or extension thereof, and providing Seller with evidence of the cause or causes of such delay. In the event that Buyer is not able to obtain approval of its final development plan within the period of this contingency, including any extensions thereof, then Buyer may terminate this Contract by delivering written notice to the Seller prior to the expiration of the Governmental Approval Contingency Period or applicable extension thereof. Failure of Buyer to so deliver written notice of termination prior to the expiration of the Governmental Approval Contingency Period or applicable extension thereof shall constitute a waiver of Buyer's right to terminate the Contract pursuant to this provision. g) State of Ohio Incentives: Buyer shall have ninety (90) days after the acceptance hereof to obtain any State of Ohio economic incentives acceptable to Buyer at Buyer's sole discretion. In the event that Buyer is not able to obtain economic incentives from the State of Ohio within the period of this contingency then Buyer may terminate this Contract by delivering written notice to the Seller prior to the expiration of the time period specified herein. Failure of Buyer to so deliver writ#en notice of termination prior to the expiration of the time period specified herein, shall constitute a waiver of Buyer's right to terminate the Contract pursuant to this provision. Seller will cooperate with Buyer in the completion of any application needed in order for Buyer to seek any State of Ohio incentives, but shat! incur no expense in connection with Buyer's efforts to seek and obtain such incentives. h) Ecanomic Development Agreement: This Contract is contingent upon Seller and Buyer, within ninety (90) days after the Effective Date (the "EDA Approval Contingency Period"), entering into and obtaining Dublin City Council approval of an Economic Development Agreement in substantially the form attached hereto as Exhibit C (the "EDA"). If, despite their good faith efforts, Buyer and Seller are unable to reach agreement on the terms and conditions of the EDA and/or obtain Dublin City Council approval thereof within the EDA Approval Contingency Period, then Seller and/or Buyer may extend such EDA Approval Contingency Period for up to four (4) additional thirty (30} day periods by providing, in each case, written notice to the other party that of such extension on or before the expiration of the EDA Approval Contingency Period or extension thereof. If Seller and Buyer are unable to agree upon the terms and conditions of the EDA and/or obtain Dublin City Council approval thereof within the period of this contingency, including any extensions thereof, then Seller and/or Buyer may terminate this Contract by delivering written notice to the other at anytime prior to the expiration of the EDA Approval Contingency Period or applicable extension thereof. If Seller and Buyer fail to provide such written notice to the other within such time period, then this Contract shall be deemed terminated, effective as of the expiration of the EDA Approval Contingency Period or applicable extension thereof. i) Dublin City Councit Approval: This Contract shall be contingent upon Seller, within ninety (90) days after the acceptance hereof, obtaining Dublin City Council approval of the terms of this Contract. If Dublin City Council fails to approve of this Contract within such period, then this Contract may be terminated by Seller upon delivery of written notice thereof to Buyer. j) Survey Approval: This Contract shall be contingent upon Seller, Buyer and the PZC, on or before the expiration of the Governmental Approval Contingency Period, as the same may be extended, approving the exact dimensions and boundaries of the Property, which shall be generally consistent with Exhibit A_ Promptly following the PZC's and Seller's approval of the general boundaries and dimensions of the Property (but in no event later than ten (10) business days prior to the closing), Buyer shall, at its sole cost and expense, deliver to Seller and the Title Company for approval, a boundary survey (the "Survey") and legal description of the Property, prepared by a surveyor, registered in the State of Ohio (the "Surveyor"}, together with any other documents legally necessary to split the Property from the Parent Parcel_ If the dimensions and boundaries of the Property are not agreed upon on or before the expiration of the Governmental Approval Contingency Period, as the same may be extended, then the Buyer or Seller may rescind this Contract by providing written notice thereof to the other at any time prior to the expiration thereof. If Seller and Buyer fail to provide such written notice to the other within such time period, then this Contract shall be deemed terminated, effective as of the expiration of the Governmental Approval Contingency Period or applicable extension thereof. Notwithstanding anything contained herein to the contrary, Buyer shaft proceed in good faith and with due diligence to undertake and complete the activities identified in Section 3, and, upon request by Seller, shall keep Seller generally advised of developments with respect thereto at all times during the respective contingency periods, including, without limitation, by providing oral and written progress reports and by making available to Seller such documents as Seller may request from time #o time, including, without limitation, copies of due diligence proposals, paid invoices, reports, surveys, soil tests, utility studies, zoning applications, invoices and other documents. Buyer shall bear ail costs associated with or arising out of any and all activities regarding its inspections identified herein. 4. POSSESSION: Possession shall be given to Buyer upon closing, subject to the Permitted Exceptions (as hereinafter defined) and the righ#s of the occupants of the Property under that certain Use Agreement dated January 11, 2001 between Seller, as licensor, and Dorothy L_ Thomas, Marian D_ Thomas, Robert Thomas, William Thomas and Andrew Thomas, as licensees (the "Use Agreement"), a copy of which Use Agreement is attached hereto as Exhibit D. At the closing, Seller shall assign all of its rights, title an interest under the Use Agreement to Buyer, and Buyer shall assume same, pursuant to an assignment document in form and substance acceptable to Buyer and Seller. Upon request, Seiler shall join Buyer in the execution of a notice terminating such Use Agreement. Notwithstanding anything to the contrary contained herein, Buyer agrees that Buyer's investigations and surveying of the Property shall not unreasonably interfere with the use of the Property by the licensees under the Use Agreement and that Buyer shal6 indemnify Seller from and against any damages caused to the crops, if any, damaged during such inspections or surveys. The indemnification herein shall survive the termination of this Contract. 5. RENTALS AND OTHER PRORATtONS: Rents and operating expenses, if applicable, shall be prorated as of the date of closing. 6. FIXTURES AND EQUIPMENT: If applicable, the consideration shall include all fixtures owned by Seller including, but not limited to: built-in appliances; heating, ventilating, air conditioning (HVAC) and humidifying equipment and their control apparatus; stationary tubs; pumps; water softening equipment; roof antennae; attached wall-to-wall carpeting and attached floor coverings, curtain rods and window coverings including draperies and curtains; attached mirrors; light, bathroom and lavatory fixtures; storm and screen doors and windows, awnings, blinds and window air conditioners, whether now in or on the Property or in storage; garage door openers and controls; attached fireplace equipment; security systems and controls; smoke alarms; satellite TV reception system and components; all exterior plants and trees; and the following: (None if left blank) 7. DAMAGE OR DESTRUCTION OF PROPERTY: If applicable, risk of physical loss to the real estate and improvements shall be borne by Seller until closing, provided that if any property covered by this Contract shall be substantially damaged or destroyed before this transaction is closed, Buyer may a) proceed with the transaction and be entitled to all insurance proceeds, if any, payable to Seller under all policies covering the Property, or b) rescind this Contract and thereby release all parties from liability hereunder by giving written notice to Seller and Broker within ten (10) days after Buyer has written notice of such damage or destruction. Failure by Buyer to so notify Seller and Broker shall constitute an election to proceed with the transaction. 8. CONDITION OF PROPERTY: If applicable, Seller agrees that upon delivery of the Deed, the improvements constituting part of the real estate shall be in the same condition as they are on the date of this offer, reasonable wear and tear excepted. Seller shall, within ten (10) days after the Effective Date, submit to Buyer the following information andlor materials, to the extent the same is available, for use by Buyer in preparation for the purchase of the Property: (a) prior surveys of the Parent Parcel; (b) prior environmental studies of the Parent Parcel; and (c} a copy of the title insurance policy issued upon Seller's acquisition of the Parent Parcel. All materials provided to Buyer pursuant to this Section 8 shall be deemed conditional. If this transaction is not closed in accordance with the terms hereof, such materials shall be returned to Seller upon demand. 9. EVIDENCE OF TITLE: Within fifteen (15) days of execution and delivery hereof, Seller shall provide to Buyer an owner's title insurance commitment [current ALTA owner's] issued by Benchmark Title Agency, Inc. (the "Title Company"), in the amount of the purchase price of the Property (which purchase price shall initially be based upon the Property containing 5.08 acres and be subject to adjustment upon completion of the Survey). The title evidence shall be initially certified as of the date of examination of title with endorsement not before 8:00 a.m. on the business day prior to the date of closing, all in accordance with the standards of the Columbus Bar Association, and shall show in Seller marketable title in fee simple free and clear of all liens and encumbrances except: a) those created by or assumed by Buyer; b) those specifical{y set forth in this Contract; c) zoning ordinances; d) legal highways; e) covenants, restrictions, conditions and easements of record that do not unreasonably interfere with Buyer's intended use of the Property; and f) matters that might be disclosed by an accurate survey of the Property (the "Permitted Exceptions"). At closing, Seller shall pay the premium for an owners policy of title insurance. Buyer shall pay any additional costs incurred in connection with mortgagee title insurance issued for the protection of Buyer's lender and any additional premiums associated with endorsements requested by Buyer or Buyer's lender. Buyer and Seller shall each pay one-half (112) the fee, if any, charged by the Title Company for closing the transaction contemplated herein. If title to all or part of the Property is unmarketable, as determined by Ohio law with reference to the Ohio State Bar Association's Standards of Title Examination, or is subject to defects, liens, encumbrances, easements, conditions, restrictions or encroachments other than those accepted in this Contract (hereinafter, "Defects"), then the Buyer shall give the Seller written notice of any Defects within fifteen (15) days after the Buyer's receipt of the title commitment. In the event the Buyer fails to give such notice, the Buyer shall be deemed to have accepted the current status of title. Seller shall, within thirty (30) days after written notice thereof, remedy or remove any such Defects, obtain title insurance without exception therefor or elect not to correct such Defects. In the event Seller is unable to remedy or insure against the Defects or elects not to correct such Defects within the thirty (30) day period, then Seller shall give notice thereof to Buyer, and Buyer shall, within five (5} days after receipt of such notice, either declare this Contract null and void or elect to proceed to closing. In the event the Buyer elects to declare this Contract null and void pursuant to the foregoing sentence, no party hereto shall have any claim #or damages against the other. If Buyer fails to provide such notice or if Buyer elects to proceed with the transaction contemplated herein, then Buyer agrees to accept title to the Property subject to such Defects and proceed with the closing. At closing, the status of title shall remain unchanged and the Seller shall sign an affidavit with respect to off-record title matters in accordance with the community custom. If Buyer desires and ALTA/ASCM survey, then Buyer shall pay the cost thereof. 10. CONVEYANCE AND CLOSING: At closing, Seller shall pay transfer taxes and deed preparation costs and shall convey, at closing, marketable title (as described in paragraph 9) to the Property by deed of limited warranty {the "Deed") in fee simple, with release of dower, if any. Buyer shall pay the recording fees required for recording the Deed and any of Buyer's lender's documents, such as a mortgage. The date of closing shall be within thirty (30} days of satisfaction or waiver of al! contingencies, which closing date may be extended by agreement of Buyer and Seller and shat! be extended by such time, if any, as is necessary to cure Defects, as set forth in Section 9 above (the '°Closing Date"). The closing shall be at such time and place as Buyer and Seller may mutually agree upon. Buyer and Seller agree that such other documents as may be legally necessary or appropriate to carry out the terms of this Contract shall be executed and delivered by the appropriate party at Closing. Such documents shall include, but not be limited to a closing statement, and Seller's affidavit regarding liens, unrecorded matters and possession. 11. TAXES AND ASSESSMENTS: At closing, Seller shall pay or credit on purchase price all delinquent taxes, including penalty and interest, all assessments that are a lien on the date of this Contract and, except as set forth in the following paragraph, all agricultural use tax recoupments for years prior to the year of closing. At closing, Seller also shall pay or credit on the purchase price all other unpaid real estate taxes that are a lien for years prior to closing and a portion of such taxes and, except as set forth in the following paragraph, agricultural use #ax recoupments for year of closing, prorated through date of closing and based on a 365-day year and, if undetermined, on most recent available tax rate and valuation, giving effect to applicable exemptions, recently voted millage, change in valuation, etc., whether or not certified. The tax proration herein shall take into account the fact that Buyer is acquiring a portion of the Parent Parcel by multiplying the applicable taxes and assessments by a fraction, the numerator of which shall be the acreage contained in the Property and the denominator of which shall be the total acreage contained in the Parent Parcel. Buyer and Seller acknowledge and agree that the Property is currently in the Current Agricultural Use Valuation (CAUV) Program. At such time as Buyer, its successors and assigns, ceases to use the Property for agricultural purposes and removes the Property from the CAUV Program, any agricultural use tax recoupments allocable to the period of time the Property was owned by Seller or its predecessors in the title shall be promptly paid by Seller and Buyer, provided that Buyer shat! be responsible for any remaining agricultural use tax recoupment due for periods from and after the date of closing. With regard to future assessments, Seller warrants that, as of the date of the acceptance hereof, no improvements or services to the site or area have been installed or furnished that would result in the costs being assessed against the real estate, and no written notification has been received by Seller from public authority or owners' association of future improvements that would result in costs being assessed against the real estate. Real estate taxes and assessments are subject to retroactive change by governmental authority. The rea! estate taxes for the Property for the current tax year may change as a result of the transfer or as a result of a change in the tax rate. All proration of real estate taxes and assessments shall be final as of closing, except as otherwise provided herein. 12. BUYER'S EXAMINATION: BUYER IS RELYING SOLELY UPON ITS OWN EXAMINATION OF THE PROPERTY AND INSPECTIONS HEREIN REQUIRED, IF ANY, FOR ITS PHYSICAL CONDITION, CHARACTER, AND SUITABILITY FOR BUYER'S INTENDED USE AND IS NOT RELYING UPON ANY REPRESENTATIONS BY THE BROKERS} OR SELLER, EXCEPT FOR THOSE MADE BY BROKER(S) OR SELLER DIRECTLY TO THE BUYER HEREIN. THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS," "WHERE iS" BASIS AND WITH ALL FAULTS, AND BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED IN SECTION 16 OR THE LIMITED WARRANTY DEED, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, 1NCLUDlNG, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY, TENANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PROPERTY. 13. INDEMNITY: Seller agrees to defend, indemnify and hold harmless Broker(s), and their agents and employees for any cost or liability that may be incurred by or imposed on Broker(s) for any breach by Seller of any representation or warranty or for any misrepresentation or concealment of fact by Seller in connection with the Property. 14. ENVIRONMENTAL DISCLAIMER BY BROKER: Buyer and Seller acknowledge that Broker(s) have made no independent investigation to determine whether hazardous materials exist in, on or about the Property. Buyer and Seller understand that any such determination requires the expertise of a specialist in hazardous materials, the retaining of which is the responsibility of Buyer and/or Seller and not that of Broker. 15. DEPOSIT: Upon the final acceptance of this Contract by both parties, Buyer shall deposit with the Title Company the sum of Ten Thousand Dollars {$10,000.00)(the "Deposit"}. The Deposit shall be held by the Title Company in its non- interest-bearing trust account in accordance with the provisions of the Escrow Agreement, attached hereto and made a part hereof as Exhibit E. Further, Buyer and Seller agree that the provisions of this Section 15 pertaining to the disposition of the Deposit shall apply: a) the Deposit shall be applied on purchase price or returned to Buyer when transaction is closed; b) if Seller fails or refuses to perform, or any contingency is not satisfied or waived, the Deposit shalE be returned to Buyer and neither party shall have any further liability hereunder; c) if Buyer fails or refuses to perform, this Deposit shall be paid to Seller, which payment, or the acceptance thereof, shall not in any way prejudice the rights of Seller or any Broker in any action for damages or specific performance; d) If this Contract is terminated in accordance with Section 3 (Contingencies) or Section 9 (Evidence of Title), the Deposit shall be returned to Buyer and neither party shall have any further liability hereunder; e) In the event of a dispute over the disposition of the deposit, the Title Company shall retain the Deposit until {i) Buyer and Seller have settled the dispute; (ii) disposition has been ordered by a final court order; or (iii) the Title Company deposits said amount with a court pursuant to applicable court procedures. 16. REPRESENTATIONS AND WARRANTIES: Seller has advised Buyer that Seller has fee simple title to the Property. Seller further represents and warrants to Buyer as set forth below in this Section 16, which representations and warranties shall survive the closing for a period of one (1) year, and the passing of title of the Property to Buyer. a) Seller is not in default with respect to any order or decree of any court or of any such governmental agency or instrumentality regarding any of the Property. b) Seller has not filed for relief as a debtor under any state receivership laws or federal bankruptcy laws. c) Seller has or will have full authority to enter into this Contract upon Dublin City Council approval hereof and to execute all documents contemplated hereby, and Seller's execution, delivery and performance of this Contract will not violate the provisions of any agreement to which Seller is a party or by which it is bound. d) Seller will not enter into or extend any lease or tenancy agreement affecting any of the Property that will survive the closing without prior written approval of Buyer, except as otherwise provided for herein. e) Seller shall transfer the Property to Buyer in its present condition, and will not create or permit any additional defects, liens, restrictions or other encumbrances to be created on or regarding the title thereto after the date of this Contract, except as otherwise provided #or herein or as permitted under the Use Agreement. f) No person, firm, corporation or entity has or will have any right or option to acquire any part of the Property other than Buyer hereunder. g) In the event any claim is made by any party for the payment of sums due for the furnishing of labor and/or materials to the Property prior to the closing da#e hereof, or in the event any Tien is filed against the Property subsequent to the closing as a result of such furnishing of such materials and/or labor, Seiler shall discharge said lien. h) Seller has not used the Property for the disposal of any hazardous or toxic waste materials, nor to the Seller's actual knowledge without independent inquiry, does the Property currently contain any hazardous or toxic waste materials, except as provided in that certain Phase I Environmental Site Assessment dated December 2000 prepared by Raymond-Beling of Ohio, Inc. Buyer represents and warrants to Seller as set forth below in this Section 16, which representations and warranties shall survive the closing for a period of one (1) year, and the passing of title of the Property to Buyer: i) the execution, delivery and performance of this Contract, and the consummation of the transaction contemplated hereby, will not result in any breech of, or constitute any default under any agreement ar other instrument to which Buyer is a party or by which Buyer may be bound; j) the execution, delivery and performances by Buyer of this Contract and the performance by Buyer of the transaction contemplated hereunder have each been duly authorized by such persons or authorities as may be required by law; and on the closing date, Buyer shall provide Seiler with certified resolutions, or other instruments, in form reasonably satisfactory to Seller and the Title Company evidencing such authorization. 17. DEVELOPMENT MATTERS: The Deed shall contain (a) an obligation for Buyer to commence construction of the Project within sixty (60} days after the date of the closing, or such later date as may be mutually agreed upon by Seller and Buyer (the "Build Requirement Date"}, (b) an obligation for Buyer to complete construction of the Project within ~) days after the commencement thereof, or such later date as may be mutually agreed upon by Seller and Buyer (the "Completion Requirement Date"), and (c} a restriction that the party taking title to the Property shalt not, without the prior written consent of Seller, sell the Property, nor shall there be any material transfer in the ownership of the party taking title to the Property, until such time as the Project is complete and open for business. The Deed shall also provide that if any one or combination of the foregoing conditions are not satisfied, then Seller shall have the option to repurchase the Property for the purchase price originally paid by Buyer to Seller hereunder (or, if construction of the Project has commenced, for the then fair market value of the Property as then improved, which fair market value shall be determined by an appraiser selected by Seller). Such option may be exercised at any time prior to the Buyer's satisfaction of the applicable condition or upon learning that the Property has been transferred in violation of the terms of the Deed. If Seller exercises the option to repurchase the Property, the closing of such repurchase shall take place within 30 days after Seller's exercise thereof at such location as Seller shall designate. At such closing, good and marketable title in fee simple to the Property shall be conveyed to Seller by limited warranty deed with release of dower, free and clear of all liens and encumbrances except those which affected title to the Property when originally conveyed to Buyer (provided that such deed shall not contain the restrictions set forth herein). Rea! estate taxes and assessments shall be prorated as of the date of resale and possession shall pass to Seller at such closing. At such closing, Seller shat! be reimbursed for al! reasonable costs and expenses incurred by Seller in connection with the transaction contemplated herein such that Seller is in the same position as if the initial sale to Buyer had not taken place, including, without limitation, title expenses and legal costs incurred in negotiating this Contract, the EDA and closing the transaction contemplated herein. To secure Buyer's obligations hereunder, upon Seller's request, Buyer shall deliver to the Title Company to hold in escrow, a duly and properly executed limited warranty deed in accordance with the above paragraph (the °'Re- Conveyance Deed"), and if, in Seller's good faith opinion, Buyer breaches any one or combination of the conditions set forth in the Deed, then upon notice from Seller to the Title Company and Buyer, the Title Company shall be authorized to release the Re-Conveyance Deed from escrow and record same in the Franklin County, Ohio records. Within thirty (30) days thereafter, Seller shalE repay Buyer the amount of the purchase price paid to Seller for the Property set forth herein (or, if construction of the Project has commenced, for the then fair market value of the Property as then improved, which fair market value shall be determined by an appraiser selected by Seller). Such price shall be reduced by any real estate taxes and assessments prorated as of the date such Re-Conveyance Deed is recorded and all reasonable costs and expenses incurred by Seller in connection with the transaction con#emplated herein such that Seller is in the same position as if the initial sale to Buyer had not taken place, including, without limitation, title expenses and legal costs incurred in negotiating this Contract, the EDA and closing the transaction contemplated herein. Upon recording the Re-Conveyance Deed, possession of the Property shall pass to Seller. If title to the Property is re-vested in Seller in accordance with the terms hereof, then the EDA shall automatically terminate as of the date of such re-vesting. Seller and Buyer acknowledge and agrees that the provisions of this Section 17 are a material inducement to Seller for the execution of this Contract- At the closing, Seller shall grant to Buyer anon-exclusive easement to use the storm water retention pond on the Retained Property in substantially the form attached hereto as Exhibit F. 18. MISCELLANEOUS: This Contract constitutes the entire agreement and no oral or implied agreement exists. Any amendments to this Contract shall be in writing, signed by Buyer(s) and Seller{s) and copies provided to them. This Contract shall be binding upon the parties, their heirs, administrators, executors, successors and assigns. Time is of the essence of all provisions of this Contract. In compliance wi#h fair housing laws, no party shall in any manner discriminate against any Buyer or Buyers because of race, color, religion, sex, familial status, handicap or national origin. Paragraph captions are for identification only and are not a part of this Contract. This Contract shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, legal representatives, successors and assigns. Buyer shat! not assign this Contract without the prior written consent of Seller. Nothing contained herein constitutes the approval of Seller in its regulatory capacity, including but not limited to, the City's Development Department, including the PZC, code regulation, licensing, permitting or the Hke. 19. BROKER'S FEE: Seller hereby warrants and represents to Buyer that Seller has not engaged or dealt with any broker or agent in regard to this Contract. Buyer hereby warrants and represents to Seller that Buyer has not engaged or dealt with any broker or agent in regard to this Contract other than RJ Boli Realty, Ltd. ("Broker'). Buyer shall pay any brokerage fee owing to Broker in connection with this transaction. Seller agrees to indemnify Buyer and hold Buyer harmless against any liability, loss, cost, damage, claim and expense (including, but not limited to, attorneys' fees and costs of litigation) which Buyer shall ever incur or be threatened with because of any claim of any broker or agent claiming through Seller, whether or not meritorious, for any such fee or commission. Buyer agrees to indemnify Seller and hold Seller harmless against any liability, loss, cost, damage, claims and expense (including, but not limited to, attorneys' fees and cost of litigation) which Seller may ever suffer, incur, or be threatened with because of any claim by any broker or agent claiming by, through or under Buyer, including Broker, whether or not meritorious, for any such fee or commission. The indemnifications herein shall survive the termination of this Contract or the closing and shall not be merged into any instrument of conveyance delivered at closing. 20. NOTICES: Any notices required hereunder shall be in writing, shall be transmitted by certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight courier, and shall be deemed given when received or when receipt is refused, and shall be addressed to the parties at the addresses set forth below. Notices shall be effective upon receipt or refusal of receipt. 21. EXPIRATION AND ACCEPTANCE: This offer shall remain open for acceptance until 3:00 p.m. Columbus, Ohio time on 2009 and a signed copy shall be returned to Buyer upon acceptance. Buyer hereby makes the foregoing offer this day of October, 2009. BUYER: Delta Energy Holdings, LLC By: Sheri Tackett, President Address: 2674 Federated Boulevard Columbus, Ohio 43235 Phone: {614) Deed to: Delta Energy Holdings, inc Buyer's Attorney: William L. Loveland {614} 464-3563 Seller agrees to and accepts the foregoing offer this day of , 2009 (the "Effective Date"). SELLER: City of Dublin, Ohio Terry D. Foegler, City Manager Address: 5200 Emerald Parkway Dublin, Ohio 43017 Phone: (614) - Approved as to farm: Stephen J. Smith, Law Director Name of Seller's Attorney: Gregory S. Baker (614) 462-2344 NOTE: AGENCY DISCLOSURE STATEMENT: If Applicable, Buyer and Seller acknowledge having reviewed and signed the at#ached Agency Disclosure Statement as required by Ohio law. PARTIES TO THIS CONTRACT MUST BE PROVIDED WITH A COPY. EXHIBIT LISTING: Exhibit A - Depiction of Property and Parent Parcel Exhibit B - Legal Description of Paren# Parcel Exhibit C - EDA Exhibit D - Use Agreement Exhibit E - Escrow Agreement Exhibit F - RetentionlDetention Pond Easement EXHIBIT A a» r~rinn my The following map specifically identifies and depicts the general vicinity of the Property and constitutes part of this Exhibit A. The Property includes tax parcel 273- 010591-00. Q 667.61 61 s 2 ~~ m To be retained o O 5200 66~~8 663 ~ by Clty ~ ° 66649T,. ~ ~ ~ 6 ~ TO purchased I ~_p~RIMET.ER_DR o Delta 1 ~3 4.25-4.75 acres 0 a Q Des 6 R 5588 5579 6 9~I11~ o _~i inn o c a ~~5~= City o ned ~~, e~o~ par el 33 33s~ ,~o .oy~/ EXHIBIT B Legal Description of Parent Parcel ~~ ~~~~W Ul~~~~1 ~~ y 2740 East Main Street Bexley, Ohio 43209-2577 (614) 235-8677 Telefa.x 235-4559 April 1 [, 2000 Revised May 3 2000 5.457 Acres Situated in the State of Ohio, County of Franklin, City of Dublin, being part of Virginia Military Survey No. 2542 and part of Parcel Tltree conveyed to BancOhio National Bank of Columbus in Official Record Volume 07681 B-1 I, Recorder's Office, Franklin County, Oltio and being part of Lot 3 of lames Brown Subdivision in Complete Record Volume 102, Pagc 97, Clerk of Courts Office, Franklin County, Oltio (al! references to recorded documents arc on tilt in said Recorder's Office, unless otherwise noted) and being more particularly described as follows: Commencing at a set railroad spike in the centerline of Posl Road at the northwest corner of said Lot No. 3 and ttte norilteast corner of Metro Noritt Business Park, as the same is numbered and delineated upon the recorded plat thereof, of record in Plat Book 66, Page 7 i ; Thence, along the east line of Reserves °`A" and "B" and part of the east line of Commerce Parkway (50 feet wide) of said Metro North Business Park, and part of the west line of said Lot No. 3 and part of the west line of said Parcel Three, South 03° 18' 52" West, 1,219.24 feet to a set iron pin in the south line of Perimeter Drive and being the southwest corner of the City of Dublin 1.355 Acrc tract (Parcel 47 WD Inst. 199802100030106) and being TILE TRUE POINT OF BEGINNING: Thence. along the south line of said Perimeter Drive, part of the south line of said 1.355 Acre tract and across part of said Parce{ Three and part of said Lot No. 3 the following three (3) courses: I) North 46° 33' 23" East, 43.29 Fect to a stt iron pint; 2} South 86° 45' 36" East, 149.83 feet to a set iron pin; 3} Along an arc oFa curve to the right having a radit-s of 531.46 feet, a delta angle of 36° 28° 41 ", a chord bearing and distance of Soutlt 68° 31' IS" East, 332.68 feet to a set iron pin; Thence, across part of said Lot No. 3 and part of said Parce! Three, the following three (3)courses: Continued... Page Z 5.457 Acres t) South 32° 42' 07" East, 44.85 feel to a found 1" O.D. iron pin with a yellow cap inscribed "Burgess and Niplc"; 2) Along an arc of a curve to the rigftt Itaving a radios of 804.50 feet, a delta angle of 09° 03' 02", a chord bearing and distance of Sotttlt 35° 24' 38" East, 126.95 feet to a found I " O.D. iron pin wills a yellow cap inscribcd "Burgess and Niple"; 3) Along an arc of a curve to the right having a radius of 552.50 feet, a delta angle of 10° 56' 49", a chord bearing and distance of Sotitlt 25° 24' 43" East, 105.40 feet to a found 1 " O.D. iron pin with a yellow cap inscribcd "Burgess and Niple" in the cast line of said Parcel Three a~zd east tint of said Lot 3, and being in the west fine of the City of Dublin 4.199 Acrc tract (Parcel 1 WD Inst. 1998021000301 l 1); Thence, along part of the east line of said Parcel Three and part of the east line of said Lot 3, and part of the west line of said 4.199 Acre tract, Sotith 03° i4' 21" West, I I.Bd feet to a found 1" O.D. iron pin witE~ a yellow cap inscribed "Burgcss and Nip1e' ; Titcncc, across part of said Lot No_ 3 and part of said Parcel Tliree tl~e following three (3) courses: l) South 42° 2I' 21" Wcst, 54.77 feet to a found 1" O.D. iron pits with a yellow cap inscribed Burgcss and Niple; Z) North 89° 44' 44" Wcst, 140.65 feet to a found 1" O.D. iron pin wily a yellow cap inscribcd Burgcss and Niplc; 3) Along an arc of a curve to itte leis having a radios of 970.00 feel, a delta angle of 29° 58' SZ", a chord bearing and distance of South 75° I S' S4" Wcst, SOI.80 feet to a set iron pin in the west line of said Parcel Thrcc and the east line of Lot No. 2 of said Metro North Business Park; Thence, along part of the west tine of said Parcel Three and part of the east line of said Lot No. 2 and part of the cast line bf said Commerce Parkway, North 03° 18' S2" East, S 17.09 feet to the place of beginning CONTAINING 5.457 ACRES. subject however io ail legal Highways, easetntnts, restrictions of record and of records in tlu respective utility offices. Continued... Page 3 5.457 Acres The foregoing description was prepared from an achtal ftield survey made by Myers Surveying Company Inc_ in Febnr'ary 2000. Iron pins set are 30" x t" O.D. wills orange plastic caps inscribed "P.S. #6579", unless otherwise iiotcd. Basis of bearings is the north fine of Perimeter Drive as South 86° 45' 36" East per If~strument No. 199802100030106. The above-described 5.457 Acrc tract is cncrimbered by 0.147 Acres of area in tither existing easements or right-of-way, leaving a net area of 5.3i 0 Acres. Mye Surveyin Company Inc A beri! Mye . #6579 REO/kmh (2 1 9) PAPER pROV RY FRANKS-iN COUNTY ENGfNEER1NG DDE}PT. $~ p,TE o~`sy 1 * j~'T1' A16Dr'~f p-t~Ss-~ SP~~~ ~.~~~ ~ o.k o~ L~~3~ Z`6~ ~ Descrp;:on ~ Vs ~,.~d an FirtSlz, P.E., F Franklin Count' EXHIBIT C ECONOMIC DEVELOPMENT AGREEMENT '~ ~~ '` '~ Drr,Jt nJ Ocu,ber• ', l(ltld I~•ur I)i.~c•uxsion f',n~,oscs Otell' ~' ~~ ~~ '~ F.,CONOM[C DF,VELOPMENT AND TAX INCREMENT FINANCING AGREEMENT THIS ECONOVttC DEVF:LOP~1E\T AGREE~tiIEN"I' (this "flgreen,e,at") is made and entered into this day ol~ , 2009 {the "Effective Dote"), by and between the CITY of DUBLIN, OHIO (the "Gifu"}, a municipal corporation duly organized and validly existing under the Constitution and the laws of the State of Ohio (the "State'') and its Charter, and DELTA ENERGY HOLDINGS, LLC (the "Compa,ty" and collectively with the City, the "Parties"), an Ohio limited liability company with its main office currently located at 2674 Federated Boulevard, Columbus, Ohio 43235, under the circumstances summarized in the following recitals. RECITALS: WHERL•AS, consistent with its Economic Development Strategy (the "Strategy") approved by Dublin City Council Resolution No. 07-94 adopted on June 2U, 1994, and the updated Strategy approved by Dublin City Council Resolution No. 30-04 adopted on July 6, 2004, the City desires to encourage commercial offce and retail development and provide for the retention and creation of employment opportunities within the City; and WHEREAS, based on the results of the Company's recent comprehensive examination of workforce needs, and induced by and in reliance on the economic development incentives provided in this Agreement, the Company is desirous constructing a new corporate headquarters in the City and relocating its workforce and operations to the City; and WHEREAS, the Company has determined that it will construct a LEED certified building within the City {the "Project", with the Project being constructed upon certain real property referred to herein as the "Property", as generally depicted on EXHIBIT A attached hereto and incorporated herein by reference) to facilitate the creation of a new corporate headquarters in the City and relocating its workforce and operations to the City; and WHEREAS, the Company desires that certain public infrastructure improvements (which public infrastructure improvements are more fully described on EXHIBIT B which is attached hereto and incorporated herein by reference and such public infrastructure improvements are collectively referred to herein as the "Public Infrastructure Improvements") be constructed and installed, and agrees that the Public Infrastructure Improvements will benefit the Property; and WHEREAS, prior to the passage of the T1F Ordinance (as defined below), the City provided notice of the proposed passage of the TIF Ordinance to the Dublin City School District (the "School District") and the Central Ohio Joint Vocational School District, all as required by Ohio Revised Code Section 5709.83; and WHEREAS, the City has determined that it is necessary and appropriate and in the best interests of the City to provide for the Company, and any subsequent owners of the Property (the Company and the subsequent owners being referred to herein individually as an "Owner" and collectively as the "Owners"), to make service payments in lieu of taxes (the "Service Payments") . :: 1)rrt ft n f tictnhr~r -, 211(19 -- /•nr• d)iscussiun Purposes (hrlt• '': :~::: :` with respect to the Property to pay the costs of the construction by the City of the Puhlic (nfrastn~cture improvements (including debt service on any securities issued for that purpose) and to compensate t1~e School District, all pursuant to and in accordance with Ohio Revised Code Sections X709.40 through X709.43 {collectively, the `'TIF Statutes"); and WHEREAS, the Company has agreed to cooperate in the creation of a tax increment financing area on the Property, and the City, by passage of Ordinance No. -09 on 2009 (the "TIF Ordinance"), has determined that it is necessary and appropriate and in the best interests of the City Eo (i) provide certain economic incentives to the Company 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 the City as authorized in Article VIII, Section 13 of the Ohio Constitution, (ii) create a tax increment financing area, pursuant to the TIF Statutes, which area shall include the Property, and identify certain Public Infrastructure improvements, which will directly benefit the Property, (iii) declare that l00% of the increase in assessed value of the Property subsequent to the effective date of the TIF Ordinance (the `Improvenrerrt") is a public purpose and declared to be exempt from taxation for a period commencing with the first tax year that begins after the effective date of the TIF Ordinance and in which an Improvement first appears on the tax list and duplicate of real and public utility property and ending on the earlier of (a} thirty (30) years after such exemption commenced or (b) the date on which the City can no longer require Service Payments, all in accordance with the requirements of the TIF Statutes (the "Taz Exemption") and (iv) provide for the Company, and its successors and assigns, to make service payments in lieu of taxes with respect to the Property ("Service Payments") to pay costs of the construction of the Public Infrastructure Improvements and for distribution to the School District; and WHEREAS, in order io provide for the collection of such Service Payments, to induce the City to construct the Public Infrastructure Improvements and to induce the Company to proceed with the Project to facilitate the creation ofa new corporate headquarters in the City and to relocate its workforce and operations to the City, the City and the Company desire to enter into this Agreement on the terms as hereinafter provided; NOW THEREFORE, the City and the Company covenant, agree and obligate themselves as follows: Section 1. Company's Agreement to Construct a New Corporate Headquarters and Relocate Its Workforce and Operations to the City. Ln consideration of the economic development incentives to be provided by the City herein, the Company agrees that it will construct a new facility upon the Property to facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and operations to the City. The company expects to relocate fult-time equivalent employment opportunities to the City by , 20 .The average annual wage of these full-time equivalent employment opportunities is estimated to be -2- .. .. : 1)rafl of C)ctnhrr '. ?ll(19 /-i~r Disrtr~sion 1'rrrpri~rti Onl~• " :~::; ~: Section ?. ('ity Agreement to Provide lncentivcs. (a) General. In consideration for the Company's agreement to develop a new facility to facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and operations to the City, the City agrees to provide econo-nic development incentives to the Company in accordance with this Section. (b) LEER Certification Grant (i} General. The City has determined to encourage the construction of•"green" buildings within the City. The Company agrees to construct a building (the "Building") in the area depicted on EXI~IBIT A to facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and operations to the City. The Company anticipates that the Building will be constructed as a "green" building and will receive LEED certification following completion. In consideration of the Company's agreement to construct the Building and to facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and operations to the City, the City agrees to provide the Company with a LEED Certification Grant. The Parties acknowledge that the LEED Certification Grant is intended to subsidize the Company's additional costs which will be incurred in connection with design of a LEED certified building and the costs of obtaining the LEED certification for that building. {ii) LEED Certification Grant. The City agrees to pay to the Company a grant (the "1 F,F.D Certification Grmrt"} in the amount of Forty Thousand Dollars ($40,000.00) within thirty {30} days following the occurrence (to the City's reasonable satisfaction) of all of the following: (A} the Company completes construction of the Building with an aggregate square footage of at least 22,000 square feel but not more than 35,000 square feet, (B) the City has issued a certificate of occupancy for the Building, and (C) the City has received a copy of the LEED certification for the Building. (iii) Forfeiture of Right to Receive LEED Certification Grant. The Company agrees and acknowledges that the LEED Certification Grant provided for in this Section 2(b) is being made by the City to the Company in consideration for the Company's agreement to facilitate the creation of a new corporate headquarters in the City and to relocate its workforce and operations to the City. The Company further agrees that if the requirements of Subsection 2(b)(ii) are not satisfied, the City shall not be obligated to make the LEED Certification Grant required by that Subsection. (iv) Standard of Conduct by City. In all matters related to the review, administration and granting of a certificate of occupancy in connection with subsection 2{b}(ii), the City will act in good faith with a!1 reasonable dispatch. (v) Method of Payment. The payment provided for in this Section 2(b) shall be made by the City to the Company by electronic funds transfer or by such other manner as is mutually agreed to by the City and the Company. -3- ...... ': I)ru~t of Oc•~ndac~r ~. Zfl/)9 -- /•iar /)i.cc~ra.c.~iuaa i'raapati<•.ti !)aal~• `: ~: :: ' {vi) City's Obligation to Make Payments Not Deht:. Payments l.,imited to Non-"I~ax Revenges. Notwithstanding anything to the contrary herein, tEie obligations of the City pursuant to this Section 2(b) shall not be a general obligation debt or bonded indebtedness, ar a pledge of the general credit or taxes levied by the City, and the Company shall have rto right to have excises or taxes levied by the City, the State or any other political subdivision of the State for the perforniance of any obligations of the City herein. Consistent with Section 13 of Article VIII, Ohio Constitution, any payments or advances required to be made by the City pursuant to this Section 2(b) shall be payable solely from the City's non-tax revenues. Further, since Ohio law limits the City to appropriating monies for such expenditures only on an annual basis, the obligation of the City to make payments pursuant to this Section 2(b) sha[I be subject to annual appropriations by the City Council and certification by the Director of Finance of the City as to the availability of such non-tax revenues. For purpose of this Agreement, "raontax revem~es" shall mean alt moneys of the City which arc not moneys raised by taxation, to the extent available for such purposes, including, but not limited to the following: (A) grants from the United States of America and the State; (B) payments in lieu of taxes now or hereafter authorised to be used for the purposes by State statute; (C) fines and forfeitures which arc deposited in the City's General Fund; (D) fees deposited in the City's General Fund from properly imposed licenses and permits; (E) investment earnings on the City's General Fund and which are credited to the City's General Fund; (F) investment earnings of other funds of the City that are credited to the City's General Fund; (G) proceeds from the sale of assets which are deposited in the City's General Fund; (H) rental income which is deposited in the City's General Fund; and {I) gifts and donations. (c) Other City Incentives. (i) Conveyance of Property; City's Obligations and Termination. The City agrees to convey the Property to the Company in accordance with the Real Estate Purchase Contract (the "Real Estate Purchase Contract") by and between the City and the Company dated , 2009. The Parties agree that if the Company shall fail to consummate the purchase of the Property in accordance with the terms of the Real Estate Purchase Contract, then this Agreement shall terminate and the City shall have no obligations hereunder. (ii) Zoning_and Ptan Review Processes. The City agrees to work cooperatively with the Company and its consultants in connection with the preparation by the Company of the development plans for the Building to facilitate compliance by the Company with the City's zoning and planning standards and the related review process. (iii) Roadway Improvements. The City agrees to finance, construct and install necessary road improvements, including a traffic circle/roundabout at the intersection of Commerce Parkway and Perimeter Drive, a cul-de-sac and other improvements to Commerce Parkway, and any related guardrails as are determined by the City to be necessary. The Parties agree that the City's obligations pursuant to this Subsection 2(c)(iii} shall be completed in accordance with City's 5-Year Capital Improvement Program; provided, however, the City may, in its sole discretion, complete such roadway -4- .... ,. ': I)rurd ul O<Yn/lr~r -, ?tlll9 - h~ur /)iscus.~iou /'trrpu~c~.ti (hilt, `: :~: ': ''` improvements earlier if the City projects that Service Payments will be sufficient to provide for the payment of those costs. (iiij Bike Paths, Sidewalks and Li~htin~Improvements. The City agrees to finance, construct and install hike paths, sidewalks and lighting in proximity to the Property (as generally depicted on EXHIBIT C attached hereto and incorporated herein by reference) as such improvements are determined by the City to be necessary. (iv) Storm Water dmprovements. {A) General. "l'he Parties agree to work cooperatively on the design and construction of a storm water retention pond to be located on real property owned by the City at the comer of Perimeter Drive and Commerce Parkway. The Parties agree that the storm water retention pond will serve both the City and the Company's storm water retention needs in relation to the Property and other real property in proximity thereto. (B) Design and Construction. The Parties agree to work cooperatively on the design of the storm water retention pond. The Company agrees to construct the storm water retention pond at its expense to coincide with the construction of the Project. The Parties agree that the Company may construct landscaping improvements related to the storm water retention pond which exceed the standards required by the City, provided, however, the Company shall be responsible for the costs of construction and maintenance of those landscaping improvements which exceed the standards required by the City. {C) Reimbursement by the City. Within thirty (30) days following completion of the storm water retention pond and approval of the construction thereof by the City Engineer, the City will reimburse the Company for a portion of the cost of the storm water retention pond in an amount equal to the product of (1) the percentage of the total capacity of the storm water retention pond estimated by the City to be used by real property other than the Property multiplied by {2} the total cost of the storm water retention pond. For purposes of the preceding computation, the use and cost of the storm water retention pond shall be subject to the reasonable determination of the Ciiy. (D) Compliance with Laws. In connection with the completion of the storm water retention pond, the Company agrees that it 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 governmental unit {federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence affecting the site of the storm water retention pond or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in -5- •• •• '`` 1)ru%/ n(Ortubc•r ', Zf!O9 -- f•nr• I)i.~rus.viuu 1'rrrpo c.c Orrlt' ~` '~ ~' '~ force, including but not limited to the prevailing wage requirements of Chapter 41 15 of the Ohio Kevised Code, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encu-nbrances contained in any instruments, either of record or known to the Company, at any time in force affecting the site of the storn~ water retention pond or any part tl~ereoC (v) Easements for Public Infrastructure improvements. At no cost to the City, the Company agrees to grant to the City such easements or rights-of--way on the Property, and at such times, as the City determines are necessary for the construction and/or installation of the Public Infrastructure Improvements. (vi) State Incentives. The City agrees to work in a reasonable and cooperative manner with the Company to assist the Company in securing further funding from the State to further facilitate the Company's Project. Section 3. Tax Increment Financing Area. (a) General. The Company has agreed to cooperate in the creation of a tax increment financing area on the Property, and the City, by passage of the TIF Ordinance, has determined that it is necessary and appropriate and in the best interests of the City to (i) create a tax increment financing area, which area shall include the Property, and identify certain Public Infrastructure Improvements, which will directly benefit the Property, (ii) declare that Improvement is a public purpose and declared to be exempt from taxation for a period commencing with the first tax year that begins after the effective date of the TIF Ordinance and in which an Improvement first appears on the tax list and duplicate of real and public utility property and ending on the earlier of (A) thirty (30) years after such exemption commenced or (B) the date on which the City can no longer require service payments in lieu of taxes, all in accordance with the requirements of the TIF Statutes and (iii) provide for the Company, and its successors and assigns, to make Service Payments with respect to the Property to pay costs of the construction of the Public Infrastructure Improvements and for distribution to the School District. {b) Covenant to Make Payments in Lieu of Taxes. The Company, on behalf of itself and any subsequent Owners of the Property, hereby covenants to make Service Payments attributable to their respective period of ownership of the Property, all pursuant to and in accordance with the requirements of the TIF Statutes, and any subsequent amendments or supplements thereto, the TIF Ordinance and this Agreement. Service Payments will be made semiannually to the County Treasurer of Franklin County, Ohio (or to such 'I-reasurer's designated agent for collection of the Service Payments) on or before the final dates for payment of real property taxes 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 maybe amended from time to time. -6- .... :: L)ruJt u/ Octnhr~r ', ?(1 /l9 -- I nr /)icr ussiun f'rrrpu~es Onlt' `::: :•: ': Service Payments will be made in accordance with the requirements of the 'I~[F Statutes and the TIF Ordinance and, for the Property, wil[ be in the same amount as the real property taxes that would have been charged and payable against the improvement to the Property (after credit for any other payments received by the City under Ohio Revised Code Sections 319.302, 321.24, 323.152 and 323.156, or arty successor provisions thereto, as the same may he amended from time to time, and are referred to herein as the "Property Tux Rollhuck Pcrymerrts"} if it were not exempt from taxation pursuant to the TIF Ordinance, including any penalties and interest. No Owner will, under any circumstances, be required for any tax year to pay both real property taxes and Service Payments with respect to any portion ofthe Improvement, whether pursuant to Ohio Revised Code Section 5709.42, the TIF Ordinance or this Agreement. {c) Declaration of Covenants; Priority of Lien. It is intended and agreed, and it will be so provided by the Company in a declaration relating to the Property (the "Declarcrtior:") recorded by the Company within fifteen (15) days following conveyance of the Property by the City to the Company and substantially in the form attached hereto as 1N,XHIBIT D, that the covenants provided in Subsections 3(b), 3(c), 3(d), 3(i) and 3{j) of this Agreement are covenants running with the land and that they will, in any event and without regard to technical classification or designation, }egal or otherwise, be binding to the fullest extent permitted by law and equity for the benefit and in favor of and enforceable by the City and the School District against any Owner with respect to that Owner's period of ownership 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 Statutes and the TIF Ordinance enacted pursuant thereto. Such covenants running dvith 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 the City, and the Company will, upon the City'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 ofOhio 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. At the City's option and within fifteen (1 S) days of its request, the Company hereby agrees to provide such title evidence, at no cost to the City, as is necessary to demonstrate to the City's satisfaction that the covenants running with the ]and provided in the Declaration are prior and superior to any other liens, encumbrances or other title exceptions, except for those which are approved in writing by the City. Upon satisfaction of the Owner's obligations under this Agreement and termination of the Owner's obligation to make the Service Payments, the City will, upon the request of the Owner of the Property, execute an instrument in recordable form evidencing such termination and releasing the covenants running with the land set forth in the Declaration with respect to the Property. -7- ': `': •: ': !)raft o/~OcluGc~r• ~, Z(1l)r1 i~~nr l)iccrrc.~iort Yar~nosc'c Urrl~• - '::::: (d) Exemption Application. "fhe City and the Company agree to cooperate in the preparation, execution and filing of all necessary applications and supporting documents to obtain from time to time the T1F Exemption and to enable the City to collect Service Payments with respect to the Property. The City and the Company each agree to perforn~ 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 reyuired in connection with the TiF Exemption or the Service Payments. "fhe Owners authprize the City to file any applications necessary to obtain from time to time the TIF Exemption as provided in the TIF Ordinance. (e) Tax Increment Equivalent Fund. The City and the Company acknowledge the creation, pursuant to the TIF Ordinance, of the _ Project Municipal Public Improvement "I~ax Increment Equivalent Fund (the `'Fi~ncl") to be maintained in the custody of the City. The City and the Company acknowledge that the Fund shall receive all Service Payments and Property Tax Rollback Payments payable to the City (after providing for the payments to the School District as required by the TIF Ordinance) in respect of the Property as described in Section 3(b), with all such Service Payments and Property Tax Rollback Payments deposited into the Fund being used to remit payments to the School District and finance or pay the costs of the Public Infrastructure Improvements (as described in the TIF Ordinance). Any incidental surplus remaining in the Fund shall be disposed of as provided in Section 5709.43 of the Ohio Revised Code. (f} Construction of Proicct and Public Infrastructure Improvements. In consideration for the City's agreements herein, the Company agrees to construct, or cause the construction of, the Project. Inconsideration for the Company's agreement to construct the Project, the City agrees to construct, or cause to be constructed, the Public Infrastructure Improvements in accordance with Section 2(c}. (g) Termination. Upon satisfaction of the Owners' obligations under this Agreement and termination of the Owners' obligations to make the Service Payments, the obligations set forth in Section 3(b) shall terminate. (h) Estoppel Certificate. Within fifteen (I S) days after a request from any Owner of the Property, the City will execute and deliver to that Owner or any proposed purchaser, mortgagee or lessee of the Property, a certificate stating that with respect to the Property, if the same is true: (i) that this Agreement is in full force and effect; (ii) 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 (iii) such other matters as that Owner reasonably requests. (i) Information Reportin>;. The Owners covenant to cooperate in all reasonable ways with, and provide necessazy and reasonable information to, the designated Tax increment Review Council to enable that Tax Increment Review Council to review and determine annually during the term of this Agreement the compliance of the Owner with the terms of this Agreement. Any information supplied to such Tax Increment Review Council will be provided solely for the purpose of monitoring the Owner's compliance with this Agreement. -8- ... .: ': I)rnf! uf~(Jc•lohc•r ~, 2l1O9 - I~or d)i.ccussion /'rerp~sczs O~~lr ': ` '': '. The Owners further covenant to cooperate in all reasonable ways with, and provide necessary and reasonable information to the City to enable the City to submit the status report required by Ohio Revised Code Section 5709.40(1) to the Director of~ the Ohio Department of Development on or before March 31 of each year within the ternz of the Agreement. Any information supplied to the City will be provided solely for the purpose of enabling the City to comply with this requirement. (j) Nondiscriminatory Hiring Policy. The Owners will comply with the City's nondiscriminatory hiring policy set forth in the TIF Ordinance and adopted pursuant to Ohio Revised Code Section 5709.832. In furtherance of that policy, the Owners agree not deny any individual employment located upon the Property solely on the basis of race, re}igion, sex, disability, color, national origin, or ancestry. Section 4. Miscellaneous. (a) Assignment. This Agreement may not be assigned without the prior written consent of all non-assigning Parties. (b) Binding Effect. The provisions of this Agreement shall be binding upon the successors or assigns of the Parties. {c} Captions. The captions and headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. (d) Day for Performance. Wherever herein there is a day or time period established for performance and such day or the expiration of such time period is a Saturday, Sunday or legal holiday, then such time for performance shall be automatically extended to the next business day. (e) 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. (f) Events of Default and Remedies. 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 any Party hereto, such defaulting Party shall, upon written notice from any non-defaulting Party, 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 defaulting Party shall upon written notice from any non-defaulting Party 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 non-defaulting Party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such -9- ,. :: 1)~•u~t nj Uc•tohc~r -, ~IJIj~J - I'AY I)LS'C[/.Cti/OIf Pttrpn~~~s ll~rlti• :- '::: '': default or breach, including, but not limited to, proceedings to compel specific performance by the defaulting Party. (g) Executed Countemarts. 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. !t shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. (h) 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 taw. 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 the City or the Company other than in his or her official capacity, and neither the members of the legislative body of the City 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, obliga[ions or agreements of the City and the Company contained in this Agreement. (i) 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 the City, its agents and employees, and the Company, 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. (j) Indemnification. "fhe Company hereby agrees to indemnify and hold the City harmless and agrees to defend the City from and against any and all claims, Losses, damages, demands, liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs, expenses, or disbursements of any kind or nature which may arise as a result of (i) breach of this Agreement by the Company, (ii} anything done or omitted to be done through the negligence or intentional acts of the Company or of its staff, agents or employees, or (iii) any action by the Company or any of its offacers, directors, employees, or agents, which action requires the approval of the City and such has not been obtained. The City shall promptly give the Company written notice, at the address provided in this Agreement, of any and all claims, losses, damages, demands, liabilities, obligations, penalties, actions or rights of action, judgments, suits, costs, expenses, or disbursements of any kind or nature for which the City seeks indemnification. The obligation of the Company pursuant to this Section 4(j) shall survive termination of this Agreement without limitation. (k) Legal Authority. The Parties respectively represent and covenant that each is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. The Parties further respectively represent and covenant that this Agreement has, by proper action, been duly authorized, executed and delivered by the Parties and all steps necessary to be taken by the Parties have been taken to constitute this Agreement, and the covenants and agreements of the Parties contemplated herein, as a valid and binding obligation of the Parties, enforceable in accordance with its terms. -10- ,... . :: Urafl of Oc•tobc~r ?. Zf1119 - /•nr 1)iccu.~~sinn d'rarpo~rs (Inlr ;: '::: ': (1) Limit on Liability. Notwithstanding any clause or provision of this Agreement to the contrary, in no event shall City or the Company be liable to each other for punitive, special, consequential, or indirect damages of any type and regardless of whether such damages are claimed under contract, tort (including negligence and strict liability) or any other theory of law. (m) Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shat] be in writing and shall be deemed sufficiently given if actually received or ifhand-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. For purposes of this Agreement, notices shall be addressed to: (i) the City at: City of Dublin, Ohio 5800 Shier Rings Road Dublin, Uhio 43016-7295 Attention: Economic Development Director {ii) the Company at: Delta Energy Holdings, LLC. 2674 Federated Boulevard Columbus, Ohio 43235 Attention: President The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices; certificates, requests or other communications shall be sent. (n) Recitals. The Parties acknowledge and agree that the facts and circumstances as described in the Recitals hereto are an integral part of this Agreement and as such are incorporated herein by reference. {o) 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 shalt be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. {p} Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. -11- .. .. .- ~:: Ur•a~t of Oclol~er ', Z/11)4 -- /•ur I)iscus.ofort f'~rrposc~.c Only, ~- `: ': (REMAINDER OF PAGE (NTF.NTIONALL Y LEFT BLANK - ,S7GNAT(iRF PACE FOLLUWS1 -12- :•: :::` ': /)ruff uj(Jcto6rr ,', 2(1/ly - I•i~r 11i~cucsroal Prtrpu~crs U~slt• :: '::: ': tN WITVFSS WHEREOF, the City and the Company have caused this Agreement to be executed in their respective names by their duly authorized representatives, ail as of the date first written above. CI'T'Y OF' DIiBLIN, OII10 By: Printed:_ Terry D. Foe~(er Title:___ City Manas;er Approved as to Form: By: Printed: Stephen J. Smith Title: Director of Law DELTA ENERGY HOLDINCS9 LI,C By: Printed: Sharon 5. Tackett Title: President -13- • •~ ~ '° 1)ruft of Octoher ;', 2OfNl -- Fnr I)isc•tr.csion !'nrpoce~ OtrI`• =~ ~` ~` '~ FISCAL, nFFlCI:R'S CERTIFICA"1'I= "I~he undersigned, Director of Finance of the City under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City 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: , 2009 Marsha I. Grigsby Deputy City ManagerlDirector ofFinance City of Dublin, Ohio -I4- EXHIBIT A PR (1PFR'T'V The following map specifically identifies and depicts the general vicinity of the Property and constitutes part of this Exhibit A. The Property includes tax parcel 273- 010591-00. To be retained by City o ?MI6 0 ~0-'~c,~ a ~ Q O 4 o ~ To purchased a Delta ~Q~ 4.25-4.75 acres .~~'~,6; 5588 5579 ,~~.oy~ City o ned ~~, ~~c° par el 33 g3~ ,~O .oy~/ '::' :` ': 1)rn/1 r~ f (Jc.'tolr<~r " , r ' p _(Il/) -- /•i~r Di.~rrr.~sion d rrr o.cc~s Onlt' '': `: •:: ': )~';\HIBI'1~ B DESCRIP"r1ON OF Tf1E PUBLIC INFRAS'I'RUC"PURE IMPROVEMENTS The Public Infrastructure Improvements include the construction of the following improvements and all related costs (as defined in Ohio Revised Code Section 133.15(B))= • constructing a traffic circle/roundabout at tl~e intersection of Commerce Parkway and Perimeter Drive, • constnlcting a cul-de-sac and other improvements to Commerce Parkway, • constructing a guardrail on Emerald Parkway between certain termini, • constructing related storm water retention detention improvements, and • constructing improvements to Perimeter Drive from Emerald Parkway to Avery-MuirFeld Drive, together with constructing and installing curbs and gutters, public utilities which include water mains, fire hydrants, sanitary sewer, and storm sewer, stormwatcr improvements, burial of utility lines, gas, electric and communications service facilities {including fiber optics), street lighting and signs, sidewalks, bikeways, and landscaping (including scenic fencing and irrigation}, traffic signs and signalization, and including design and other related costs, any right-of--way or real estate acquisition, erosion and sediment control measures, grading, drainage and other related work, survey work, sail engineering, inspection fees and construction staking, any other necessary site improvements, and in each case, all other costs and improvements necessary and appurtenant thereto. B-1 ~--~ Q) O F-1 ¢+ ~~ ~ N ~1 ~I • ~ ~ W O __ C 6 o >, y'" y v` 4 7 4} ~~-d~ (% 3 J~ ai C C = C W~ ~ ~M. O 0 ~~ ~ ~ d O O ~~, `' ~ ~. q C O d N d ~ C O N h O Y 6 .~ r m ~ C m ~ N Q ~ N O ~ C N ~ G ~ V~ 3~ a ro~~ $mM a mn o ~ ~O I~ 1841 I ' - -:: l)ru~t rrf'Octrrbrr 7, ?tttt'I - 1-~nr /)isc•ussion Prrrpucc~s Ox/t. ': ':::- F;x1ilKrr D FORM OF DECLARA'T'ION OF COVENANTS "i'AX INCREMENT FINANCING DECLARATION OF COVENANTS This TAX INCREMENT FWANCtNG DECLARATION OF COVENANTS (this "Declaration") is made by DfiT.TA ENERGY HOLDINGS, LLC, an Ohio Iimited liability company, duly created in State of Ohio and authorized to do business in the State of Ohio (the "Declarant"), with its principal office located in ,Ohio. WITNESSETH: WHEREAS, the Declarant has acquired a certain parcel of real property located in the County of Franklin, Ohio (the "County"), a description of which real property is attached hereto as Exhibi4 A (collectively, the "Yropert}-"} (representing 1~ax Parcel No. ),having acquired such fee simple title by an instrument recorded in the Official Records of the Office of the Recorder of Franklin County, Ohio (the "Corurty Recorder'), as instrument number ;and WHEREAS, the Declarant contemplates making or having made certain private improvements to the Property (the "Project"); and WHEREAS, the City, by its Ordinance No. -09 passed , 2009 (the "TIF Ordinance"), has declared that 100% of the increase in the assessed value of the Property subsequent to the effective date of the TIF Ordinance (such increase hereinafter referred to as the "Inrprovemerrt" as further defined in Ohio Revised Code Section 5709.40 and the TIF Ordinance) is a public purpose and is exempt from taxation (such exemption referred to herein as the "TIF Exemption") for a period commencing with the fast tax year that begins after the effective date of the TIF Ordinance and in which an Improvement due to the construction of a new structure on the Property first appears on the tax list and duplicate of real and public utility property for that Property and ending on the earlier of (a) thirty (30) years after such commencement or (b) the date on which the City can no longer require service payments in lieu of taxes, all in accordance with the requirements of Ohio Revised Code Sections 5709.40 through 5709.43 (collectively, the "TIF Statutes") and the TIF Ordinance; and WHEREAS, it is necessary to construct or to cause to be constructed certain public infrastructure improvements (the "Public Ir~rastructure Improvements") specified in the TIF Ordinance, which the Declarant agrees will directly benefit the Property and the Project; and WHEREAS, the City has determined that it is necessary and appropriate and in the best interests of the City to provide for the Declarant and any subsequent owners) of the Property to make service payments in lieu of taxes with respect to the Property (the "Service Payments"), which Service Payments will be used to pay costs of construction of the Public Infrastructure Improvements and to compensate the Dublin City School District (the "Schoo! District"), all pursuant to and in accordance with the TIF Statutes and the TIF Ordinance; and D-1 WHEREAS, the Declarant and the City entered into that certain Economic Development and -I-ax Increment Financing Agreement dated , 2009 (the "Agreement"); and WHEREAS, this Declaration is being made and tiled of record pursuant to Section 3(c) of the Agreement; NOW, 7~HEREFORE, the Declarant, for itself and its successors and assigns to or of the Property, hereby declares that the forgoing recitals are incorporated into this Declaration by this reference and that the Property and any improvements thereon will be held, developed, encumbered, leased, occupied, improved, built upon, used and conveyed subject to the terms and provisions of this Declaration: Section 1. Service Payments. T'he Declarant agrees to make Service Payments for the Property attributable to its period of ownership of the Property, all pursuant to and in accordance with the requirements of the TIF Statutes, the T1F Ordinance and any subsequent amendments or supplements thereto. Service Payments for the Property will be made semiannually to the County Treasurer of Franklin County, Ohio (or to such County 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 that 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 maybe amended from time to time. Service Payments for the Property will be made in accordance with the requirements of the TIF Statutes and the TIF Ordinance and will be in the same amount as the real property taxes that would have been charged and payable against the Improvement to that Property (after credit for any other payments received by the City under Ohio Revised Code Sections 319-302, 321.24, 323.152 and 323.156, or any successor provisions thereto, as the same may be amended from time to time, and are referred to herein as the "Property Tax Rollback Payments") had the TIF Exemption not been granted, including any penalties and interest. The Declarant will not, under any circumstances, be required far any tax year to pay both real praperty taxes and Service Payments with respect to the Improvement to the Property, whether pursuant to Ohio Revised Code Section 5709.42, the TIF Ordinance, the Agreement or this Declaration. The Declarant acknowledges 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, applies to the Property and any improvements thereon. Section 2. Exemption Applications. The Declarant further agrees to cooperate in the preparation, execution and filing of all necessary applications to obtain from time to time the TIF Exemption and to enable the City to collect Service Payments with respect to the Property. The Declarant authorizes the City to file any applications necessary to obtain from time to time the TIF Exemption as provided in the TIF Ordinance. C-1 Section 3. Provision of Information. "fhe Declarant 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 the Agreement the compliance of the Declarant with the terns of the Agreement. The Declarant further agrees to cooperate in all reasonable ways with, and provide necessary and reasonable information to the City to enable the City to submit the status report required by Ohio Revised Code Section 5709.40{I} to the Director of the Ohio Department of Development on or before March 31 of each year. Section 4. Nondiscriminatory Hiring Policy. The Declarant agrees to comply with the City's nondiscriminatory hiring policy adopted pursuant to Ohio Revised Code Section 5709.832. In furtherance of that policy, the Declarant agrees that it will not deny any individual employment located upon the Property solely on the basis of race, religion, sex, disability, color, national origin, or ancestry. Section 5. Covenants to Run With the Land. 7'he Declarant agrees that the covenants contained in this Declaration shall be covenants running with the land and that they shall, in any event and without regard to technical classification or designation, legal or otherwise, be binding to the fullest extent permitted bylaw and equity, for the benefit and in favor of, and enforceable by, the City and the School District (each a "Beneficiary" and together the "Beneficiaries"), against the Property, any improvements thereon and the owner of the Property, without regard to whether any Beneficiary has at any time been, remains or is an owner of any land or interest therein to, or in favor of, which these covenants relate. Each Beneficiary has the right in the event of any breach of any covenant herein contained to exercise all of the rights and remedies and to maintain all actions or suits at law or in equity or in other groper proceedings to which it may be entitled to cure that breach. The Declarant further agrees that all covenants herein, whether or not these covenants are included by the owner of the Property in any deed to that owner's successors and assigns, shall be binding upon each subsequent owner and shall be enforceable by the Beneficiaries in the manner provided in this Declazation, and that any future owner of the Property or any successors or assigns of the Declazant shall be treated as the Declarant with respect to the Property for all purposes of this Declaration. The Declazant further agrees that the covenants herein will remain in effect so long as the Service Payments can be collected pursuant to the TIF Statuses and the TIF Ordinance unless otherwise modified or released in writing by the City in a written instrument filed in the Official Records of the County Recorder. The Declarant further agrees that the covenants herein 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 the City, and the Declarant will, upon the City's request, cause any and all holders of mortgages or other liens existing on the Property as of the time of recording of this Declaration to subordinate such mortgage or lien to those covenants running with the land. C- I At the City's option and at its request, the Declarant hereby agrees to provide such title evidence, at no cost to the City, as is necessary to demonstrate to the City's satisfaction that the covenants running with the land provided in this Declaration are prior and superior to any other liens, encumbrances or other title exceptions, except for those which are approved in writing by the City. IN WITNESS WHEREOF, the Declarant has caused this Declaration to be executed and effective as of , 200 DELTA ENERGY HOLDINGS, LLC By: Printed: Title: STATE OF OHIO } ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by ,the of Detta Energy Holdings, LLC, an Ohio limited liability company. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the date and year aforesaid. Notary Public This instnunent prepared by: Christopher J. Franzmann Squire, Sanders & Dempsey L.L.P. 41 S. High Street, Suite 2000 Columbus, Ohio 43215 C-I EXHIBIT D USE AGREEMENT THIS USE AGREEMENT (this "Agreement"} is made as of the ~ day of ~ ~~•Y , 200¢ (the "Effective Date") by and between the City of Dublin, Ohio, an Ohia municipal corporation (herein referred to as "Licensor") and Dorothy L. Thomas, Marian D. Thomas, Robert Thomas, William Thomas, and Andrew Thomas (collectively herein referred to as "Licensee"). PROPERTY As part of the consideration for Licensors purchase from Licensee of the real property situated in the City of Dublin, County of Franklin and State of Uhio, such real property being more particularly described on the attached Exhibit "A" ("Parcel B") and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor hereby grants to Licensee anon-exclusive, restricted license to f~ Parcel B. 2. TERM OF AGREEMENT Licensee shall have the right to occupy Parcel B from and after the Licensor's purchase of Parcel B from Licensee to the earlier of the following: (a} the date on which Licensee voluntarily vacates Parcel B, or (b} thirty (30) days following the date Licensor notifies Licensee in writing of its decision to terminate this Agreement (the "Possession Termination Date"}, unless this Agreement is terminated earlier as provided for herein (the "Term"). Licensor may, upon thirty {30) day's prior written notice to Licensee, terminate this Agreement at such time as Licensor so determines, in Licensor's sole discretion. 3. TERMINATION In the event Licensee does not comply N~ith any term, provision, condition or covenant of this Agreement, then at the option of Licensor, this Agreement and the terms hereby created, shall immediately terminate without any right on the part of Licensee to reinstate this Agreement by payment of any sum due or by other performance of any condition, term or covenant broken. 4. USE OF THE PROPERTY Licensee agrees to use Parcel B in a safe and careful manner and in compliance with all laws, ordinances, rules and regulations of all federal, state and local governmental agencies having jurisdiction, including without limitation all such laws, ordinances, rules Use Agreement Parce! B Page 1 of 6 and regulations relating to hazardous materials. Parcel B shall be used solely in the same manner as of the Effective Date, however, Licensee shall have the right to remove any and all items from Parcel B (and shall remove all personal property, debris and/or other non- attached hazardous substances) provided that upon the expiration of Licensee's right to possession, Parcel B shall be left in no worse condition than as of the Effective Date of this Agreement. Licensee agrees to provide to Licensor final lien waivers from any and all contractors employed by Licensee to perform any such removal of property. 5. INSURANCE: lNDEMNIFiCATiON (a) Casualty Insurance. Licensee shat{ cant' such insurance against loss of its property in, on or about Parcel B by fire and such other risks as are covered by all risk and extended coverage property insurance or other hazards as Licensee deems necessary. Licensor shall not be Eiable for any damage to Licensee's property on Parcel B caused by fire or other insurable hazards regardless of the nature or cause of such fire or other casualty, and regardless of whether any negligence of Licensor or Licensors employees or agents contributed thereto. Licensee releases Licensor of and from all liability for any such damage. Licensee agrees that its insurance policy or policies shall include a waiver of subrogation recognizing this release from liability. (b) Liabil' Insurance. Licensee agrees to procure and maintain during the term o#this Agreement a policy of liability insurance insuring Licensee against any and all losses, claims, demands or actions for injury to or death of any one or more persons and for damage to property in any one occurrence in Parcel B to the limit of not less than $500,000.00 and $1,000,000.00 general aggregate policy limit arising from Licensee's use of Parcel B. Licensee shall furnish #o Licensor certificates evidencing the continuous existence of such insurance coverage, which must name Licensor as an additional insured. All insurance companies must be licensed to do business in Ohio. Certificates of insurance will be provided at the time this Agreement is executed. Certificates of insurance are to specify notification to Licensor of cancellation or termination of policy not Tess than ten (10) days prior to cancellation or termination. (c) J,p,~plpj~y. Licensee shall indemnify Licensor, Licensors agents, employees, officers or directors, against all damages, claims and liabilities arising from any alleged products liability or from any accident or injury whatsoever caused to any person, firm or corporation during the demised term on Parcel B. The indemnification herein provided shall include all costs, counsel fees, expenses and liabilities incurred in connection with any such claim or any Use Agreement Parcel B Page 2 of 6 action or proceeding brought thereon. Licensee understands and hereby expressly agrees that Licensor shall have no obligation whatsoever to insure Parcel B. 6. UTILITIES AND SERVICES Licensee shall be solely responsible for a!I costs and expenses relating to its occupancy of Parcel B, including the costs of any and all utilities furnished to Parcel B, including heat, water, gas, electricity, te{ephone, snow removal and cleaning. 7. MAINTENANCE AND REPAIRS Licensee agrees to accept Parcel B in an "AS IS" condition. Licensor shall have no obligation whatsoever to maintain or repair Parcel B or any improvements located thereon. Licensee shall be responsible for all maintenance and repair obligations relating to Parcel B for the Term of this Agreement, and in such regard Licensee shall, throughout the Term of this Agreement and at its sole cost and expense. keep Parcel B in good order and condition such that at the end of the Term the same shall be left in no worse condition than that as of the Effective Date. Notwithstanding the foregoing, Licensee shall keep and maintain all portions of Parcel B throughout the Term of this Agreement in a condition such that the same comply with all applicable governmental laws and regulations of any kind. 8. END OF TERM a. All personal property awned by Licensee may be removed from Parcel B by Licensee no later than the end of the Term. At the end of the Term, Licensee shall vacate Parcel B. b. In the event of any breath(s) by Licensee of any of the warranties, covenants or obligations contained in this Agreement, other than a breach of Licensee's obligation to vacate Parcel B and return any and all keys to Licensor, Licensee shall pay to Licensor such amounf(s) as is (are) reasonably required to cure such breath(s). c. In the event that Licensee has not vacated by the end of the Term, Licensee shall forfeit to Licensor an amount equal to Five Hundred Dollars ($500) per day for each day that Licensee does not so vacate Parcel B, plus all legal and other costs incurred by Licensor as a result of Licensee's failure to so vacate. 9. NOTICES Use Agreement Parcel B Page 3 of 6 All notices, demands, requests, approvals, and consents required or permitted under this Agreement shall be in writing and shall be given by certified mail (postage prepaid, return receipt requested), hand delivery, or by nationally recognized overnight courier and shall be effective upon receipt or refusal of receipt by the noticed party at the following addresses: (a) if intended for Licensee, to: Richard L. llimond, Esq. 601 South High Street Columbus, Ohio 43215 (b) If intended for Licensor, to: Timothy Hensley City Manager City of Dublin 5200 Emerald Parkway Dublin, Ohio 43017 with copy to: Stephen J. Smith, Attorney at Law Schottenstein, Zox & Dunn A Legal Professional Association 41 South High Street, Suite 2600 Columbus Ohio 43215 10. MISCELLANEOUS a. The full and complete agreement between the parties is herein written and the parties shall not be bound by any ore! agreements, understandings, or conditions otherwise than are expressly set forth in this Agreement or any subsequent written agreement signed by the parties hereto. b. The parties agree that failure of either party to insist upon stric# and prompt performance of the covenants and agreements hereunder, or any of them, and the acceptance of such performance #hereafter shall not constitute or be construed as a waiver or relinquishment of such party's right thereafter to enforce the same strictly in the event of a continuous or subsequent default on the part of the defaulting party. c. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third person to create the relationship landlord and tenant or principal and agent or partnership joint venture or of any association between Licensor and Licensee. Use Agrcemrnt Parcel B Page 4 of 6 d. The representations and warranties made herein shall survive the closing of the Real Estate Purchase Agreement between Licensor and Licensee, dated 2000, and the termination of this Agreement. e. This Agreement may be executed in any number of counterparts, with each such counterpart being deemed to be an original instrument, but all such counterparts together shall consti#ute but one agreement. 11. Hazardous Substances During the Term of this Agreement, Licensee shall not suffer, allow, permit or cause the generation, accumulation, storage, possession, release or threat of release of any hazardous substance or toxic material, as those terms are used in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and any regulations promulga#ed thereunder, or any other present or future federal, state or local laws, ordinances, rules, and regulations. Licensee shall indemnify and hold Licensor harmless from any and all liabilities, penalties, demands, actions, costs and expenses (including without limitation reasonable attorney fees), remediation and response costs incurred or suffered by Licensor directly or indirectly arising due to the breach of Licensee's obligations set forth in this Section. Such indemnification shall survive expiration or earlier termination of this Agreement. At the expiration or sooner termination hereof, Licensee shall return Parcel B to Licensor in substantially the same condition as existed on the Effective Date #ree of any hazardous substances in, on or from Parcel B. Use Agreement PazceI B Page 5 of 6 (S) IN WITNESS WHEREOi=, the parties hereto, intending to be legally bound hereby, have duly executed this License Agreemen# on the day and year above written. LICENSEE: Dorothy .Thomas ~e ,,.,, Ids' ~7 d~~-,xa-a) Marian D. Thomas t ~~.- Robert Thomas ~~~~~ William Thomas ~t_ ~~~ Andrew Thomas LICENSOR: CfTY OF DUBLfN, OHIO, an Ohio municipal corporation - /> 8y: ~~~~n~X~ - Timothy C. Hensley ity Manager Use Agreement Parcel B Page 6 of 6 (6) Page 2 5.457 Acres 1) South 32° 42' 07" East, 44.85 feet to a fotittd I" O.D. iron pin with a yellow cap inscribed "$urgess and Nip1e"; 2} Along an arc of a curve to the right leaving a radius of 804.50 feet, a delta angle of 09° 03' 02", a chord bearing and distance of Soutli 35° 24' 38" East, I26.95 feet to a found 1" O.D. iron pin with a yellow cap inscribed "Burgess and Niple"; 3) Along an arc of a curve to the right having a radius of 552.50 feet, a delta angle of 10° 56' 49", a chord bearing and distance of South 25° 24' 43" East, 105.40 feet to a found 1" O.D. iron pin with a yellow cap inscribed "Burgess and Niple" in tl~e east line of said Parcel Three acid east line of said Lot 3, and being in the west line of the City of Dublin 4. i99 Acre tract (Parcel l WD Inst. 1 99802 1 0003 0 1 l 1); Thence, along part of the east line of said Parce! Tftree and part of the east tine of said Lot 3, and part of the west line of said 4.199 Acre tract, Sotith 03° l4' 21" West, 1 1.84 feet to a found I" O.D. iron pin with a yel{ow cap inscribed "Burgess and Niple"; Thence, across part of said Lot No. 3 and part of said Parcel Three the following three (3) courses: 1) South 42° 21' 21" West, 54.77 feet to a fottnci 1" O.D. iro~l pin with a yellow cap inscribed Burgess and Niple; 2) North 89° 44' 44" West, 140.65 feet to a found t" O.D. iron pin with a yellow cap inscribed Burgess and Niple; 3) Along an arc of a curve to tl}e left Laving a radius of 970.00 feet, a delta angle of 29° 58' 52", a chord bearing and distance of Soullt 75° I S' S4" West, 501.80 feet to a set iron pin in the west line of said Parcel Three and the east line of Lot No. 2 of said Metro North Business Park; Thence, along part of the west line of said Parcel Three and part of the east line of said Lot No. 2 and part of the east line of said Commerce Parkway, North 03° 18' S2" East, 517.09 feet to the place of beginning CONTAINING 5.457 ACRES subject however to all legal highways, easeme-tts, restrictions of record and of records in the respective utility offices. Continued... ., ~lu~rs~°r~ 2740 East Main Street Bexley, Ohio 43209-2577 (614) 235-8677 Telefax 235-4559 EXHIBiTA 5.457 Acres April 11, 2000 Revised May 3 2000 Situated in the Slate of Ohio, County of Franklin, City of Dublin, being part of Virginia Military Survey No. 2542 and part of Parcel Three conveyed to BancOhio National Bank of Columbus in Official Record Volume 07681 B-1 1, Recorder's Office, Franklin County, Ohio and being part of Lot 3 oflames Brown Subdivision in Complete Record Volume 102, Page 97, Clerk of Courts Oftce, Franklin County, Ohio (all references to recorded documents are on Gle in said Recorder's Off ce, unless otherwise noted) and being more particularly described as follows: Commencing at a set railroad spike in tl~e centerline of Post Road at the northwest corner of said Lot No. 3 and the northeast comer of Metro North Business Park, as the same is numbered and delineated upon tE~e recorded plat thereof, of record in Plat Book 66, Page 7l ; Thence, along the east line of Reserves "A" and "B" and part of iltie east line of Commerce Parkway (50 feet wide) of said Metro North Business Park, and part of the west line of said Lot No. 3 and part of the west line of said Parcel Three, South 03° 18' 52" West, 1,219.24 feet to a set iron pin in the south tine of Perimeter Drive and being the southwest corner of the City of Dublin 1.355 Acre tract (Parcel 47 WD Inst_ 199802100030106) and being ~'IlE TRUE POINT O[' QEGINN[NG• Thence, along the south line of said Perimeter Drive, part of the south line of said 1.355 Acre tract and across part of said Parcel Three and part of said Lot No. 3 the following three (3) courses: 1) North 46° 33' 23°' East, 43.29 feet to a set iron pin; 2) South 8b° 45' 36" East, 149.83 feet to a set iron pin; 3) Along an arc of a curve to the right having a radius of 531.46 feet, a delta angle of 36° 28' 4l", a chord bearitlg and distance of Soutli 68° 3l' IS" East, 332.68 feet to a set iron pin; Thence, across part of said Lot No. 3 and part of said Parcel Three, [he following three {3) courses: Continued... CJCOMPANY V Page 3 5.457 Acres The foregoing description was prepared from an actual field survey made by Myers Surveying Company Inc. in February 2000. Iron pins set are 30" x 1" O.D. with orange plastic caps inscribed "P.S. #6579", unless otherwise noted. Basis of bearings is the north line of Perimeter Drive as South 86° 45' 36°' East per Instrument No. 1 99802 1 00030 1 06. The above-described 5.457 Acre tract is encumbered by 0.147 Acres of area in either existing easements or right-of--way, leaving a net area of 5.310 Acres. Mye Surveyin Company inc. ~r~ ,~ TE P O (~, ~ fi Alberi J Mye . #6579 3 REOlkmh (2 1 1 9) ~ ~~ ~ ~ PRELIMINARY APPROVAL A ~~ FRANKLIN COUNTY ^*~.,,~,~.,. ENGINEERING DEPT. GATE: QS~C~ $Y: -~L-__"' EXHIBIT E ESCROW AGREEMENT THIS ESCROW AGREEMENT ("Agreement"} is made and entered into this _ day of 2009 by and between Energy Holdings, LLC, an Ohio limited liability company (hereinafter referred to as "Buyer"), offers to purchase from the City of Dublin, Ohia {hereinafter referred to as "Seller). BACKGROUND INFORMATION A. On October , 2009, Seller and Buyer entered into a certain Purchase Agreement ("Purchase Agreement"), whereby Seller agreed to sell and Buyer agreed to purchase a certain acre parcel of real property in Franklin County, Ohio. B. Pursuant to Section 15 of the Purchase Agreement, Buyer agreed to deposit the sum of $10,000.00 with an escrow agent. STATEMENT OF AGREEMENT NOW, THEREFORE, in consideration of the foregoing Background Information and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to escrow the following sum on the terms and conditions hereinafter set forth: 1. Appointment of Escrow Agent. Benchmark Title Agency, Inc., with an address of 250 West Street, Columbus, Ohio 43215 {"Escrow Agent"), is hereby appointed Escrow Agent and is hereby authorized and empowered to effectuate this Agreement on the terms and conditions set forth herein. By acceptance hereof, Escrow Agent agrees to said appointment and agrees to perform the obligations of the Escrow Agent in accordance herewith. 2. Deposit of Escrow Funds. Buyer has simultaneously herewith deposited with said Escrow Agent the surn of $10,000.00 (said amount, together with accrued interest thereon, shall hereinafter be referred to as the "Escrow Funds°'). Escrow Agent shall promptly deposit said sum in a separate money market account at a nations! banking association or other financial institution acceptable to Buyer and Seller. 3. Disposition of Escrow Funds. Escrow Agent shall hold the Escrow Funds as aforesaid until such time as any one of the following shall have occurred: (a) Escrow Agent shall have received, on or before expiration of the applicable contingency period set forth in the Agreement, written instructions executed by Buyer which {i) state that the Contingencies (as defined in the Purchase Agreement) have not been satisfied or waived, {ii) certifies that the notice of failure to satisfy or waive the Contingencies provided for in Section 3 of the Purchase Agreement has been given by Buyer to Seller on or prior to the date of such instructions and (iii) have attached thereto a copy of such notice of failure to satisfy or waive the Contingencies; in such event, the Escrow Agent shall promptly thereafter disburse the Escrow Funds to Buyer; or (b} Escrow Agent shat! have received written instructions executed by both Buyer and Seller directing Escrow Agent (i) to whom the Escrow Funds are to be disbursed, (ii} the manner and all pertinent instructions pursuant to which the Escrow Funds are to be disbursed and (iii) when the Escrow Funds are to be disbursed (such written instructions shalt hereinafter be referred to as "Joint Instructions"}; in such event, Escrow Agent shall disburse the Escrow Funds as directed by the Joint Instructions; or (c) Escrow Agent shall have received written instructions executed by either Buyer or Seller (the "Requesting Party"}, pursuant to which such Requesting Party asserts that it is entitled under the Purchase Agreement to receive the Escrow Funds and pursuant to which the information set forth in subparagraph (a} above is provided to Escrow Agent (such written instructions shall hereinafter be referred to as the "Unilateral Instructions"); in such event, the following shall apply: (s} Escrow Agent shall, within three (3} business days after receipt of such Unilateral Instructions, give written notice to the other party hereto (the "Other Party") that Escrow Agent has received such Unilateral Instructions from the Requesting Party and that Escrow Agent will disburse the Escrow Funds in accordance therewith unless, within five (5} business days following the date of Escrow Agents notice, said Other Party gives written notice to Escrow Agent that (A) said Other Party disagrees with the Requesting Party's assertion that it is entitled under the Purchase Agreement to receive the Escrow Funds, (B} states the reasons} for such disagreement and (C) objects to disbursement of the Escrow Funds by Escrow Agent in accordance with the Unilateral Instructions. (ii) In the event that Escrow Agent does not receive any such written objection to disbursement of the Escrow Funds in accordance with the Unilateral Instructions from the Other Party within five (5) business days following the date of the Escrow Agent's notice to the Other Party, Escrow Agent shall disburse the Escrow Funds as directed by the Unilateral Instructions. (iii) In the event that Escrow Agent does receive such written objection to disbursement of the Escrow Funds in accordance with the Unilateral Instructions from the Other Party within five (5) business days following the date of Escrow Agent's notice to the Other Party, Escrow Agent shall continue to hold the Escrow Funds hereunder until such time as {A} it receives Joint Instructions pertaining to disposition of the Escrow Funds, (B) it is ordered to make specific disposition of the Escrow Funds by a court of competent jurisdiction or (C) it deposits the Escrow Fund with a proper court as provided in Paragraph 5 hereof. Disbursement of the Escrow Funds by Escrow Agent as hereinabove provided will result in the termination of the terms and conditions of this Agreement. 4. indemnification of Escrow Agent. Buyer and Seller hereby agree that in consideration for the services to be performed by Escrow Agent, Escrow Agent shall not be held liable for misfeasance or nonfeasance. Further, Buyer and Seller agree to indemnify and save harmless Escrow Agent against all liabilities, claims, losses, damages, expenses, suits and actions whatsoever which might be brought against Escrow Agent arising out of said escrow unless such actions or failure to act arise out of gross negligence, willful misconduct and/or fraud of Escrow Agent. 5. Interpleader. {a) Buyer and Seller specifically agree that Escrow Agent is not obligated to disburse the Escrow Funds except as provided in Paragraph 3 hereof. If any question exists as to the disposition of the Escrow Funds, Escrow Agent may demand from Buyer and Seller Joint Instructions as to the disposition of such fund. If no such Joint Instructions are received by Escrow Agent within fifteen (15} business days of such demand, Escrow Agent may, at its sole discretion, either continue to hold the Escrow Fund hereunder, without liability to any party for so doing, or act in accordance with the following subparagraph (b). (b) If, after request therefor, as provided in the foregoing subparagraph 5(a), Escrow Agent does not timely receive Joint Instructions pertaining to the disposition of the Escrow Fund, Escrow Agent may, by written notice to Buyer and Seller demand that Buyer and Seller enter binding arbitration or litigation to determine to whom the Escrow Fund should be delivered. Alternatively, Escrow Agent may file suit in Interpleader in the proper court for the purpose of having the respective rights of Buyer and Seller adjudicated. Escrow Agent, upon initiation of such suit, may deposit with the court the Escrow Fund and upon giving notice thereof to Buyer and Seller, Escrow Agent shall be fully released and discharged from all further obligations hereunder with respect to the Escrow Fund. (c) Buyer and Seller agree to pay to Escrow Agent, in equal shares, all reasonable costs and reasonable attorney's fees incurred by Escrow Agent in connection with this Agreement, including but not limited to, those incurred in the resolution of disputes over the Escrow Funds or incurred in connection with any said interpleader action. 6. Miscellaneous. (a) Buyer's Federal Tax Identification Number is The account in which the Escrow Funds are deposited shall be opened using the Tax Identification Number of Buyer. All accrued interest shall be a part of the Escrow Fund and shall be disbursed to the party(ies} as provided herein. (b) The paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. (c) This Agreement shall be construed, interpreted, and governed by the law of the State of Ohio without reference to conflict of law principles. The parties agree that any dispute arising under this Agreement and any lawsuit involving this Agreement to which the Escrow Agent is a party shalf be heard only by a court of competent jurisdiction in Franklin County, Ohio. The parties waive any right to object to venue in Franklin County, Ohio for any reason whatsoever, including, but not limited to, forum non conveniens, lack of personal jurisdiction, or improper venue. (d) This Agreement is binding upon and shall inure to the benefit of the respective parties hereto, and their respective heirs, legs! representatives, successors and assigns. (e) For purposes hereof, a "business day" shall mean a day of the year, other than (i) a Saturday; (ii) a Sunday; or (iii) any day upon which The Huntington National Bank, Columbus, Ohio, is required or authorized by law to remain closed. (f) Any notices required hereunder sha{I be in writing, shall be transmitted by registered or certified mail, postage prepaid, return receipt requested. Notice shall be deemed given when so deposited in the United States Postal Service, addressed to the parties as set forth below: If intended for Buyer, to: Delta Energy Holdings, LLC 2674 Federated Boulevard Columbus, Ohio 43235 Attn: Sheri Tackett, President With a copy to: Jonathan E. Adkins, Esq. Attorney at Law Loveland & Brosius, LLC 50 W. Broad Street, Suite 3300 Columbus, Ohio 43215 Development If intended for Seller, to: City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attn: Dana McDaniel, W ith a copy to: Deputy City Manager/Director of Economic Gregory S. Baker, Esq. Schottenstein, Zox ~ Dunn A Legal Professional Association 250 West Street, 6th Floor Columbus, Ohio 43215 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. City of Dublin, Ohio Terry D. Foegler, City Manager Delta Energy Holdings, LLC Sheri Tackett, President The undersigned accepts the appointment as Escrow Agent under the foregoing Agreement and agrees to undertake and perform the obligations imposed upon Escrow Agent thereunder- The undersigned further acknowledges receipt of the aforesaid Escrow Funds and a copy of the Purchase Agreement referred to therein. Executed this _ day of , 2009. ESCROW AGENT: Benchmark Title Agency, Inc. BY: ITS: EXHIBIT F RETENTION/DETENTION POND EASEMENT AGREEMENT THIS RETENTION/DETENTION POND EASEMENT AGREEMENT (the "Agreement") is made and entered into this day of , 2009, by and between the City of Dublin, Ohio, an Ohio municipal corporation ("Grantor") and Delta Energy Holdings, LLC, an Ohio limited liability company ("Grantee"). WITNESSETH: WHEREAS, Grantor is the owner, in fee simple, of an approximate acre tract of real property located in Franklin County, Ohio, legally described on Exhibit "A", attached hereto and made a part hereof (the "Easement Parcel"); WHEREAS, Grantee is the owner, in fee simple, of an approximate acre tract of real property located in Franklin County, Ohio, which is situated adjacent to the Easement Parcel and is legally described on Exhibit °'B", attached hereto and made a part hereof (the "Grantee Parcel"). The Easement Parcel and Grantee Parcel are graphically depicted on Exhibit °C" attached hereto and made a part hereof; and WHEREAS, to facilitate the development of the Grantee Parcel, Grantee has requested that Grantor grant to Grantee for the benefit of the Grantee Parcel an easement on, over, across and through the Easement Parcel for retention/detention pond and storm water drainage purposes, all upon the terms and conditions hereinafter set forth, which easements Grantor is wiping to grant; and WHEREAS, Grantee has agreed to construct the retention/detention pond and related appurtenances in accordance with plans and specifications approved by Grantor and Grantee, and Grantor has agreed to reimburse Grantee for- its prorata share of the construction and future repair, maintenance and replacement thereof. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS In addition to the definitions set forth elsewhere in this Agreement, the following terms shall be defined as follows: 1.01 Occupant. The term "Occupant", as used herein, is hereby defined as the respective owner in fee simple of the Easement Parcel and the Grantee Parcel, their successors and assigns. 4}{I669789 i f Page 25 of 32 1.02. Permittee. The term "Permittee", as used herein, is hereby defined as the tenants, customers, employees, agents, licensees, and invitees of an Occupant. ARTICE_E 11 EASEMENTS AND RESTRICTIONS 2.01. Grant_ Subject to the limitations and conditions set forth in Section 2.03 hereof, Grantor does hereby grant, bargain, sell and convey to Grantee, its successors and assigns, an irrevocable, nonexclusive, perpetual right and easement on, over, across, under and through the Easement Parcel, which is legally described on Exhibit R_, for the purpose of storm water drainage, including but not limited to constructing, reconstructing, repairing, replacing and maintaining the Improvements (as hereinafter defined) on the Easement Parcel for the benefit of the Grantee Parcel and other real property owned and/or designated by Grantor from time to time. 2.02. Construction and Maintenance. For purposes of this Agreement, the term "Improvements" shalt mean the improvements shown on the plans and specifications prepared by Grantor and provided to Grantee (the "Plans"), which may include, without limitation, the following: (a) a retention/detention pond, {b) fountain(s), (b) lighting in and on the retention/detention pond and the Easement Parcel, {c} water quality equipment, including aeration systems, and (d) landscaping in areas surrounding the retention/detention pond on the Easement Parcel. Notwithstanding anything to the contrary contained herein or in the Plans, Grantor and Grantee agree that Grantee may construct landscaping improvements that exceed the standards required by Grantor so long as the same are approved by Grantor and Grantee is solely responsible for any excess costs associated with the construction, maintenance, repair and replacement thereof (the "Excess Costs"). Grantee shall continuously maintain the appearance of the Easement Parcel in a first class condition and state of repair, including, without limitation, mowing of grass, trimming, weeding and maintaining landscaped areas, regular clearing of debris, installing, repairing, maintaining and replacing {as necessary) fountain(s), lighting, aeration, electrical and other equipment and mechanical systems and regular monitoring and maintaining of the water quality. Grantee shall (i) carry on all construction, maintenance, replacements and repairs activity with diligence and dispatch, (ii) use its best efforts to complete the same in the shortest time possible under the circumstances, {iii) cause all construction, maintenance, replacement and repair activity to be performed in a good and workmanlike manner, (iv} promptly upon the completion of any such construction, maintenance, replacement and repair activity, restore such Easement Parcel as nearly as possible to its former condition and appearance. Further, in connection with the completion, repair, maintenance and replacement of the Improvements, Grantee 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 (H 1649789 3' Page 26 of 32 injunctions of any court, board, agency, commission, affice or other authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence affecting the Easement Parcel, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, including but not limited to the prevailing wage requirements of Chapter 4115 of the Ohio Revised Code, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Grantee, at any time in force affecting the Easement Parcel or any part thereof. 2.03. Conditions. It is specifically agreed that the rights and easements granted in Section 2.01 above are granted upon the condition that (a) neither Grantor nor Grantee shall take or permit any actions to be taken which shall materially interfere with the flow of storm water over and across the Easement Parcel or the use of the Easement Parcel for the purposes herein granted, (b) Grantor will not alter or modify in any material way the Easement Parcel, except to reconfigure the same to the extent necessary to accommodate storm drainage requirements for other real property owned and/or designated by Grantor, in which event such modifications shall not unreasonably interfere with the Grantee Parcel or storm drainage therefrom, and Grantor shall restore the Easement Parcel to substantially its previous condition upon completion of any such modifications, and (c) the proposed development on the Grantee Parce! will create storm water run-off from a drainage area of no more than acres. 2.04. Reimbursement. Within thirty (30) days following completion of the Improvements and approval thereof by the City Engineer, Grantor shall reimburse Grantee for a portion of the reasonable documented costs to construct the Improvements in an amount equal to the product of (1) the percentage of the total capacity of the storm water retention/detention pond reasonably estimated by Grantor to be used by real property other than the Grantee Parcel multiplied by (2) the total cost of the Improvements (excluding any Excess Costs), and subtracting from such product one-half of the reasonable out-of-pocket costs incurred by Grantor in preparing the Plans. Upon Grantee's completion of the Improvements and approval thereof by the City Engineer, Grantee shall bill Grantor on an annual basis for the reasonable costs and expenses incurred by Grantee with respect to Grantee's ongoing maintenance, repair and replacement obligations set forth in Section 2.02 above. The billing shall reasonably itemize the types of expenses (including any Excess Expenses which are the responsibility of Grantee) and shall state the calculations used to compute the sum assessed to Grantor. Grantee shall, upon request, furnish written evidence of payment of any costs and expenses and shall make such records available far audit during regular business hours upon ten (10) days' notice. Grantor shall reimburse Grantee for a portion of the reasonable documented costs to perform such maintenance, repairs and replacements in an amount equal to the product of (1) the percentage of the total capacity of the storm water retention/detention pond reasonably estimated by Grantor to be used by real property other than the Grantee Parcel multiplied by {2) the total cost of such maintenance, repairs and replacements (excluding any Excess Costs). Such (H 16av7803 ~ Page 27 of 32 amount shall be payable from Grantor to Grantee within thirty (30} days from the date of receipt of the billing. Grantor shall be released from liability for payment of any expense not billed within eighteen (18} months from the date that it was incurred by Grantee. Except in the event of a bona fide emergency, Grantee shall not carry on any major construction, major maintenance, major replacement or major repair activity in excess of $2,000.00 unless the approval of Grantor has been obtained which approval shall not be unreasonably withheld, conditioned or delayed. If Grantor disputes such an expenditure, #hen Grantor and Grantee shalt work in good faith to obtain the work for a price both can accept. In the event the parties fail to agree, then Grantee and Grantor shall submit the matter to binding arbitration. 2.05. Noncompliance. Should Grantee fail to perform its obligations hereunder, Grantor shall be entitled but shall not be required to perform such obligations, and Grantee shall reimburse Grantor for a portion thereof in accordance with this Article Il, provided that, except in the case of an emergency, Grantor shall first notify Grantee of the failure to maintain, repair and replace and shall permit Grantee to perform the obligation within thirty (30} days after receipt of notice. if Grantee repeatedly fails to perform its obligations in this Article II, Grantor shall be entitled to delegate such obligations to a third party who shall be deemed to be an agent of Grantee and Grantor, provided that Grantee is furnished thirty (30) days' prior notice thereof. 2.06 Insurance. Grantee shall maintain comprehensive commercial liability insurance with respect to the Easement Area with commercially reasonable limits approved by Grantor from time to time. Grantor shall be named as an additional insured on such policy. ARTICLE 111 NATURE OF EASEMENTS AND RIGHTS GRANTED 3.01. Run With the Land. Unless otherwise provided herein, the easements, restrictions and each and all of the rights, obligations, covenants and provisions contained herein are made for the direct benefit of the Grantee Parcel and other rea! property owned andlor designated by Grantor from time to time, constitute covenants running with the land and shall bind every Occupant of all or any portion of the Easement Parcel at any time from and after the date hereof. Upon the sale or conveyance of such parcel(s) by an Occupant, said Occupant shall no longer be liable hereunder for the performance of obligations hereby imposed and accruing subsequent to the date of transfer. ARTICLE iV NOT A PUBLIC DEDICATION 4.01. No Dedication. Except as otherwise contemplated herein, nothing contained herein shall, or be deemed to, constitute a gift or dedication of all or any portion of the Easement Parcel to the general public or for any public purpose ~Hitav;xv a ~ Page 28 of 32 whatsoever, it being the intention of the parties hereto that this Agreement be strictly limited to and for the uses and purposes expressed herein. ARTICLE V ENFORCEMENT 5.01. Rights upon Default. In the event of any violation or threatened violation by any party hereto or by any Occupant of any parcel of real property subject hereof, of any terms, restrictions, covenants and conditions provided for herein, either of the parties hereto, or their respective successors or assigns, as the case may be, shall have all rights available under the law, including, but not limited to, the righ# to enjoin such violation or threatened violation in a court of competent jurisdiction. Prior to the commencement of any such action to enjoin such violation or threatened violation, written notice of such violation or threatened violation shat! be given to all parties to this Agreement in the manner as required by Section 5.02, below. 5.02. Default. A party shall not be in default under any of the terms, restrictions, covenants or conditions hereof, unless and until such party shall have been served with written notice specifying the nature of the default and shall #hereafter fail to cure such default within thirty (30) days after the receipt of such written notice, or, if the default cannot be reasonably cured within said thirty (30) day period, said party shall be given such additional time as is necessary to cure such default so long as such party has commenced to cure the default and is proceeding diligently to complete the curing thereof. 5.03_ Indemnification. A party who is in default of any of the terms, restrictions, covenants or conditions hereof, shall indemnify the other party, its respective successors or assigns, as the case may be, from and against any and all costs, damages and expenses incurred by that party as a result of the defaulting party's failure to abide by the terms of this Agreement. In no event, however, shall the easements and restrictions herein granted be terminated as a result of the default of a party hereto. ARTICLE VI MISCELLANEOUS 6.01. Relationship to Parties. Nothing contained herein shall be deemed or construed by the parties hereto, or by any #hird party as creating the relationship of principal and agent, of partnership or of joint venture between the parties hereto, it being understood and agreed that no provision contained herein or any act of the parties hereto shall be deemed to crew#e any relationship other than grantor and grantee of the rights and easements set forth herein. 6.02. Notices. All notices required or permitted to be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been properly given if delivered by hand, nationally recognized overnight mail, or by certified mail, return receipt requested, postage prepaid, to the addresses set forth below, or to such ~H !6497891 ~ Page 29 of 32 other addresses as the parties may specify, from time to time, in writing, sent to the o#her party. Notices shall be effective upon receipt or refusal of receipt. If intended for Grantee, to: Delta Energy Holdings, LLC 2674 Federated Boulevard Columbus, Ohio 43235 Attn: Sheri Tackett, President If intended for Seller, to: City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attn: Legal 6.03. Waiver. Except to the extent that a party may have otherwise agreed in writing, no waiver by such party of any breach of the other party of any of its obligations, agreements or covenants hereunder shall be deemed to be a waiver of any subsequent breach of the same or of any other covenants, agreements or obligations, nor shall any forbearance by a party to seek a remedy for any breach by the other party be deemed a waiver of any rights or remedies with respect to such breach or any similar breach in the future. 6.04. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 6.05. Captions and Pronoun Usage. The captions and section numbers in this Agreement are for convenience only and shall not be deemed to be a part hereof. The pronouns used herein shall be considered as meaning the person, number and gender appropriate under the circumstances at any given time. 6.06. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. 6.07. Modification. This Agreement, or any easement, covenant or restriction set forth herein, may not be amended, terminated, rescinded or otherwise modified, in whole or in part, except by a written instrument executed by (a) the Occupant of the Grantee Parcel, (b) the Occupant of the Easement Parcel and (c) the holder of each and every mortgage encumbering all or any part of such property, and recorded with the County Recorder, Franklin County, Ohio. 6.08. Counterparts. This Agreement may be executed in any number of counterparts, with each such counterpart being deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. OH 1 ba9789 3 } Page 30 of 32 6.09. Benefit. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. Signed and acknowledged in the presence of: City of Dublin, Ohio Terry D. Foegler, City Manager Delta Energy Holdings, LLC Sheri Tackett, President STATE OF OHIO COUNTY OF FRANKLIN SS The foregoing instrument was acknowledged before me this day of 2009, by Terry D. Foegler, City Manager of the City of Dublin, Ohio, an Ohio municipa{ corporation, for and on behalf of said Ohio municipal corporation_ Notary Public STATE OF OHIO :SS COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me this day of , 2009, by Sheri Tackett, President of Delta Energy Holdings, LLC, an Ohio limited liability company, for and on behalf of said Ohio limited liability company. Notary Public (H !6697893 ( Page 31 of 32 This instrument prepared by: Gregory S. Baker, Esq. Schottenstein, Zox and Dunn A Legal Professional Association 250 West Street Columbus, Ohio 43215 EXH(BiTS: A-Easement Parcel Legal Description B-Grantee Parcel Legal Description C-Graphical Depiction of Easement Parcel and Grantee Parcel ~H16C97693 ~ Page 32 of 32