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Ordinance 044-18
Dayton Legal Blank, Inc. Ordinance No. 44-18 RECORD OF ORDINANCES Form No. 30043 Passed , 20 AN ORDINANCE AUTHORIZING THE CITE( MANAGER TO ENTER INTO AN INFRASTRUCTURE AGREEMENT FOR THE CONSTRUCTION OF THE WEST PLAZA OF THE RIVERSIDE CROSSING PARK AND THE COMPLETION OF RELATED STREETSCAPE ENHANCEMENTS TO NORTH HIGH STREET WHEREAS, the City has prepared a strategy for comprehensive development within an area of the City generally known as the Bridge Street District and that strategy was effected by the approval of the Bridge Street District Area Plan therefor by the City on July 1, 2013; and WHEREAS, the City prepared the Scioto River Park Master Plan for the development of new Park facilities for a park now known as Riverside Crossing Park and located along both sides of the Scioto River within the Bridge Street District, and that Master Plan was approved by the Dublin City Council on May 26, 2016; and WHEREAS, the City is currently constructing a pedestrian bridge over the Scioto River to enhance connectivity and walkability between the eastern and western portions of the Bridge Street District; and WHEREAS, the approved Riverside Crossing Park Master Plan recommends the implementation of pedestrian plazas on both the east and west sides of the park to enhance and encourage use of the pedestrian bridge, to create additional public spaces within the Bridge Street District, to provide enhanced access to Riverside Crossing Park, and to serve as the termini of the pedestrian bridge; and WHEREAS, the Dublin City Council approved the Basic Development Plan for the West Plaza of Riverside Crossing Park on December 5, 2016, and subsequently approved the final Site Plan for the Plaza on August 28, 2017; and WHEREAS, the plaza to be located at the west terminus of the pedestrian bridge, as further depicted and described on EXHIBIT A (referred to herein as the "Public ImprovomentsI, is located between private improvements currently being constructed by the Developer of projects located both to the north and to the south of this plaza; and WHEREAS, the City decided to defer the completion of certain street-scape improvements, primarily the brick sidewalks along the east side of North High Street and located adjacent to the new plaza and a new building being constructed by Crawford Hoying Development Partners, LLC just south of the proposed plaza, which streetscape improvements were originally included within the plans for the recently completed North High Street roadway improvement project but were deferred because it was determined that those improvements would be adversely impacted by the construction of the new plaza and building; and WHEREAS, in order to enhance coordination between the construction of the Public Improvements and the private improvements being constructed by the Developer, as well as to more efficiently cause the construction of the Public Improvements, the City has determined that it would be in the best interests of the City to contract with the Developer to provide for the construction and installation of the Public Improvements in the manner described herein; and WHEREAS, City Council passed Ordinance No. 44-18 on 20181 authorizing the execution and delivery of this Agreement. NOW, `THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, of the elected members concurring that: Section 1. The City Manager is hereby authorized to execute and deliver an Infrastructure Agreement with Crawford Hoying Development Partners, LLC for the Public Improvements for the West Plaza of Riverside Crossing Park and North High RECORD OF ORDINANCES Dayton Legal Blank, Inc. Ordinance No. 44-18 Form No. 30043 Passed _ Page 2 of 2 , 20 Street streetscape improvements in substantially the form attached to this Ordinance, together with changes or amendments thereto not inconsistent with this Ordinance and not substantially adverse to this City and which shall be approved by the City Manager and the Director of Law. The approval of changes or amendments thereto by those officials, and their character as not being substantially adverse to the City, shall be evidenced conclusively by their execution thereof. Section 2. This Ordinance sh ake effect on and be in force upon the earliest date p itted by law. Pas e this , da , 2018.Zr I /I yor - Presidirh OM6r ATTEST: Clerk of Council Amikk Office of the Cifty Manager 5200 Emerald Parkway* Dublin, 01143017-1090 U1 Phone.-, 614.410.4400 * Fax: 614.410.4490 Cityof Dublin To,: Members of Dublin City Council Fromm, Dana L. McDaniel, City Mana. Date,: June 28, 2018 Jnffilated By,,* Terry D. Foegler, Director of Strategic Initiatives RIM Res. Ordinance 44-18 -An Ordinance Authorizing the City Manager to Enter Into an Infrastructure Agreement for the Construction of West Plaza of the Riverside Crossing Park and the Completion of Related Streetscape Enhancements to North High Street. During the course of Council"s discussion on the proposed Ordinance 44-18, several issues wer raised, including the possibility of City Council revisiting the previously approved final Site Plan. Additional follow up information was requested, ==I� Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 28, 2018 Page 2 of 6 West Plaza Approval The following shows the West Plaza plans and design approved by Council on August 28, 2017. The key planning goals and design parameters that informed the approved West Plaza design is outlined for reference. t High Street T 6- �� MATERIALS LEGEND thn M 1 .B la.. B[Ick s- IB" 2111- 91 P :M 1 pa ne no lugs WI n alaeent Smell ts -___ _ _____ QWeed starIhonara w'm Powm der[oal Pal ____- _ �I '.....v_O a •,r. _. L OAla a.h llmep Concrete Beach BRanter OPedestrian Bridae Guaraal II stalrasseseel look nandral QRetalnmo wall with All stone Veneer Limestone veneer in venae ones Bridge Park West a Pedestrian Brlaoe I; P BuldingZ1 of ®Pedestrian ren Hand ra Transition Bridge Park West Building 2] ' Art mertra[ Controls O: Bull—ohms, i TOraPrec asl Con[ee stagsO yarledwipin'a[de [hlnnA OstaEllhea Aooreoate Malntenan[e sRlo BUDsnmma[rashed]Imesmaeaggregate Q Planters at Bulldlna Z1 00 I Reitauranitenanl spllloN seating lseasonal) O 3 y 00 _.r O 9 tu(n MYSK DUBLIN RIVERSIDE IPARK WEST PLAZA - FINAL SITE PLAN " MATERIALS PUN o ,o a L 4 • The West Plaza is relatively modest in size and has firmly established development constraints around all of its perimeter (Z1 building, Z2 building, North High Street and its intersection with Rock Cress Parkway, and the new pedestrian bridge). The need to engage and integrate with this constrained physical environment was a key factor. It's important to note that this constraint also creates an opportunity for a more intimate setting than the east plaza given the smaller size, while also accommodating significant pedestrian traffic flow. Additionally, the smaller West Plaza is animated by the outdoor seating areas of restaurants abutting both its northern and southern edges. • The shape and configuration of the seating and landscape areas within the West Plaza are intentionally designed to direct the predominant east -west movement of pedestrians and bicyclists in this area, while providing some modest seating and landscaping that does not compete with or obstruct the views of the bridge and the other new surrounding developments. • Although the West Plaza is not intended to be a major programmed space for events, which will be better accommodated in the east plaza and park, as well as in the new library plaza, people will likely gather from time to time in the West Plaza. Therefore, the space also must be welcoming and accommodating, without feeling cluttered. As a result of earlier Council discussions, the scale of two of the larger bench planters was lowered to Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 28, 2018 Page 3 of 6 provide at -grade planter areas, with granite borders, and seating areas and landscape borders were specified as granite, rather than architectural concrete. We believe the approved seating and landscaping features accomplish these goals. • Material quality and long term maintenance have always been critical design considerations. The seating and landscape edge made of granite accomplishes these goals. Regardless of the specific details that emerge from the City's final Site Plan for the East Plaza and park, it is clear a reasonable amount of durable, curvilinear seating, similar to that approved for the West Plaza, will be a meaningful part of those plans. The shape of the seating successfully engages with the sloped topography of the park, and helps funnel and direct pedestrians and bicyclists on the West Plaza. As noted during the June 25, 2018 discussion, the form of the seating designed in the current West Plaza construction plans will be compatible with its east side counterparts (see graphic below and attached). The same is true of the materials related to the approved brick pavers, lighting fixtures and bollards that differ between the east and west plaza areas to better relate to their respective contexts. Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 28, 2018 Page 4 of 6 1 e• /a � EAST PLAZA SEATING EENTS; Infrastructure Agreement 4V The proposed infrastructure agreement is before Council at this time because it represents the best opportunity to successfully facilitate the construction of the plaza, within the context of the abutting construction activity. Based on the City's plans and timeframe, Crawford Hoying has used the plaza space as its primary access and mobilization site for the construction of Z2, and is now ready to accommodate the construction of the West Plaza, which will coordinate with the pedestrian/bike bridge and the North High streetscape improvements. Concurrently, as part of building Z2 construction, Crawford Hoying has agreed to fund and construct several foundations and wall systems that accommodate the West Plaza, further facilitating the plaza construction schedule. The timing of the infrastructure agreement also responds to the Administration's desire to have firm bid pricing from Brackett Builders before presenting the agreement authorization ordinance to Council. Should Council approve the request on July 2, 2018, the Infrastructure Agreement will be executed following its effective date in 30 days. Implications of Amending the West Plaza Final Development Plan Council questioned the implications of further extending the project schedule and the potential to consider a redesign of the West Plaza. There are a number of important timing -related issues that should be considered if Council were to choose to move in such a direction. The Administration moved forward with the completion of the construction drawings for the West Plaza following Council's formal approval of the final Site Plan on August 28, 2017. Due to construction coordination and phasing concerns, the Administration has continually recommended the project be implemented utilizing an Infrastructure Reimbursement Agreement with Crawford Hoying as the preferred construction procurement/delivery method. This approach was identified Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 28, 2018 Page 5 of 6 as the most beneficial method of implementing this particular project in the context of the on- going construction of numerous public and private projects within this highly congested area, with very little physical space for construction mobilization. The design of the plaza and its construction sequencing has required especially careful coordination with the adjacent projects (Z1 and Z2 buildings, North High Street and the new pedestrian bridge), and the design and bidding processes of both these public and private parties have contemplated this procurement approach. After Council approved the final site plan, all parties have been moving forward in good faith with the design and construction of all public and private projects. This has necessitated extensive design coordination including code -required egress to and from tenant spaces in the Z1 and Z2 buildings (all Z2 parking is provided in the Z1 building parking facility); access routes that meet slope and width conditions for compliance with pedestrian accessibility requirements to, from and across the sloping plaza (see attached plan approved by the United States Access Board); fully coordinating the North High Street streetscape design with all of these other public and private improvements; coordinating pedestrian bridge elevations and railing systems; and the design of an overall storm water plan to serve all these projects, just to name a few. The consideration of redesigning portions of the West Plaza creates significant implications for the completion of the project and project timeline. Removing or replacing the seating and planters impacts the foundation systems underlying the plaza surface, site grading, power distribution, and pedestrian routing, among other components. If directed to undertake this change, a major redesign of the plaza and the construction documents would be required because of the integrated nature of the approved plan. Project Schedule If Council directs staff to revise the West Plaza design, the current plans and bids will not be retained, and the Infrastructure Agreement and associated appropriation request would not occur at this time. Next steps would be to undertake a redesign in response to Council's direction, submit revised plans to Council for review and approval as an amended final Site Plan (which is a zoning required step), then proceed to the preparation of new construction drawings. In total, this would delay the start and completion of construction by about six to nine months. This new timeframe would therefore move the initiation of plaza construction to early 2019, with its completion occurring well after the construction of Z2, which is expected to be completed in late 2018. This delay would likely necessitate the use of a conventional City construction procurement process, with completion forecast to occur by late 2019, according to the City's construction advisors and consultants. The negative impacts of such a delay and redesign would include: • Extended construction disruption period within this portion of the Historic District including the continued loss of several on -street parking spaces, the temporary pedestrian walkways shifted within the North High Street roadway, and construction activity extending beyond the completion of the new CML Dublin Branch and Downtown Dublin Parking Garage. • Less readiness to complete or accommodate the construction "tie in" of the West Plaza and new pedestrian/bike bridge, creating additional project coordination risk. • Likely cost escalation and a more expensive construction procurement method. • Difficulty in providing, and need to accommodate during plaza construction, interim access for Z2 tenants to meet the occupancy requirements. Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 28, 2018 Page 6 of 6 • Disruptive to new Z2 residents and customers, including their temporary access to parking and egress accommodations, since plaza construction would occur as Z2 lease -up and occupancy are occurring. Recommendation Given the information provided above, the Administration recommends Council approve Ordinance No. 44-18 at the second reading/public hearing on July 2, 2018, authorizing the City Manager to enter into an Infrastructure Agreement for the Construction of West Plaza of the Riverside Crossing Park and the Completion of Related Streetscape Enhancements to North High Street, consistent with the approved final Site Plan for the West Plaza. 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McDaniel, City Mana ec' Date: 3un e 21, 2018 InIffi"ated Terry Foegler, Director of Strategic Initiatives IN byX Re: Ordinance 44-18, An Ordinance Authorizing the City Manager to Enter Int an Infrastructure Agreement for the Construction of West Plaza of the Riverside Crossing Park and the Completion of Related Streetscape Enhancements to North High Street I Infrastructure Rel'*mbursement Agreement and Background Crawford Hoying Development Partners, LLC has recently completed the development of its Z1 b I building located immediately north of the west plaza, and is currentiy constructing the smaller Z2 building located to the immediate south of the west plaza. The west plaza site is currently owned by the developer (who is actively using the site for the construction of the Z2 building), Amo re Ord. 44-18 — Infrastructure Agreement for West Plaza and StreetscapeEnhancements to North High Street June 21, 2018 Page Memo re. Ord. 44-18 — Infrastructure Agreement for West Plaza and Streetscape Enhancements to North High Street June 21, 2018 Page 3 of 3 L�IWUNR The Administration recommends that Council approve Ordinance 44-18, authorizing the City Manager to enter into an Infrastructure Agreement for the Construction of West Plaza of the Riverside Crossing Park and the completion of related streetscape enhancements to North High Street at the 2nd reading/public hearing on July 2,, 2018. 5.16.18 INFRASTRUCTURE AGREEMENT (West Plaza of Riverside Crossing Park and Completion of Related Streetscape Enhancements to North High Street) This INFRASTRUCTURE AGREEMENT (the Agreement") is made and entered into as of this day of , 2018 (the "Effective Date"), by and between the CITY OF DUBLIN, OHIO (the "City"), a municipal corporation duly organized and validly existing under the Constitution and laws of the State of Ohio (the "State") and its Charter, and CRAWFORD HOPING DEVELOPMENT PARTNERS, LLC ("Developer" and together with the City, the "Parties"), an Ohio limited liability company, under the circumstances summarized in the following recitals (the capitalized terms not defined in the recitals are being used therein as defined in Article 1). RECITALS: WHEREAS, the City has prepared a strategy for comprehensive development within an area of the City generally known as the Bridge Street District and that strategy was effected by the approval of the Bridge Street District Area Plan therefor by the City on July 1, 2013; and WHEREAS, the City is constructing a pedestrian bridge over the Scioto River to enhance connectivity and walkability between the eastern and western portions of the Bridge Street District; and WHEREAS, the construction of the pedestrian bridge calls for the creation of public plazas at each end of the bridge to enhance and encourage use of the bridge, to create additional public spaces within the Bridge Street District, and to provide enhanced access to Riverside Crossing Park; and WHEREAS, the plaza to be located at the west terminus of the pedestrian bridge along with adjacent streetscape improvements along North High Street, as further depicted and described on EXHIBIT A (referred to herein as the "Public Improvements"), is located between and adjacent to private improvements constructed by the Developer to the north and the south of the public plaza; and WHEREAS, in order to enhance coordination between the construction of the Public Improvements and the Developer's private improvements and to more efficiently cause the construction of the Public Improvements, the City has determined that it would be in the best interests of the City to contract with the Developer to provide for the construction and installation of the Public Improvements in the manner described herein; and WHEREAS, City Council passed Ordinance No.44-18 on 2018, authorizing the execution and delivery of this Agreement; Now, THEREFORE, in consideration of the promises and covenants contained herein, and to induce the Developer to proceed with the construction of the Public Improvements, the Parties agree as follows: (END OF RECITALS) ARTICLE I Section 1.1. Use of Defined Terms. In addition to the words and terms defined elsewhere in this Agreement or by reference to another document, the words and terms set forth in Section 1.2 have the meanings set forth in Section 1.2 unless the context or use clearly indicates another meaning or intent. Section 1.2. Dermitions. As used herein: "Agreement'' means this Infrastructure Agreement (West Plaza of Riverside Crossing Park) by and between the City and the Developer and dated as of the Effective Date. Authorized City Representative" means initially the City Manager of the City. The City may from time to time provide a written certificate to the Developer signed on behalf of the City by the City Manager designating an alternate or alternates who has the same authority, duties and powers as the initial Authorized City Representative. Authorized Developer Representative" means initially Brent Crawford, in his capacity as Manager for the Developer. The Developer may from time to time provide a written certificate to the City signed on behalf of the Developer by its Manager or General Counsel designating an alternate or alternates or a substitute who has the same authority, duties and powers as the initial Authorized Developer Representative. "Change Directive" means such instrument executed and delivered pursuant to Section 4.7. "Change Order" means such instrument executed and delivered pursuant to Section 4.6. "City" means the City of Dublin, Ohio, an Ohio municipality. "City Council" means the City Council of City. "Completion Certificate" has the meaning set forth in Section 4.3(a). "Construction Documents" means this Agreement, the Drawings and Specifications, the bids for the Public Improvements as approved by the Authorized City Representative, and the Guaranteed Maximum Price Construction Contract between Developer and Brackett Builders, as construction contractor, as such documents may be revised or supplemented from time to time with the approval of the Authorized City Representative and the Authorized Developer Representative. "Cost of the Work" means the actual costs of the design and construction of the Public Improvements, the approved budget for which is attached as E%BIBrr D. Costs of the Work may include construction labor and material costs, related plan review and inspection fees, design and engineering fees as approved by the Engineer, site preparation costs, legal fees related to the review -2- of project construction documents, and other costs necessary and appurtenant thereto, all as further described in the approved Construction Documents. "County" means the County of Franklin, Ohio. "Developer" means Crawford Hoying Development Partners, LLC, a limited liability company organized and existing under the laws of the State, including any successors or assigns thereof permitted under this Agreement. "Director of Finance" means the Director of Finance of the City. "Drawings and Specifications" has the meaning set forth in Section 5. 1, which Drawings and Specifications contain the detailed construction plans and specifications for the Public Improvements. "Effective Date" means the date as defined in the preambles of this Agreement. "Engineer" means the City Engineer, or any architectural or engineering firm licensed to perform architectural and engineering services within the State of Ohio and appointed by the City with the consent of the Authorized Developer Representative, which consent may not be unreasonably withheld or delayed. "Engineer's Completion Certificate" has the meaning set forth in Section 4.3(b). "Event ofDefaulf' means an Event of Default under Section 7.1. "Force Majeure" means acts of God; fires; epidemics; landslides; floods; strikes; lockouts or other industrial disturbances; acts of public enemies; acts or orders of any kind of any governmental authority; insurrections; riots; civil disturbances; arrests; explosions; breakage or malfunctions of or accidents to machinery, transmission pipes or canals; partial or entire failures of utilities; shortages of labor, materials, supplies or transportation; lightning, earthquakes, abnormal adverse weather that could not have been reasonably anticipated and which affects critical path work; or any other cause or event not reasonably within the control of the Developer or the City, as the case may be, excluding, however, the inability of the Developer to obtain financing for its obligations hereunder. "Project Fund" means the account or fund created by the City into which the amounts required pursuant to this Agreement shall be deposited and disbursed to pay for the Cost of the Work pursuant to this Agreement. "Public Improvements" means the construction of the west plaza for the pedestrian bridge spanning the Scioto River and North High Street streetscape improvements, and all appurtenances thereto, as generally depicted on EXHIBIT A and which will be more specifically described in the Construction Documents, as the same may be modified pursuant to this Agreement. "State" means the State of Ohio. -3- "Work" means the construction of the Public Improvements in accordance with this Agreement. Section 1.3. Interpretation. Any reference in this Agreement to City or to any officers of City includes those entities or officials succeeding to their functions, duties or responsibilities pursuant to or by operation of law or lawfully performing their functions. Any reference to a section or provision of the Constitution of the State, or to a section, provision or chapter of the Ohio Revised Code includes such section, provision or chapter as modified, revised, supplemented or superseded from time to time; provided, that no amendment, modification, revision, supplement or superseding section, provision or chapter is applicable solely by reason of this paragraph if it constitutes in any way an impairment of the rights or obligations of the Parties under this Agreement. No presumption will apply in favor of any Party in the interpretation of this Agreement or in the resolution of any ambiguity of any provision hereof. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa, the terms "hereof', "hereby", "herein", "hereto", "hereunder" and similar terms refer to this Agreement; and the term "hereafter" means after, and the term "heretofore" means before, the date of this Agreement. Words of any gender include the correlative words of the other gender, unless the sense indicates otherwise. References to articles, sections, subsections, clauses, exhibits or appendices in this Agreement, unless otherwise indicated, are references to articles, sections, subsections, clauses, exhibits or appendices of this Agreement. Section 1.4. Captions and Headings. The captions and headings in this Agreement are solely for convenience of reference and in no way define, limit or describe the scope of the intent of any article, section, subsection, clause, exhibit or appendix of this Agreement. Section 1.5. Conflicts between this Agreement and other Construction Documents. Where there is a conflict between this Agreement and the other Construction Documents, the conflict will be resolved by providing the better quality or greater quantity and compliance with the more stringent requirement. If an item is shown on the Drawings and Specifications but not specified, the Developer will provide the item of the same quality as similar items specified, as determined by the Engineer. If an item is specified but not shown on the Drawings and Specifications, it will be located as directed by the Engineer. END OF ARTICLE 1) -4- ARTICLE II GENERAL AGREEMENT AND TERM Section 2.1. General Agreement Among Parties. For the reasons set forth in the Recitals hereto, which Recitals are incorporated herein by reference as a statement of the public purposes of this Agreement and the intended arrangements among the Parties, the Parties will cooperate in the manner described herein to facilitate the design and construction of the Public Improvements. Section 2.2. Term of Agreement. This Agreement is effective as of the Effective Date and continues until the Parties have satisfied their respective obligations as set forth in this Agreement, unless sooner terminated in accordance with the provisions set forth herein. Section 2.3. No Agency Relationship. The City and the Developer each acknowledge and agree that in fulfilling its obligations under this Agreement, the Developer acts as an independent contractor of the City and not as an agent of the City. END OF ARTICLE 11) - 5 - ARTICLE III REPRESENTATIONS AND COVENANTS OF THE PARTIES Section 3.1. Representations and Covenants of Citv. City represents and covenants that: (a) It is a municipal corporation duly organized and validly existing under the Constitution and applicable laws of the State and its Charter. (b) To the City's knowledge, it is not in violation of or in conflict with any provisions of the laws of the State or of the United States of America applicable to City which would impair its ability to carry out its obligations contained in this Agreement. (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of City, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to City, including its Charter, and do not and will not conflict with or result in a default under any agreement or instrument to which City is a party or by which it is bound. (d) This Agreement to which it is a Party has, by proper action, been duly authorized, executed and delivered by City and all steps necessary to be taken by City have been taken to constitute this Agreement, and the covenants and agreements of City contemplated herein are valid and binding obligations of City, enforceable in accordance with their terms. (e) To the City's knowledge, there is no litigation pending or threatened against or by City wherein an unfavorable ruling or decision would materially and adversely affect City's ability, to carry out its obligations under this Agreement. (f) It will do all reasonable things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor public body. For purposes of this Section 3. 1, the term "knowledge" means the actual knowledge of the City Manager, without further investigation, as of the Effective Date. Section 3.2. Representations and Covenants of the Developer. The Developer represents and covenants that: (a) It is a limited liability company duly organized and validly existing under the applicable laws of the State. (b) To the Developer's knowledge, it is not in violation of or in conflict with any provisions of the laws of the State or of the United States of America applicable to the Developer that would impair its ability to carry out its obligations contained in this Agreement. -6- (c) It is legally empowered to execute, deliver and perform this Agreement and to enter into and carry out the transactions contemplated by this Agreement. To the knowledge of the Developer, that execution, delivery and performance do not and will not violate or conflict with any provision of law applicable to the Developer, and do not and will not conflict with or result in a default under any agreement or instrument to which the Developer is a party or by which it is bound. (d) This Agreement to which it is a Party has, by proper action, been duly authorized, executed and delivered by the Developer and all steps necessary to be taken by the Developer have been taken to constitute this Agreement, and the covenants and agreements of the Developer contemplated herein are valid and binding obligations of the Developer, enforceable in accordance with their terms. (e) To the Developer's knowledge, there is no litigation pending or threatened against or by the Developer wherein an unfavorable ruling or decision would materially and adversely affect the Developer's ability to carry out its obligations under this Agreement. (f) It will do all things in its power in order to maintain its existence or assure the assumption of its obligations under this Agreement by any successor entity. For purposes of this Section 3.2, the term "knowledge" means the actual knowledge of the Authorized Developer Representative, without a duty to investigate. (END OF ARTICLE 111) -7- ARTICLE IV DESIGN AND CONSTRUCTION OF PUBLIC IMPROVEMENTS Section 4.1. General Considerations. In consideration of the Developer's promise to construct the Public Improvements, the City agrees to disburse amounts on deposit in the Project Fund to reimburse or otherwise pay the Developer for the Cost of the Work in accordance with Section 6.2 and any other applicable provisions of this Agreement and accept the completed Public Improvements in accordance with and subjectto the provisions of Section 4.4. Section 4.2. Design, Construction and Payment of Costs of the Public Improvements. The City has caused the Public Improvements to be designed. The Developer shall cause the construction of the Public Improvements in accordance with the Construction Documents. The Developer shall be solely responsible for any Cost of the Work necessary to complete the Public Improvements that exceed the approved budget attached as EXHIBIT D (as the same may be modified by approved Change Order), including, without limitation, increases in the Cost of the Work caused by corrections to deficient or nonconforming Work. The Developer will perform the work and pay the Cost of the Work in accordance with this Agreement and the other Construction Documents, and Developer will provide all necessary and inferable labor, materials, services and acts in connection with the design, construction and completion of the Public Improvements, regardless of whether or not reflected in the Construction Documents. The Public Improvements must be built in a manner that is consistent with the applicable City requirements of the Bridge Street District development regulations. In order to reduce the Costs of the Work, the City agrees to waive the related plan review and inspection fees for the Public Improvements and the Developer agrees to construct the Public Improvements without any development fee or other charge for overhead or general conditions; provided that the foregoing does not preclude payment of contracting fees, overhead or general conditions to third party contractors pursuant to the Construction Documents approved by the City and Developer. The Developer will finally complete construction of the Public Improvements, including correction of deficiencies and other punchlist items, by December 31, 2018, subject to Force Majeure events and other schedule extensions as Developer may be entitled to under this Agreement. The Parties agree that Brackett Builders will serve as the general contractor for the Public Improvements. The Developer shall, or shall cause Brackett Builders, to request and receive bids on the Public Improvements in one or more packages, the number and form of which shall be subject to the reasonable approval of the Authorized City Representative. The Developer agrees that with respect to each bid package, the Developer shall, or shall cause Brackett Builders to, request and receive no less than three (3) responsible bids, except as may otherwise be approved in writing by the Authorized City Representative. The Developer shall award, or shall ensure that Brackett Builders awards, the subcontract for each bid package only after receiving the approval of the Authorized City Representative, which approval shall not be reasonably withheld. The Developer will enter into all construction contracts in its own name and not in the name of the City. The Developer will provide to the City drafts of all construction contracts to which the Developer is a party at least seven (7) days prior to execution thereof in order to allow the City to review and comment on the same. All such contracts shall include the completed and executed contract addendum in the form attached hereto as EXHIBIT B, and no Written Requisitions shall be paid with respect to any such construction contract until the Developer has provided to the City a copy fully executed contract, including the completed and executed contract addendum. The Developer will supervise, perform and direct the Work utilizing qualified personnel, and in accordance with the standards of care normally exercised by construction organizations performing similar work. The Developer agrees that it will obtain or provide any needed temporary construction easements for the Public Improvements. The Developer further agrees that it will dedicate or transfer or cause to be dedicated or transferred to the City, at no cost to the City, Lot 1 as shown on the approved Final Plat known as Dublin West Plaza, recorded of record in Plat Book 123, Page 82, as Instrument Number 201802090018654, upon completion and acceptance of the Public Improvements as provided in Sections 4.3 and 4.4 and in accordance with all applicable City platting and dedication requirements. Section 4.3. Completion of the Public Improvements. The Public Improvements will be deemed completed upon fulfillment of the following conditions: (a) Receipt of written notice (the "Completion Certificate") from the Authorized Developer Representative that the Public Improvements are complete and ready for final acceptance by the City, which notice must (i) generally describe all property acquired or installed as part of the Public Improvements; (ii) state the Cost of the Work, and (iii) state and constitute the Developer's representation that the construction of the Public Improvements have been completed substantially in accordance with the Construction Documents, all costs then due and payable in connection therewith have been paid, there are no attested account claims under Revised Code Section 1311.25 et seq. ("Attested Account Claims"), and all obligations, costs and expenses in connection with the Public Improvements have been paid or discharged. (b) Receipt from the Engineer of a final Certificate of Completion (the "Engineer's Completion Certificate") stating that to the best of the Engineer's knowledge, information and belief, and on the basis of the Engineer's on-site visits and inspections, that the Public Improvements have been satisfactorily completed in accordance with the terms and conditions of the Construction Documents, including all punch list items, that the construction of the Public Improvements have been accomplished in a manner that conforms to all then applicable governmental laws, rules and regulations; and that the Public Improvements have been approved by the relevant public authorities. Section 4.4. Acceptance of the Public Improvements. The City has no obligation to accept the Public Improvements until: (a) the Public Improvements are satisfactorily completed in accordance with the Construction Documents, as evidenced by the Engineer's Completion Certificate and properly dedicated as public rights-of-way and easements to the City; -9- (b) the City receives the Completion Certificate, the Engineer's Completion Certificate, copies of the approval letters issued by relevant public authorities as referenced in Section 4.3 herein, and all documents and instruments to be delivered to the City pursuant to the Construction Documents; (c) the City has received evidence reasonably satisfactory to it that all liens on the Public Improvements, including, but not limited to, tax liens then due and payable, the lien of any mortgage, and any Attested Account Claims, have been released, or, with respect to Attested Account Claims, security therefor has been provided pursuant to Section 5.8; and (d) the Developer has provided the City "as constructed record drawings" consisting of reproducible record drawings showing significant changes in the Public Improvements made during construction and containing such annotations as may be necessary for someone unfamiliar with the Public Improvements to understand the changes that were made to the original Construction Documents. The above conditions do not alleviate the Developer from City inspections of the Public Improvements during construction. A schedule shall be provided and inspection of the Work shall be coordinated with the City at least seventy-two (72) hours in advance for key installations such as, but not limited to, sanitary, storm sewer and granite curb. Key installations shall be established within two (2) weeks of from the date of submittal of the schedule. The City agrees to accept the Public Improvements and the rights-of-way allocable thereto upon satisfaction of the conditions listed in (a) though (d) of this Section. The City acceptance of the Public Improvements does not relieve the Developer of its responsibility for defects in material or workmanship as set forth in Section 5. 10, nor any future obligations that may be imposed on the Developer in connection with the development of property abutting or near the Public Improvements. Section 4.5. Extensions of Time. If the Developer or the City is delayed in the commencement or progress of its obligations hereunder by a breach by the other Party of its obligations hereunder, or by Force Majeure, and other schedule extensions as Developer may be entitled to under this Agreement or other agreements between the parties, then the time for performance under this Agreement by the Party so delayed will be extended for such time as is commercially reasonable under the circumstances. Section 4.6. Chances in the Work. After the execution of this Agreement, and without invalidating this Agreement, the Authorized Developer Representative, the Authorized City Representative and the Engineer by written agreement (a "Change Order") may agree to changes in the Work. Changes in the Work will be performed under applicable provisions of this Agreement and the Construction Documents, unless otherwise provided in the Change Order. A Change Order must be in the form attached as EXHIBIT C, be prepared by the Engineer and be signed by the Authorized City Representative, the Authorized Developer Representative and the Engineer, stating their agreement upon (a) the change in the Work, (b) any adjustment of the Cost of the Work, and (c) any extension of the time for performance under this Agreement. -10- Approval of each Change Order is subject to the City's standard review and approval process for contract change orders. Section 4.7. Chance Directives. The City, without invalidating the Agreement, may order changes in the Work consisting of additions, deletions or other revisions, including proposed adjustments to the Developer's time for performance, through a written directive signed by the City and issued to the Developer ("Change Directive"). In the absence of an agreed-upon method, adjustments in the Cost of the Work and contract time for performance resulting from a Change Directive shall be determined by the Developer's cost of labor, material, equipment, and reasonable overhead, unless the Parties agree on another method for determining the cost or credit. Pending final determination of the total cost of a Change Directive, the Developer may request payment for Work completed pursuant to the Change Directive. The City will make an interim determination of the amount of payment due for purposes of certifying a Written Requisition. When the City and Developer agree on adjustments to the Cost of the Work and contract time arising from a Change Directive, the Engineer will prepare a Change Order. The Developer shall proceed diligently with the performance of the changes in the Work following receipt of and as set forth in the Change Directive pending Developer's receipt of a fully executed Change Order. (END OF ARTICLE IV) - 11 - ARTICLE V FURTHER PROVISIONS RELATING TO THE DESIGN AND CONSTRUCTION OF THE PUBLIC INFRASTRUCTURE IMPROVEMENTS Section 5.1. Construction Documents. The City has caused to be prepared the working drawings, plans and specifications that are necessary to be prepared in connection with the Work (collectively, the `Drawings and Specifications") as well as the other Construction Documents. The Drawings and Specifications and the Construction Documents shall be instruments of service through which the Work to be executed is described. Section 5.2. Prevailing Wage. The City designates its Contract & Procurement Coordinator as the prevailing wage coordinator for the Public Improvements (the `Prevailing Wage Coordinator"). The Developer acknowledges and agrees that the Public Improvements are subject to the prevailing wage requirements of Chapter 4115 of the Ohio Revised Code and all wages paid to laborers and mechanics employed on the Public Improvements must be paid at not less than the prevailing rates of wages of laborers and mechanics for the classes of work called for by the Public Improvements in Franklin County, Ohio, which wages must be determined in accordance with the requirements of that Chapter 4115. The Developer must comply, and the Developer must require compliance by all contractors and must require all contractors to require compliance by all subcontractors working on the Public Improvements, with all applicable requirements of that Chapter 4115, including any necessary posting requirements. The Developer (and all contractors and subcontractors thereof) must cooperate with the Prevailing Wage Coordinator and respond to all reasonable requests by the Prevailing Wage Coordinator when the Prevailing Wage Coordinator is determining compliance by the Developer (and all contractors and subcontractors thereof) with the applicable requirements of that Chapter 4115. The Prevailing Wage Coordinator will notify the Developer of the prevailing wage rates for the Public Improvements. The Prevailing Wage Coordinator will notify the Developer of any change in prevailing wage rates within seven (7) working days of receiving notice of such change from the Director of the Ohio Department of Commerce. The Developer must immediately upon such notification (a) ensure that all contractors and subcontractors receive notification of any change in prevailing wage rates as required by that Chapter 4115; (b) make the necessary adjustment in the prevailing wage rates and pay any wage increase as required by that Chapter 4115; and (c) ensure that all contractors and subcontractors make the same necessary adjustments. The Developer must, upon beginning performance of this Agreement, notify the Prevailing Wage Coordinator of the commencement of Work, supply to the Prevailing Wage Coordinator the schedule of the dates during the life of this Agreement on which the Developer (or any contractors or subcontractor thereof) is required to pay wages to employees. The Developer (and each contractor or subcontractor thereof) must also deliver to the Prevailing Wage Coordinator a certified copy of its payroll relating to laborers performing the Work within two (2) weeks after the initial pay date, and supplemental reports for each month thereafter and in connection with any Written Requisition exhibiting for each such employee paid any wages, the employee's name, current address, social security number, number of hours worked during each day of the pay periods covered and the total for each week, the employee's hourly rate of pay, the employee's job -12- classification, fringe payments and deductions from the employee's wages; provided, however, that the Developer must submit such payroll reports weekly if construction of the Public Improvements is contemplated to last less than four (4) calendar months. The certification of each payroll must be executed by the Developer (or contractor, subcontractor, or duly appointed agent thereof, if applicable) and recite that the payroll is correct and complete and that the wage rates shown are not less than those required by this Agreement and Chapter 4115 of the Ohio Revised Code. The Developer must provide to the Prevailing Wage Coordinator a list of names, addresses and telephone numbers for any contractors or subcontractors performing any Work on the Public Improvements within a reasonable amount of time after they become available, and the name and address of the bonding/surety company and the statutory agent (if applicable) for those contractors or subcontractors. The Developer may not contract with any contractor or subcontractor listed with the Ohio Secretary of State for violations of Chapter 4115 of the Ohio Revised Code pursuant to Section 4115.133 of the Ohio Revised Code. Prior to final payment under this Agreement, the Developer (and any contractor or subcontractor thereof) must submit to the Prevailing Wage Coordinator the affidavit required by Section 4115.07 of the Ohio Revised Code. Section 5.3. Traffic Control Requirements. The Developer is responsible for ensuring the provision, through contractors or otherwise, of all traffic control devices, flaggers and police officers required to properly and safely maintain traffic during the construction of the Public Improvements. Without limiting the generality of the foregoing, the Developer shall use its best efforts to maintain traffic flow on existing streets during construction of the Public Improvements and minimize the time period during which such streets are closed. All traffic control devices must be furnished, erected, maintained and removed in accordance with the Ohio Department of Transportation's "Ohio Manual of Uniform Traffic Control Devices" related to construction operations. The Developer must also submit to City for review and approval by City a plan for construction ingress and egress and maintain construction traffic in accordance with that plan. Section 5.4. Equal Opportunitv Clause. The Developer must, in all solicitations or advertisements for employees placed by or on behalf of the Developer, state that the Developer is an equal opportunity employer. The Developer will require all contractors and will require all contractors' subcontractors to include in each contract a summary of this equal opportunity clause. Section 5.5. Insurance Requirements. The Developer must furnish proof to the City at the time of commencing construction of the Public Improvements of comprehensive general liability insurance naming the City and its authorized agents as an additional insured. The minimum limits of liability for the required insurance policies may not be less than the following unless a greater amount is required by law: (a) Commercial General Liability ("CGL'): Bodily injury (including death) and property damage with a combined single limit of $1,000,000 each occurrence, with a $2,000,000 aggregate; $100,000 for damage to rented premises (each occurrence); and $1,000,000 for personal and advertising injury. CGL must include (i) premises -operations, -13- (ii) explosion and collapse hazard, (iii) underground hazard, (iv) independent contractors' protective, (v) broad form property damage, including completed operations, (vi) contractual liability, (vii) products and completed operations, with $2,000,000 aggregate and to be maintained for a minimum period of one (1) year after acceptance of the Public Improvements pursuant to Section 2.4, (viii) personal injury with employment exclusion deleted, and (ix) stopgap liability for $100,000 limit. The general aggregate must be endorsed to provide that it applies to the Work only. (b) Automobile liability, covering all owned, non -owned, and hired vehicles used in connection with the Work: Bodily injury (including death) and property damage with a combined single limit of $1,000,000 per person and $1,000,000 each occurrence. (c) Such policies must be supplemented by an umbrella policy, also written on an occurrence basis, to provide additional protection to provide coverage in the total amount of $5,000,000 for each occurrence and $5,000,000 aggregate. The Developer's insurance is primary to any insurance maintained by the City. (d) The Developer must obtain an additional named insurance endorsement for the CGL and automobile liability coverage with the following named insureds for covered claims arising out of the performance of the Work under the Construction Documents: (i) the City of Dublin; (ii) Dublin City Council members, executive officers, and employees; (iii) the Engineer and its employees; and (iv) the Developer, to the extent that any construction activities are being staged or undertaken on real property owned by the Developer. (e) Insurance policies must be written on an occurrence basis only. (f) Products and completed operations coverage will commence with the certification of the acceptance of the Public Improvements pursuant to Section 4.4 and will extend for not less than two (2) years beyond that date. (g) The Developer must require all contractors and subcontractors to provide workers' compensation, CGL, and automobile liability insurance with the same minimum limits specified herein, unless the City agrees to a lesser amount. (h) If the Work includes environmentally sensitive, hazardous types of activities (such as demolition, exterior insulation finish systems, asbestos abatement, storage -tank removal, or similar activities), or involves hazardous materials, the Developer shall maintain a pollution liability policy with (1) a per -claim limit of not less than $1,000,000 and (2) an annual -aggregate limit of not less than $1,000,000, covering the acts, errors and/or omissions of the Developer for damages (including from mold) sustained by -14- the City by reason of the Developer's performance of the Work. The policy shall have an effective date, which is on or before the date on which the Developer first started to perform any Work-related services. Upon submission of the associated certificate of insurance and at each policy renewal, the Developer shall advise the City in writing of any actual or alleged claims which may erode the policy's limits. (i) If the Work includes professional design services, Professional liability insurance from the Developer's design professional and any other consultant and subcontractor that are providing professional design services without design -build exclusions with limits not less than $1,000,000 per claim and $2,000,000 annual aggregate. The professional liability policy shall have an effective date which is on or before the date on which the Developer first started to provide any Work-related services. Upon submission of the associated certificate of insurance and at each policy renewal, the Developer shall advise the City in writing of any actual or alleged claims which may erode the professional liability policy's limits. The Developer's design professional and any consultants and subcontractor that are providing professional design services shall maintain such coverage as required by this Subsection for no less than five (5) years after the earlier of the termination this Agreement or final completion of all Work. 0) the Developer shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Work is located, property insurance on an "all-risk" or equivalent policy form, including builder's risk, in the amount of the initial Cost of the Work, plus the value of subsequent modifications and cost of materials supplied and installed by others, comprising total value for the entire Work at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final disbursement has been made as provided in Section 6.3 or until no person or entity other than the City has an insurable interest in the property required by this Section to be covered, whichever is later. This insurance shall include interests of the City, the Developer and subcontractors of any tier. The Developer shall provide a copy of a certificate of insurance, upon request, to the City evidencing such coverage before an exposure to loss may occur. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least thirty (30) days' prior written notice has been given to the Developer and City. Each policy of insurance and respective certificate of insurance must expressly provide that no less than ten (10) days prior written notice be given to City in the event of cancellation, non- renewal, expiration or material alteration of the coverage contained in such policy. Section 5.6. City Income Tax Withholdings. The Developer will withhold and pay, will require all contractors to withhold and pay, and will require all contractors to require all subcontractors to withhold and pay, all City income taxes due or payable with respect to wages, salaries, commissions and any other income subject to the provisions of Chapter 35 of the Dublin City Code. - 15 - Section 5.7. Compliance with Occupational Health and Safetv Act of 1970. The Developer and all contractors and subcontractors are solely responsible for their respective compliance with the Occupational Safety and Health Act of 1970 under this Agreement. Section 5.8. Provision of Securitv for Attested Account Claims. To the extent any subcontractor, material supplier or laborer asserts and Attested Account Claim against the Public Improvements, the City shall proceed as is required by Revised Code Section 1311.25 et seq. which may include detaining funds that are due and payable to Developer until a sufficient amount has been detained to cover the Attested Account Claim until such time that the Attested Account Claim is released or discharged. Prior to authorizing any contractor to commence work on the Public Improvements, the Developer shall request a "Notice of Commencement" for the Public Improvements from the City, who shall provide a copy to the Developer and make it available as required under Revised Code Section 1311.252. The Developer shall provide a copy of the Notice of Commencement to its subcontractors and any known lower tier subcontractors, and the Developer shall further require its subcontractors to provide a copy of the notice to any of the lower tier subcontractors. The Developer shall also post a copy of the Notice of Commencement in a conspicuous location at the project site. Section 5.9. Securitv for Performance. The Developer will furnish prior to commencement of construction of the Public Improvements a performance and payment bond from the general contractor for the Public Improvements in an amount not less than the Cost of the Work that names the City as obligee in the form provided by Section 153.57 of the Ohio Revised Code. In the event of an increase in the Cost of the Work as a result of a Change Directive or Change Order, the Developer shall proportionately increase the amount of its bond. If notice of any change affecting this Agreement is required by a provision of the bond, giving the notice shall be the Developer's responsibility. Any bond must be executed by sureties that are licensed to conduct business in the State as evidenced by a Certificate of Compliance issued by the Ohio Department of Insurance. All bonds signed by an agent must be accompanied by a power of attorney of the agent signing for the surety. If the surety of any bond so furnished by a contractor declares bankruptcy, become insolvent or its right to do business is terminated in Ohio, the Developer, within five (5) days thereafter, will substitute another bond and surety or cause the contractor to substitute another bond and surety, both of which is acceptable to the City and the Developer. The Developer must provide to the City prior to commencement of any Work by any contractor a copy the security for performance provided by the Developer or contractor pursuant to this Section. Section 5.10. Further Developer Guaranties Relating to the Public Improvements. The Developer guarantees that it will cause to be exercised in the performance of the Work the standard of care normally exercised by well-qualified engineering and construction organizations engaged in performing comparable services in central Ohio. The Developer further warrants that the Work and any materials and equipment incorporated into the Work will be free from defects, including defects in the workmanship or materials (without regard to the standard of care exercised in its performance) for a period of one (1) year (two (2) years for storm sewer improvements dedicated to the City) after written conditional acceptance of the Work by City. The guarantee provided in this Section is in addition to, and not in limitation of, any other guarantee, warranty or remedy provided by law, a -16- manufacturer or the Construction Documents. The Developer shall require in all construction contracts for the Public Improvements to provide that the City is a beneficiary of any guarantees provided by the Contractor and entitled to enforce those guarantees. If defective Work becomes apparent within the warranty or guarantee period, the City will promptly notify the Developer in writing and provide a copy of said notice to the Engineer. Within ten (10) days of receipt of said notice, the Developer will visit the site of the Work in the company of one or more representatives of the City to determine the extent of the defective work. The Developer will, within a reasonable time frame, repair or replace (or cause to be repaired or replaced) the defective Work, including all adjacent Work damaged as a result of such defective Work or as a result of remedying the defective Work. If the defective Work is considered by the City to be an emergency, the City may require the Developer to visit the site of the Work within one day of receipt of said notice. The Developer is fully responsible for the cost of temporary materials, facilities, utilities or equipment required during the repair or replacement of the defective Work. If the Developer does not repair or replace defective Work within a reasonable time frame, the City may repair or replace such defective Work and charge the cost thereof to the Developer or the Developer's surety. Work that is repaired or replaced by the Developer is subject to inspection and acceptance by the Engineer and City and must be guaranteed by the Developer for one (1) year from the date of acceptance of the corrective work by the City. Section 5.11. Developer Representations as to Personal Propertv Taxes; Sales Taxes. The Developer represents that at the time of the execution of this Agreement, it is not charged with any delinquent personal property taxes on the general tax list of personal property of the County. Further, the Developer will require all contractors to execute an affidavit in the form set forth on E%BIBrr E, a copy of which certificate must be delivered to the Authorized City Representative prior to the commencement of any work by that contractor or subcontractor. The Parties intend that building and construction materials incorporated into the Public Improvements be exempt from state and local sales taxes. The City will cooperate with the Developer to provide sales tax exemption certificates to contractors in order to exempt those materials. Section 5.12. Indemnity. (a) The Developer releases the City and each officer, official and employee thereof (collectively, the "Indemnified Parries" and each an "Indemnified Party") from, agrees that the Indemnified Parties are not liable for, and indemnifies each Indemnified Party against, all liabilities, obligations, damages, costs and expenses (including without limitation, reasonable attorneys' fees) asserted against, imposed upon or incurred by an Indemnified Party (collectively, the "Liabilities" and each a "Liability"), other than any Excluded Liability as hereinafter defined, arising out of, in connection with or resulting from the execution and delivery of this Agreement, the consummation of the transactions provided for herein and contemplated hereby, liens of subcontractors and suppliers of any tier, and all activities undertaken by the Developer or the City pursuant to this Agreement in furtherance of the development of the Public Improvements. The Developer shall require in all construction contracts for the Public Improvements to provide that the City is a beneficiary of any indemnitees provided by the Contractor and entitled to enforce those indemnitees. -17- "Excluded Liability" means each Liability to the extent it is attributable to (i) the gross negligence or willful misconduct of any Indemnified Party, or (ii) the failure of the City to comply with any of its obligations under this Agreement. Excluded Liabilities include, without limitation, any Liabilities settled without the Developer's consent and any Liability to the extent that the Developer's ability to defend that Liability is prejudiced materially by the failure of an Indemnified Party to give timely written notice to the Developer of the assertion of that Liability. (b) Upon notice of the assertion of any Liability, the Indemnified Party must give prompt written notice of the same to the Developer. (c) Upon receipt of written notice of the assertion of a Liability, the Developer has the duty to assume, and must assume, the defense thereof, with full power and authority to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party has the right to approve any obligations imposed upon it by compromise or settlement of any Liability or in which it otherwise has a material interest. (d) At its own expense, an Indemnified Party may employ separate counsel and participate in the defense of any Liability; provided, however, if it is ethically inappropriate for one firm to represent the interests of the Developer and the Indemnified Party, the Developer must pay the reasonable legal expenses of the Indemnified Party in connection with its retention of separate counsel. The Developer is not liable for any settlement of any Liability effected without its written consent, but if settled with the written consent of the Developer, or if there is a final judgment for the plaintiff in an action, the Developer agrees to indemnify and hold harmless the Indemnified Party except only to the extent of any Excluded Liability. (e) This Section survives the termination of this Agreement. (END OF ARTICLE V) _18_ ARTICLE VI PAYMENT OF COST OF THE WORK Section 6.1. Deposit of Monies in the Proiect Fund. The City has established or will establish prior to commencement of the Work, the Project Fund for the payment of the Cost of the Work. The City covenants and agrees to deposit monies into the Project Fund in an amount equal to the Cost of the Work set forth in the approved budget attached as EXHIBIT D ($1,446,023), subject to appropriation of sufficient funds for that deposit, prior to commencement of construction of the Public Improvements. Subject to appropriation by City Council and following the execution and delivery of any Change Order that causes the total Cost of the Work (as adjusted by any Change Orders previously or thereafter approved) to exceed the amount deposited into the Project Fund, the City agrees to deposit into the Project Fund the additional funds necessary to fully fund the Cost of the Work as modified by Change Orders when and as necessary to fund disbursements pursuant to the schedules set forth in the Construction Documents. Section 6.2. Disbursements from the Proiect Fund. (a) General. The City agrees to authorize disbursement of amounts in the Project Fund, in accordance with the Construction Documents based on Written Requisitions executed by the Authorized Developer Representative substantially in the form set forth on EXHIBIT F. No amounts shall be disbursed from the Project Fund with respectto any construction contract until the Developer provides to the City a fully executed copy of that contract, including the completed and executed contract addendum in the form attached as EXHIBIT B, as well as proof of the insurance required under Section 5.5, the notice of commencement required under Section 5.8, the bond required under Section 5.9 and the affidavit required under section 5.11. The parties agree that Written Requisitions and payments to the Developer shall be subject to the retainage requirements of five percent (5%) of the amount requested in a Written Requisition. To the extent consistent with the customary payment process of the City with respect to payment applications from contractors on City public improvement contracts, each Written Requisition must be accompanied by conditional lien waivers and releases from all subcontractors and suppliers to be paid from the payment resulting from the Written Requisition, and unconditional lien waivers and releases from all subcontractors and suppliers for which the Developer was required to provide a conditional lien waiver in connection with a prior Written Requisition. The period covered by each Written Requisition must be at least one (1) calendar month, ending on the last day of the month. The Developer will deliver payment requests to the City no more often than once each calendar month during the course of construction of the Public Improvements. The City may object to a Written Requisition by giving written notice of and specific reasons for the objection(s) and of the amounts subject to the objection(s) within ten (10) business days of receipt. Following receipt of any objection by the City, Developer may provide additional information on a supplemental Written Requisition form (such being a "Supplemental Requisition") in order to substantiate any objected amounts. The City may object to a Supplemental Requisition by giving written notice of and specific reasons for the objection(s) and of the amounts subject to the objection(s) within five (5) business days of receipt. Objections may be made because of a good faith belief that there is amaterial defect in Work orthe percentage of completion of the Work in question in the Written Requisition is materially overstated. A Written Requisition is not payable until the objection is resolved; provided, however, that the City may only withhold from disbursement any -19- expenses specifically objected to in any given Written Requisition, and all other amounts from such Written Requisition shall be disbursed pursuant to Section 6.2(b) below. If an objection is not made by the City in the time periods described herein, the City shall fully fund the amounts requested in the applicable Written Requisition or Supplemental Requisition, subject to the retainage requirements described above and the disbursement procedures described in Section 6.2(b) below. (b) Disbursements. Unless the City objects to any such Written Requisition and until such time as all amounts in the Project Fund have been fully disbursed to the Developer in the form of reimbursements, the City will within thirty (30) days following receipt of the Written Requisition (forty-five (45) days in case of the final Written Requisition) pay to the Developer the amounts reflected in any Written Requisition to be paid from the Project Fund. To the extent that the Developer has not theretofore paid the applicable subcontractors) and/or supplier(s) the amount requested in such Written Requisition, the Developer will promptly pay to the applicable subcontractors) and/or supplier(s) the amounts payable to such subcontractor(s) and/or supplier(s). All disbursements requested pursuant to this Section are subject to the prior approval of the Engineer and the Director of Finance. All disbursements pursuant to this Section will be made solely from the money deposited into the Project Fund and such monies will be the sole source of monies available from the City for payment of the Costs of the Work. (c) City Payments Limited to Amount in Project Fund. The Developer covenants and agrees that it will be responsible for the Cost of the Work that is not paid from amounts deposited in the Project Fund, and the Developer will not be entitled to any further reimbursement therefor from the City and the City shall have no obligation to reimburse the Developer for that unreimbursed Cost of the Work from any other City monies. (d) Other Related Provisions. Upon request of the Authorized City Representative or the Engineer, the Developer will furnish invoices or other documentation in connection with each Written Requisition. Any Written Requisition under this Section 6.2 may be in the form of a communication by telegram, e-mail, or facsimile transmission, but if in such form, it must be promptly confirmed by a Written Requisition executed by an Authorized Developer Representative and approved by the Authorized City Representative that is delivered to the Developer by telegram, e-mail, or facsimile transmission. In paying any Written Requisition under this Section 6.2, the City is entitled to rely as to the completeness and accuracy of all statements in such Written Requisition upon the approval of such Written Requisition by an Authorized Developer Representative, execution thereof, and communication thereof by telegram, e-mail, or facsimile transmission, to be conclusive evidence of such approval, and the Developer will indemnify and save harmless the City from any liability incurred in connection with any Written Requisition so executed or communicated by an Authorized Developer Representative. So long as any Event of Default by the Developer continues, the Developer may not submit or cause to be submitted to the City any Written Requisition pursuant to this Section 6.2 and has no claim upon any money in the Project Fund. -20- Section 6.3. Final Disbursement. Upon final completion of the Work and acceptance by the City, the Developer will submit to City a final Written Requisition for payment of all remaining sums. Retainage shall be disbursed to the Developer along with the final disbursement. Payment of the final payment is subject to the provisions of this Article VI. The Developer will deliver to City copies of conditional final lien waivers executed by all subcontractors, suppliers or lien claimants along with the final Written Requisition together with the final payroll report and prevailing wage affidavit required by Section 5.2. Any amount in the Project Fund that is not needed to pay the final Written Requisition shall be retained by the City. Section 6.4. No Citv Pledge or Debt. The City's obligation to make payments to the Developer pursuant to this Agreement is not an obligation or pledge of any money raised by taxation and does not represent or constitute a debt or pledge of the faith and credit of the City. Except for the payments from the Project Fund and in the aggregate amount described in this Agreement and for the reimbursements of Cost of the Work, the Developer will receive no other money from the City in connection with the construction of the Public Improvements. END OF ARTICLE VI) _21_ ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. General. Except as otherwise provided in this Agreement, in the event of any default in or breach of this Agreement, or any of its terms or conditions, by either Party, such Party will, upon written notice from the other, proceed promptly 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 that 30 day period, then the Party will upon written notice from the other commence its actions to cure or remedy the breach within the 30 day period, and proceed diligently thereafter to cure or remedy the breach. In case such action is not taken or not diligently pursued, or the default or breach is not cured or remedied within a reasonable time, the following remedies may be pursued: (a) the aggrieved Party may institute such proceedings as may be necessary or desirable in its opinion to cure and remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the Party in default or breach of its obligations; (b) the aggrieved Party may terminate this Agreement; and (c) in addition, if the default or breach is a failure of the Developer to achieve completion of the Work by the date set forth in Section 4.2 herein, as adjusted by Change Order or Change Directive, City may perform the Developer's obligations under this Agreement and pay the costs thereof from any lawfully available monies, including amounts on deposit in the Project Fund. The Developer and its surety are responsible for any amount necessary to perform those obligations in excess of the amounts on deposit in the Project Fund. Section 7.2. Other Rights and Remedies; No Waiver by Delay. The Parties each have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of, and its remedies under, this Agreement; provided, that any delay by either Party in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Agreement does not operate as a waiver of such rights or to deprive it of or limit such right in any way (it being the intent of this provision that neither Party should be constrained, so as to avoid the risk of being deprived of or limited in the exercise of the remedy provided in this Agreement because of concepts of waiver, laches, or otherwise, to exercise such remedy at atime when it may still hope otherwise to resolve the problems created by the default involved); nor does any waiver in fact made by either Party with respect to any specific default by the other Party under this Agreement be considered or treated as awaiver of the rights of such Party with respect to any other defaults by the other Party to this Agreement or with respect to the particular default except to the extent specifically waived in writing. Section 7.3. Force Maieure. Notwithstanding anything contained in Sections 7.1 and 7.2 to the contrary and except as otherwise provided herein, no Party will be considered in default in its obligations to be performed hereunder, if delay in the performance of such obligations is due to an event of Force Majeure beyond its control and without its fault or negligence; it being the purpose and intent of this paragraph that in the event of the occurrence of any such enforced delay, the time or times for performance of such obligations will be extended for the period of the enforced delay; provided, however, that the Party seeking the benefit of the provisions of this Section must, within fourteen (14) days after the beginning of such enforced delay, notify the other Party in writing thereof and of the cause thereof and of the duration thereof or, if a continuing _22_ delay and cause, the estimated duration thereof, and if the delay is continuing on the date of notification, within thirty (30) days after the end of the delay, notify the other Party in writing of the duration of the delay. (END OF ARTICLE V11) -23- ARTICLE VIII CONTINGENCIES; DISPUTE RESOLUTION PROVISIONS AS TO AMENDMENTS AND CLAIMS Section 8.1 Notice and Filing of Requests. Any request by the City or the Developer for amendment of the terms of this Agreement, including without limitation, for additional funds or time for performance must be made in writing and given prior to completion of the Public Improvements. The City is under no obligation to provide additional funds except in the case of a Change Directive that causes the total Cost of the Work (as adjusted by any Change Orders previously or thereafter approved) to exceed the amount deposited into the Project Fund. Section 8.2. Request Information. In every written request given pursuant to Section 8.1, the Party giving notice must provide the nature and amount of the request; identification of persons, entities and events responsible for or related to the request; and identification of the activities on the applicable schedule affected by the request. Section 8.3. Meeting. Within ten (10) days of receipt of the request given pursuant to Section 8. 1, the Parties will schedule a meeting in an effort to resolve the request and endeavor to reach a decision on the request promptly thereafter or reach a decision on the request without a meeting, unless a mutual agreement is made to extend such time limit. The meeting will be attended by persons expressly and fully authorized, subject to any necessary City Council approvals, to resolve the request on behalf of the City and the Developer. Section 8.4. Mediation. If no mutually acceptance decision is reached within thirty (30) days of the date of the meeting held pursuant to Section 8.3, the Parties may submit the matter to mediation, upon written agreement between them, or exercise any other remedy permitted to them at law or in equity. Section 8.5. Performance. The City and the Developer will proceed with their respective performance of this Agreement during any dispute resolution process, unless otherwise agreed by them in writing. (END OF ARTICLE VIII) -24- ARTICLE IX MISCELLANEOUS Section 9.1. Assignment. This Agreement may not be assigned without the prior written consent of the non -assigning party; provided that the Developer may make one or more collateral assignments of all or a portion of its rights and obligations under this Agreement to one or more lenders or portion thereof providing financing for the Public Improvements, as long as the assignment provides that the Developer remains liable for all its obligations under this Agreement. The City will cooperate with any reasonable assignment request by a lender and the City Manager is authorized to execute and deliver reasonable and customary instruments requested by any such lender to evidence the City's acknowledgment or consent to that assignment and the lender's collateral interest in this Agreement. Section 9.2. Binding Effect. The provisions of this Agreement shall be binding upon the successors and/or assigns of the Parties. Section 9.3. 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. Section 9.4. Dav 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. Section 9.5. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties on the subject matter hereof and supersedes all prior negotiations, agreements and understandings, both written and oral, between the Parties with respect to such subject matter. This Agreement may not be amended, waived or discharged except in an instrument in writing executed by the Parties. Section 9.6. Executed Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to constitute an original, but all of which together shall constitute but one and the same instrument. It shall not be necessary in proving this Agreement to produce or account for more than one of those counterparts. Counterparts and signatures transmitted or stored by facsimile or electronic means (such as e-mailed .pdfs) are deemed to be original counterparts or signatures for all purposes. Section 9.7. Extent of Covenants; No Personal Liabilitv. All covenants, obligations and agreements of the Parties contained in this Agreement shall be effective to the extent authorized and permitted by applicable law. No such covenant, obligation or agreement shall be deemed to be a covenant, obligation or agreement of any present or future member, officer, agent or employee of the City other than in his or her official capacity, and neither the members of the legislative body of the City nor any City official shall be liable personally under this Agreement -25- or be subject to any personal liability or accountability by reason of the execution thereof or by reason of the covenants, obligations or agreements of the City contained in this Agreement. Section 9.8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without regard to its principles of conflicts of laws. All claims, counterclaims, disputes and other matters in question between the City, its agents and employees, and the Developer, its employees and agents, arising out of or relating to this Agreement or its breach will be decided in a court of competent jurisdiction within Franklin County, Ohio. Section 9.9. Notices. Except as otherwise specifically set forth in this Agreement, all notices, demands, requests, consents or approvals given, required or permitted to be given hereunder shall be in writing and shall be deemed sufficiently given if actually received or if hand - delivered or sent by recognized, overnight delivery service or by certified mail, postage prepaid and return receipt requested, addressed to the other Party at the address set forth in this Agreement or any addendum to or counterpart of this Agreement, or to such other address as the recipient shall have 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 5200 Emerald Parkway Dublin, Ohio 43017 Attention: City Manager (ii) the Developer at: Crawford Hoying Development Partners, LLC 6640 Riverside Drive, Suite 500 Dublin, Ohio 43017 Attention: Brent Crawford The Parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent. Section 9.10. No Waiver. No right or remedy herein conferred upon or reserved to any Party is intended to be exclusive of any other right or remedy, and each and every right or remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter legally existing upon the occurrence of any event of default hereunder. The failure of any Party to insist at any time upon the strict observance or performance of any of the provisions of this Agreement or to exercise any right or remedy as provided in this Agreement shall not impair any such right or remedy or be construed as a waiver or relinquishment thereof. Every right and remedy given by this Agreement to the Parties hereto may be exercised from time to time and as often as may be deemed expedient by the parties hereto, as the case may be. Section 9.11. Ohio Laws. Any reference to a section or provision of the Constitution of the State, or to a section, provision or chapter of the Ohio Revised Code shall include such section, -26- provision or chapter as modified, revised, supplemented or superseded from time to time; provided, that no amendment, modification, revision, supplement or superseding section, provision or chapter shall be applicable solely by reason of this paragraph if it constitutes in any way an impairment of the rights or obligations of the Parties under this Agreement. Section 9.12. Recitals and Exhibits. The Parties acknowledge and agree that the facts and circumstances as described in the Recitals and Exhibits hereto are an integral part of this Agreement and as such are incorporated herein by reference. Section 9.13. Severabilitv. If any provision of this Agreement, or any covenant, obligation or agreement contained herein is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. That invalidity or unenforceability shall not affect any valid and enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. Section 9.14. Survival of Representations and Warranties. All representations and warranties of the Parties in this Agreement shall survive the execution and delivery of this Agreement. END OF ARTICLE IX - SIGNATURE PAGES TO FOLLOW) -27- IN WITNESS WHEREOF, the Parties have caused this Infrastructure Agreement (West Plaza of Riverside Crossing Park) to be executed in their respective names by their duly authorized representatives, all as of the date first written above. Approved as to Form: Jennifer Readler, Director of Law CITY OF DUBLIN, OHIO Lo Dana L. McDaniel, City Manager CRAWFORD IIOYING DEVELOPMENT PARTNERS, LLC Brent Crawford, Manager FISCAL OFFICER'S CERTIFICATE The undersigned, Director of Finance of the City of Dublin, Ohio under the foregoing Agreement, certifies hereby that the moneys required to meet the obligations of the City during the year 2018 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: 12018 _28_ Angel L. Mumma Director of Finance City of Dublin, Ohio EXHIBIT A DEPICTION AND DESCRIPTION OF PUBLIC IMPROVEMENTS [to be attached] A-1 NORTH HIGH STREET STREETSCAPE IMPROVEMENTS This work will include the installation of brick pavers, planting soil, tree grates and street trees in the right of way along High Street. It will also include replacing the temporary concrete curb with permanent granite curb and curb ramps. WEST PLAZA SITE IMPROVEMENTS This work will include the installation of brick pavers, granite planter benches, site furnishings, electrical distribution, stone masonry :ornices at the retaining walls and stairs to create a public plaza at the west terminus of the pedestrian bridge. - Uom� • ©' DUBLIN I RIVERSIDE CROSSING PARK High Street r--------r--------ZZ -------------------------- _._. �._._._._._ �_._ _Q, I Bridge Park West Building Z2 West Plaza Construction i��_ In Future by City O Q� Mo ll, EXHIBIT A: DEPICTION OF PUBLIC IMPROVEMENTS n C its 1 \L --V \� 1 1 Bridge Park West Building Z1 LEGEND PUBLIC IMPROVEMENTS NORTH HIGH STREET STREETSCAPE IMPROVEMENTS WEST PLAZA IMPROVEMENTS PRIVATE IMPROVEMENTS PRIVATE IMPROVEMENTS o• 20' 40' 80, O NORTH EXHIBIT B FORM OF CONTRACT ADDENDUM 1. Contractor acknowledges and agrees that Crawford Hoying Development Partners, LLC (the "Developer") is an independent contractor, and not an agent, of the City of Dublin (the "City") employed to provide construction services for the Project (as defined below) pursuant to an Infrastructure Agreement (West Plaza of Riverside Crossing Park) by and between the Developer and the City (the "Infrastructure Agreement'). 2. Contractor acknowledges and agrees that the obligations of the City to pay costs under this contract are limited to funds on deposit in the Project Fund held by the City for the Project in the amount set forth below (such fund, the "Project Fund"), and that the City is not obligated to use any money or assets other than the Project Fund to pay any amount due under this contract. Without limiting the foregoing, it is expressly understood and agreed that neither the Developer, the Contractor, nor any other person has any right or claim to any payment from, or any claim on any revenues or assets of, the City other than amounts held in the Project Fund to pay any obligations under this contract, and this contract does not constitute a general debt or a pledge of the general credit of the City, nor gives rise to any pecuniary liability of the City except from, and all such obligations are payable solely and exclusively from, the Project Fund as further described above. 3. Contractor acknowledges that all liens for labor and materials provided under this contract are subject to the requirements of Ohio Revised Code Section 1311.25 et seq. The Contractor acknowledges receipt of the Notice of Commencement for the Project. Contractor will provide, and will require all subcontractors to provide, conditional lien waivers for all labor and materials when submitting requests for payment under this contract. 4. The Contractor will provide a surety bond naming the City and Developer as payees prior to commencement of work under this contract. The surety bond must be in the form provided by Ohio Revised Code Section 153.57 and must cover all costs of work and materials provided under this contract throughout the term of this contract and the guaranty period described in paragraph 5. The surety bond must be issued by a surety company authorized by the Ohio Department of Insurance to transact business in the State of Ohio with an A.M. Best Company Policyholders Rating of "A-" or better and has or exceeds the Best Financial Size Category Class of Class VI at the time the bond is underwritten. The bond must also be supported by a power of attorney for the agent signing the surety. 5. Contractor warrants to the city that: (a) all work under this contract will be performed with the standard of care normally exercised by nationally recognized organizations engaged in performing comparable services; (b) all materials incorporated into that work are of good quality and new unless otherwise required or permitted by the plans and specifications for the Project approved by the City; (c) all such materials and work are of good and workmanlike quality, free of defects not inherent in the quality required or permitted; (d) all such materials and work will perform all functions for which they are intended; (e) all such materials and work conform to the requirements of the plans and specifications for the Project as approved C by the City and this contract in all material respects; (f) all such materials and work will be free from defects (without regard to the standard of care exercised in the performance of the work) for a period of one year after final completion of all work required by this contract. Contractor will, at its sole cost and expense, (g) promptly correct all of the work not in material conformance with the contract and the plans and specifications for the work to be performed under this contract, (ii) correct any defects in materials and workmanship (without regard to the standard of care exercised in the performance of the work) that appear within a period of one (1) year (two (2) years for storm sewer improvements dedicated to the City) after written conditional acceptance of the work performed under this contract by the City; and (iii) replace, repair or restore any parts of the work or any of the materials placed therein that are injured or damaged as a consequence of corrective action taken pursuant hereto. Contractor will remove, in a manner that at all times complies with all applicable laws, including environmental laws, from the Project all portions of the Contractor's work that are defective or nonconforming and that have not been corrected under this paragraph unless removal is waived by the City in writing. If Contractor fails to make or cause to be made corrections required by this paragraph, the City may do so at the sole expense of Contractor and Contractor will pay or reimburse all such amounts on demand with interest at the rate of ten percent per annum from the date of demand. The warranties provided in this paragraph are in addition to, and do not limit, any other guarantee, warranty or remedy provided by law, a manufacturer, this contract, each of which other guarantee, warranty or remedy may be enforced by the City as a third party beneficiary of this contract. Contractor further hereby assigns any guarantees or warranties provided to it by any of its subcontractors to the City. 6. The Contractor will indemnify, defend and hold harmless the City and its officials, agents and employees from and against any and all suits, claims damages, losses and expenses, including reasonable attorneys' fees, arising or allegedly arising out of, or resulting from the Contractor's or its agents, subcontractors, employees or representatives performance of its obligations under this contract or any work performed by it or its subcontractors. With respect to the work performed under this contract, and solely to the extent necessary to effect such indemnity, the Contractor hereby expressly and specifically waives the constitutional and statutory immunity from suit and causes of action provided to employers in Section 35, Article II of the Ohio Constitution and Section 4123.74 ofthe Ohio Revised Code, as well as any other similar immunity provided for or by any statute, law or constitutional provision of the State of Ohio and of any other applicable state. The Contractor will promptly reimburse the City and its officers, agents and employees for any cost, expense or reasonable attorneys' fees incurred on account of any such suit or claim incurred or in enforcing the terms of this contract against the Contractor. 7. Contractor represents and warrants to the City that it is and will remain in compliance and, upon request, will provide to the City appropriate statements or affidavits stating that it is in compliance with all legal requirements for contracting with Ohio political subdivisions including, without limitation, all requirements imposed by State of Ohio campaign financing laws contained in Chapter 3517, Ohio Revised Code, any provisions of Sections 2921.42, Ohio Revised Code (unlawful interest in public project), that may be applicable to it, and that it is not aware of any finding for recovery issued against it by the Auditor of the State of Ohio that is "unresolved" under Ohio Revised Code Section 9.24. Contractor shall submit the personal property tax affidavit required by Ohio Revised Code Section 5719.042 and no payments shall C be made under this contract until the Contractor has paid any such delinquent taxes and any penalties and interest thereon. 8. Contractor acknowledges that the Developer may be entitled to an Ohio sales and use tax exemption pursuant to Ohio Revised Code Section 5739.02(B) for building and construction materials or services provided under this contract and Contractor will not pay any such Ohio sales or use tax to the extent that exemption is applicable, but only if the Contractor has been provided an appropriate certification (or copy thereof) signed by the City evidencing the availability of that exemption. Contractor will, and will require all subcontractors and vendors to, retain copies of all records required under Ohio Revised Code Section 5739.03 in connection with the sales or use tax exemption for at least five years after completion of the work under this contract and will provide those records to the Tax Commissioner of the State of Ohio upon request. 9. Contractor will comply, and to cause compliance by its subcontractors, with the requirements of Ohio Revised Code Chapter 4115 for the payment of prevailing wages for the work performed pursuant to this contract. Contractor must ensure that all laborers and mechanics employed by Contractor (or by any of its subcontractors) in the performance of such work are paid at the prevailing rates of wages of laborers and mechanics for the class of work called for with respect to that work, which wages must be determined in accordance with the requirements of Ohio Revised Code Chapter 4115; provided that in the case of any work performed by Contractor's or any of its subcontractor's regular bargaining unit employees who are covered under a collective bargaining agreement that was in existence prior to the date of this contract, the rate of pay provided under the applicable collective bargaining agreement may be paid to such employees. Contractor further acknowledges and agrees that performance of such work is the construction of a "public improvement" within the meaning of Ohio Revised Code Section 4115.03, and that as a result, Contractor must, and must cause all of its subcontractors performing any portion of such work to, comply with all applicable requirements of Ohio Revised Code Sections 4115.03 to 4115.16 and other applicable laws related thereto. Upon request from time to time by either the City, Contractor must promptly deliver to the City satisfactory evidence that Contractor and all of its subcontractors have complied with the foregoing requirements. The prevailing wage coordinator will be the City's Contract & Procurement Coordinator. Contractor represents and warrants that neither it nor any of its subcontractors has been or will be included on any list described in Ohio Revised Code Section 4115.133. 10. Notwithstanding any other provision of this contract to the contrary, the City: (a) is not obligated to indemnify any party pursuant to the terms of this contract; and (b) retains all rights of set-off, counterclaim, recoupment and other similar remedies. All payments by the City for work performed under this contract are expressly conditioned on Contractor's compliance with the requirements of this contract and performance of its obligations under this contract (including this addendum) in all material respects. 11. The Contractor hereby represents and warrants that it practices and will continue to practice nondiscriminatory hiring in its operations and in all solicitations or advertisements for employees placed by it or on its behalf and will require all subcontractors to do the same. As used in this Section, the term "nondiscriminatory hiring" means that no individual may be denied employment solely on the basis of race, religion, sex, disability, color, national origin, or ancestry or any other classification that is now or may become a classification protected by Federal law or the laws of the State of Ohio. 12. Contractor will withhold and pay, will require all of its subcontractors to withhold and pay, all City income taxes due or payable with respect to wages, salaries, commissions and any other income subject to the provisions of Chapter 35 of the Dublin City Code. 13. Contractor and its subcontractors are solely responsible for their respective compliance with the Occupational Safety and Health Act of 1970. 14. All representations and warranties under this addendum and contract are made to the City and the Developer. Any material inaccuracy of any representation at the time it was made and any material failure to fulfill any warranty or obligation hereunder is a breach of this contract by Contractor. 15. The Contractor acknowledges and agrees that upon the occurrence and continuation of an Event of Default by the Developer under the Infrastructure Agreement, the City may exercise any rights of the Developer under this contract and the Contractor will accept such exercise of rights in lieu of exercise of those rights by the Developer. 16. The obligations of the Contractor under this addendum survive the termination of this contract. 17. In case of conflict between the terms of this addendum and the remainder of this contract, the terms of this addendum prevail. Accepted and Agreed by: as Contractor Name & Title: Name of Contract: Name of Project: West Side Plaza of River Crossing Park Amount in Project Fund: $ C EXHIBIT C FORM OF CHANGE ORDER [attached] C-1 City of Dublin CHANGE ORDER/DIRECRYE NUMBER Project Name: West side Placa Date: Project Number: Contractor Name: Crawford Fbvlm Develcoment Partners. LLC Subcontractor Name: Type of Change (Once The following changes one made to the Contract Documents: Ref IVo. Item No. Description Qty Unl t Unit Prke Extended Price Explanation 5000 City Funding 5000 Ref No Explanation Ref No Explanation 14 Total Ex lanation of Necessit : Ref No Explanation 5000 Current Cost of the Walk adfrsted be previous Diane Orders/Directives 000 The Cost of the Walk will be ❑Increased 0 decreased 0 no change due to this Change Order/Directive b Ref No Explanation 5000 City Funding 5000 Ref No Explanation Ref No Explanation Change to Contract Price: Original Cost of the Work'. 5000 Current Cost of the Walk adfrsted be previous Diane Orders/Directives 000 The Cost of the Walk will be ❑Increased 0 decreased 0 no change due to this Change Order/Directive b $0.00 New Cost of the Work (Including this Orange Order/Directive) 5000 City Funding 5000 C Change to Contract Completion Date: Due to this change the Contract Completion Date: ❑Is increased by Calendar Days ❑Is decreased by Calendar Days ❑Is Not Changed Original Contract Completion Date: Current Contract Completion date as adjusted by previous Change Orders/Directives: New Contract Completion Date as adjusted by this Change Order/Directive: The Contractor and Subcontractor hereby agrees to the contract changes set forth in this Change Order/Directive and releases the City of Dublin from any further obligation for compensation for any known or suspected substantive direct and indirect costs incurred except as mutually agreed and described in the Explanation of Necessity. CRAWFORD HOYING DEVELOPMENT PARTNERS, LLC By: Signature Date Print Name: Title: C-2 CITY OF DUBLIN, OHIO By: Dana L. McDaniel Date City Manager By: Paul A. Hammersmith, P.E. Date Director of Engineering By: Megan D. O'Callaghan, P.E. Date Director of Public Works By: Angel L. Mumma Date Director of Finance EXHIBIT D APPROVED PUBLIC IMPROVEMENTS BUDGET [to be attached] D-1 West Plaza / North High Street Streetscape Budget TYPE OF WORK: SUB TOTAL Site Civil, Utilities & General Trades $ 541,672.00 $ 541,672.00 Hardscapes, Masonry, Landscaping $ 661,723.00 $ 661,723.00 Owner Contingency @ 10% $ 120,339.50 Construction Management Fee 8.5% $ 102,288.58 General Requirements $ 10,000.00 Erosion/Sediment Controls SWP3 Compliance $ 5,000.00 Coordination With Adjacent Projects $ 5,000.00 TOTALS $1,446,023.08 EXHIBIT E PERSONAL PROPERTY TAX AFFIDAVIT (O.R.C.§ 5719.042) State of Ohio County of ss: (Name) of being first duly sworn, deposes and says that he/she is the (Title) (Name and Address of Contractor) "Contractor") and as its duly authorized representative, states that effective this , 201 , the Contractor: _ (the day of O is charged with delinquent personal property taxes on the general list of personal property as set forth below: Countv Amount (include total amount penalties and interest thereon) County $ County $ County $ O is not charged with delinquent personal property taxes on the general list of personal property in any Ohio county. (Affiant) Sworn to and subscribed before me by the above-named affiant this day of 1201 . (Notary Public) My commission expires E-1 , 201 EXHIBIT F WRITTEN REQUISITION No. City of Dublin, Ohio 5200 Emerald Parkway Dublin, Ohio 43017 Attention: Director of Finance Subject: Certificate and Request for Disbursement of Funds from the Project Fund In accordance with the provisions of Section 6.2 of the Infrastructure Agreement, dated 12018 (the Agreement') by and between the City and Crawford Hoying Development Partners, LLC (the "Developer"), you are hereby requested to disburse from the Project Fund described above, and the amount of $ as more fully set forth on the attached Project Payment Request attached hereto to be paid pursuant to this Written Requisition to the Developer at . All capitalized terms not otherwise defined in this Written Requisition have the meanings assigned to them in the Agreement. The undersigned Authorized Developer Representative does hereby certify in compliance with Section 6.2 of the Agreement that each of the following are true and correct: (i) I have read the Agreement and definitions relating thereto and have reviewed appropriate records and documents of the Developer relating to the matters covered by this Written Requisition. (ii) The amount and nature of the portion of the Cost of the Work that has been completed and requested to be paid, subject to retainage as set forth in Section 6.2 of the Agreement, are shown on Schedule A attached hereto. (iii) The disbursement herein requested is for an obligation properly incurred, is aproper charge against the Project Fund as a Cost of the Work, has not been the basis of any previous withdrawal from the Project Fund and was made in accordance with the Construction Documents. (iv) The Public Improvements have not been materially injured or damaged by fire or other casualty in a manner which, if not repaired or replaced, would materially impair the ability of the Developer to meet its obligations under the Agreement. (v) The Developer is in material compliance with all provisions and requirements of the Agreement, including, but not limited to, all prevailing wage requirements. All prevailing wage reports related to Work for which reimbursement is requested hereunder are attached to this Written Requisition. F-1 (vi) No uncured event of default or breach of the Agreement on the part of the Developer presently exists, and no event which but for the lapse of time or the giving of notice or both would be an event of default or breach of the Agreement on the part of the Developer has occurred and is continuing. (vii) Attached hereto as Schedule B are conditional lien waivers from any materialmen, contractors and subcontractors who have provided services or materials to the Public Improvements as required by Section 6.2 of the Agreement, and the Developer further acknowledges its obligation to require, or require provision of, certain security pursuant to Section 5.8 of the Agreement in the event any mechanic's liens are filed in connection with the Public Improvements. (viii) The Public Improvements are being and have been installed substantially in accordance with the Construction Documents for the Public Improvements and all materials for which payment is requested have been delivered to and remain at the location where they are to be installed or are securely stored at an offsite location approved by the City. (ix) The payment requested hereby does not include any amount which is entitled to be retained under any holdbacks or retainages provided for in any agreement, and such amounts that are entitled to be retained are reflected in Schedule A attached hereto. (x) The Developer has asserted its entitlement to all available manufacturer's warranties to date upon acquisition of possession of or title to such improvements or any part thereof which warranties have vested in the Developer and must be wholly transferable to the City. (xi) All money of the Project Fund heretofore disbursed has been spent in accordance with the Written Requisition applicable thereto. (xii) Attached hereto as Schedule C are unconditional lien waivers for any outstanding conditional lien waivers provided in conjunction with previous Written Requisitions. EXECUTED this day of 1201 C Authorized Developer Representative F-2 NORTH HIGH STREET STREETSCAPE IMPROVEMENTS This work will include the installation of brick pavers, planting soil, tree grates and street trees in the right of way along High Street. It will also include replacing the temporary concrete curb with permanent granite curb and curb ramps. WEST PLAZA SITE IMPROVEMENTS This work will include the installation of brick pavers, granite planter benches, site furnishings, electrical distribution, stone masonry :ornices at the retaining walls and stairs to create a public plaza at the west terminus of the pedestrian bridge. - Uom� • ©' DUBLIN I RIVERSIDE CROSSING PARK High Street r--------r--------ZZ -------------------------- _._. �._._._._._ �_._ _Q, I Bridge Park West Building Z2 West Plaza Construction i��_ In Future by City O Q� Mo ll, EXHIBIT A: DEPICTION OF PUBLIC IMPROVEMENTS n C its 1 \L --V \� 1 1 Bridge Park West Building Z1 LEGEND PUBLIC IMPROVEMENTS NORTH HIGH STREET STREETSCAPE IMPROVEMENTS WEST PLAZA IMPROVEMENTS PRIVATE IMPROVEMENTS PRIVATE IMPROVEMENTS o• 20' 40' 80, O NORTH