Ordinance 060-19RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO Form 6220S
Ordinance No. 60-19 Passed
AN ORDINANCE AUTHORIZING AND APPROVING AN
ENERGY PROJECT COOPERATIVE AGREEMENT BY AND
BETWEEN THE CITY OF DUBLIN, OHIO, THE COLUMBUS
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., OH15 DUBLIN LLC, VIAQUEST, INC., AND THE
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY, A
SPECIAL ASSESSMENT AGREEMENT BY AND BETWEEN
THE CITY OF DUBLIN, OHIO, THE COUNTY TREASURER
OF FRANKLIN COUNTY, OHIO, THE COLUMBUS
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., 525 METRO PLACE NORTH LLC, VIAQUEST, INC.,
AND THE COLUMBUS -FRANKLIN COUNTY FINANCE
AUTHORITY, AND RELATED AGREEMENTS, ALL OF
WHICH PROVIDE FOR THE FINANCING OF SPECIAL
ENERGY IMPROVEMENTS PROJECTS (525 METRO PLACE
NORTH, DUBLIN, OHIO PROJECT)
WHEREAS, OH15 Dublin LLC (the "Owner') has submitted its Petition for Special
Assessments for Special Energy lmpro vement Projects and Amada vit (the "Petition) i n
order to provide for the completion of a special energy improvement project on real
property owned by the Owner in the City of Dublin, Ohio (the "City'; and
WHEREAS, on October 21, 2019, this Council approved the Petition and added the
Owner's property subject to the Petition to the Columbus Regional Energy Special
Improvement District, Inc. (the "District'); and
WHEREAS, on October 21, 2019, this Council duly adopted a resolution declaring the
necessity of acquiring, constructing, and improving certain public improvements in the
City in cooperation with the District (the "Resolution of Necessity'; and
WHEREAS, on November 4, 2019, this Council passed Ordinance No. -19
determining to proceed with the Project (as defined in the Resolution of Necessity) and
adopted the estimated Special Assessments filed with the Clerk of the Council pursuant
to the Resolution of Necessity; and
WHEREAS, pursuant to Ordinance No. -19assed on November 4 2019 the
p ,
City has levied special assessments against the Property (as defined in the Resolution
of Necessity) to pay costs of the special energy improvement project (the "Special
Asse(S--sments');
WHEREAS, the City intends to enter into an Energy Project Cooperative Agreement
(the "Energy Project Cooperative Agreement') with the District, OH 15 Dublin LLC,
ViaQuest, Inc., and the Columbus -Franklin County Finance Authority (the "Investor'
to provide for, among other things, (i) the making of the Project Advance (as defined
in thiE.1 Energy Project Cooperative Agreement) to pay costs of the Project, (ii) the
disbursement of the Project Advance for the acquisition, construction, and
improvement of the Project and the transfer of the Special Assessments by the City to
the Investor to pay principal and interest and other costs relating to the Project
Advance; and
WHEREAS, to provide for the security for the Project Advance and for administration
of payments on the Project Advance and related matters, the City intends to enter into
the Special Assessment Agreement with the County Treasurer of Franklin County, Ohio,
the Investor, the District, and the Owner.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio "7 of the elected members concurring that:
RECORD OF ORDINANCES
BARRETT BROTHI-RS - DAYTON, OHIO Form 6220S
Or inanc-e No.
Passed ,
Section 1. Each capitalized term or definition not otherwise defined in this Ordinance
or by reference to another document shall have the meaning assigned to it in the
Resolution of Necessity.
Section 2. This Council hereby approves the Energy Project Cooperative
Agreiement, a copy of which is on file in the office of the Clerk of Council. The City
Manager shall sign and deliver, in the name and on behalf of the City, the Energy
Project Cooperative Agreement, in substantially the form as is now on file with the
Clerk. of Council. The Energy Project Cooperative Agreement is approved, together
with -any changes or amendments that are not inconsistent with this Ordinance and not
substantially adverse to the City and that are approved by the City Manager on behalf
of thle City, all of which shall be conclusively evidenced by the signing of the Energy
Project Cooperative Agreement or amendments to the Energy Project Cooperative
Agreement.
Section 3. This Council hereby approves the Special Assessment Agreement, a
copy of which is on file in the office of the Clerk of Council. The City Manager shall
g
sign and deliver, in the name and on behalf of the City, the Special Assessment
Agreement, in substantially the form as is now on file with the Clerk of Council. The
Special Assessment Agreement is approved, together with any changes or amendments
that are not inconsistent with this Ordinance and not substantially adverse to the City
and that are approved by the City Manager on behalf of the City, all of which shall be
conclusively evidenced by the signing of the Special Assessment Agreement or
amendments to the Special Assessment Agreement.
Section 4. The City is hereby authorized to enter into such other agreements that
are not inconsistent with the Resolution of Necessity and this Ordinance and that are
approved by the City Manager on behalf of the City, all of which shall be conclusively
evidenced by the signing of such agreements or any amendments to such agreements.
Section 5. This Council finds and determines that all formal actions of this Council
concerning and relating to the passage of this Ordinance were taken in an open
meeting of this Council, and that all deliberations of this Council and of any of its
committees that resulted in such formal action, were in meetings open to the public,
in compliance with all legal requirements including Ohio Revised Code Section 121.22.
Section 6. Under Section 4.04 of the Charter of the City, this Ordinance is an
Ordinance for improvements petitioned for by owners of the requisite majority 100%
of the front footage or the area of the property benefited and to be assessed and shall
be in full force and effect immediately upon its passage.
[Signature Page Follows]
RECORD OF ORDINANCES
BARRE.TT BROTHERS - DAYTON, OHIO
Passed
Form 6220S
IcityOffice of the City Manager
of Dublin 5200 Emerald Parkway • Dublin, OH 43017-1090 -Memo
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of Dublin City Council
From: Dana McDaniel, City Manager
Date: October 9, 2019
Initiated By: Colleen Gilger, Director of Economic Development
Jeremiah Gracia, Economic Development Administrator
Re: Resolutions & Ordinances for Property Assessed Clean Energy (PACE) Special
Improvement for 525 Metro Place North (OH15 Dublin LLC)
Background
The City of Dublin is focused on setting appropriate conditions to encourage investment and
economic development. City Council continues to support our strategies and tactics to ensure
Dublin's office space remains competitive in the market as supported by the Dublin Corporate Area
Plan. One particular tool the economic development team has brought to existing building owners'
attention is the use a favorable financing tool for major building energy efficiency improvements.
Financing for PACE eligible projects in Central Ohio is provided by the Columbus -Franklin County
Finance Authority (Finance Authority). The Finance Authority established the Columbus Regional
Special Improvement District that allows for additional properties within the City of Columbus, Ohio
and within any municipal corporation or township that is adjacent to any other municipal
corporation or township to opt -in to the District. Projects between $200,000 - $6,000,000 may be
financed through the Finance Authority's bond fund. Eligible uses of funds include LED lighting,
energy management and controls that includes, HVAC and boiler replacement, building envelope,
and other improvements that result in bottom line operation savings for building owners and
tenants.
In August 2018, the building ownership of 525 Metro Place North invested just over $900,000 in
PACE Financing for its energy efficiency improvement project for the 80,000 SF office building. The
scope of work for that project included indoor LED lighting upgrades, boiler replacement, cooling
tower replacement, and other temperature control upgrades.
This PACE project will invest another $165,000 in improvements to the building to upgrade the
elevators and outdoor lighting to LEDs. In order to satisfy this request, the City of Dublin must
pass a series of Resolutions on October 21, 2019 and Ordinances on November 4, 2019 Council
meetings. These Resolutions and Ordinances will allow building ownership to opt -in to the
Regional Special Improvement District. The City has no financial obligations with the establishment
of a Special Improvement District for this project. The City simply serves as a pass through entity
for the project financing.
Recommendation
Staff recommends Council passage of all related Resolutions and Ordinances October 21 and
November 4, 2019 Council meetings. Please contact Jeremiah Gracia with any questions.
ENERGY PROJECT COOPERATIVE AGREEMENT
By and between
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.;
OH15 DUBLIN LLC;
VIAQUEST, INC.;
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY; and
CITY OF DUBLIN, OHIO
Dated as of 2019
BRICKER & ECKLER LLP
ENERGY PROJECT COOPERATIVE AGREEMENT
THIS ENERGY PROJECT COOPERATIVE AGREEMENT (the Agreement) is made
and entered into as of 2019 (the Effective Date), by and among the BEXLEY,
COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL,
WORTHINGTON REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., doing
business under the registered trade name COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., a nonprofit corporation and special improvement district
duly organized and validly existing under the laws of the State of Ohio (the State) (the ESID),
OH 15 DUBLIN LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware and duly qualified to conduct business in the State (the Owner),
VIAQUEST, INC., a corporation duly organized and validly existing under the laws of the State
of Ohio (the Lessee), the COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State (the Finance Authority), and the CITY OF DUBLIN, OHIO, a municipal corporation duly
organized and validly existing under the constitution and laws of the State and its Charter (the
City) (the capitalized terms used in this Agreement and not defined in the preamble and recitals
have the meanings stated in Exhibit A to this Agreement):
A. The ESID was created under Ohio Revised Code Chapters 1702 and 1710 and
established pursuant to Resolution No. 0261X-2015 of the Council of the City of Columbus, Ohio
approved on November 23, 2015. Pursuant to the same action, the Columbus Regional Energy
Special Improvement District Program Plan (as amended and supplemented from time to time, the
Plan) was adopted as a plan for public improvements and public services under Ohio Revised
Code Section 1710.02(F).
B. The ESID is an energy special improvement district and nonprofit corporation duly
organized and validly existing under the laws of the State of Ohio to further the public purpose of
implementing special energy improvement projects pursuant to the authority in Ohio Revised Code
Chapter 1710 and Article VIII, Section 20 of the Ohio Constitution.
C. On [ ], by its Resolution No. _], the City Council of the City (the City
Council) approved the Petition for Special Assessments for Special Improvement Projects and
Affidavit (the Petition) submitted by the Owner to the City, together with the Supplement to Plan
for 525 Metro Place North, Dublin, Ohio Project (the Supplemental Plan), as a supplement to the
Plan.
D. Pursuant to the Plan, the ESID, among other services, shall assist property owners,
whether private or public, who own real property within participating political subdivisions to
obtain financing for special energy improvement projects.
E. In order to obtain financing for special energy improvement projects and to create
special assessment revenues available to pay and repay the costs of special energy improvement
projects, the Petition requested that the City Council levy Special Assessments against the Owner's
property as more fully described in the Supplemental Plan.
F. The ESID, the Owner, the Lessee, the Finance Authority, and the City (collectively
the Parties, and each, a Party) each have determined that the most efficient and effective way to
implement the financing, acquisition, construction, equipment, improvement, and installation of
energy special improvement projects and to further the public purposes set forth above is through
this Agreement, pursuant to the Act and on the terms set forth in this Agreement, with (i) the
Finance Authority providing the Project Advance to finance the costs of the special energy
improvement projects described in the Supplemental Plan, (ii) the ESID and the Lessee
cooperating to acquire, construct, equip, improve, and install special energy improvement projects,
(iii) the Owner and the Lessee agreeing to make Special Assessment payments in an aggregate
amount that will provide revenues sufficient to pay or repay the permitted costs of the special
energy improvement projects, (iv) the City agreeing to assign and transfer all Special Assessment
payments actually received by the City to the Finance Authority to repay the Project Advance; and
(v) the ESID agreeing to assign, transfer, and set over to the Finance Authority any of its right,
title, or interest in and to the Special Assessments which it may have by operation of law, this
Agreement, or otherwise; provided that a portion of the Special Assessments may be retained by,
or payable to, the City or the ESID, all pursuant to and in accordance with this Agreement.
G. The Parties each have full right and lawful authority to enter into this Agreement
and to perform and observe its provisions on their respective parts to be performed and observed,
and have determined to enter into this Agreement to set forth their respective rights, duties,
responsibilities, obligations, and contributions with respect to the implementation of special energy
improvement projects within the ESID.
NOW, THEREFORE, in consideration of the promises and the mutual representations,
warranties, covenants, and agreements contained in this Agreement, the Parties agree as follows;
provided, that any obligation of the ESID created by or arising out of this Agreement never shall
constitute a general obligation, bonded indebtedness, or a pledge of the general credit of the ESID,
or give rise to any pecuniary liability of the ESID, but any such obligation shall be payable solely
from the Special Assessments actually received by the ESID, if any; and provided, further, that
any obligation of the City created by or arising out of this Agreement never shall constitute a
general obligation, bonded indebtedness, or a pledge of the general credit of the City, or give rise
to any pecuniary liability of the City, but any such obligation shall be payable solely from the
Special Assessments actually received by the City, if any:
ARTICLE L DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and terms defined
elsewhere in this Agreement or by reference to another document, words and terms used in this
Agreement shall have the meanings set forth in Exhibit A to this Agreement unless the context or
use clearly indicates another meaning or intent. Definitions shall apply equally to both the singular
and plural forms of any of the words and terms. Words of any gender include the correlative words
of the other gender, unless the sense indicates otherwise.
Section 1.2. Interpretation. Any reference in this Agreement to the ESID, the ESID
Board, the Owner, the Lessee, the City, the City Council, the Finance Authority, or the Board of
Directors of the Finance Authority, or to any member or officer of any of the foregoing, includes
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entities or officials succeeding to their respective 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 the Act, or to a
section, provision or chapter of the Ohio Revised Code or any other legislation or to any statute of
the United States of America, includes that section, provision, or chapter as amended, modified,
revised, supplemented, or superseded from time to time; provided, however, that no amendment,
modification, revision, supplement, or superseding section, provision, or chapter shall be
applicable solely by reason of this provision if it constitutes in any way an impairment of the rights
or obligations of the Parties under this Agreement.
Section 1.3. 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 or intent of
any of this Agreement's Articles, Sections, subsections, paragraphs, subparagraphs or clauses.
ARTICLE II: COOPERATIVE ARRANGEMENTS; ASSIGNMENT OF SPECIAL
ASSESSMENTS
Section 2.1. Agreement Between the City, the ESID, and the Finance Authority. The
Owner, the Lessee and the ESID have requested the assistance of the Finance Authority and the
City in the financing of special energy improvement projects within the ESID. For the reasons set
forth in this Agreement's Recitals which Recitals are incorporated into this Agreement by this
reference as a statement of the public purposes of this Agreement and the intended arrangements
among the Parties the City and the ESID have requested the assistance and cooperation of the
Finance Authority in the collection and payment of Special Assessments in accordance with this
Agreement. The Parties intend this Agreement to be, and it shall be, an agreement among the
Parties to cooperate in the financing, acquisition, construction, equipping, improvement, and
installation of "special energy improvement projects," pursuant to Ohio Revised Code Chapter
1710, and as that term is defined in Ohio Revised Code Section 1710.01(1). The Parties intend this
Agreement's provisions to be, and they shall be construed as, agreements to take effective
cooperative action and to safeguard the Parties' interests.
Upon the considerations stated above and upon and subject to the terms and conditions of
this Agreement, the Finance Authority, on behalf of the Parties, shall make the Project Advance
available to the Lessee to pay the costs of the Project. The City and the ESID shall assign, transfer,
set over, and pay the Special Assessments actually received by the City or the ESID, respectively,
to the Finance Authority, to pay the costs of the Project at the times and in the manner provided in
this Agreement; provided, however, that the City, the ESID, and the Finance Authority intend that
the City shall receive all Special Assessments from the County Treasurer and shall transfer, set
over, and pay all Special Assessments received from the County Treasurer directly to the Finance
Authority. The City, the ESID, and the Finance Authority further intend and agree that the Finance
Authority shall pay to the ESID, out of the Special Assessments received by the Finance Authority,
a semi-annual fee of $60.94 for the ESID's administrative expenses; provided, however, that if the
amount of Special Assessments received by the Finance Authority in any year are insufficient to
pay the principal of, and interest on the Project Advance due in that year and the semi-annual fee
of $60.94 due to the ESID, the Special Assessments received shall first be applied to the payment
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of interest on the Project Advance, then to the repayment of the principal of the Project Advance,
and then to the payment of the semi-annual fee due to the ESID.
Notwithstanding anything in this Agreement to the contrary, any obligations of the City
under this Agreement, including the obligation to transfer the Special Assessments received by the
City to the Finance Authority, shall be a special obligation of the City and shall be required to be
made only from Special Assessments actually received by or on behalf of the City, if any. The
City's obligations under this Agreement are not and shall not be secured by an obligation or pledge
of any moneys raised by taxation. The City's obligations under this Agreement do not and shall
not represent or constitute a debt or pledge of the City's faith and credit or taxing power, and the
ESID, the Owner, the Lessee, and the Finance Authority do not have and shall not have any right
to have taxes levied by the City for the transfer of the Special Assessments.
Section 2.2. Special Assessments: Citv Transfer of Special Assessments.
(a) The Special Assessment Proceedings. The City has duly enacted the Special
Assessment Proceedings.
Pursuant to Ohio Revised Code Section 727.33, the City has certified the Special
Assessments to the County Auditor for collection, and the Parties agree that the
County Auditor shall collect the unpaid Special Assessments with and in the same
manner as other real property taxes and pay the amount collected to the City. The
Parties intend that the County Auditor and the County Treasurer shall have the duty
to collect the Special Assessments through enforcement proceedings in accordance
with applicable law.
(b) Collection of Delinquent Special Assessments. Subject to the City having received
written notice of any Special Assessment delinquency, the ESID and the Finance
Authority are hereby authorized to take any and all actions as assignees of and, to
the extent required by law, in the name of, for, and on behalf of, the City to collect
delinquent Special Assessments levied by the City pursuant to the Special
Assessment Act and the Special Assessment Proceedings and to cause the lien
securing the delinquent Special Assessments to be enforced through prompt and
timely foreclosure proceedings, including, but not necessarily limited to, filing and
prosecution of mandamus or other appropriate proceedings to induce the County
Prosecutor, the County Auditor, and the County Treasurer, as necessary, to institute
such prompt and timely foreclosure proceedings. The proceeds of the enforcement
of any such lien shall be deposited and used in accordance with this Agreement.
(c) Prepayment of Special Assessments. The Parties agree that the Special
Assessments assessed against the Property and payable to the City pursuant to the
Special Assessment Act and the Special Assessment Proceedings may be prepaid
to the Finance Authority by the Owner or the Lessee in accordance with Section
4.7 of this Agreement. Except as set forth in this Section 2.2(c) and Section 4.7 of
this Agreement, the Owner or the Lessee shall not prepay any Special Assessments.
Notwithstanding the foregoing, if the Owner or the Lessee attempts to cause a
prepayment of the Special Assessments by paying to the County Treasurer any
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amount as afull or partial prepayment of Special Assessments, and if the City shall
have knowledge of the same, the City immediately shall notify the Finance
Authority, and, unless provided the express written consent of the Finance
Authority, the City shall not cause any reduction in the amount of Special
Assessments. Except as specifically provided in this Agreement to the contrary, no
other action pursuant to any provision of this Agreement shall abate in any way the
payment of the Special Assessments by the owners or lessees of property or the
transfer of the Special Assessments by the City to the Finance Authority.
(d) Reduction of Special Assessments. The Parties agree that the Special Assessments
may be subject to reduction, but only upon the express written consent or
instruction of the Finance Authority. If the Owner or the Lessee causes the Special
Assessments to be prepaid in accordance with Sections 2.2(c) and 4.7 of this
Agreement, the Finance Authority shall revise the Special Assessments to be
collected such that, following such reduction, the amount of Special Assessments
remaining to be paid shall be equal to the amounts necessary to pay, as and when
due, the remaining outstanding principal of the Project Advance, together with
interest at the annual rate of 5.75%, a $60.94 semi-annual administrative fee to the
ESID, and a County Auditor collection fee on each annual installment of the Special
Assessments in an amount to be calculated, charged, and collected by the County
Auditor pursuant to Ohio Revised Code Section 727.36, which fee is in addition to
the amount of the Special Assessments and other related interest, fees, and
penalties. Upon the City's receipt of the Finance Authority's express written
consent or instruction, the City shall certify to the County Auditor, prior to the last
date in the then -current tax year on which municipal corporations may certify
special assessments to the County Auditor, a reduction in the amount of Special
Assessments to be collected. The Parties agree that the Finance Authority may
certify any reduction required by this Section 2.2(d) to the County Auditor directly
after requesting and receiving the City's consent to certify the reduction on the
City's behalf. Notwithstanding anything in this Agreement to the contrary, the City
shall not cause any reduction in the amount of Special Assessments without the
prior written consent or instruction of the Finance Authority.
(e) Assignment of Special Assessments. The City agrees that it shall establish its funds
for the collection of the Special Assessments as separate funds maintained on the
City's books and records and to be held in the custody of a bank with which the
City maintains a depository relationship. The City hereby assigns to the Finance
Authority all of its right, title and interest in and to: (i) the Special Assessments and
any Delinquency Amounts received by the City under this Agreement, and (ii) the
City's special assessment funds established for the Project; provided, however,
such assignment shall not relate to, and the Finance Authority shall have no right,
title or interest in any interest earnings which may accrue to the City in respect of
the Special Assessments and any Delinquency Amounts while those Special
Assessments and any Delinquency Amounts are in the City's custody. The City
further shall transfer, set over, and pay the Special Assessments and any
Delinquency Amounts to the Finance Authority in accordance with this Agreement.
The ESID acknowledges and consents to the City's assignment of the Special
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Assessments to the Finance Authority. The Parties agree that each of the City, the
ESID, and the Finance Authority, as assignee of the Special Assessments and any
Delinquency Amounts, is authorized to take any and all actions, whether at law, or
in equity, to collect delinquent Special Assessments, levied by the City pursuant to
law and to cause the lien securing any delinquent Special Assessments to be
enforced through prompt and timely foreclosure proceedings, including, but not
necessarily limited to, filing and prosecution of mandamus or other appropriate
proceedings to induce the County Prosecutor, the County Auditor, and the County
Treasurer, as necessary, to institute such prompt and timely foreclosure
proceedings. All Parties agree to provide notice to the other Parties within a
reasonable period of time following any actions filed to enforce the lien securing
any delinquent Special Assessments if such notice is not provided through such
action.
(f) Transfer of Special Assessments. The parties anticipate that semi-annual
installments of the Special Assessments and any Delinquency Amounts will be paid
to the City by the County Auditor and the County Treasurer in accordance with
Ohio Revised Code Chapters 319, 321, 323, and 727, which, without limiting the
generality of the foregoing, contemplates that the County Auditor and County
Treasurer will pay the Special Assessments and any Delinquency Amounts to the
City on or before May 1 and November 1 of each year. Immediately upon receipt
of any moneys received by the City as Special Assessments and any Delinquency
Amounts, but in any event not later than thirty (30) calendar days after the receipt
of such moneys and the corresponding final settlement from the County Auditor,
the City shall deliver to the Finance Authority all such moneys received by the City
as Special Assessments and any Delinquency Amounts. The Finance Authority
may from time to time provide written payment instructions to the City for payment
of Special Assessments and any Delinquency Amounts to the Finance Authority or
its trustee or other designee by check, wire instructions, or other means. If at any
time during the term of this Agreement the County Auditor agrees, on behalf of the
City, to disburse the Special Assessments and any Delinquency Amounts directly
to the Finance Authority or its trustee or other designee pursuant to instructions or
procedures agreed upon by the County Auditor and the Finance Authority, then,
upon each transfer of an installment of the Special Assessments and any
Delinquency Amounts from the County Auditor to the Finance Authority or its
trustee or other designee, the City shall be deemed to have satisfied all of its
obligations under this Agreement to transfer that installment of the Special
Assessments or any Delinquency Amounts to the Finance Authority.
(g) Repayment of Project Advance. The Finance Authority shall credit, on the dates
shown on the Repayment Schedule (which is attached to and incorporated into this
Agreement as Exhibit B), Special Assessments in the amounts shown on the
Repayment Schedule to the payment of accrued interest on the Project Advance
and to the repayment of the portion of the principal of the Project Advance
scheduled to be repaid on such date. The Finance Authority, on the dates shown
on the Repayment Schedule, further shall pay to the ESID, after the payment of
accrued interest on the Project Advance and the repayment of the portion of
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principal of the Project Advance scheduled to be repaid on such date, a semi-annual
fee of $60.94 or such lesser amount as may be available from the Special
Assessments on the applicable date after the payment of accrued interest on the
Project Advance and the repayment of the portion of the principal of the Project
Advance scheduled to be repaid on such date. The Parties acknowledge and agree
that the County Auditor may calculate, charge, and collect a fee on each annual
installment of the Special Assessments pursuant to Ohio Revised Code Section
727.36, which fee is in addition to the amount of the Special Assessments and other
related interest, fees, and penalties, and that such fee shall be paid to the County
Auditor with the Special Assessments, and that the County Auditor will retain such
fee.
Section 2.3. Obligations Unconditional; Place of Pavments. The City's obligation to
transfer the Special Assessments and any Delinquency Amounts to the Finance Authority under
Section 2.2 of this Agreement shall be absolute and unconditional, and the City shall make such
transfers without abatement, diminution, or deduction regardless of any cause or circumstance
whatsoever, including, without limitation, any defense, set-off, recoupment, or counterclaim which
the City may have or assert against the Finance Authority, the ESID, the Owner or the Lessee;
provided, however, that the City's obligation to transfer the Special Assessments and any
Delinquency Amounts is limited to the Special Assessments and any Delinquency Amounts
actually received by or on behalf of the City, and nothing in this Agreement shall be construed to
obligate the City to transfer or pledge, and the City shall not transfer or pledge any special
assessments not related to the ESID.
Section 2.4. Appropriation by the City; No Further Obligations. Upon the Parties'
execution of this Agreement, all of the Special Assessments received or to be received by the City
shall be deemed to have been appropriated to pay the City's obligation under this Agreement to
pay to the Finance Authority all Special Assessments received by the City. During the years in
which this Agreement is in effect, the City shall take such further actions as may be necessary or
desirable in order to appropriate the transfer of the Special Assessments actually received by the
City in such amounts and at such times as will be sufficient to enable the City to satisfy its
obligation under this Agreement to pay to the Finance Authority all Special Assessments received
by the City; provided that the City shall not be responsible for the costs and expenses of any
collection or enforcement actions, except to the extent of any Special Assessments actually
received by the City; and provided further that nothing in this paragraph shall be construed as a
waiver of the City's right to be indemnified pursuant to Section 6.4 of this Agreement or pursuant
to the Special Assessment Agreement. The City shall have no obligation, legally, morally or
otherwise, to use or apply to the payment of the Special Assessments or any Delinquency Amounts
any funds or revenues from any source other than the moneys received by the City as the respective
Special Assessments or Delinquency Amounts.
Section 2.5. Securitv for Advanced Funds. To secure the transfer of the Special
Assessments by the City to the Finance Authority, and in accordance with the Special Assessment
Act and the Special Assessment Proceedings, the ESID hereby assigns, transfers, sets over, and
shall pay all of its right, title, and interest in and to the Special Assessments related to the ESID
actually received by or on behalf of the City to the Finance Authority. The Owner, the Lessee, and
the City agree and consent to that assignment.
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ARTICLE III: REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
Section 3.1. The City's Representations and Warranties. The City represents and
warrants that:
(a) It is a municipal corporation, duly organized, and validly existing under the
Constitution and applicable laws of the State.
(b) 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 City's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the City and does not and will
not conflict with or result in a default under any agreement or instrument to which
the City is a party or by which it is bound.
(c) It, by proper action, has duly authorized, executed, and delivered this Agreement,
and the City has taken all steps necessary to establish this Agreement and the City's
covenants and agreements within this Agreement, as valid and binding obligations
of the City, enforceable in accordance with their terms.
(d) To its knowledge, there is no litigation pending or threatened against or by the City
in which an unfavorable ruling or decision would materially adversely affect the
City's ability to carry out its obligations under this Agreement.
(e) The assignment contained in Section 2.2(e) is a valid and binding obligation of the
City with respect to the Special Assessments received by the City under this
Agreement.
Section 3.2. The ESID's Representations and Warranties. The ESID represents and
warrants that:
(a) It is a nonprofit corporation and special improvement district, duly organized, and
validly existing under the Constitution and applicable laws of the State.
(b) It is not in violation of or in conflict with any provisions of the laws of the State or
of the United States of America applicable to the ESID that 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 ESID's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the ESID and does not and will
not conflict with or result in a default under any agreement or instrument to which
the ESID is a party or by which it is bound.
(d) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and the ESID has taken and all steps necessary to establish this Agreement and the
ESID's covenants and agreements within this Agreement as valid and binding
obligations of the ESID, enforceable in accordance with their terms.
(e) There is no litigation pending, or to its knowledge threatened, against or by the
ESID in which an unfavorable ruling or decision would materially adversely affect
the ESID's ability to carry out its obligations under this Agreement.
(f) The assignment contained in Section 2.5 is a valid and binding obligation of the
ESID with respect to the ESID's right, title and interest in the Special Assessments
under this Agreement.
Section 3.3. The Lessee's Representations and Warranties. The Lessee represents and
warrants that:
(a) It is a corporation duly organized, validly existing and in full force and effect under
the laws of the State of Ohio. It has all requisite power to conduct its business as
presently conducted and to own, or hold under lease, its assets and properties, and,
is duly qualified to do business in all other jurisdictions in which it is required to
be qualified, except where failure to be so qualified does not have amaterial adverse
effect on it, and will remain so qualified and in full force and effect during the
period during which Special Assessments shall be assessed, due, and payable.
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Lessee shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) Except for any financing of the Property and the lien related thereto that the Lessee
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
9
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(f) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(g) Since the date of the most recent financial statements of the Lessee provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Lessee, nor has the Lessee mortgaged, pledged or granted a security
interest in or encumbered its interest in the Property since such date, except as
otherwise disclosed to the Finance Authority in writing, and the financial
statements which have been delivered to the Finance Authority prior to the date of
this Agreement are true, correct, and current in all material respects and fairly
represent the respective financial conditions of the subjects of the financial
statements as of the respective dates of the financial statements.
(h) The Lessee has good and marketable leasehold interest in the Property, subject only
to existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Lessee to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(i) The Project complies in all material respects with all applicable zoning, planning,
building, environmental and other regulations of each Governmental Authority
having jurisdiction of the Project, and all necessary permits, licenses, consents and
permissions necessary for the Project have been or will be obtained.
(j) The plans and specifications for the Project are satisfactory to the Lessee, have been
reviewed and approved by the general contractor for the Project, the tenants under
any leases which require approval of the plans and specifications, the purchasers
under any sales contracts which require approval of the plans and specifications,
any architects for the Project, and, to the extent required by applicable law or any
effective restrictive covenant, by all Governmental Authorities and the
beneficiaries of any such covenants; all construction of the Project, if any, already
performed on the Property has been performed on the Property in accordance with
such approved plans and specifications and the restrictive covenants applicable to
the plans and specifications; there are no structural defects in the Project or
violations of any requirement of any Governmental Authorities with respect to the
Project; the planned use of the Project complies with applicable zoning ordinances,
regulations, and restrictive covenants affecting the Property as well as all
environmental, ecological, landmark and other applicable laws and regulations; and
all requirements for such use have been satisfied.
10
(k) The Lessee has or has caused the Owner to have the Required Insurance Coverage
and will maintain or will cause the Owner to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) Each Disbursement Request Form presented to the Finance Authority by the
Lessee, and the receipt of the funds requested by the Disbursement Request Form,
shall constitute an affirmation that the representations and warranties contained in
this Agreement remain true and correct as of the date of the Disbursement Request
Form and the receipt of the funds requested by the Disbursement Request Form.
(m) Each of the Property and the Project are, and at all times during the term of this
Agreement, while any principal of or interest on the Project Advance remain
outstanding, and while any Special Assessments remain to be paid, used solely for
the commercial purposes disclosed by the Lessee to the Finance Authority in
writing.
(n) The Project and the plans and specifications for the Project have been developed
pursuant to an energy audit prepared by P1ugSmart which energy audit
demonstrates that the Project is expected to generate $6,426.00 in annual utility
savings and $3,993.00 in annual O & M savings.
(o) Each of the components of the Project is a qualified "special energy improvement
project" pursuant to the definition of that term in Ohio Revised Code Section
1710.01(I).
(p) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Lessee shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(q) The Lessee 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 Lessee that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(r) The Lessee is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Lessee's liabilities
11
exceeds the value of the Lessee's assets or that the Lessee is generally unable to
pay its debts as and when due.
(s) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(t) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Lessee
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.4. The Lessee's Additional Agreements. The Lessee agrees that:
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Lessee shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent.
(b) To the extent obligated to do so, it shall pay when due all taxes, assessments, service
payments in lieu of taxes, levies, claims and charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with respect to the
Property, all utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Property and all assessments and charges lawfully
made by any governmental body for public improvements that may be secured by
a lien on any portion of the Property. The Lessee shall furnish the Finance
Authority, upon reasonable request, with proof of payment of any taxes,
governmental charges, utility charges, insurance premiums or other charges
required to be paid by the Lessee under this Agreement. The Parties acknowledge
and agree that the foregoing obligation is in addition to the Lessee's obligation to
pay the Special Assessment.
12
(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.5. The Owner's Representations and Warranties. The Owner represents and
warrants that:
(a) It is a limited liability company duly organized, validly existing and in full force
and effect under the laws of the State of Delaware. It has all requisite power to
conduct its business as presently conducted and to own, or hold under lease, its
assets and properties, and, is duly qualified to do business in all other jurisdictions
in which it is required to be qualified, except where failure to be so qualified does
not have a material adverse effect on it, and will remain so qualified and in full
force and effect during the period during which Special Assessments shall be
assessed, due, and payable.
13
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Owner shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) The Owner has good and marketable interest in the Property, subject only to
existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Owner to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(f) Except for any financing of the Property and the lien related thereto that the Owner
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(g) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(h) Since the date of the most recent financial statements of the Owner provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Owner, nor has the Owner mortgaged, pledged or granted a security
interest in or encumbered the Property since such date, except as otherwise
disclosed to the Finance Authority in writing, and the financial statements which
have been delivered to the Finance Authority prior to the date of this Agreement
are true, correct, and current in all material respects and fairly represent the
14
respective financial conditions of the subjects of the financial statements as of the
respective dates of the financial statements.
(i) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Owner shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(j) The Owner 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 Owner that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(k) The Owner has or has caused the Lessee to have the Required Insurance Coverage
and will maintain or will cause the Lessee to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) The Owner is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Owner's liabilities
exceeds the value of the Owner's assets or that the Owner is generally unable to
pay its debts as and when due.
(m) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(n) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Owner
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.6. The Owner's Additional Agreements. The Owner agrees that:
15
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Owner shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Owner Consent.
(b) It shall pay when due all taxes, assessments, service payments in lieu of taxes,
levies, claims and charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Property, all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Property and all assessments and charges lawfully made by any governmental body
for public improvements that may be secured by a lien on any portion of the
Property. The Owner shall furnish the Finance Authority, upon reasonable request,
with proof of payment of any taxes, governmental charges, utility charges,
insurance premiums or other charges required to be paid by the Owner under this
Agreement. The Parties acknowledge and agree that the foregoing obligation is in
addition to the Owner's obligation to pay the Special Assessment.
(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
16
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.7. Federal Law Requirements. The ESID and the Lessee acknowledge and
agree that pursuant to the Additional Reserve Agreement (the Additional Reserve Agreement)
between the Finance Authority and the Director of Development Services of the State of Ohio
(DSA), DSA has provided additional reserves (the Additional Reserves) for the Project Advance.
The ESID and the Lessee further acknowledge and agree that the Additional Reserves constitute
federal funds provided under an award to DSA from the U.S. Department of Energy under the
Catalog of Federal Domestic Assistance Number 81.041, and that the Finance Authority is
authorized under Title 10 of the Code of Federal Regulations Part 420 to use the Additional
Reserves as loan loss reserves under such terms and conditions as DSA may determine. The ESID
and the Lessee further acknowledge and agree that the Additional Reserve Agreement sets such
terms and conditions, and that this Agreement is to be interpreted consistent with such Additional
Reserve Agreement, provided that the Additional Reserve Agreement shall control in the case of
any conflict with this Agreement.
In accordance with Article 2, Section D of the Additional Reserve Agreement, the Lessee
shall provide to the ESID and the Finance Authority, when and as requested by the ESID and the
Finance Authority, any and all information the ESID and the Finance Authority shall determine is
necessary to complete reporting required by (i) the State Energy Program (SEP) of the American
Recovery and Reinvestment Act of 2009 (the ARRA) and (ii) the Additional Reserve Agreement.
Without limiting the generality of the preceding sentence, Lessee hereby agrees to provide the
following information:
(a) During the installation of the Project, monthly financial information and progress
reports, which shall cover expenditures, goals accomplished, milestones met, and
any performance deficiencies or delays during the immediately preceding month;
(b) Following the completion of the installation of the Project, a project completion
report, containing a written notification that the Project has been completed,
documentation reflecting the Lessee's closeout inventory of real and personal
17
property partially or wholly acquired by the Project Advance and a statement of
economic impact, including job creation and retention data;
(c) During and following the completion of the installation of the Project, for all years
during which any principal or interest is outstanding on the Project Advance,
annual, cumulative, to -date values on the following metrics: (1) verification of SEP -
ARRA reporting, (2) annual energy consumption from the completed Project, and
(3) any other information that may be requested by DSA; and
(d) During and following the completion of the installation of the Project, information
related to the economic impacts of the Project, including, without limitation,
increased production, competitiveness, community impact, and job creation and
retention, which includes installation hours, new jobs directly created, and jobs
retained at the site.
The Lessee shall preserve all financial and accounting records pertaining to this Agreement
during this Agreement's term, and for any further period that may be required by the Internal
Revenue Code of 1986, as amended. During such retention period, DSA or the Finance Authority,
upon reasonable notice, shall have the right to audit the records to the extent authorized and
permitted by law. The Lessee may retain all records in original or electronic form, provided that
for electronic records, an off-site duplicate record is preserved.
During the term of this Agreement, the Lessee shall comply with all applicable provisions
of the SEP -ARRA and the attendant federal regulations, including, without limitation ARRA
Section 1605 (Buy American / Federal Acquisition Regulations, or FAR) Clauses 52.225-21,
52.225-22, and 52.225-24; ARRA Section 1512 (Reporting Requirements), including FAR Clause
52.204-11; ARRA Section 1553 (Whistleblower Protection), including FAR Clause 52.203-15;
and ARRA Sections 902, 1514, and 1515 (General Accountability Office and Inspector General
Audits and Access to Records), including FAR Clauses 52.212-5, 52.214-26, and 52.215-2. A
summary of such provisions are attached to this Agreement as Exhibit H.
ARTICLE IV: PROJECT ADVANCE; CONSTRUCTION OF PROJECT; REPAYMENT
Section 4.1. Project Advance. The Finance Authority has made available to the Lessee
the Project Advance in the amount of $169,873.50. The Finance Authority shall hold the Project
Advance in a segregated account established in the custody of the Finance Authority, which
account shall be referred to as the Project Account. Subject to the terms and conditions of this
Agreement, the Finance Authority, upon the direction of the Lessee, shall disburse amounts on
deposit in the Project Account to the Lessee or to such parties as may be named by the Lessee in
order to pay the costs of the Project.
If the Project Advance is insufficient to pay the costs of the Project pursuant to this
Agreement, the Lessee, nevertheless, shall complete the acquisition, construction, equipping,
installation, and improvement of the Project, and the Lessee shall pay all such additional costs of
the Project from its own funds. The Lessee shall not be entitled to reimbursement for any such
18
additional costs of the Project, nor shall it be entitled to any abatement, diminution, or
postponement of the Special Assessments or an increase in the amount of the Special Assessments.
Section 4.2. Disbursements. In order to cause disbursement of amounts on deposit in
the Project Account to pay or reimburse the costs of the Project, the Lessee shall submit to the
Finance Authority Disbursement Request Forms (a form of which is attached to this Agreement
as Exhibit C), which Disbursement Request Forms each shall, in part, setforththe reimbursements
or payments requested. The Finance Authority shall make disbursement only for cost of the Project
incurred prior to the date of the Disbursement Request Form. Costs of the Project cannot be pre -
funded. In addition, the following are conditions to disbursement of amounts on deposit in the
Project Account:
(a) With each Disbursement Request Form:
(i) The Lessee shall deliver to the Finance Authority a notarized AIA
Application for Payment Form (G702);
(ii) The Lessee shall deliver to the Finance Authority a notarized AIA
Continuation Sheet (G703) with a budget for the Project, including a
balance for each budget item, and how the disbursement being requested
will be applied across the entire budget for the Project;
(iii) The Lessee shall deliver to the Finance Authority copies of all related
receipts and invoices;
(iv) The Lessee shall deliver to the Finance Authority, as necessary, information
detailing any other sources of funds spent to pay any portion of the costs
shown on any related receipts and invoices such that all costs shown on
related receipts and invoices, including costs not eligible to be paid from the
Project Advance, shall be accounted for either as costs being paid by a
disbursement of a portion of the Project Advance or costs being paid by
other sources;
(v) The Lessee shall deliver to the Finance Authority evidence of insurance
coverage of all contractors and sub -contractors performing work at the
Property with respect to the disbursement being requested;
(vi) The Lessee shall deliver to the Finance Authority notarized partial lien
waivers for the disbursement being requested;
(vii) The Lessee shall deliver to the Finance Authority, as necessary, direction as
to whom each amount requested shall be paid and bank information for
wiring the amounts requested for disbursement.
(b) With the first Disbursement Request Form submitted, in addition to the documents
required under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority copies of all construction
permits required for the construction of the Project;
(ii) The Lessee shall deliver to the Finance Authority copies of all agreements
with all contractors and subcontractors performing work or furnishing
materials for the Project;
19
(iii) The Lessee shall deliver to the Finance Authority a construction schedule
completed by the general contractor for the Project, which includes an
anticipated date of completion of the Project; and
(iv) The Lessee shall deliver to the Finance Authority copies of all current
policies of the Required Insurance Coverage;
(v) The construction plans and specifications shall have been approved in all
respects by the Finance Authority in its sole discretion;
(vi) The Lessee shall deliver to the Finance Authority the written consent of its
existing mortgage lender to the levying, assessment, and collection of the
Special Assessments, in the form attached to this Agreement as Exhibit F;
(vii) The Finance Authority shall receive the executed Special Assessment
Agreement and Lessee and Owner Consent and evidence that the same has
been recorded in the records of the County Recorder with respect to the
Property;
(viii) The Owner, the Lessee and the ESID shall provide to the Finance Authority
original executed copies of this Agreement and any related certificates.
(c) With the final Disbursement Request Form, in addition to the documents required
under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority the executed certificate in
the form attached as Exhibit D to this Agreement; and
(ii) The Lessee shall deliver to the Finance Authority copies of all completion
inspections and closed permits with respect to the Project.
Upon its receipt of each completed Disbursement Request Form, the Finance Authority
shall approve all or a portion of the payment or reimbursements requested to be disbursed from
the Project Account. To the extent the Finance Authority approves the payment or reimbursements
requested to be disbursed from the Project Account, the Finance Authority shall pay the Lessee or
such other parties as are indicated on the Disbursement Request Form the amounts described on
such Disbursement Request Form which have been approved by the Finance Authority.
Additionally, promptly following the Effective Date, the Finance Authority shall disburse
closing costs related to the financing described in this Agreement in an amount not to exceed
$20,872.50, as detailed in Exhibit E to this Agreement to the parties set forth on Exhibit E to this
Agreement. Without limiting the generality of the foregoing, disbursements made pursuant to this
paragraph may be for fees to the Finance Authority, fees to the ESID, legal fees, advisory fees,
fees to the City, and other closing costs or contingencies.
Section 4.3. Casualties and Takings. The Owner and the Lessee shall promptly notify
the Finance Authority if the Project is damaged or destroyed by fire, casualty, injury or any other
cause (each such occurrence, a Casualty). Upon the occurrence of such Casualty, the Owner's
Lender, if any, may elect, in its sole discretion and judgment, to restore the Property and the Project
or to terminate the construction of the Project, and in either case, to direct the application of the
insurance proceeds pursuant to the terms of Owner's Lender's agreement with the Owner,
provided that if the insurance proceeds are not used to restore the Property and the Project,
insurance proceeds will be distributed first to Owner's Lender pursuant to its agreements with the
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Owner, and next to the Finance Authority for repayment of the outstanding balance of the Special
Assessments and any related fees, and any excess proceeds will be paid to the Owner or the Lessee,
as appropriate.
Upon the occurrence of a Casualty, if no Person is a Lender at the time of such Casualty,
the insurance proceeds shall be applied to pay the costs of the restoration of the Project or to the
repayment of the outstanding balance of the Special Assessments, and in which case the Finance
Authority shall remain obligated to make disbursements of up to the total amount of the Project
Advance in accordance with this Agreement.
In the event restoration of the Project or the Property is pursued, the Lessee shall
immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, said insurance proceeds are
insufficient to complete the restoration, the Lessee shall deposit with the Finance Authority such
amounts as are necessary, in the Finance Authority's reasonable judgment, to complete the
restoration in accordance with the plans and specifications.
In the event any part of the Property or the Project shall be taken for public purposes by
condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in
lieu of condemnation to any authority entitled to exercise the power of eminent domain (a Taking),
the Owner's Lender, if any, may elect, in its sole discretion and judgment, not to restore the
Property or the Project or to restore the Property or the Project, and in either case, to direct the
application of the proceeds of the Taking pursuant to the terms of its agreements with the Owner.
If the Lender determines not to restore the Property or the Project and release funds related thereto
to the Owner, the Finance Authority's obligation to make disbursements under this Agreement
shall be terminated. If the Lender determines to restore the Property and the Project, the Lessee
shall immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, the Taking proceeds available
to the Lessee and the Finance Authority are insufficient to complete the restoration, the Lessee
shall deposit with the Finance Authority such amounts as are necessary, in the Finance Authority's
reasonable judgment, to complete the restoration in accordance with the plans and specifications.
In the event that no Person is a Lender at the time of such Taking, the Finance Authority's
obligation to make disbursements under this Agreement shall be terminated unless the Property
and the Project can be replaced and restored in a manner which will enable the Project to be
functionally and economically utilized and occupied as originally intended. If the Property and
the Project can be so restored, the Lessee shall immediately proceed with the restoration of the
Project in accordance with the plans and specifications, and the Finance Authority shall release the
funds for such purpose. If, in the Finance Authority's reasonable judgment, the Taking proceeds
available to the Lessee and the Finance Authority are insufficient to complete the restoration, the
Lessee hall deposit with the Finance Authority such amounts as are necessary, in the Finance
Authority's reasonable judgment, to complete the restoration in accordance with the plans and
specifications.
Section 4.4. Eligible Costs. The costs of the Project which are eligible for payment or
reimbursement pursuant to this Agreement include the following:
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(a) costs incurred directly or indirectly for or in connection with the acquisition,
construction, equipping, installation, and improvement of the Project, including
without limitation, costs incurred in respect of the Project for preliminary planning
and studies; architectural, legal, engineering, surveying, accounting, consulting,
supervisory and other services; labor, services and materials; and recording of
documents and title work;
(b) financial, legal, recording, title, accounting, and printing and engraving fees,
charges and expenses, and all other fees, charges and expenses incurred in
connection with the financing described in this Agreement;
(c) premiums attributable to any surety and payment and performance bonds and
insurance required to be taken out and maintained until the date on which each
Project is final and complete;
(d) taxes, assessments and other governmental charges in respect of the Project that
may become due and payable until the date on which each Project is final and
complete;
(e) costs, including, without limitation, attorney's fees, incurred directly or indirectly
in seeking to enforce any remedy against any contractor or subcontractor in respect
of any actual or claimed default under any contract relating to the Project; and
(f) any other incidental or necessary costs, expenses, fees and charges properly
chargeable to the cost of the acquisition, construction, equipment, installation, and
improvement of the Project.
Section 4.5. Completion of Project: Inspection. The Lessee (a) in accordance with the
approved plans and specifications for the Project, which plans and specifications shall not be
materially revised without the prior written approval of the Finance Authority, which approval
shall not be unreasonably withheld, shall acquire, construct, equip, install, and improve the Project
with Project Advance with all commercially reasonable dispatch, (b) subject to its right to contest
any disputed work, shall pay when due all fees, costs and expenses incurred or payable by the
Lessee in connection with that acquisition, construction, equipment, installation, and improvement
from funds made available therefor in accordance with this Agreement or otherwise, and (c) shall
ask, demand, sue for, levy, recover and receive all those sums of money, debts and other demands
whatsoever which may be due, owing and payable to the Lessee under the terms of any contract,
order, receipt, writing or instruction in connection with the acquisition, construction, equipment,
installation, and improvement of the Project, and shall utilize commercially reasonable efforts to
enforce the provisions of any contract, agreement, obligation, bond or other performance security
with respect thereto. It is understood that the Project is to be owned by the Lessee and any contracts
made by the Lessee with respect to the Project or any work to be done by the Lessee on or with
respect to the Project are made or done by the Lessee on its own behalf and not as agent or
contractor for the ESID.
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During the period of construction, acquisition, equipping, installation, and improvement of
the Project, the ESID and the Finance Authority, and their respective agents, subject to reasonable
security and safety regulations, and upon reasonable prior notice, shall have the right, during
normal business hours, to inspect the Project. The ESID and the Finance Authority and their
respective agents shall utilize commercially reasonable efforts to minimize interference with the
tenants of the Property during any such inspection.
The Finance Authority reserves the right to denythe request for aProject Advance pursuant
to Article IV of this Agreement if such inspection reveals that construction is not proceeding with
reasonable dispatch. If, in the Finance Authority's opinion, after thirty (30) days' written notice to
the Lessee, the construction is not proceeding with reasonable dispatch, the Finance Authority may
(i) request that the Lessee remove and replace the general contractor with a general contractor
acceptable to the Finance Authority, the failure of which by the Lessee shall be a default under
this Agreement, (ii) utilize funds to continue construction of the Project and such funds shall be
considered Project Advances, or (iii) deny any Project Advance until such time as the construction
resumes proceeding with reasonable dispatch.
The Lessee shall notify the ESID, the City, the Owner, and the Finance Authority of the
Completion Date by a certificate in the form attached as Exhibit D to this Agreement, signed by
the Lessee stating: (a) the date on which the acquisition, construction, equipping, installation, and
improvement of the Project was substantially completed by the general contractor for the Project
in accordance with the construction contract, and the Lessee has no unresolved complaints
regarding the work; (b) that the Project has been completed in all material respects in accordance
with the plans and specifications, permits, and budget for the Project approved by the Finance
Authority; (c) that the Lessee has complied, and will continue to comply with all applicable
statutes, regulations, and ordinances in connection with the Property and the construction of the
Project; (d) that the Lessee has a leasehold interest in the Property; (e) that the general contractor
for the project has not offered the Lessee any payment, refund, or any commission in return for
completing Project; and (f) that all funds provided to the Lessee by the Finance Authority for the
Project have been used in accordance with this Agreement. The certificate shall be delivered as
promptly as practicable after the Completion Date.
Section 4.6. Repavment. The Parties acknowledge that pursuant to this Agreement, the
Project Advance is expected to be repaid by the Special Assessments. The Parties agree that the
Special Assessments have been levied and certified to the County Auditor in the amounts
necessary to amortize the Project Advance, together with interest at the annual rate of 5.75%, and
a $60.94 semi-annual administrative fee to the ESID over 20 semi-annual payments to be collected
beginning approximately on January 31, 2021 and continuing through approximately July 31,
2030. The Parties further acknowledge that in addition to the amount of the Special Assessments
and other related interest, fees, and penalties, the County Auditor may charge and collect a County
Auditor collection fee on each annual installment of the Special Assessments in an amount to be
calculated, charged, and collected by the County Auditor pursuant to Ohio Revised Code Section
727.36. Interest shall accrue on the entire amount of the Project Advance from the Effective Date;
provided, however, that a portion of the Project Advance may be used to pay interest accruing and
due and payable on the Project Advance prior to the date on which the first installment of the
Special Assessments is paid to the Finance Authority by the City. The Owner and the Lessee agree
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to pay, as and when due, all Special Assessments with respect to its Property. Notwithstanding
anything in this Section 4.6 or this Agreement to the contrary, the Parties acknowledge and agree
that, pursuant to the laws of the State, the Special Assessments to be collected by the County
Treasurer which as of the relevant date are not yet due and payable never shall be accelerated, and
the lien of the Special Assessments never shall exceed the amount of Special Assessments which,
as of the relevant date, are due and payable but remain unpaid.
Section 4.7. Prepayment. At any time after the Effective Date, the Owner or the Lessee
may prepay any portion of the principal of the Project Advance to the Finance Authority by paying,
in immediately available funds, 103% of the principal amount of the Project Advance to be
prepaid, together with all accrued and unpaid interest on the Project Advance to the date of
prepayment.
Immediately upon any prepayment pursuant to this Section 4.7, the Finance Authority shall
notify the City of the prepayment, and the Lessee, the Finance Authority, and the City shall
cooperate to reduce the amount of Special Assessments to be collected by the County Auditor
pursuant to Section 2.2(d) of this Agreement.
Section 4.8. Payment of Fees and Expenses. If an Event of Default on the part of the
Owner orthe Lessee should occur under this Agreement such thatthe ESID, the Finance Authority,
or the City should incur expenses, including but not limited to attorneys' fees, in connection with
the enforcement of this Agreement or the collection of sums due under this Agreement, the Owner
or the Lessee, as applicable, shall reimburse the ESID, the Finance Authority, and the City, as
applicable, for any reasonable out-of-pocket expenses so incurred upon demand. If any such
expenses are not so reimbursed, the amount of such expenses, together with interest on such
amount from the date of demand for payment at an annual rate equal to the lesser of 10% or the
maximum rate allowable by law shall constitute indebtedness under this Agreement, and the ESID,
the Finance Authority, and the City, as applicable, shall be entitled to seek the recovery of those
expenses in such action except as limited by law or by judicial order or decision entered in such
proceedings.
Section 4.9. Further Assurances. Upon the request of the Finance Authority, the Owner
and the Lessee shall take any actions and execute any further documents as the Finance Authority
deems necessary or appropriate to carry out the purposes of this Agreement.
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default. If any of the following shall occur, such occurrence shall
be an Event of Default under this Agreement:
(a) Any installment of the Special Assessments shall not have been paid when due,
after taking into account all applicable extensions;
(b) The City shall fail to appropriate in any fiscal year the Special Assessments payable
to the Finance Authority pursuant to this Agreement in such fiscal year, or shall fail
to transfer, or cause the transfer of, any of the Special Assessments to the Finance
Authority within the time specified in this Agreement;
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(c) Any Party is in material breach of its representations or warranties under this
Agreement; provided, however, that upon the material breach of a Party's
representations or warranties under this Agreement, such Party shall have the right
to cure such breach within 5 days of the receipt of notice, and, if so cured, such
breach shall not constitute an Event of Default;
(d) The ESID, the Owner, the Lessee, or the City shall fail to observe and perform any
other agreement, term, or condition contained in this Agreement, and the
continuation of such failure for a period of 30 days after written notice of such
failure shall have been given to the ESID, the Owner, the Lessee, or the City, as
applicable, by any other Party to this Agreement, or for such longer period to which
the notifying Party may agree in writing; provided, however, that if the failure is
other than the payment of money, and is of such nature that it can be corrected but
not within the applicable period, that failure shall not constitute an Event of Default
so long as the ESID, the Owner, the Lessee, or the City, as applicable, institutes
curative action within the applicable period and diligently pursues that action to
completion;
(e) The Owner or the Lessee abandons its Property or the Project;
(f) The Owner or the Lessee commits waste upon its Property or the Project;
(g) An event occurs that materially and adversely affects the Lessee's ability to pay or
perform its obligations under this Agreement;
(h) The Owner or the Lessee becomes bankrupt or insolvent or files or has filed against
it (and such action is not stayed or dismissed within 90 days) a petition in
bankruptcy or for reorganization or arrangement or other relief under the
bankruptcy laws or any similar state law or makes a general assignment for the
benefit of creditors; or
(i) Any workmanship or materials constituting a portion of the Project or incorporated
into the Project shall be materially defective and shall not be corrected within 30
days after notice.
The declaration of an Event of Default above, and the exercise of remedies upon any such
declaration, shall be subject to any applicable limitations of federal bankruptcy law affecting or
precluding that declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Promptly upon any non -defaulting Party becoming aware that an Event of Default has
occurred, such Party shall deliver notice of such Event of Default to each other Party under this
Agreement in accordance with the notice procedures described in Section 6.5 of this Agreement.
Section 5.2. Remedies on Default. Whenever an Event of Default shall have happened
and be subsisting, any one or more of the following remedial steps may be taken:
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(a) Upon an Event of Default described in Section 5.l(a) only, the Finance Authority
shall be entitled to receive any Delinquency Amounts actually received by the City.
(b) The ESID, the Finance Authority, and the City, together or separately, may pursue
all remedies now or later existing at law or in equity to collect all amounts due and
to become due under this Agreement or to enforce the performance and observance
of any other obligation or agreement of any of the Parties, as applicable, under this
Agreement, including enforcement under Ohio Revised Code Chapter 2731 of
duties resulting from an office, trust, or station upon the ESID or the City, provided
that, Parties may only pursue such remedies against the Party responsible for the
particular Event of Default in question; provided, however, that the ESID, the
Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Owner, the Lessee, or the Project except to collect
or remedy any outstanding damages or liability which shall have arisen due to the
occurrence of an Event of Default.
(c) Any Party may pursue any other remedy which it may have, whether at law, in
equity, or otherwise, provided that, Parties may only pursue such remedies against
the Party responsible for the particular Event of Default in question; provided,
however, that the ESID, the Finance Authority, and the City may not take any other
action or exercise any remedy against the Property, the Project, or the Lessee except
to collect or remedy any outstanding damages or liability which shall have arisen
due to the occurrence of an Event of Default.
Notwithstanding the foregoing, each of the ESID and the City shall not be obligated to take
any step which in its opinion will or might cause it to expend time or money or otherwise incur
liability unless and until a satisfactory indemnity bond has been furnished to it at no cost or
expense.
Section 5.3. Foreclosure. Pursuant to Section 2.1 of the Special Assessment Agreement
by and among the County Treasurer, the City, the ESID, the Finance Authority, the Lessee, and
the Owner and dated as of the Effective Date (the Special Assessment Agreement), the County
Treasurer has agreed not to confirm the sale of the Property for an amount less than 100% of the
amount of the Special Assessments and other general real estate taxes, payments in lieu of taxes,
and assessments then due and owing with respect to the Property, as shall be certified by the ESID
to the County Treasurer pursuant to the records of the County Treasurer without the consent of the
ESID and the Finance Authority. The ESID hereby agrees that in the event it is asked to provide
its consent in accordance with Section 2.1 of the Special Assessment Agreement, it will notify the
Finance Authority of such request, and it will not provide its consent pursuant to Section 2.1 of
the Special Assessment Agreement without the Finance Authority's prior written direction.
Section 5.4. No Remedv Exclusive. No remedy conferred upon or reserved to the Parties
by this Agreement is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, or now or later existing at law, in equity or by statute; provided, however,
that the ESID, the Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Project, the Owner, or the Lessee except to collect or remedy any
26
outstanding damages or liability which shall have arisen due to the occurrence of an Event of
Default. No delay or omission to exercise any right or power accruing upon any default shall
impair that right or power nor shall be construed to be a waiver, but any such right and power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle the
Parties to exercise any remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than any notice required by law or for which express provision is made in this
Agreement.
Section 5.5. No Waiver. No failure by a Party to insist upon the strict performance by
the other Parties of any provision of this Agreement shall constitute a waiver of such Party's right
to strict performance; and no express waiver shall be deemed to apply to any other existing or
subsequent right to remedy the failure by the Parties to observe or comply with any provision of
this Agreement.
Section 5.6. Notice of Default. Any Party to this Agreement shall notify every other
Party to this Agreement immediately if it becomes aware of the occurrence of any Event of Default
or of any fact, condition or event which, with the giving of notice or passage of time or both, would
become an Event of Default.
ARTICLE VI: MISCELLANEOUS
Section 6.1. Waivers. The Owner and the Lessee each acknowledges that the process
for the imposition of special assessments provides the owner of property subject to such special
assessments with certain rights, including rights to: receive notices of proceedings; object to the
imposition of the special assessments; claim damages; participate in hearings; take appeals from
proceedings imposing special assessments; participate in and prosecute court proceedings, as well
as other rights under law, including but not limited to those provided for or specified in the United
States Constitution, the Ohio Constitution, Ohio Revised Code Chapter 727, the Charter of the
City and the ordinances in effect in the City (collectively, Assessment Rights). The Owner and
the Lessee each irrevocably waives all Assessment Rights as to the Project and consents to the
imposition of the Special Assessments as to the Project immediately or at such time as the ESID
determines to be appropriate, and the Owner and the Lessee each expressly requests the entities
involved with the special assessment process to promptly proceed with the imposition of the
Special Assessments upon its Property as to its Energy Project. The Owner and the Lessee each
further waives in connection with the Project: any and all questions as to the constitutionality of
the laws under which the Project will be constructed and the Special Assessments imposed upon
the Property; the jurisdiction of the Council of the City acting thereunder; and the right to file a
claim for damages as provided in Ohio Revised Code Section 727.18 and any similar provision of
the Charter of the City or the ordinances in effect within the City.
Section 6.2. Term of Agreement. This Agreement shall be and remain in full force and
effect from the Effective Date until the payment in full of the entire aggregate amount of the
Special Assessments shall have been made to the Finance Authority and the obligations (if any) of
each Party under Section 6.4 shall have been fully satisfied, or such time as the Parties shall agree
in writing to terminate this Agreement. Any attempted termination of this Agreement prior to the
payment in full of the entire aggregate amount of the Special Assessments which is not in writing
and signed by each of the Parties to this Agreement shall be null and void.
27
Section 6.3. Litigation Notice. Each Party shall give all other Parties prompt notice of
any action, suit, or proceeding by or against the notifying Party, at law or in equity, or before any
governmental instrumentality or agency, of which the notifying Party has notice and which, if
adversely determined would impair materially the right or ability of the Parties to perform its
obligations under this Agreement. The notifying Party's prompt notice shall be accompanied by
its written statement setting forth the details of the action, suit, or proceeding and any responsive
actions with respect to the action, suit, or proceeding taken or proposed to be taken by the Party.
Section 6.4. Indemnification. The Owner and the Lessee ^ka" indemnify R44a 14o'a
haafmiesshereby release the ESID, the Finance Authority, and the City, and their respective
(in Judi g a tuber, officers, directors--e��and employees-4kefee4) (collectively, the
Indemnified Parties), from, agree that the Indemnified Parties shall not be liable for, and agree
to indemnifv the Indemnified Parties against, any and all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation, out-of-pocket and
incidental expenses and reasonable attorneys' fees and expenses) imposed upon, incurred by or
asserted against an of fthe Indemnified Partyies arising or resulting from (i) the levy and collection
of the Special Assessments, (ii) the financing, acquisition, construction, installation, operation, use
or maintenance of the Project, (iii) any act, failure to act or misrepresentation by the Owner or the
Lessee, as applicable, in connection with, or in the performance of any obligation on their
respective parts to be performed under this Agreement or related to the Special Assessments
resulting in material actual damages, or (iv) (a) a past, present or future violation or alleged
violation of any environmental laws in connection with the Property by any person or other source,
whether related or unrelated to the Owner or the Lessee, as applicable, (b) any presence of any
hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as
such in or regulated under any environmental law (Materials of Environmental Concern) in, on,
within, above, under, near, affecting or emanating from the Property, (c) the failure to timely
perform any investigation, inspection, site monitoring, containment, clean—up, removal, response,
corrective action, mitigation, restoration or other remedial work of any kind or nature because of,
or in connection with, the current or future presence, suspected presence, Release (as defined
below) or threatened Release in or about the air, soil, ground water, surface water or soil vapor at,
on, about, under or within all or any portion of the Property of any Materials of Environmental
Concern, including any action to comply with any applicable environmental laws or directives of
any governmental authority with regard to any environmental laws, (d) any past, present or future
activity by any person or other source, whether related or unrelated to the Owner or the Lessee, as
applicable, in connection with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or transportation to or from
the Property of any Materials of Environmental Concern at any time located in, under, on, above
or affecting the Property, (e) any past, present or future actual generation, treatment, use, storage,
transportation, manufacture, refinement, handling, production, removal, remediation, disposal,
presence or migration of Materials of Environmental Concern on, about, under or within all or any
portion of the Property (a Release) (whether intentional or unintentional, direct or indirect,
foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting the Property by any
person or other source, whether related or unrelated to the Owner or the Lessee, as applicable, (f)
the imposition, recording or filing or the threatened imposition, recording or filing of any lien on
the Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant
28
to any environmental law, or (g) any misrepresentation or failure to perform any obligations related
to environmental matters in any way pursuant to any documents related to the Special
Assessments; provided, however, that the Owner or the Lessee, as appropriate, shall not indemnify
the Indemnified Parties as provided above to the extent that any liability, claim, cost, or expense
arises out of or results from the gross negligence, willful misconduct, or breach of this Agreement
or any of the other PACE Documents (as defined in Section 6.13 below) by the Indemnified
Parties.
In the event any action or proceeding is brought against any Indemnified Party by reason
of any such claim, such Indemnified Party will promptly give written notice thereof to the Owner
and the Lessee. The Owner or the Lessee, as applicable, shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume at its own expense the defense of such claim,
suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by
the Owner or the Lessee, as applicable; but if the Owner or the Lessee, as applicable, shall elect
not to assume such defense, it shall reimburse such Indemnified Party for the reasonable fees and
expenses of any counsel retained by such Indemnified Party. If at any time the Indemnified Party
becomes dissatisfied, in its reasonable discretion, with the selection of counsel by the Lessee, a
new mutually agreeable counsel shall be retained at the expense of the Owner or the Lessee, as
applicable. Each Indemnified Party agrees that the Owner or the Lessee, as applicable, shall have
the sole right to compromise, settle or conclude any claim, suit, action or proceeding against any
of the Indemnified Parties. Notwithstanding the foregoing, each Indemnified Party shall have the
right to employ counsel in any such action at their own expense; and provided further that such
Indemnified Party shall have the right to employ counsel in any such action and the fees and
expenses of such counsel shall be at the expense of the Owner or the Lessee, as applicable„ if: (i)
the employment of counsel by such Indemnified Party has been authorized by the Owner or the
Lessee, as applicable, (ii) there reasonably appears that there is a conflict of interest between the
Owner or the Lessee, as applicable, and the Indemnified Party in the conduct of the defense of
such action (in which case the Owner or the Lessee, as applicable, shall not have the right to direct
the defense of such action on behalf of the Indemnified Party) or (iii) the Owner or the Lessee, as
applicable, shall not in fact have employed counsel to assume the defense of such action. The
Owner and the Lessee shall also indemnify the Indemnified Parties from and against all costs and
expenses, including reasonable attorneys' fees, lawfully incurred in enforcing any obligations of
the Lessee under this Agreement; provided, however, that the Owner or the Lessee, as appropriate,
shall not indemnify the Indemnified Parties as provided above to the extent that any liability, claim,
cost, or expense arises out of or results from the negligence, willful misconduct, or breach of this
Agreement or any of the other PACE Documents (defined in Section 6.13 below) by the
Indemnified Parties. The obligations of the Owner and the Lessee under this Section shall survive
the termination of this Agreement and shall be in addition to any other rights, including without
limitation, rights to indemnity which any Indemnified Party may have at law, in equity, by contract
or otherwise.
None of the Finance Authority, the City, or the ESID shall have any liability to the Owner,
to the Lessee, or to any other Person on account of (i) the Lessee engaging a contractor from the
list of contractors submitted by the ESID or the Finance Authority to the Lessee, (ii) the services
performed by the contractor, or (iii) any neglect or failure on the part of the contractor to perform
or properly perform its services. None of the Finance Authority, the City, the Owner, or the ESID
29
assumes any obligation to the Owner, the Lessee, or any other Person concerning contractors, the
quality of construction of the Project or the absence of defects from the construction of the Project.
The making of a Project Advance by the Finance Authority shall not constitute the Finance
Authority's approval or acceptance of the construction theretofore completed. The Finance
Authority's inspection and approval of the budget, the construction work, the improvements, or
the workmanship and materials used in the improvements, shall impose no liability of any kind on
the Finance Authority, the sole obligation of the Finance Authority as the result of such inspection
and approval being to make the Project Advances if, and to the extent, required by this
Agreement. Any disbursement made by the Finance Authority without the Finance Authority
having received each of the items to which it is entitled under this Agreement shall not constitute
breach or modification of this Agreement, nor shall any written amendment to this Agreement be
required as a result.
Section 6.5. Notices. All notices, certificates, requests or other communications under
this Agreement shall be in writing and shall be deemed to be sufficiently given when mailed by
registered or certified mail, postage prepaid, and addressed to the appropriate Notice Address. The
Parties, by notice given under this Agreement to the others, may designate any further or different
addresses to which subsequent notices, certificates, requests or other communications shall be sent.
Each of the Parties agree to provide the other Parties to this Agreement notice of any litigation of
which it has actual knowledge that may adversely affect its ability to carry out its obligations under
this Agreement.
Section 6.6. Extent of Covenants: No Personal Liability. All covenants, obligations, and
agreements of the ESID and the City contained in this Agreement shall be effective to the extent
authorized and permitted by applicable law. No 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 ESID, the Board, the Owner, the Lessee, the City, the City Council, the Finance
Authority, or the Board of Directors of the Finance Authority in other than his or her official
capacity; and none of the members of the Board, the City Council, or the Board of Directors of the
Finance Authority, nor any official of the ESID, the Owner, the Lessee the City, or the Finance
Authority executing this Agreement shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the covenants, obligations, or agreements of
the ESID, the Owner, the Lessee, the City, or the Finance Authority contained in this Agreement.
Section 6.7. Binding Effect: Assignment: Estoppel Certificates. This Agreement shall
inure to the benefit of and shall be binding in accordance with its terms upon the Parties. Except
as specifically provided below, this Agreement shall not be assigned by the any of the Parties
except as may be necessary to enforce or secure payment of the Special Assessments.
Notwithstanding anything in this Agreement to the contrary, the Lessee freely may transfer
its leasehold interest in the Property and the Project or any portion of the Property and the Project
from time to time and may assign this Agreement to an arm's-length, good faith purchaser of the
Property but only after notice of such assignment is given to the Finance Authority, and only upon
(i) the execution and delivery to the City, the Finance Authority, the ESID, and the Owner of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
30
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent. Following any assignment by the Lessee as described above, all
obligations of the Lessee contained in this Agreement, the Special Assessment Agreement, and the
Lessee and Owner Consent shall be obligations of the assignee, and the assigning Lessee shall be
released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Owner freely may transfer
its interest in the Property and the Project or any portion of the Property and the Project from time
to time and may assign this Agreement to an arm's-length, good faith purchaser of the Property
but only after notice of such assignment is given to the Finance Authority, and only upon (i) the
execution and delivery to the City, the Finance Authority, the ESID, and the Lessee of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent. Following any assignment by the Owner as described above, all
obligations of the Owner contained in this Agreement, the Special Assessment Agreement, and
the Lessee and Owner Consent shall be obligations of the assignee, and the assigning Owner shall
be released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Finance Authority shall
have the unrestricted right at any time or from time to time, and without the consent from the
Owner or the Lessee, to assign all or any portion of its rights and obligations under this Agreement,
and may sell or assign any and all liens received directly or indirectly from the City to any Person
(each, a Finance Authority Assignee), and the Owner and the Lessee agree that they shall execute,
or cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection with
this Agreement as the Finance Authority shall deem necessary to effect the foregoing so long as
such amendment does not materially adversely impact the Owner or the Lessee's rights and
obligations under this Agreement. Any Finance Authority Assignee shall be a party to this
Agreement and shall have all of the rights and obligations of the Finance Authority under this
Agreement (and under any and all other guaranties, documents, instruments and agreements
executed in connection with this Agreement) to the extent that such rights and obligations have
been assigned by the Finance Authority pursuant to the assignment documentation between the
Finance Authority and such Finance Authority Assignee, and the Finance Authority shall be
released from its obligations under this Agreement and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement to a
corresponding extent. If, at any time, the Finance Authority assigns any of the rights and
obligations of the Finance Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to a Finance
Authority Assignee, the Finance Authority shall give prompt written notice of such assignment to
the other Parties.
31
In addition, the Finance Authority shall have the unrestricted right at any time and from
time to time, and without the consent of or notice of the Owner or the Lessee, to grant to one or
more Persons (each, a Participant) participating interests in Finance Authority's obligation to
make Project Advances under this Agreement or to any or all of the loans held by Finance
Authority under this Agreement. In the event of any such grant by the Finance Authority of a
participating interest to a Participant, whether or not upon notice to the Owner or the Lessee, the
Finance Authority shall remain responsible for the performance of its obligations under this
Agreement, and the Lessee shall continue to deal solely and directly with the Finance Authority in
connection with the Finance Authority's rights and obligations under this Agreement. The Owner
and the Lessee agree that the Finance Authority may furnish any public information concerning
the Owner and the Lessee in its possession from time to time to prospective Finance Authority
Assignees and Participants.
This Agreement may be enforced only by the Parties, their permitted assignees, and others,
who may, by law, stand in their respective places.
Any Party shall at any time and from time to time, upon not less than 30 days' prior written
notice by the other party, execute, acknowledge and deliver to such party a statement in writing
certifying that: (i) this Agreement is unmodified and in full force and effect (or, if there has been
any modification of this Agreement, that the same is in full force and effect as modified and stating
the modification or modifications); (ii) to the best of such Party's actual knowledge (without any
duty of inquiry) there are no continuing Events of Default (or, if there is a continuing Event of
Default, stating the nature and extent of such Event of Default); (iii) that, to the best of such Party's
actual knowledge (without any duty of inquiry) there are no outstanding damages or liability
arising from an Event of Default (or, if there is any outstanding damages or liability, stating the
nature and extent of such damages or liability); (iv) if such certificate is being delivered by the
Owner or the Lessee, the dates to which the Special Assessments have been paid; and (v) if such
certificate is being delivered by the Finance Authority, the dates to which the Special Assessments
have been paid to the Finance Authority. It is expressly understood and agreed that any such
certificate delivered pursuant to this Section 6.7 may be relied upon by any prospective assignee
of the Owner or the Lessee or any prospective Finance Authority Assignee.
Section 6.8. Termination of Lease. If at any time during the term of this Agreement the
Lessee's lease of the Property and the Project with the Owner (including as amended, extended,
or substituted) terminates, the Owner shall assume all of the Lessee's rights and obligations under
this Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
Section 6.9. Amendments and Supplements. Except as otherwise expressly provided in
this Agreement, this Agreement may not be amended, changed, modified, altered or terminated
except by unanimous written agreement signed by each of the Parties materially affected by such
proposed amendment, change, modification, alteration, or termination. For purposes of this
Section, a materially affected Party is a Party with respect to which a material right or obligation
under this Agreement is proposed to be amended, changed, modified, altered, or terminated. Any
attempt to amend, change, modify, alter, or terminate this Agreement except by unanimous written
agreement signed by all of the materially affected Parties or as otherwise provided in this
Agreement shall be void.
32
Section 6.10. Execution Counterparts. This Agreement maybe executed in counterpart
and in any number of counterparts, each of which shall be regarded as an original and all of which
together shall constitute but one and the same instrument.
Section 6.11. Severability. If any provision of this Agreement, or any covenant,
obligation, or agreement contained in this Agreement 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 in this Agreement. That invalidity or unenforceability shall not affect any valid
and enforceable application of the provision, covenant, obligation, or agreement, 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 6.12. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State and for all purposes shall be governed by and construed in accordance
with the laws of the State.
Section 6.13. Lessee Primarilv Obligated. All parties to this Agreement hereby
acknowledge and agree that the Owner is executing this Agreement, the Special Assessment
Agreement, the Lessee and Owner Consent, and any and all other documents related to the Special
Assessments or the PACE financing (collectively, the PACE Documents) as an accommodation
to the Lessee, so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding
any other provision contained in this Agreement or the other PACE Documents, the Lessee is and
shall be primarily responsible for the performance of any and all obligations of the Owner or the
Lessee under the PACE Documents. If the Lessee fails to perform its obligations in the PACE
Documents, the Owner acknowledges and agrees that the Owner shall assume all of the Lessee's
rights and obligations under the PACE Documents, as expressly contained in the respective PACE
Documents.
[Remainder of Page Intentionally Left Blank]
33
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly
executed in their respective names, all as of the Effective Date.
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., as the ESID
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
OH15 DUBLIN LLC, as the Owner
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
Matthew Tucker, Vice President
[Signature Page to Energy Project Cooperative Agreement]
VIAQUEST, INC., as the Lessee
IC
Michael Bell, Chief Financial Officer
[Signature Page to Energy Project Cooperative Agreement]
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY, as the Finance
Authority
IC
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY OF DUBLIN, OHIO, as the City
-0
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY FISCAL OFFICER CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that the
moneys required to meet the obligations of the City during the year 2019 under the foregoing
Energy Project Cooperative Agreement ($0.00) have been lawfully appropriated by the City
Council of the City of Dublin, Ohio for such 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 Ohio Revised Code Sections 5705.41 and 5705.44.
Director of Finance
City of Dublin, Ohio
Dated: .2019
[City Fiscal Officer Certificate Energy Project Cooperative Agreement]
EXHIBIT A
As used in this Agreement, the following words have the following meanings:
Agreement'' means this Energy Project Cooperative Agreement, dated as of the Effective
Date, by and between the ESID, the Owner, the Lessee, the Finance Authority, and the City, as the
same may be amended, modified, or supplemented from time to time in accordance with its terms.
"Board" means the Board of Directors of the ESID.
"City" means the City of Dublin, Ohio.
"City Council" means the City Council of the City.
"Completion Date" means the latest date on which substantial completion of the Project,
in accordance with the Plans occurs, which date shall be established by the Completion Certificate
attached to this Agreement as Exhibit D.
"County" means Franklin County, Ohio.
"County Auditor" means the Auditor of the County.
"County Prosecutor" means the Prosecuting Attorney of the County.
"County Treasurer" means the Treasurer of the County.
"Delinquency Amounts" means any penalties or interest which may be due on or with
respect to any installment of the Special Assessments and which are not paid or payable as required
by law to any Person (other than the Finance Authority under this Agreement).
"Disbursement Request Form" means the form attached to this Agreement as Exhibit C
which form shall be submitted by the Lessee in order to receive disbursements from the Project
Account.
"ESID" means the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township,
Whitehall, Worthington Regional Energy Special Improvement District, Inc., doing business under
the registered trade name Columbus Regional Energy Special Improvement District, Inc., a
nonprofit corporation and energy special improvement district organized under the laws of the
State of Ohio.
"Finance Authority" means the Columbus -Franklin County Finance Authority, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State of Ohio, together with any Finance Authority Assignee.
A-1
"Governmental Authority" means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Lender" means any Person which has loaned money to the Owner to pay or refinance
the costs of acquiring, financing, refinancing, or improving the Property and which loan is secured
by a mortgage interest in the Property, or any permitted successors or assigns of such Person.
"Lessee" means ViaQuest, Inc., an Ohio corporation, and any permitted successors or
assigns.
"Lessee and Owner Consent" means, collectively, the Lessee Consent and the Owner
Consent, each dated as of the Effective Date by Lessee and Owner, and each recorded in the
records of the Franklin County Recorder with respect to the Property.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5200 Emerald Parkway
Columbus, Ohio 43017
Attention: City Manager
(b) As to the ESID: Columbus Regional Energy Special
Improvement District, Inc.
c/o Columbus -Franklin County Finance
Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy To: J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 S. Third Street
Columbus, Ohio 43215
(c) As to the Owner OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy To: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
A-2
(d) As to the Lessee
(e) As to the Finance
Authority
Attention: General Counsel
ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
Columbus -Franklin County
Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: President
"Ordinance Levying Assessments" means any resolution or ordinance passed, enacted, or
adopted by the City pursuant to Ohio Revised Code Section 727.25 with respect to levying special
assessments on real property within the ESID.
"Ordinance to Proceed" means any resolution or ordinance passed, enacted, or adopted by
the City pursuant to Ohio Revised Code Section 727.23 with respect to levying special assessments
on real property within the ESID.
"Owner" means OH15 Dublin LLC, a Delaware limited liability company, and any
permitted successors or assigns.
"Parries" means the ESID, the Owner, the Lessee, the Finance Authority, and the City.
"Party" means, individually, any one of the Parties.
"Person" or words importing persons mean firms, associations, partnerships (including
without limitation, general and limited partnerships), limited liability companies, joint ventures,
societies, estates, trusts, corporations, public or governmental bodies, political subdivisions, other
legal entities, and natural persons.
"Plan" means the Columbus Regional Energy Special Improvement District Program Plan
adopted by the City of Columbus, Ohio by its Resolution No. 0261X-2015 of November 23, 2015,
and any and all supplemental plans approved by the ESID and the City, including, without
limitation, the Supplemental Plan.
"Project" means the special energy improvement project described in the Supplemental
Plan with respect to the Property, for which Special Assessments are to be levied by the City, all
in accordance with the Supplemental Plan.
"Project Account" means the segregated account in the custody of the Finance Authority
for the benefit of the Lessee which contains the Project Advance, and out of which disbursements
may be made in accordance with Article IV of this Agreement.
A-3
"Project Advance" means the amount of immediately available funds to be transferred, set
over, and paid to and held in the Project Account established pursuant to Section 4.1 of this
Agreement for the benefit of the Lessee.
"Property" means the real property subject to the Plan.
"Repayment Schedule" means the schedule attached to and incorporated into this
Agreement as Exhibit B iwhich schedule establishes the dates and amounts for the repayment of
the Project Advance by the Special Assessments paid by the Owner and the Lessee.
"Required Insurance Coverage" means, collectively, the Required Property Insurance
Coverage and the Required Public Liability Insurance Coverage, each of which, in addition to the
requirements described in their respective definitions, (i) must provide for 10 days' notice to the
Finance Authority in the event of cancellation or nonrenewal and (ii) must name as an additional
insured (mortgagee/loss payee) the Finance Authority.
"Required Property Insurance Coverage" means at any time insurance coverage
evidenced maintained with generally recognized, responsible insurance companies qualified to do
business in the State in the amount of the then full replacement value of the Project and Property,
insuring the Project against loss or damage by fire, windstorm, tornado and hail and extended
coverage risks on a comprehensive all risk/special form insurance policy and containing loss
deductible provisions of not to exceed $10,000, which insurance coverage shall name the Finance
Authority as loss payee/mortgagee.
"Required Public Liability Insurance Coverage" means at any time commercial general
liability insurance against claims for personal injury, death or property damage suffered by others
upon, in or about any premises occupied by Owner, which insurance coverage shall name the
Finance Authority as an additional insured.
"Resolution of Necessity" means any resolution or ordinance passed, enacted, or adopted
by the City pursuant to Ohio Revised Code Section 727.12 with respect to levying special
assessments on real property within the ESID.
"Special AssessmentAct" means, collectively, Ohio Revised Code Section 727.01 et seq.,
Ohio Revised Code Section 1710.01 et seq., Ohio Revised Code Section 323.01 et seq., Ohio
Revised Code Section 319.01 et seq., Ohio Revised Code Section 5721.01 et seq., and related laws.
"Special Assessment Proceedings" means, collectively, Resolution No. [ ] of the City
Council adopted on [ ], 2019 approving the Petition, the Plan, and the Supplemental Plan,
Resolution No. [__] of the City Council declaring the necessity of the Project adopted on
[ ], 2019, Ordinance No. [ ], determining to proceed with the Project, adopted on
[ ], 2019, and Ordinance [ ], levying the Special Assessments, adopted on [,
2019, with respect to levying special assessments on the Property subject to the Petition.
"Special Assessments" means the special assessments levied pursuant to the Special
Assessment Act and the Special Assessment Proceedings by the City with respect to the Project, a
schedule of which is attached to and incorporated into the Plan.
A-4
"State" means the State of Ohio.
"Supplemental Plan" means the Supplement to Plan for 525 Metro Place North, Dublin,
Ohio Project, approved by the City Council on [ ], 2019 by its Resolution No. [_].
A-5
EXHIBIT B
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EXHIBIT C
DISBURSEMENT REQUEST FORM
STATEMENT NO. REQUESTING AND
AUTHORIZING DISBURSEMENT OF FUNDS PURSUANT
TO SECTION 4.2 OF THE ENERGY PROJECT
COOPERATIVE AGREEMENT DATED AS OF
2019.
Amount Requested: $
Pursuant to Section 4.2 of the Energy Project Cooperative Agreement dated as of
[ ], 2019 (the Agreement) among the ESID, the Owner, the Lessee, and the Finance
Authority, the undersigned authorized representative of ViaQuest, Inc., as the Lessee under the
Agreement, hereby requests the Finance Authority having custody of the Project Account, to pay
to the Lessee or the other person(s) listed on the disbursement schedule attached hereto as
Appendix I (the Disbursement Schedule), the respective amounts specified in the Disbursement
Schedule out of the moneys on deposit in the Project Account for the advances, payments and
expenditures made in connection with the costs of the Project described in the Disbursement
Schedule, all in accordance with Section 4.2 of the Agreement (capitalized words and terms not
otherwise defined herein having the meanings assigned to them in the Agreement).
In connection with this request and authorization (the Disbursement Request), the
undersigned hereby certifies that:
(i) each of the representations and warranties made by the Lessee in the
Agreement remains true and correct, in all material respects, as of the date of this
Disbursement Request and no Event of Default by the Lessee under the Agreement exists;
(ii) each item for which disbursement is requested by this Disbursement
Request is properly payable out of the Project Account in accordance with the terms and
conditions of the Agreement and, except as otherwise noted, none of those items has
formed the basis for any disbursement heretofore made from the Project Account;
(iii) to the extent any portion of the payment requested is for construction work,
the Lessee has received and herewith delivers to the Finance Authority, conditional waivers
of any mechanics' or other liens with respect to such work;
(iv) this Disbursement Request and all exhibits hereto, including the
Disbursement Schedule, shall be conclusive evidence of the facts and statements set forth
herein and shall constitute full warrant, protection and authority to the Finance Authority
for its actions taken pursuant hereto; and
(v) this Disbursement Request constitutes the approval of the Lessee of each
disbursement hereby requested and authorized.
C-1
Dated:
Approved in accordance with the Agreement:
Columbus -Franklin County Finance Authority,
as the Finance Authority:
Dated:
C-2
Authorized Representative of
Lessee
SCHEDULE 1 TO DISBURSEMENT REQUEST FORM
Payee Amount Purpose
C-3
EXHIBIT D
FORM OF COMPLETION CERTIFICATE
ViaQuest, Inc. (the Lessee) hereby certifies that the Project, as such term is defined in the
Energy Project Cooperative Agreement entered into by and between the Lessee, OH15 Dublin,
LLC, the Columbus Regional Energy Special Improvement District, Inc., the City of Dublin, Ohio
and the Columbus -Franklin County Finance Authority (the Finance Authority) dated as of
[ ], 2019 (the Agreement) has been completed at 525 Metro Place North, Dublin, Ohio
(the Property) in strict compliance with the requirements of the Agreement.
Note: Capitalized terms used but not defined in this Completion Certificate have the
meaning assigned to them in the Agreement to which a form of this Completion Certificate is
attached and of which it forms a part.
THE LESSEE HEREBY CERTIFIES:
(a) That the acquisition, construction, equipping, installation, and improvement of the
Project was substantially completed on
(b) That all other facilities necessary in connection with the Project have been acquired
or are otherwise available to the Lessee;
(c) That the acquisition, construction, equipping, installation, and improvement of the
Project and those other facilities have been accomplished in such amanner as to conform with all
applicable zoning, planning, building, environmental, and other similar governmental regulations;
(d) That except as provided in clause (e) below, all costs of that acquisition,
construction, equipping, installation, and improving then or theretofore due and payable have been
paid; and
(e) The amounts, if any, the Finance Authority shall retain in the Project Account for
the payment of costs not yet due or for liabilities that the Lessee is contesting or which otherwise
should be retained and the reasons such amounts should be retained.
[Balance of Page Intentionally Left Blank]
D-1
NOTICE: DO NOT SIGN THIS COMPLETION CERTIFICATE UNLESS YOU AGREE TO
EACH OF THE ABOVE STATEMENTS.
VIAQUEST, INC., as the Lessee
Michael Bell, Chief Financial Officer
D-2
EXHIBIT E
CLOSING COSTS DETAIL
Pursuant to Section 4.2 of the foregoing Energy Project Cooperative Agreement, the
Finance Authority shall disburse to the respective payee set forth below, the following closing
costs:
PAYEE
AMOUNT
REASON
Bricker & Eckler LLP
$7,500.00
Lender and ESID counsel fee
DiPerna Advisors
3,500.00
Financial advisor fee
Columbus -Franklin County Finance
Authority
3,500.00
Lender closing fee
Columbus Regional Energy Special
Improvement District
372.50
ESID closing fee
City of Dublin, Ohio
5,000.00
City of Dublin legal fee
The Huntington National Bank
1,000.00
Disbursing Agent closing fee
TOTAL
$20,872.50
E-1
EXHIBIT F
CONSENT OF MORTGAGEE
[See Attached]
F-1
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION OF ENERGY PROJECT
COOPERATIVE AGREEMENT
ASSIGNMENT AND ASSUMPTION
OF
ENERGY PROJECT COOPERATIVE AGREEMENT
[ ] (Assignor), in consideration of the sum of $[
in hand paid and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by Assignor's execution of this Assignment and Assumption of Energy Project
Cooperative Agreement (Assignment), assigns, transfers, sets over, and conveys to
[ ] (Assignee) all of Assignor's right, title, and interest in and to that
certain Energy Project Cooperative Agreement dated as of [ 1 2019 between the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., d/b/a Columbus Regional Energy Special
Improvement District, Inc., Assignor, the Columbus -Franklin County Finance Authority (the
Finance Authority), and the City of Dublin, Ohio (the City) (the Energy Project Cooperative
Agreement).
By executing this Assignment, Assignee accepts the assignment of, and assumes all of
Assignor's duties and obligations under, the Energy Project Cooperative Agreement. Assignee
further represents and warrants that it has taken title to the "Property," as that term is defined in
the Energy Project Cooperative Agreement, subject to the Special Assessment Agreement dated
as of even date with the Energy Project Cooperative Agreement between the Franklin County
Treasurer, the City, the ESID, the Finance Authority, OH15 Dublin LLC, and ViaQuest, Inc. (the
Special Assessment Agreement) and to the "Lessee Consent" and the "Owner Consent" each
dated [ 12019 by ViaQuest, Inc. and OH15 Dublin LLC, respectively, and each recorded
in the records of the Franklin County Recorder with respect to the Property. By executing this
Assignment, Assignee accepts the assignment of, and assumes all of Assignor's duties and
obligations under, the Special Assessment Agreement and the Lessee Consent and the Owner
Consent.
Assignor and Assignee acknowledge and agree that executed copies of this Assignment
shall be delivered to the City, the Finance Authority, the Owner, and the ESID, as each of those
terms are defined in the Energy Project Cooperative Agreement, all in accordance with Sections
3.4(a) and 6.7 of the Energy Project Cooperative Agreement
In witness of their intent to be bound by this Assignment, each of Assignor and Assignee
have executed this Assignment this day of , [ ], which
Assignment is effective this date. This Assignment may be executed in any number of
counterparts, which when taken together shall be deemed one agreement.
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[Signature Pages Follow]
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ASSIGNOR:
By:
Name:
Title:
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ASSIGNEE:
By:
Name:
Title:
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EXHIBIT H
FEDERAL LAW PROVISIONS SUMMARY
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5 (`Recovery Act" or
"ARRA) was enacted to preserve and create jobs and promote economic recovery, assist those
most impacted by the recession, provide investments needed to increase economic efficiency by
spurring technological advances in science and health, invest in transportation, environmental
protection, and other infrastructure that will provide long-term economic benefits, stabilize State
and local government budgets, in order to minimize and avoid reductions in essential services and
counterproductive State and local tax increases. Recipients shall use loan funds in a manner that
maximizes job creation and economic benefit.
Contracting Party shall cause each Energy Loan Loss Reserve Project Beneficiary comply with
all terms and conditions in the Recovery Act relating generally to governance, accountability,
transparency, data collection and resources as specified in Act itself and as set forth below.
None of the funds provided under this Agreement derived from the Recovery Act may be used by
any State or local government, or any private entity, for any casino or other gambling
establishment, aquarium, zoo, golf course, or swimming pool.
1. Timely and Accurate Reporting. Contracting Party shall cause each Energy Loan Loss
Reserve Project Beneficiary to comply with all reporting requirements outlined in Section
1512 ofARRA and such additional reporting guidance as may be issued from time to time.
Each Energy Loan Loss Reserve Project Beneficiary's reporting must be sufficient to
support the requirements of the Contracting Party to make timely and accurate reports to
the federal agency from which the Contracting Party receives ARRA funds. Each
Contracting Party's reports to the federal agency are due no later than ten (10) calendar
days after each calendar year in which Contracting Party receives assistance funded in
whole or in part by ARRA funds. Contracting Party's annual reporting requirements
include the amount of ARRA funds received; the amount of ARRA funds expended or
obligated; detailed list of all projects or activities for which the ARRA funds were
expended; an estimate of the number of jobs created and the number of jobs retained by
the project or activity; and detailed information concerning subcontracts or sub -loans
including the state Ohio. Information from such reports will be made available to the
public.
a. Separate Tracking and Reporting. Section 1512 of ARRA mandates special
reporting for expenditure ofARRA funds. ARRA funds maybe used in conjunction
with funds from other sources, including federal funds not provided under the
authority of ARRA and State funds, to complete the Project, but tracking and
reporting ofARRA funds must be separate from tracking and reporting of other
funds used for the Project. The Contracting Party cause each Energy Loan Loss
Reserve Project Beneficiary to ensure that the loan ofARRA funds is established
and maintained in its accounting system to accommodate tracking and reporting of
ARRA funds separate from other revenue streams.
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b. Separate Accounts for ARRA Funds. Contracting Party shall deposit and maintain
funds provided under the authority of ARRA in separate accounts. No part of the
ARRA funds shall be commingled with any other funds or used for a purpose other
than that of making payments for costs allowable for ARRA projects.
c. Identification ofARRA Funds with `ARRA-"Prefix. If Contracting Party is subject
to the requirements ofthe Single AuditActAmendments of 1996 and OMB Circular
A-133, "Audits of States, Local Governments, and Non -Profit Organizations, "
Contracting Party shall separately identify the expenditures of funds provided
under the authority of ARRA on the Schedule of Expenditures of Federal Awards
(SEFA') and, if required, the Data Collection Form (SF -SAC). The separate
identification shall be accomplished by identifying expenditures of ARRA funds
separately on the SEFA and as separate rows under Item 9 of Part III on the SF -
SAC by CFDA number and by including the prefix "ARRA-" in identifying the name
of the federal program on the SEFA and as the first characters in Item 9d of Part
III on the SF -SAC.
d. Central Contractor Registration. During the term of this Agreement, Contracting
Party shall maintain a current registration in the Central Contractor Registration
(www.ccr.gov). A Dun and Bradstreet Universal Numbering System (DUNS)
Number (www.dnb.com) is one of the requirements for registration in the Central
Contractor Registration.
e. State of Ohio Reporting Form. Each Energy Loan Loss Reserve Project
Beneficiary shall complete and provide to Contracting Party the "OBM, Ohio
Energy Loan Loss Reserve Project Beneficiary and Sub -Recipient Spending Report
in Compliance with ARRA Sec. 1512. " The State of Ohio must report information
described in Section 1512 of ARRA using the reporting instructions and data
elements that are provided online at www.FederalReporting.gov and ensure that
any information that is pre -filled is corrected or updated as needed. Accordingly,
each Energy Loan Loss Reserve Project Beneficiary shall provide to Contracting
Party as promptly as possible and within the time required for the State to comply
with reporting requirements any information needed by the State to complete the
online reporting.
f. Monthly Reporting. The Energy Loan Loss Reserve Project Beneficiary shall
report its performance and spending under the Agreement monthly as provided in
the Agreement notwithstanding that the Contracting Party will report quarterly to
federal agencies. In order to comply with reporting deadlines to which the
Contracting Party may be subject, the Contracting Party reserves the right to
accelerate the deadline for reports required from each Energy Loan Loss Reserve
Project Beneficiary.
g. Jobs Created and Retained. The Contracting Party shall cause each Energy Loan
Loss Reserve Project Beneficiary to report the number ofjobs created and retained
directly by each Energy Loan Loss Reserve Project Beneficiary and by each of its
contractors as a result of the ARRA funding provided pursuant to this Agreement
as well as an estimate of jobs created or retained elsewhere as a result ofARRA
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funding.
(I) Jobs or positions created" means those new positions created and filled, or previously
existing unfilledpositions that arefilled, as a resultofARRAfunding. "Jobs orpositionsretained "
means those previously existing filled positions that are retained as a result ofARRA funding. This
description may rely on job titles, broader labor categories, or the contractor's existing practice
for describing jobs as long as the terms used are widely understood and describe the general
nature of the work.
(2) For purposes of estimating the number of jobs created and jobs retained in the United
States and outlying areas, at a minimum, the estimate shall include any new positions created and
any existing filled positions that were retained to support or carry outARRA projects or activities
managed directly by the recipient, and if known, by subrecipients. The number shall be expressed
as 'full-time equivalent" (FTE), calculated cumulatively as all hours worked divided by the total
number of hours in a full-time schedule, as defined by the recipient. For instance, two full-time
employees and one part-time employee working half days would be reported as 2.5 FTE in each
calendar quarter.
(3) A job cannot be reported both as created and retained.
(4) Additional guidance will be provided for reporting jobs created and retained.
a. Additional or Modified ReportnuZRequirements. The Contracting Party may, from
time to time as it deems appropriate and necessary, communicate specific
instructions and requests to each Energy Loan Loss Reserve Project Beneficiary
concerning any additional reporting requirements related to the ARRA funds
received under this Agreement.
b. Information in Support ofARRA Reporting. Contracting Party may be required to
submit back-up documentation for expenditures of ARRA funds, including such
items as timecards and invoices. Each Energy Loan Loss Reserve Project
Beneficiary shall provide copies of back-up documentation at the request of
Contracting Party or USDOE Contracting Officer or designee.
2. Accessibility to Records and Project Sites.
a. Comptroller General of the United States Authority to Inspect. Pursuant to Section
902 ofARRA, the Comptroller General of the United States and his representatives
have the authority to:
(I) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary or any of its contractors or
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subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
b. Inspector General Authority to Inspect. Pursuant to Section 1515(a) ofARRA, an
Inspector General or any representative of an Inspector General has the authority
to:
(1) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary, and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary, or any of its contractors or
subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
c. Duty to Incorporate in Contracts. To facilitate access to records and personnel by
the Comptroller General and/or an Inspector General as described in paragraphs
(a) and (b), the Contracting Party shall cause each Energy Loan Loss Reserve
Project Beneficiary to include verbatim in any agreement with a contractor, and
shall cause each of its contractors to include verbatim in any agreement with a
subcontractor, from which the Energy Loan Loss Reserve Project Beneficiary or a
contractor acquires any goods or services for the Project the language set forth in
paragraphs (a) and (b) of this Section 2.
3. Eaual Emplovment Opportunities.
a. Compliance with Federal Laws. In addition to the Contracting Party's equal
employment opportunity requirements set forth in the Agreement, the Contracting
Party shall cause each Energy Loan Loss Reserve Project Beneficiary to comply,
and each Energy Loan Loss Reserve Project Beneficiary shall obtain the agreement
of each of its contractors and any subcontractors to comply, with all of the
following federal laws pertaining to civil rights and anti -discrimination:
Title VI & Title VII of Civil Rights Act of 1964
Equal Pay Act of 1962
Age Discrimination in EmploymentAct of 1967
Title IX of Educational Amendments of 1972
Section 504 of the Rehabilitation Act of 1973
Age Discrimination Act of 1975
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Title I& Title V ofAmericans with Disabilities Act of 1990
Fair Housing Act
Fair Credit Reporting Act
Equal Educational Opportunities Act
Uniform Relocation Act
Failure by the Contracting Party and each Energy Loan Loss Reserve Project Beneficiary to
comply with these laws shall constitute a breach of material obligation of the Contracting Party
and may result in termination of the Agreement.
b. Implementation Plan for Small and Disadvantaged Businesses. Each Energy Loan
Loss Reserve Project Beneficiary shall provide the Contracting Party an
implementation plan for training and hiring minority and disadvantaged workers.
Each Energy Loan Loss Reserve Project Beneficiary shall also demonstrate to the
Contracting Party that when contactors are being hired by the Energy Loan Loss
Reserve Project Beneficiary, if applicable, small disadvantaged business
enterprises are offered opportunities to bid on and receive contracted work on the
Project. Information about the Energy Loan Loss Reserve Project Beneficiary's
outreach to small and disadvantaged business enterprises shall be provided to the
Contracting Party when contracts are presented for review and approval in
accordance with Section 1 of this Appendix.
4. Job Postings. The Contracting Party shall post all jobs created by the Energy Loan Loss
Reserve Project Beneficiary resulting from the award of the contract and the use ofARRA
funds on www.ohiomeansiobs.com. The Contracting Party shall also cause each Energy
Loan Loss Reserve Project Beneficiary to require each of its contractors to post all jobs
created by the contractor resulting from the award of this contract and the use ofARRA
funds on www.ohiomeansiobs.com. "Jobs created" are those positions created and filled
or previously existing unfilled positions that are retained as a result ofARRA funding.
5. Protections for Individuals Reporting Compliance Issues (Whistleblower Protection).
a. Prohibition on Reprisals_ Pursuant to Section 1553 of ARRA, the Contracting
Party, each Energy Loan Loss Reserve Project Beneficiary, and each of its
contractors and any subcontractors are prohibited from discharging, demoting, or
otherwise discriminating against any employee of the Contracting Party,
contractor or subcontractor, as a reprisal for disclosing information that the
employee reasonably believes is evidence of
(1) gross mismanagement of the contract relating to funds for the Project;
(2) gross waste ofARRA funds;
(3) substantial and specific danger to public health or safety related to the
implementation or use ofARRA funds;
(4) an abuse of authority related to the implementation ofor use ofARRA funds;
or
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(5) a violation of law, rule, or regulation related to the contract (including the
competition for or negotiation of the contract) relating to ARRA funds.
b. Agency Action: ARRA authorizes an appropriate inspector general to receive and
investigate all complaints alleging a violation as described in paragraph (a) of this
section. Not later than 30 days after receiving an inspector general report of an
alleged reprisal, the federal agency loaning funds for this Agreement is required to
make a determination about whether an employee has been subjected to a
prohibited reprisal. The federal agency must either issue an order denying relief
in whole or in part or take one or more of the following actions:
(1) order the employer to take affirmative action to abate the reprisal;
(2) order the employer to reinstate the person to the position that the person
held before the reprisal, together with compensation including back page,
compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if
the reprisal had not been taken;
(3) order the employer to pay the employee an amount equal to the aggregate
amount of all costs and expenses (including attorneys' fees and expert
witnesses' fees) that were reasonably incurred by the employee for or in
connection with bringing the complaint regarding the reprisal, as
determined by the head of a court of competent jurisdiction.
c. Non -enforceability of Certain Provisions Waiving Rights and Remedies or
Requiring Arbitration: Except as provided in a collective bargaining agreement,
the rights and remedies provided to aggrieved employees by ARRA Section 1553
may not be waived by any agreement, policy, form, or condition of employment,
including any predispute arbitration agreement. No predispute arbitration
agreement shall be valid or enforceable ifit requires arbitration ofa dispute arising
out of the circumstances for which employees are protected by Section 1553.
d. Requirement toPostNotice ofRights and Remedies: All employers receiving ARRA
funds, including the Contracting Party, each Energy Loan Loss Reserve Project
Beneficiary, its contractors and any subcontractors, shall post notice of employee
rights as described above in conspicuous locations with other required employee
rights information.
6. False ClaimsAct. Contracting Party shall promptly refer to the USDOE Inspector General
or any other appropriate inspector general any credible evidence that a principal,
employee, agent, contractor, Contracting Party, Energy Loan Loss Reserve Project
Beneficiary subcontractor or other person has submitted a false claim under the False
Claim Act or has committed a criminal or civil violation of laws pertaining to fraud,
conflict of interest, bribery, gratuity, or similar misconduct involving any Loan Funds.
7. Availability of Funds. Funds appropriated under ARRA and obligated to this award are
available for reimbursement of costs pursuant to the SEP -ARRA program.
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Publication. Information about this Agreement will be published on the Internet and linked to the
website www.recovery.gov, maintained by the federal Accountability and Transparency Board.
The Board may exclude posting contractual or other information on the website on a case-by-case
basis when necessary to protect national security or to protect information that is not subject to
disclosure under sections 552 and 552a oftitle 5, United States Code (the Freedom oflnformation
Act).
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ENERGY PROJECT COOPERATIVE AGREEMENT
By and between
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.;
OH15 DUBLIN LLC;
VIAQUEST, INC.;
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY; and
CITY OF DUBLIN, OHIO
Dated as of 2019
BRICKER & ECKLER LLP
ENERGY PROJECT COOPERATIVE AGREEMENT
THIS ENERGY PROJECT COOPERATIVE AGREEMENT (the Agreement) is made
and entered into as of 2019 (the Effective Date), by and among the BEXLEY,
COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL,
WORTHINGTON REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., doing
business under the registered trade name COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., a nonprofit corporation and special improvement district
duly organized and validly existing under the laws of the State of Ohio (the State) (the ESID),
OH 15 DUBLIN LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware and duly qualified to conduct business in the State (the Owner),
VIAQUEST, INC., a corporation duly organized and validly existing under the laws of the State
of Ohio (the Lessee), the COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State (the Finance Authority), and the CITY OF DUBLIN, OHIO, a municipal corporation duly
organized and validly existing under the constitution and laws of the State and its Charter (the
City) (the capitalized terms used in this Agreement and not defined in the preamble and recitals
have the meanings stated in Exhibit A to this Agreement):
A. The ESID was created under Ohio Revised Code Chapters 1702 and 1710 and
established pursuant to Resolution No. 0261X-2015 of the Council of the City of Columbus, Ohio
approved on November 23, 2015. Pursuant to the same action, the Columbus Regional Energy
Special Improvement District Program Plan (as amended and supplemented from time to time, the
Plan) was adopted as a plan for public improvements and public services under Ohio Revised
Code Section 1710.02(F).
B. The ESID is an energy special improvement district and nonprofit corporation duly
organized and validly existing under the laws of the State of Ohio to further the public purpose of
implementing special energy improvement projects pursuant to the authority in Ohio Revised Code
Chapter 1710 and Article VIII, Section 20 of the Ohio Constitution.
C. On [ ], by its Resolution No. _], the City Council of the City (the City
Council) approved the Petition for Special Assessments for Special Improvement Projects and
Affidavit (the Petition) submitted by the Owner to the City, together with the Supplement to Plan
for 525 Metro Place North, Dublin, Ohio Project (the Supplemental Plan), as a supplement to the
Plan.
D. Pursuant to the Plan, the ESID, among other services, shall assist property owners,
whether private or public, who own real property within participating political subdivisions to
obtain financing for special energy improvement projects.
E. In order to obtain financing for special energy improvement projects and to create
special assessment revenues available to pay and repay the costs of special energy improvement
projects, the Petition requested that the City Council levy Special Assessments against the Owner's
property as more fully described in the Supplemental Plan.
F. The ESID, the Owner, the Lessee, the Finance Authority, and the City (collectively
the Parties, and each, a Party) each have determined that the most efficient and effective way to
implement the financing, acquisition, construction, equipment, improvement, and installation of
energy special improvement projects and to further the public purposes set forth above is through
this Agreement, pursuant to the Act and on the terms set forth in this Agreement, with (i) the
Finance Authority providing the Project Advance to finance the costs of the special energy
improvement projects described in the Supplemental Plan, (ii) the ESID and the Lessee
cooperating to acquire, construct, equip, improve, and install special energy improvement projects,
(iii) the Owner and the Lessee agreeing to make Special Assessment payments in an aggregate
amount that will provide revenues sufficient to pay or repay the permitted costs of the special
energy improvement projects, (iv) the City agreeing to assign and transfer all Special Assessment
payments actually received by the City to the Finance Authority to repay the Project Advance; and
(v) the ESID agreeing to assign, transfer, and set over to the Finance Authority any of its right,
title, or interest in and to the Special Assessments which it may have by operation of law, this
Agreement, or otherwise; provided that a portion of the Special Assessments may be retained by,
or payable to, the City or the ESID, all pursuant to and in accordance with this Agreement.
G. The Parties each have full right and lawful authority to enter into this Agreement
and to perform and observe its provisions on their respective parts to be performed and observed,
and have determined to enter into this Agreement to set forth their respective rights, duties,
responsibilities, obligations, and contributions with respect to the implementation of special energy
improvement projects within the ESID.
NOW, THEREFORE, in consideration of the promises and the mutual representations,
warranties, covenants, and agreements contained in this Agreement, the Parties agree as follows;
provided, that any obligation of the ESID created by or arising out of this Agreement never shall
constitute a general obligation, bonded indebtedness, or a pledge of the general credit of the ESID,
or give rise to any pecuniary liability of the ESID, but any such obligation shall be payable solely
from the Special Assessments actually received by the ESID, if any; and provided, further, that
any obligation of the City created by or arising out of this Agreement never shall constitute a
general obligation, bonded indebtedness, or a pledge of the general credit of the City, or give rise
to any pecuniary liability of the City, but any such obligation shall be payable solely from the
Special Assessments actually received by the City, if any:
ARTICLE L DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and terms defined
elsewhere in this Agreement or by reference to another document, words and terms used in this
Agreement shall have the meanings set forth in Exhibit A to this Agreement unless the context or
use clearly indicates another meaning or intent. Definitions shall apply equally to both the singular
and plural forms of any of the words and terms. Words of any gender include the correlative words
of the other gender, unless the sense indicates otherwise.
Section 1.2. Interpretation. Any reference in this Agreement to the ESID, the ESID
Board, the Owner, the Lessee, the City, the City Council, the Finance Authority, or the Board of
Directors of the Finance Authority, or to any member or officer of any of the foregoing, includes
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entities or officials succeeding to their respective 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 the Act, or to a
section, provision or chapter of the Ohio Revised Code or any other legislation or to any statute of
the United States of America, includes that section, provision, or chapter as amended, modified,
revised, supplemented, or superseded from time to time; provided, however, that no amendment,
modification, revision, supplement, or superseding section, provision, or chapter shall be
applicable solely by reason of this provision if it constitutes in any way an impairment of the rights
or obligations of the Parties under this Agreement.
Section 1.3. 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 or intent of
any of this Agreement's Articles, Sections, subsections, paragraphs, subparagraphs or clauses.
ARTICLE II: COOPERATIVE ARRANGEMENTS; ASSIGNMENT OF SPECIAL
ASSESSMENTS
Section 2.1. Agreement Between the City, the ESID, and the Finance Authority. The
Owner, the Lessee and the ESID have requested the assistance of the Finance Authority and the
City in the financing of special energy improvement projects within the ESID. For the reasons set
forth in this Agreement's Recitals which Recitals are incorporated into this Agreement by this
reference as a statement of the public purposes of this Agreement and the intended arrangements
among the Parties the City and the ESID have requested the assistance and cooperation of the
Finance Authority in the collection and payment of Special Assessments in accordance with this
Agreement. The Parties intend this Agreement to be, and it shall be, an agreement among the
Parties to cooperate in the financing, acquisition, construction, equipping, improvement, and
installation of "special energy improvement projects," pursuant to Ohio Revised Code Chapter
1710, and as that term is defined in Ohio Revised Code Section 1710.01(1). The Parties intend this
Agreement's provisions to be, and they shall be construed as, agreements to take effective
cooperative action and to safeguard the Parties' interests.
Upon the considerations stated above and upon and subject to the terms and conditions of
this Agreement, the Finance Authority, on behalf of the Parties, shall make the Project Advance
available to the Lessee to pay the costs of the Project. The City and the ESID shall assign, transfer,
set over, and pay the Special Assessments actually received by the City or the ESID, respectively,
to the Finance Authority, to pay the costs of the Project at the times and in the manner provided in
this Agreement; provided, however, that the City, the ESID, and the Finance Authority intend that
the City shall receive all Special Assessments from the County Treasurer and shall transfer, set
over, and pay all Special Assessments received from the County Treasurer directly to the Finance
Authority. The City, the ESID, and the Finance Authority further intend and agree that the Finance
Authority shall pay to the ESID, out of the Special Assessments received by the Finance Authority,
a semi-annual fee of $60.94 for the ESID's administrative expenses; provided, however, that if the
amount of Special Assessments received by the Finance Authority in any year are insufficient to
pay the principal of, and interest on the Project Advance due in that year and the semi-annual fee
of $60.94 due to the ESID, the Special Assessments received shall first be applied to the payment
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of interest on the Project Advance, then to the repayment of the principal of the Project Advance,
and then to the payment of the semi-annual fee due to the ESID.
Notwithstanding anything in this Agreement to the contrary, any obligations of the City
under this Agreement, including the obligation to transfer the Special Assessments received by the
City to the Finance Authority, shall be a special obligation of the City and shall be required to be
made only from Special Assessments actually received by or on behalf of the City, if any. The
City's obligations under this Agreement are not and shall not be secured by an obligation or pledge
of any moneys raised by taxation. The City's obligations under this Agreement do not and shall
not represent or constitute a debt or pledge of the City's faith and credit or taxing power, and the
ESID, the Owner, the Lessee, and the Finance Authority do not have and shall not have any right
to have taxes levied by the City for the transfer of the Special Assessments.
Section 2.2. Special Assessments: Citv Transfer of Special Assessments.
(a) The Special Assessment Proceedings. The City has duly enacted the Special
Assessment Proceedings.
Pursuant to Ohio Revised Code Section 727.33, the City has certified the Special
Assessments to the County Auditor for collection, and the Parties agree that the
County Auditor shall collect the unpaid Special Assessments with and in the same
manner as other real property taxes and pay the amount collected to the City. The
Parties intend that the County Auditor and the County Treasurer shall have the duty
to collect the Special Assessments through enforcement proceedings in accordance
with applicable law.
(b) Collection of Delinquent Special Assessments. Subject to the City having received
written notice of any Special Assessment delinquency, the ESID and the Finance
Authority are hereby authorized to take any and all actions as assignees of and, to
the extent required by law, in the name of, for, and on behalf of, the City to collect
delinquent Special Assessments levied by the City pursuant to the Special
Assessment Act and the Special Assessment Proceedings and to cause the lien
securing the delinquent Special Assessments to be enforced through prompt and
timely foreclosure proceedings, including, but not necessarily limited to, filing and
prosecution of mandamus or other appropriate proceedings to induce the County
Prosecutor, the County Auditor, and the County Treasurer, as necessary, to institute
such prompt and timely foreclosure proceedings. The proceeds of the enforcement
of any such lien shall be deposited and used in accordance with this Agreement.
(c) Prepayment of Special Assessments. The Parties agree that the Special
Assessments assessed against the Property and payable to the City pursuant to the
Special Assessment Act and the Special Assessment Proceedings may be prepaid
to the Finance Authority by the Owner or the Lessee in accordance with Section
4.7 of this Agreement. Except as set forth in this Section 2.2(c) and Section 4.7 of
this Agreement, the Owner or the Lessee shall not prepay any Special Assessments.
Notwithstanding the foregoing, if the Owner or the Lessee attempts to cause a
prepayment of the Special Assessments by paying to the County Treasurer any
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amount as afull or partial prepayment of Special Assessments, and if the City shall
have knowledge of the same, the City immediately shall notify the Finance
Authority, and, unless provided the express written consent of the Finance
Authority, the City shall not cause any reduction in the amount of Special
Assessments. Except as specifically provided in this Agreement to the contrary, no
other action pursuant to any provision of this Agreement shall abate in any way the
payment of the Special Assessments by the owners or lessees of property or the
transfer of the Special Assessments by the City to the Finance Authority.
(d) Reduction of Special Assessments. The Parties agree that the Special Assessments
may be subject to reduction, but only upon the express written consent or
instruction of the Finance Authority. If the Owner or the Lessee causes the Special
Assessments to be prepaid in accordance with Sections 2.2(c) and 4.7 of this
Agreement, the Finance Authority shall revise the Special Assessments to be
collected such that, following such reduction, the amount of Special Assessments
remaining to be paid shall be equal to the amounts necessary to pay, as and when
due, the remaining outstanding principal of the Project Advance, together with
interest at the annual rate of 5.75%, a $60.94 semi-annual administrative fee to the
ESID, and a County Auditor collection fee on each annual installment of the Special
Assessments in an amount to be calculated, charged, and collected by the County
Auditor pursuant to Ohio Revised Code Section 727.36, which fee is in addition to
the amount of the Special Assessments and other related interest, fees, and
penalties. Upon the City's receipt of the Finance Authority's express written
consent or instruction, the City shall certify to the County Auditor, prior to the last
date in the then -current tax year on which municipal corporations may certify
special assessments to the County Auditor, a reduction in the amount of Special
Assessments to be collected. The Parties agree that the Finance Authority may
certify any reduction required by this Section 2.2(d) to the County Auditor directly
after requesting and receiving the City's consent to certify the reduction on the
City's behalf. Notwithstanding anything in this Agreement to the contrary, the City
shall not cause any reduction in the amount of Special Assessments without the
prior written consent or instruction of the Finance Authority.
(e) Assignment of Special Assessments. The City agrees that it shall establish its funds
for the collection of the Special Assessments as separate funds maintained on the
City's books and records and to be held in the custody of a bank with which the
City maintains a depository relationship. The City hereby assigns to the Finance
Authority all of its right, title and interest in and to: (i) the Special Assessments and
any Delinquency Amounts received by the City under this Agreement, and (ii) the
City's special assessment funds established for the Project; provided, however,
such assignment shall not relate to, and the Finance Authority shall have no right,
title or interest in any interest earnings which may accrue to the City in respect of
the Special Assessments and any Delinquency Amounts while those Special
Assessments and any Delinquency Amounts are in the City's custody. The City
further shall transfer, set over, and pay the Special Assessments and any
Delinquency Amounts to the Finance Authority in accordance with this Agreement.
The ESID acknowledges and consents to the City's assignment of the Special
5
Assessments to the Finance Authority. The Parties agree that each of the City, the
ESID, and the Finance Authority, as assignee of the Special Assessments and any
Delinquency Amounts, is authorized to take any and all actions, whether at law, or
in equity, to collect delinquent Special Assessments, levied by the City pursuant to
law and to cause the lien securing any delinquent Special Assessments to be
enforced through prompt and timely foreclosure proceedings, including, but not
necessarily limited to, filing and prosecution of mandamus or other appropriate
proceedings to induce the County Prosecutor, the County Auditor, and the County
Treasurer, as necessary, to institute such prompt and timely foreclosure
proceedings. All Parties agree to provide notice to the other Parties within a
reasonable period of time following any actions filed to enforce the lien securing
any delinquent Special Assessments if such notice is not provided through such
action.
(f) Transfer of Special Assessments. The parties anticipate that semi-annual
installments of the Special Assessments and any Delinquency Amounts will be paid
to the City by the County Auditor and the County Treasurer in accordance with
Ohio Revised Code Chapters 319, 321, 323, and 727, which, without limiting the
generality of the foregoing, contemplates that the County Auditor and County
Treasurer will pay the Special Assessments and any Delinquency Amounts to the
City on or before May 1 and November 1 of each year. Immediately upon receipt
of any moneys received by the City as Special Assessments and any Delinquency
Amounts, but in any event not later than thirty (30) calendar days after the receipt
of such moneys and the corresponding final settlement from the County Auditor,
the City shall deliver to the Finance Authority all such moneys received by the City
as Special Assessments and any Delinquency Amounts. The Finance Authority
may from time to time provide written payment instructions to the City for payment
of Special Assessments and any Delinquency Amounts to the Finance Authority or
its trustee or other designee by check, wire instructions, or other means. If at any
time during the term of this Agreement the County Auditor agrees, on behalf of the
City, to disburse the Special Assessments and any Delinquency Amounts directly
to the Finance Authority or its trustee or other designee pursuant to instructions or
procedures agreed upon by the County Auditor and the Finance Authority, then,
upon each transfer of an installment of the Special Assessments and any
Delinquency Amounts from the County Auditor to the Finance Authority or its
trustee or other designee, the City shall be deemed to have satisfied all of its
obligations under this Agreement to transfer that installment of the Special
Assessments or any Delinquency Amounts to the Finance Authority.
(g) Repayment of Project Advance. The Finance Authority shall credit, on the dates
shown on the Repayment Schedule (which is attached to and incorporated into this
Agreement as Exhibit B), Special Assessments in the amounts shown on the
Repayment Schedule to the payment of accrued interest on the Project Advance
and to the repayment of the portion of the principal of the Project Advance
scheduled to be repaid on such date. The Finance Authority, on the dates shown
on the Repayment Schedule, further shall pay to the ESID, after the payment of
accrued interest on the Project Advance and the repayment of the portion of
6
principal of the Project Advance scheduled to be repaid on such date, a semi-annual
fee of $60.94 or such lesser amount as may be available from the Special
Assessments on the applicable date after the payment of accrued interest on the
Project Advance and the repayment of the portion of the principal of the Project
Advance scheduled to be repaid on such date. The Parties acknowledge and agree
that the County Auditor may calculate, charge, and collect a fee on each annual
installment of the Special Assessments pursuant to Ohio Revised Code Section
727.36, which fee is in addition to the amount of the Special Assessments and other
related interest, fees, and penalties, and that such fee shall be paid to the County
Auditor with the Special Assessments, and that the County Auditor will retain such
fee.
Section 2.3. Obligations Unconditional; Place of Pavments. The City's obligation to
transfer the Special Assessments and any Delinquency Amounts to the Finance Authority under
Section 2.2 of this Agreement shall be absolute and unconditional, and the City shall make such
transfers without abatement, diminution, or deduction regardless of any cause or circumstance
whatsoever, including, without limitation, any defense, set-off, recoupment, or counterclaim which
the City may have or assert against the Finance Authority, the ESID, the Owner or the Lessee;
provided, however, that the City's obligation to transfer the Special Assessments and any
Delinquency Amounts is limited to the Special Assessments and any Delinquency Amounts
actually received by or on behalf of the City, and nothing in this Agreement shall be construed to
obligate the City to transfer or pledge, and the City shall not transfer or pledge any special
assessments not related to the ESID.
Section 2.4. Appropriation by the City; No Further Obligations. Upon the Parties'
execution of this Agreement, all of the Special Assessments received or to be received by the City
shall be deemed to have been appropriated to pay the City's obligation under this Agreement to
pay to the Finance Authority all Special Assessments received by the City. During the years in
which this Agreement is in effect, the City shall take such further actions as may be necessary or
desirable in order to appropriate the transfer of the Special Assessments actually received by the
City in such amounts and at such times as will be sufficient to enable the City to satisfy its
obligation under this Agreement to pay to the Finance Authority all Special Assessments received
by the City; provided that the City shall not be responsible for the costs and expenses of any
collection or enforcement actions, except to the extent of any Special Assessments actually
received by the City; and provided further that nothing in this paragraph shall be construed as a
waiver of the City's right to be indemnified pursuant to Section 6.4 of this Agreement or pursuant
to the Special Assessment Agreement. The City shall have no obligation, legally, morally or
otherwise, to use or apply to the payment of the Special Assessments or any Delinquency Amounts
any funds or revenues from any source other than the moneys received by the City as the respective
Special Assessments or Delinquency Amounts.
Section 2.5. Securitv for Advanced Funds. To secure the transfer of the Special
Assessments by the City to the Finance Authority, and in accordance with the Special Assessment
Act and the Special Assessment Proceedings, the ESID hereby assigns, transfers, sets over, and
shall pay all of its right, title, and interest in and to the Special Assessments related to the ESID
actually received by or on behalf of the City to the Finance Authority. The Owner, the Lessee, and
the City agree and consent to that assignment.
7
ARTICLE III: REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
Section 3.1. The City's Representations and Warranties. The City represents and
warrants that:
(a) It is a municipal corporation, duly organized, and validly existing under the
Constitution and applicable laws of the State.
(b) 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 City's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the City and does not and will
not conflict with or result in a default under any agreement or instrument to which
the City is a party or by which it is bound.
(c) It, by proper action, has duly authorized, executed, and delivered this Agreement,
and the City has taken all steps necessary to establish this Agreement and the City's
covenants and agreements within this Agreement, as valid and binding obligations
of the City, enforceable in accordance with their terms.
(d) To its knowledge, there is no litigation pending or threatened against or by the City
in which an unfavorable ruling or decision would materially adversely affect the
City's ability to carry out its obligations under this Agreement.
(e) The assignment contained in Section 2.2(e) is a valid and binding obligation of the
City with respect to the Special Assessments received by the City under this
Agreement.
Section 3.2. The ESID's Representations and Warranties. The ESID represents and
warrants that:
(a) It is a nonprofit corporation and special improvement district, duly organized, and
validly existing under the Constitution and applicable laws of the State.
(b) It is not in violation of or in conflict with any provisions of the laws of the State or
of the United States of America applicable to the ESID that 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 ESID's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the ESID and does not and will
not conflict with or result in a default under any agreement or instrument to which
the ESID is a party or by which it is bound.
(d) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and the ESID has taken and all steps necessary to establish this Agreement and the
ESID's covenants and agreements within this Agreement as valid and binding
obligations of the ESID, enforceable in accordance with their terms.
(e) There is no litigation pending, or to its knowledge threatened, against or by the
ESID in which an unfavorable ruling or decision would materially adversely affect
the ESID's ability to carry out its obligations under this Agreement.
(f) The assignment contained in Section 2.5 is a valid and binding obligation of the
ESID with respect to the ESID's right, title and interest in the Special Assessments
under this Agreement.
Section 3.3. The Lessee's Representations and Warranties. The Lessee represents and
warrants that:
(a) It is a corporation duly organized, validly existing and in full force and effect under
the laws of the State of Ohio. It has all requisite power to conduct its business as
presently conducted and to own, or hold under lease, its assets and properties, and,
is duly qualified to do business in all other jurisdictions in which it is required to
be qualified, except where failure to be so qualified does not have amaterial adverse
effect on it, and will remain so qualified and in full force and effect during the
period during which Special Assessments shall be assessed, due, and payable.
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Lessee shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) Except for any financing of the Property and the lien related thereto that the Lessee
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
9
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(f) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(g) Since the date of the most recent financial statements of the Lessee provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Lessee, nor has the Lessee mortgaged, pledged or granted a security
interest in or encumbered its interest in the Property since such date, except as
otherwise disclosed to the Finance Authority in writing, and the financial
statements which have been delivered to the Finance Authority prior to the date of
this Agreement are true, correct, and current in all material respects and fairly
represent the respective financial conditions of the subjects of the financial
statements as of the respective dates of the financial statements.
(h) The Lessee has good and marketable leasehold interest in the Property, subject only
to existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Lessee to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(i) The Project complies in all material respects with all applicable zoning, planning,
building, environmental and other regulations of each Governmental Authority
having jurisdiction of the Project, and all necessary permits, licenses, consents and
permissions necessary for the Project have been or will be obtained.
(j) The plans and specifications for the Project are satisfactory to the Lessee, have been
reviewed and approved by the general contractor for the Project, the tenants under
any leases which require approval of the plans and specifications, the purchasers
under any sales contracts which require approval of the plans and specifications,
any architects for the Project, and, to the extent required by applicable law or any
effective restrictive covenant, by all Governmental Authorities and the
beneficiaries of any such covenants; all construction of the Project, if any, already
performed on the Property has been performed on the Property in accordance with
such approved plans and specifications and the restrictive covenants applicable to
the plans and specifications; there are no structural defects in the Project or
violations of any requirement of any Governmental Authorities with respect to the
Project; the planned use of the Project complies with applicable zoning ordinances,
regulations, and restrictive covenants affecting the Property as well as all
environmental, ecological, landmark and other applicable laws and regulations; and
all requirements for such use have been satisfied.
10
(k) The Lessee has or has caused the Owner to have the Required Insurance Coverage
and will maintain or will cause the Owner to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) Each Disbursement Request Form presented to the Finance Authority by the
Lessee, and the receipt of the funds requested by the Disbursement Request Form,
shall constitute an affirmation that the representations and warranties contained in
this Agreement remain true and correct as of the date of the Disbursement Request
Form and the receipt of the funds requested by the Disbursement Request Form.
(m) Each of the Property and the Project are, and at all times during the term of this
Agreement, while any principal of or interest on the Project Advance remain
outstanding, and while any Special Assessments remain to be paid, used solely for
the commercial purposes disclosed by the Lessee to the Finance Authority in
writing.
(n) The Project and the plans and specifications for the Project have been developed
pursuant to an energy audit prepared by P1ugSmart which energy audit
demonstrates that the Project is expected to generate $6,426.00 in annual utility
savings and $3,993.00 in annual O & M savings.
(o) Each of the components of the Project is a qualified "special energy improvement
project" pursuant to the definition of that term in Ohio Revised Code Section
1710.01(I).
(p) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Lessee shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(q) The Lessee 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 Lessee that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(r) The Lessee is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Lessee's liabilities
11
exceeds the value of the Lessee's assets or that the Lessee is generally unable to
pay its debts as and when due.
(s) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(t) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Lessee
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.4. The Lessee's Additional Agreements. The Lessee agrees that:
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Lessee shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent.
(b) To the extent obligated to do so, it shall pay when due all taxes, assessments, service
payments in lieu of taxes, levies, claims and charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with respect to the
Property, all utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Property and all assessments and charges lawfully
made by any governmental body for public improvements that may be secured by
a lien on any portion of the Property. The Lessee shall furnish the Finance
Authority, upon reasonable request, with proof of payment of any taxes,
governmental charges, utility charges, insurance premiums or other charges
required to be paid by the Lessee under this Agreement. The Parties acknowledge
and agree that the foregoing obligation is in addition to the Lessee's obligation to
pay the Special Assessment.
12
(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.5. The Owner's Representations and Warranties. The Owner represents and
warrants that:
(a) It is a limited liability company duly organized, validly existing and in full force
and effect under the laws of the State of Delaware. It has all requisite power to
conduct its business as presently conducted and to own, or hold under lease, its
assets and properties, and, is duly qualified to do business in all other jurisdictions
in which it is required to be qualified, except where failure to be so qualified does
not have a material adverse effect on it, and will remain so qualified and in full
force and effect during the period during which Special Assessments shall be
assessed, due, and payable.
13
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Owner shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) The Owner has good and marketable interest in the Property, subject only to
existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Owner to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(f) Except for any financing of the Property and the lien related thereto that the Owner
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(g) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(h) Since the date of the most recent financial statements of the Owner provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Owner, nor has the Owner mortgaged, pledged or granted a security
interest in or encumbered the Property since such date, except as otherwise
disclosed to the Finance Authority in writing, and the financial statements which
have been delivered to the Finance Authority prior to the date of this Agreement
are true, correct, and current in all material respects and fairly represent the
14
respective financial conditions of the subjects of the financial statements as of the
respective dates of the financial statements.
(i) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Owner shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(j) The Owner 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 Owner that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(k) The Owner has or has caused the Lessee to have the Required Insurance Coverage
and will maintain or will cause the Lessee to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) The Owner is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Owner's liabilities
exceeds the value of the Owner's assets or that the Owner is generally unable to
pay its debts as and when due.
(m) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(n) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Owner
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.6. The Owner's Additional Agreements. The Owner agrees that:
15
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Owner shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Owner Consent.
(b) It shall pay when due all taxes, assessments, service payments in lieu of taxes,
levies, claims and charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Property, all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Property and all assessments and charges lawfully made by any governmental body
for public improvements that may be secured by a lien on any portion of the
Property. The Owner shall furnish the Finance Authority, upon reasonable request,
with proof of payment of any taxes, governmental charges, utility charges,
insurance premiums or other charges required to be paid by the Owner under this
Agreement. The Parties acknowledge and agree that the foregoing obligation is in
addition to the Owner's obligation to pay the Special Assessment.
(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
16
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.7. Federal Law Requirements. The ESID and the Lessee acknowledge and
agree that pursuant to the Additional Reserve Agreement (the Additional Reserve Agreement)
between the Finance Authority and the Director of Development Services of the State of Ohio
(DSA), DSA has provided additional reserves (the Additional Reserves) for the Project Advance.
The ESID and the Lessee further acknowledge and agree that the Additional Reserves constitute
federal funds provided under an award to DSA from the U.S. Department of Energy under the
Catalog of Federal Domestic Assistance Number 81.041, and that the Finance Authority is
authorized under Title 10 of the Code of Federal Regulations Part 420 to use the Additional
Reserves as loan loss reserves under such terms and conditions as DSA may determine. The ESID
and the Lessee further acknowledge and agree that the Additional Reserve Agreement sets such
terms and conditions, and that this Agreement is to be interpreted consistent with such Additional
Reserve Agreement, provided that the Additional Reserve Agreement shall control in the case of
any conflict with this Agreement.
In accordance with Article 2, Section D of the Additional Reserve Agreement, the Lessee
shall provide to the ESID and the Finance Authority, when and as requested by the ESID and the
Finance Authority, any and all information the ESID and the Finance Authority shall determine is
necessary to complete reporting required by (i) the State Energy Program (SEP) of the American
Recovery and Reinvestment Act of 2009 (the ARRA) and (ii) the Additional Reserve Agreement.
Without limiting the generality of the preceding sentence, Lessee hereby agrees to provide the
following information:
(a) During the installation of the Project, monthly financial information and progress
reports, which shall cover expenditures, goals accomplished, milestones met, and
any performance deficiencies or delays during the immediately preceding month;
(b) Following the completion of the installation of the Project, a project completion
report, containing a written notification that the Project has been completed,
documentation reflecting the Lessee's closeout inventory of real and personal
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property partially or wholly acquired by the Project Advance and a statement of
economic impact, including job creation and retention data;
(c) During and following the completion of the installation of the Project, for all years
during which any principal or interest is outstanding on the Project Advance,
annual, cumulative, to -date values on the following metrics: (1) verification of SEP -
ARRA reporting, (2) annual energy consumption from the completed Project, and
(3) any other information that may be requested by DSA; and
(d) During and following the completion of the installation of the Project, information
related to the economic impacts of the Project, including, without limitation,
increased production, competitiveness, community impact, and job creation and
retention, which includes installation hours, new jobs directly created, and jobs
retained at the site.
The Lessee shall preserve all financial and accounting records pertaining to this Agreement
during this Agreement's term, and for any further period that may be required by the Internal
Revenue Code of 1986, as amended. During such retention period, DSA or the Finance Authority,
upon reasonable notice, shall have the right to audit the records to the extent authorized and
permitted by law. The Lessee may retain all records in original or electronic form, provided that
for electronic records, an off-site duplicate record is preserved.
During the term of this Agreement, the Lessee shall comply with all applicable provisions
of the SEP -ARRA and the attendant federal regulations, including, without limitation ARRA
Section 1605 (Buy American / Federal Acquisition Regulations, or FAR) Clauses 52.225-21,
52.225-22, and 52.225-24; ARRA Section 1512 (Reporting Requirements), including FAR Clause
52.204-11; ARRA Section 1553 (Whistleblower Protection), including FAR Clause 52.203-15;
and ARRA Sections 902, 1514, and 1515 (General Accountability Office and Inspector General
Audits and Access to Records), including FAR Clauses 52.212-5, 52.214-26, and 52.215-2. A
summary of such provisions are attached to this Agreement as Exhibit H.
ARTICLE IV: PROJECT ADVANCE; CONSTRUCTION OF PROJECT; REPAYMENT
Section 4.1. Project Advance. The Finance Authority has made available to the Lessee
the Project Advance in the amount of $169,873.50. The Finance Authority shall hold the Project
Advance in a segregated account established in the custody of the Finance Authority, which
account shall be referred to as the Project Account. Subject to the terms and conditions of this
Agreement, the Finance Authority, upon the direction of the Lessee, shall disburse amounts on
deposit in the Project Account to the Lessee or to such parties as may be named by the Lessee in
order to pay the costs of the Project.
If the Project Advance is insufficient to pay the costs of the Project pursuant to this
Agreement, the Lessee, nevertheless, shall complete the acquisition, construction, equipping,
installation, and improvement of the Project, and the Lessee shall pay all such additional costs of
the Project from its own funds. The Lessee shall not be entitled to reimbursement for any such
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additional costs of the Project, nor shall it be entitled to any abatement, diminution, or
postponement of the Special Assessments or an increase in the amount of the Special Assessments.
Section 4.2. Disbursements. In order to cause disbursement of amounts on deposit in
the Project Account to pay or reimburse the costs of the Project, the Lessee shall submit to the
Finance Authority Disbursement Request Forms (a form of which is attached to this Agreement
as Exhibit C), which Disbursement Request Forms each shall, in part, setforththe reimbursements
or payments requested. The Finance Authority shall make disbursement only for cost of the Project
incurred prior to the date of the Disbursement Request Form. Costs of the Project cannot be pre -
funded. In addition, the following are conditions to disbursement of amounts on deposit in the
Project Account:
(a) With each Disbursement Request Form:
(i) The Lessee shall deliver to the Finance Authority a notarized AIA
Application for Payment Form (G702);
(ii) The Lessee shall deliver to the Finance Authority a notarized AIA
Continuation Sheet (G703) with a budget for the Project, including a
balance for each budget item, and how the disbursement being requested
will be applied across the entire budget for the Project;
(iii) The Lessee shall deliver to the Finance Authority copies of all related
receipts and invoices;
(iv) The Lessee shall deliver to the Finance Authority, as necessary, information
detailing any other sources of funds spent to pay any portion of the costs
shown on any related receipts and invoices such that all costs shown on
related receipts and invoices, including costs not eligible to be paid from the
Project Advance, shall be accounted for either as costs being paid by a
disbursement of a portion of the Project Advance or costs being paid by
other sources;
(v) The Lessee shall deliver to the Finance Authority evidence of insurance
coverage of all contractors and sub -contractors performing work at the
Property with respect to the disbursement being requested;
(vi) The Lessee shall deliver to the Finance Authority notarized partial lien
waivers for the disbursement being requested;
(vii) The Lessee shall deliver to the Finance Authority, as necessary, direction as
to whom each amount requested shall be paid and bank information for
wiring the amounts requested for disbursement.
(b) With the first Disbursement Request Form submitted, in addition to the documents
required under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority copies of all construction
permits required for the construction of the Project;
(ii) The Lessee shall deliver to the Finance Authority copies of all agreements
with all contractors and subcontractors performing work or furnishing
materials for the Project;
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(iii) The Lessee shall deliver to the Finance Authority a construction schedule
completed by the general contractor for the Project, which includes an
anticipated date of completion of the Project; and
(iv) The Lessee shall deliver to the Finance Authority copies of all current
policies of the Required Insurance Coverage;
(v) The construction plans and specifications shall have been approved in all
respects by the Finance Authority in its sole discretion;
(vi) The Lessee shall deliver to the Finance Authority the written consent of its
existing mortgage lender to the levying, assessment, and collection of the
Special Assessments, in the form attached to this Agreement as Exhibit F;
(vii) The Finance Authority shall receive the executed Special Assessment
Agreement and Lessee and Owner Consent and evidence that the same has
been recorded in the records of the County Recorder with respect to the
Property;
(viii) The Owner, the Lessee and the ESID shall provide to the Finance Authority
original executed copies of this Agreement and any related certificates.
(c) With the final Disbursement Request Form, in addition to the documents required
under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority the executed certificate in
the form attached as Exhibit D to this Agreement; and
(ii) The Lessee shall deliver to the Finance Authority copies of all completion
inspections and closed permits with respect to the Project.
Upon its receipt of each completed Disbursement Request Form, the Finance Authority
shall approve all or a portion of the payment or reimbursements requested to be disbursed from
the Project Account. To the extent the Finance Authority approves the payment or reimbursements
requested to be disbursed from the Project Account, the Finance Authority shall pay the Lessee or
such other parties as are indicated on the Disbursement Request Form the amounts described on
such Disbursement Request Form which have been approved by the Finance Authority.
Additionally, promptly following the Effective Date, the Finance Authority shall disburse
closing costs related to the financing described in this Agreement in an amount not to exceed
$20,872.50, as detailed in Exhibit E to this Agreement to the parties set forth on Exhibit E to this
Agreement. Without limiting the generality of the foregoing, disbursements made pursuant to this
paragraph may be for fees to the Finance Authority, fees to the ESID, legal fees, advisory fees,
fees to the City, and other closing costs or contingencies.
Section 4.3. Casualties and Takings. The Owner and the Lessee shall promptly notify
the Finance Authority if the Project is damaged or destroyed by fire, casualty, injury or any other
cause (each such occurrence, a Casualty). Upon the occurrence of such Casualty, the Owner's
Lender, if any, may elect, in its sole discretion and judgment, to restore the Property and the Project
or to terminate the construction of the Project, and in either case, to direct the application of the
insurance proceeds pursuant to the terms of Owner's Lender's agreement with the Owner,
provided that if the insurance proceeds are not used to restore the Property and the Project,
insurance proceeds will be distributed first to Owner's Lender pursuant to its agreements with the
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Owner, and next to the Finance Authority for repayment of the outstanding balance of the Special
Assessments and any related fees, and any excess proceeds will be paid to the Owner or the Lessee,
as appropriate.
Upon the occurrence of a Casualty, if no Person is a Lender at the time of such Casualty,
the insurance proceeds shall be applied to pay the costs of the restoration of the Project or to the
repayment of the outstanding balance of the Special Assessments, and in which case the Finance
Authority shall remain obligated to make disbursements of up to the total amount of the Project
Advance in accordance with this Agreement.
In the event restoration of the Project or the Property is pursued, the Lessee shall
immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, said insurance proceeds are
insufficient to complete the restoration, the Lessee shall deposit with the Finance Authority such
amounts as are necessary, in the Finance Authority's reasonable judgment, to complete the
restoration in accordance with the plans and specifications.
In the event any part of the Property or the Project shall be taken for public purposes by
condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in
lieu of condemnation to any authority entitled to exercise the power of eminent domain (a Taking),
the Owner's Lender, if any, may elect, in its sole discretion and judgment, not to restore the
Property or the Project or to restore the Property or the Project, and in either case, to direct the
application of the proceeds of the Taking pursuant to the terms of its agreements with the Owner.
If the Lender determines not to restore the Property or the Project and release funds related thereto
to the Owner, the Finance Authority's obligation to make disbursements under this Agreement
shall be terminated. If the Lender determines to restore the Property and the Project, the Lessee
shall immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, the Taking proceeds available
to the Lessee and the Finance Authority are insufficient to complete the restoration, the Lessee
shall deposit with the Finance Authority such amounts as are necessary, in the Finance Authority's
reasonable judgment, to complete the restoration in accordance with the plans and specifications.
In the event that no Person is a Lender at the time of such Taking, the Finance Authority's
obligation to make disbursements under this Agreement shall be terminated unless the Property
and the Project can be replaced and restored in a manner which will enable the Project to be
functionally and economically utilized and occupied as originally intended. If the Property and
the Project can be so restored, the Lessee shall immediately proceed with the restoration of the
Project in accordance with the plans and specifications, and the Finance Authority shall release the
funds for such purpose. If, in the Finance Authority's reasonable judgment, the Taking proceeds
available to the Lessee and the Finance Authority are insufficient to complete the restoration, the
Lessee hall deposit with the Finance Authority such amounts as are necessary, in the Finance
Authority's reasonable judgment, to complete the restoration in accordance with the plans and
specifications.
Section 4.4. Eligible Costs. The costs of the Project which are eligible for payment or
reimbursement pursuant to this Agreement include the following:
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(a) costs incurred directly or indirectly for or in connection with the acquisition,
construction, equipping, installation, and improvement of the Project, including
without limitation, costs incurred in respect of the Project for preliminary planning
and studies; architectural, legal, engineering, surveying, accounting, consulting,
supervisory and other services; labor, services and materials; and recording of
documents and title work;
(b) financial, legal, recording, title, accounting, and printing and engraving fees,
charges and expenses, and all other fees, charges and expenses incurred in
connection with the financing described in this Agreement;
(c) premiums attributable to any surety and payment and performance bonds and
insurance required to be taken out and maintained until the date on which each
Project is final and complete;
(d) taxes, assessments and other governmental charges in respect of the Project that
may become due and payable until the date on which each Project is final and
complete;
(e) costs, including, without limitation, attorney's fees, incurred directly or indirectly
in seeking to enforce any remedy against any contractor or subcontractor in respect
of any actual or claimed default under any contract relating to the Project; and
(f) any other incidental or necessary costs, expenses, fees and charges properly
chargeable to the cost of the acquisition, construction, equipment, installation, and
improvement of the Project.
Section 4.5. Completion of Project: Inspection. The Lessee (a) in accordance with the
approved plans and specifications for the Project, which plans and specifications shall not be
materially revised without the prior written approval of the Finance Authority, which approval
shall not be unreasonably withheld, shall acquire, construct, equip, install, and improve the Project
with Project Advance with all commercially reasonable dispatch, (b) subject to its right to contest
any disputed work, shall pay when due all fees, costs and expenses incurred or payable by the
Lessee in connection with that acquisition, construction, equipment, installation, and improvement
from funds made available therefor in accordance with this Agreement or otherwise, and (c) shall
ask, demand, sue for, levy, recover and receive all those sums of money, debts and other demands
whatsoever which may be due, owing and payable to the Lessee under the terms of any contract,
order, receipt, writing or instruction in connection with the acquisition, construction, equipment,
installation, and improvement of the Project, and shall utilize commercially reasonable efforts to
enforce the provisions of any contract, agreement, obligation, bond or other performance security
with respect thereto. It is understood that the Project is to be owned by the Lessee and any contracts
made by the Lessee with respect to the Project or any work to be done by the Lessee on or with
respect to the Project are made or done by the Lessee on its own behalf and not as agent or
contractor for the ESID.
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During the period of construction, acquisition, equipping, installation, and improvement of
the Project, the ESID and the Finance Authority, and their respective agents, subject to reasonable
security and safety regulations, and upon reasonable prior notice, shall have the right, during
normal business hours, to inspect the Project. The ESID and the Finance Authority and their
respective agents shall utilize commercially reasonable efforts to minimize interference with the
tenants of the Property during any such inspection.
The Finance Authority reserves the right to denythe request for aProject Advance pursuant
to Article IV of this Agreement if such inspection reveals that construction is not proceeding with
reasonable dispatch. If, in the Finance Authority's opinion, after thirty (30) days' written notice to
the Lessee, the construction is not proceeding with reasonable dispatch, the Finance Authority may
(i) request that the Lessee remove and replace the general contractor with a general contractor
acceptable to the Finance Authority, the failure of which by the Lessee shall be a default under
this Agreement, (ii) utilize funds to continue construction of the Project and such funds shall be
considered Project Advances, or (iii) deny any Project Advance until such time as the construction
resumes proceeding with reasonable dispatch.
The Lessee shall notify the ESID, the City, the Owner, and the Finance Authority of the
Completion Date by a certificate in the form attached as Exhibit D to this Agreement, signed by
the Lessee stating: (a) the date on which the acquisition, construction, equipping, installation, and
improvement of the Project was substantially completed by the general contractor for the Project
in accordance with the construction contract, and the Lessee has no unresolved complaints
regarding the work; (b) that the Project has been completed in all material respects in accordance
with the plans and specifications, permits, and budget for the Project approved by the Finance
Authority; (c) that the Lessee has complied, and will continue to comply with all applicable
statutes, regulations, and ordinances in connection with the Property and the construction of the
Project; (d) that the Lessee has a leasehold interest in the Property; (e) that the general contractor
for the project has not offered the Lessee any payment, refund, or any commission in return for
completing Project; and (f) that all funds provided to the Lessee by the Finance Authority for the
Project have been used in accordance with this Agreement. The certificate shall be delivered as
promptly as practicable after the Completion Date.
Section 4.6. Repavment. The Parties acknowledge that pursuant to this Agreement, the
Project Advance is expected to be repaid by the Special Assessments. The Parties agree that the
Special Assessments have been levied and certified to the County Auditor in the amounts
necessary to amortize the Project Advance, together with interest at the annual rate of 5.75%, and
a $60.94 semi-annual administrative fee to the ESID over 20 semi-annual payments to be collected
beginning approximately on January 31, 2021 and continuing through approximately July 31,
2030. The Parties further acknowledge that in addition to the amount of the Special Assessments
and other related interest, fees, and penalties, the County Auditor may charge and collect a County
Auditor collection fee on each annual installment of the Special Assessments in an amount to be
calculated, charged, and collected by the County Auditor pursuant to Ohio Revised Code Section
727.36. Interest shall accrue on the entire amount of the Project Advance from the Effective Date;
provided, however, that a portion of the Project Advance may be used to pay interest accruing and
due and payable on the Project Advance prior to the date on which the first installment of the
Special Assessments is paid to the Finance Authority by the City. The Owner and the Lessee agree
23
to pay, as and when due, all Special Assessments with respect to its Property. Notwithstanding
anything in this Section 4.6 or this Agreement to the contrary, the Parties acknowledge and agree
that, pursuant to the laws of the State, the Special Assessments to be collected by the County
Treasurer which as of the relevant date are not yet due and payable never shall be accelerated, and
the lien of the Special Assessments never shall exceed the amount of Special Assessments which,
as of the relevant date, are due and payable but remain unpaid.
Section 4.7. Prepayment. At any time after the Effective Date, the Owner or the Lessee
may prepay any portion of the principal of the Project Advance to the Finance Authority by paying,
in immediately available funds, 103% of the principal amount of the Project Advance to be
prepaid, together with all accrued and unpaid interest on the Project Advance to the date of
prepayment.
Immediately upon any prepayment pursuant to this Section 4.7, the Finance Authority shall
notify the City of the prepayment, and the Lessee, the Finance Authority, and the City shall
cooperate to reduce the amount of Special Assessments to be collected by the County Auditor
pursuant to Section 2.2(d) of this Agreement.
Section 4.8. Payment of Fees and Expenses. If an Event of Default on the part of the
Owner orthe Lessee should occur under this Agreement such thatthe ESID, the Finance Authority,
or the City should incur expenses, including but not limited to attorneys' fees, in connection with
the enforcement of this Agreement or the collection of sums due under this Agreement, the Owner
or the Lessee, as applicable, shall reimburse the ESID, the Finance Authority, and the City, as
applicable, for any reasonable out-of-pocket expenses so incurred upon demand. If any such
expenses are not so reimbursed, the amount of such expenses, together with interest on such
amount from the date of demand for payment at an annual rate equal to the lesser of 10% or the
maximum rate allowable by law shall constitute indebtedness under this Agreement, and the ESID,
the Finance Authority, and the City, as applicable, shall be entitled to seek the recovery of those
expenses in such action except as limited by law or by judicial order or decision entered in such
proceedings.
Section 4.9. Further Assurances. Upon the request of the Finance Authority, the Owner
and the Lessee shall take any actions and execute any further documents as the Finance Authority
deems necessary or appropriate to carry out the purposes of this Agreement.
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default. If any of the following shall occur, such occurrence shall
be an Event of Default under this Agreement:
(a) Any installment of the Special Assessments shall not have been paid when due,
after taking into account all applicable extensions;
(b) The City shall fail to appropriate in any fiscal year the Special Assessments payable
to the Finance Authority pursuant to this Agreement in such fiscal year, or shall fail
to transfer, or cause the transfer of, any of the Special Assessments to the Finance
Authority within the time specified in this Agreement;
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(c) Any Party is in material breach of its representations or warranties under this
Agreement; provided, however, that upon the material breach of a Party's
representations or warranties under this Agreement, such Party shall have the right
to cure such breach within 5 days of the receipt of notice, and, if so cured, such
breach shall not constitute an Event of Default;
(d) The ESID, the Owner, the Lessee, or the City shall fail to observe and perform any
other agreement, term, or condition contained in this Agreement, and the
continuation of such failure for a period of 30 days after written notice of such
failure shall have been given to the ESID, the Owner, the Lessee, or the City, as
applicable, by any other Party to this Agreement, or for such longer period to which
the notifying Party may agree in writing; provided, however, that if the failure is
other than the payment of money, and is of such nature that it can be corrected but
not within the applicable period, that failure shall not constitute an Event of Default
so long as the ESID, the Owner, the Lessee, or the City, as applicable, institutes
curative action within the applicable period and diligently pursues that action to
completion;
(e) The Owner or the Lessee abandons its Property or the Project;
(f) The Owner or the Lessee commits waste upon its Property or the Project;
(g) An event occurs that materially and adversely affects the Lessee's ability to pay or
perform its obligations under this Agreement;
(h) The Owner or the Lessee becomes bankrupt or insolvent or files or has filed against
it (and such action is not stayed or dismissed within 90 days) a petition in
bankruptcy or for reorganization or arrangement or other relief under the
bankruptcy laws or any similar state law or makes a general assignment for the
benefit of creditors; or
(i) Any workmanship or materials constituting a portion of the Proj ect or incorporated
into the Project shall be materially defective and shall not be corrected within 30
days after notice.
The declaration of an Event of Default above, and the exercise of remedies upon any such
declaration, shall be subject to any applicable limitations of federal bankruptcy law affecting or
precluding that declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Promptly upon any non -defaulting Party becoming aware that an Event of Default has
occurred, such Party shall deliver notice of such Event of Default to each other Party under this
Agreement in accordance with the notice procedures described in Section 6.5 of this Agreement.
Section 5.2. Remedies on Default. Whenever an Event of Default shall have happened
and be subsisting, any one or more of the following remedial steps may be taken:
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(a) Upon an Event of Default described in Section 5.1(a) only, the Finance Authority
shall be entitled to receive any Delinquency Amounts actually received by the City.
(b) The ESID, the Finance Authority, and the City, together or separately, may pursue
all remedies now or later existing at law or in equity to collect all amounts due and
to become due under this Agreement or to enforce the performance and observance
of any other obligation or agreement of any of the Parties, as applicable, under this
Agreement, including enforcement under Ohio Revised Code Chapter 2731 of
duties resulting from an office, trust, or station upon the ESID or the City, provided
that, Parties may only pursue such remedies against the Party responsible for the
particular Event of Default in question; provided, however, that the ESID, the
Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Owner, the Lessee, or the Project except to collect
or remedy any outstanding damages or liability which shall have arisen due to the
occurrence of an Event of Default.
(c) Any Party may pursue any other remedy which it may have, whether at law, in
equity, or otherwise, provided that, Parties may only pursue such remedies against
the Party responsible for the particular Event of Default in question; provided,
however, that the ESID, the Finance Authority, and the City may not take any other
action or exercise any remedy against the Property, the Project, or the Lessee except
to collect or remedy any outstanding damages or liability which shall have arisen
due to the occurrence of an Event of Default.
Notwithstanding the foregoing, each of the ESID and the City shall not be obligated to take
any step which in its opinion will or might cause it to expend time or money or otherwise incur
liability unless and until a satisfactory indemnity bond has been furnished to it at no cost or
expense.
Section 5.3. Foreclosure. Pursuant to Section 2.1 of the Special Assessment Agreement
by and among the County Treasurer, the City, the ESID, the Finance Authority, the Lessee, and
the Owner and dated as of the Effective Date (the Special Assessment Agreement), the County
Treasurer has agreed not to confirm the sale of the Property for an amount less than 100% of the
amount of the Special Assessments and other general real estate taxes, payments in lieu of taxes,
and assessments then due and owing with respect to the Property, as shall be certified by the ESID
to the County Treasurer pursuant to the records of the County Treasurer without the consent of the
ESID and the Finance Authority. The ESID hereby agrees that in the event it is asked to provide
its consent in accordance with Section 2.1 of the Special Assessment Agreement, it will notify the
Finance Authority of such request, and it will not provide its consent pursuant to Section 2.1 of
the Special Assessment Agreement without the Finance Authority's prior written direction.
Section 5.4. No Remedv Exclusive. No remedy conferred upon or reserved to the Parties
by this Agreement is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, or now or later existing at law, in equity or by statute; provided, however,
that the ESID, the Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Project, the Owner, or the Lessee except to collect or remedy any
26
outstanding damages or liability which shall have arisen due to the occurrence of an Event of
Default. No delay or omission to exercise any right or power accruing upon any default shall
impair that right or power nor shall be construed to be a waiver, but any such right and power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle the
Parties to exercise any remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than any notice required by law or for which express provision is made in this
Agreement.
Section 5.5. No Waiver. No failure by a Party to insist upon the strict performance by
the other Parties of any provision of this Agreement shall constitute a waiver of such Party's right
to strict performance; and no express waiver shall be deemed to apply to any other existing or
subsequent right to remedy the failure by the Parties to observe or comply with any provision of
this Agreement.
Section 5.6. Notice of Default. Any Party to this Agreement shall notify every other
Party to this Agreement immediately if it becomes aware of the occurrence of any Event of Default
or of any fact, condition or event which, with the giving of notice or passage of time or both, would
become an Event of Default.
ARTICLE VI: MISCELLANEOUS
Section 6.1. Waivers. The Owner and the Lessee each acknowledges that the process
for the imposition of special assessments provides the owner of property subject to such special
assessments with certain rights, including rights to: receive notices of proceedings; object to the
imposition of the special assessments; claim damages; participate in hearings; take appeals from
proceedings imposing special assessments; participate in and prosecute court proceedings, as well
as other rights under law, including but not limited to those provided for or specified in the United
States Constitution, the Ohio Constitution, Ohio Revised Code Chapter 727, the Charter of the
City and the ordinances in effect in the City (collectively, Assessment Rights). The Owner and
the Lessee each irrevocably waives all Assessment Rights as to the Project and consents to the
imposition of the Special Assessments as to the Project immediately or at such time as the ESID
determines to be appropriate, and the Owner and the Lessee each expressly requests the entities
involved with the special assessment process to promptly proceed with the imposition of the
Special Assessments upon its Property as to its Energy Project. The Owner and the Lessee each
further waives in connection with the Project: any and all questions as to the constitutionality of
the laws under which the Project will be constructed and the Special Assessments imposed upon
the Property; the jurisdiction of the Council of the City acting thereunder; and the right to file a
claim for damages as provided in Ohio Revised Code Section 727.18 and any similar provision of
the Charter of the City or the ordinances in effect within the City.
Section 6.2. Term of Agreement. This Agreement shall be and remain in full force and
effect from the Effective Date until the payment in full of the entire aggregate amount of the
Special Assessments shall have been made to the Finance Authority and the obligations (if any) of
each Party under Section 6.4 shall have been fully satisfied, or such time as the Parties shall agree
in writing to terminate this Agreement. Any attempted termination of this Agreement prior to the
payment in full of the entire aggregate amount of the Special Assessments which is not in writing
and signed by each of the Parties to this Agreement shall be null and void.
27
Section 6.3. Litigation Notice. Each Party shall give all other Parties prompt notice of
any action, suit, or proceeding by or against the notifying Party, at law or in equity, or before any
governmental instrumentality or agency, of which the notifying Party has notice and which, if
adversely determined would impair materially the right or ability of the Parties to perform its
obligations under this Agreement. The notifying Party's prompt notice shall be accompanied by
its written statement setting forth the details of the action, suit, or proceeding and any responsive
actions with respect to the action, suit, or proceeding taken or proposed to be taken by the Party.
Section 6.4. Indemnification. The Owner and the Lessee hereby release the ESID, the
Finance Authority, and the City, and their respective officers, directors and employees)
(collectively, the Indemnified Parties), from, agree that the Indemnified Parties shall not be liable
for, and agree to indemnify the Indemnified Parties against, any and all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including, without limitation,
out-of-pocket and incidental expenses and reasonable attorneys' fees and expenses) imposed upon,
incurred by or asserted against any of the Indemnified Parties arising or resulting from (i) the levy
and collection of the Special Assessments, (ii) the financing, acquisition, construction, installation,
operation, use or maintenance of the Project, (iii) any act, failure to act or misrepresentation by the
Owner or the Lessee, as applicable, in connection with, or in the performance of any obligation on
their respective parts to be performed under this Agreement or related to the Special Assessments
resulting in material actual damages, or (iv) (a) a past, present or future violation or alleged
violation of any environmental laws in connection with the Property by any person or other source,
whether related or unrelated to the Owner or the Lessee, as applicable, (b) any presence of any
hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as
such in or regulated under any environmental law (Materials of Environmental Concern) in, on,
within, above, under, near, affecting or emanating from the Property, (c) the failure to timely
perform any investigation, inspection, site monitoring, containment, clean—up, removal, response,
corrective action, mitigation, restoration or other remedial work of any kind or nature because of,
or in connection with, the current or future presence, suspected presence, Release (as defined
below) or threatened Release in or about the air, soil, ground water, surface water or soil vapor at,
on, about, under or within all or any portion of the Property of any Materials of Environmental
Concern, including any action to comply with any applicable environmental laws or directives of
any governmental authority with regard to any environmental laws, (d) any past, present or future
activity by any person or other source, whether related or unrelated to the Owner or the Lessee, as
applicable, in connection with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or transportation to or from
the Property of any Materials of Environmental Concern at any time located in, under, on, above
or affecting the Property, (e) any past, present or future actual generation, treatment, use, storage,
transportation, manufacture, refinement, handling, production, removal, remediation, disposal,
presence or migration of Materials of Environmental Concern on, about, under or within all or any
portion of the Property (a Release) (whether intentional or unintentional, direct or indirect,
foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting the Property by any
person or other source, whether related or unrelated to the Owner or the Lessee, as applicable, (f)
the imposition, recording or filing or the threatened imposition, recording or filing of any lien on
the Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant
to any environmental law, or (g) any misrepresentation or failure to perform any obligations related
28
to environmental matters in any way pursuant to any documents related to the Special
Assessments; provided, however, that the Owner or the Lessee, as appropriate, shall not indemnify
the Indemnified Parties as provided above to the extent that any liability, claim, cost, or expense
arises out of or results from the gross negligence, willful misconduct, or breach of this Agreement
or any of the other PACE Documents (as defined in Section 6.13 below) by the Indemnified
Parties.
In the event any action or proceeding is brought against any Indemnified Party by reason
of any such claim, such Indemnified Party will promptly give written notice thereof to the Owner
and the Lessee. The Owner or the Lessee, as applicable, shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume at its own expense the defense of such claim,
suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by
the Owner or the Lessee, as applicable; but if the Owner or the Lessee, as applicable, shall elect
not to assume such defense, it shall reimburse such Indemnified Party for the reasonable fees and
expenses of any counsel retained by such Indemnified Party. If at any time the Indemnified Party
becomes dissatisfied, in its reasonable discretion, with the selection of counsel by the Lessee, a
new mutually agreeable counsel shall be retained at the expense of the Owner or the Lessee, as
applicable. Each Indemnified Party agrees that the Owner or the Lessee, as applicable, shall have
the sole right to compromise, settle or conclude any claim, suit, action or proceeding against any
of the Indemnified Parties. Notwithstanding the foregoing, each Indemnified Party shall have the
right to employ counsel in any such action at their own expense; and provided further that such
Indemnified Party shall have the right to employ counsel in any such action and the fees and
expenses of such counsel shall be at the expense of the Owner or the Lessee, as applicable„ if: (i)
the employment of counsel by such Indemnified Party has been authorized by the Owner or the
Lessee, as applicable, (ii) there reasonably appears that there is a conflict of interest between the
Owner or the Lessee, as applicable, and the Indemnified Party in the conduct of the defense of
such action (in which case the Owner or the Lessee, as applicable, shall not have the right to direct
the defense of such action on behalf of the Indemnified Party) or (iii) the Owner or the Lessee, as
applicable, shall not in fact have employed counsel to assume the defense of such action. The
Owner and the Lessee shall also indemnify the Indemnified Parties from and against all costs and
expenses, including reasonable attorneys' fees, lawfully incurred in enforcing any obligations of
the Lessee under this Agreement; provided, however, that the Owner or the Lessee, as appropriate,
shall not indemnify the Indemnified Parties as provided above to the extent that any liability, claim,
cost, or expense arises out of or results from the negligence, willful misconduct, or breach of this
Agreement or any of the other PACE Documents (defined in Section 6.13 below) by the
Indemnified Parties. The obligations of the Owner and the Lessee under this Section shall survive
the termination of this Agreement and shall be in addition to any other rights, including without
limitation, rights to indemnity which any Indemnified Party may have at law, in equity, by contract
or otherwise.
None of the Finance Authority, the City, or the ESID shall have any liability to the Owner,
to the Lessee, or to any other Person on account of (i) the Lessee engaging a contractor from the
list of contractors submitted by the ESID or the Finance Authority to the Lessee, (ii) the services
performed by the contractor, or (iii) any neglect or failure on the part of the contractor to perform
or properly perform its services. None of the Finance Authority, the City, the Owner, or the ESID
assumes any obligation to the Owner, the Lessee, or any other Person concerning contractors, the
29
quality of construction of the Projector the absence of defects from the construction of the Project.
The making of a Project Advance by the Finance Authority shall not constitute the Finance
Authority's approval or acceptance of the construction theretofore completed. The Finance
Authority's inspection and approval of the budget, the construction work, the improvements, or
the workmanship and materials used in the improvements, shall impose no liability of any kind on
the Finance Authority, the sole obligation of the Finance Authority as the result of such inspection
and approval being to make the Project Advances if, and to the extent, required by this
Agreement. Any disbursement made by the Finance Authority without the Finance Authority
having received each of the items to which it is entitled under this Agreement shall not constitute
breach or modification of this Agreement, nor shall any written amendment to this Agreement be
required as a result.
Section 6.5. Notices. All notices, certificates, requests or other communications under
this Agreement shall be in writing and shall be deemed to be sufficiently given when mailed by
registered or certified mail, postage prepaid, and addressed to the appropriate Notice Address. The
Parties, by notice given under this Agreement to the others, may designate any further or different
addresses to which subsequent notices, certificates, requests or other communications shall be sent.
Each of the Parties agree to provide the other Parties to this Agreement notice of any litigation of
which it has actual knowledge that may adversely affect its ability to carry out its obligations under
this Agreement.
Section 6.6. Extent of Covenants; No Personal Liability. All covenants, obligations, and
agreements of the ESID and the City contained in this Agreement shall be effective to the extent
authorized and permitted by applicable law. No 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 ESID, the Board, the Owner, the Lessee, the City, the City Council, the Finance
Authority, or the Board of Directors of the Finance Authority in other than his or her official
capacity; and none of the members of the Board, the City Council, or the Board of Directors of the
Finance Authority, nor any official of the ESID, the Owner, the Lessee the City, or the Finance
Authority executing this Agreement shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the covenants, obligations, or agreements of
the ESID, the Owner, the Lessee, the City, or the Finance Authority contained in this Agreement.
Section 6.7. Binding Effect: Assignment: Estoppel Certificates. This Agreement shall
inure to the benefit of and shall be binding in accordance with its terms upon the Parties. Except
as specifically provided below, this Agreement shall not be assigned by the any of the Parties
except as may be necessary to enforce or secure payment of the Special Assessments.
Notwithstanding anything in this Agreement to the contrary, the Lessee freely may transfer
its leasehold interest in the Property and the Project or any portion of the Property and the Project
from time to time and may assign this Agreement to an arm's-length, good faith purchaser of the
Property but only after notice of such assignment is given to the Finance Authority, and only upon
(i) the execution and delivery to the City, the Finance Authority, the ESID, and the Owner of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
30
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent. Following any assignment by the Lessee as described above, all
obligations of the Lessee contained in this Agreement, the Special Assessment Agreement, and the
Lessee and Owner Consent shall be obligations of the assignee, and the assigning Lessee shall be
released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Owner freely may transfer
its interest in the Property and the Project or any portion of the Property and the Project from time
to time and may assign this Agreement to an arm's-length, good faith purchaser of the Property
but only after notice of such assignment is given to the Finance Authority, and only upon (i) the
execution and delivery to the City, the Finance Authority, the ESID, and the Lessee of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent. Following any assignment by the Owner as described above, all
obligations of the Owner contained in this Agreement, the Special Assessment Agreement, and
the Lessee and Owner Consent shall be obligations of the assignee, and the assigning Owner shall
be released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Finance Authority shall
have the unrestricted right at any time or from time to time, and without the consent from the
Owner or the Lessee, to assign all or any portion of its rights and obligations under this Agreement,
and may sell or assign any and all liens received directly or indirectly from the City to any Person
(each, a Finance Authority Assignee), and the Owner and the Lessee agree that they shall execute,
or cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection with
this Agreement as the Finance Authority shall deem necessary to effect the foregoing so long as
such amendment does not materially adversely impact the Owner or the Lessee's rights and
obligations under this Agreement. Any Finance Authority Assignee shall be a party to this
Agreement and shall have all of the rights and obligations of the Finance Authority under this
Agreement (and under any and all other guaranties, documents, instruments and agreements
executed in connection with this Agreement) to the extent that such rights and obligations have
been assigned by the Finance Authority pursuant to the assignment documentation between the
Finance Authority and such Finance Authority Assignee, and the Finance Authority shall be
released from its obligations under this Agreement and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement to a
corresponding extent. If, at any time, the Finance Authority assigns any of the rights and
obligations of the Finance Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to a Finance
Authority Assignee, the Finance Authority shall give prompt written notice of such assignment to
the other Parties.
In addition, the Finance Authority shall have the unrestricted right at any time and from
time to time, and without the consent of or notice of the Owner or the Lessee, to grant to one or
31
more Persons (each, a Participant) participating interests in Finance Authority's obligation to
make Project Advances under this Agreement or to any or all of the loans held by Finance
Authority under this Agreement. In the event of any such grant by the Finance Authority of a
participating interest to a Participant, whether or not upon notice to the Owner or the Lessee, the
Finance Authority shall remain responsible for the performance of its obligations under this
Agreement, and the Lessee shall continue to deal solely and directly with the Finance Authority in
connection with the Finance Authority's rights and obligations under this Agreement. The Owner
and the Lessee agree that the Finance Authority may furnish any public information concerning
the Owner and the Lessee in its possession from time to time to prospective Finance Authority
Assignees and Participants.
This Agreement may be enforced only by the Parties, their permitted assignees, and others,
who may, by law, stand in their respective places.
Any Party shall at any time and from time to time, upon not less than 30 days' prior written
notice by the other party, execute, acknowledge and deliver to such party a statement in writing
certifying that: (i) this Agreement is unmodified and in full force and effect (or, if there has been
any modification of this Agreement, that the same is in full force and effect as modified and stating
the modification or modifications); (ii) to the best of such Party's actual knowledge (without any
duty of inquiry) there are no continuing Events of Default (or, if there is a continuing Event of
Default, stating the nature and extent of such Event of Default); (iii) that, to the best of such Party's
actual knowledge (without any duty of inquiry) there are no outstanding damages or liability
arising from an Event of Default (or, if there is any outstanding damages or liability, stating the
nature and extent of such damages or liability); (iv) if such certificate is being delivered by the
Owner or the Lessee, the dates to which the Special Assessments have been paid; and (v) if such
certificate is being delivered by the Finance Authority, the dates to which the Special Assessments
have been paid to the Finance Authority. It is expressly understood and agreed that any such
certificate delivered pursuant to this Section 6.7 may be relied upon by any prospective assignee
of the Owner or the Lessee or any prospective Finance Authority Assignee.
Section 6.8. Termination of Lease. If at any time during the term of this Agreement the
Lessee's lease of the Property and the Project with the Owner (including as amended, extended,
or substituted) terminates, the Owner shall assume all of the Lessee's rights and obligations under
this Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
Section 6.9. Amendments and Supplements. Except as otherwise expressly provided in
this Agreement, this Agreement may not be amended, changed, modified, altered or terminated
except by unanimous written agreement signed by each of the Parties materially affected by such
proposed amendment, change, modification, alteration, or termination. For purposes of this
Section, a materially affected Party is a Party with respect to which a material right or obligation
under this Agreement is proposed to be amended, changed, modified, altered, or terminated. Any
attempt to amend, change, modify, alter, or terminate this Agreement except by unanimous written
agreement signed by all of the materially affected Parties or as otherwise provided in this
Agreement shall be void.
32
Section 6.10. Execution Counterparts. This Agreement maybe executed in counterpart
and in any number of counterparts, each of which shall be regarded as an original and all of which
together shall constitute but one and the same instrument.
Section 6.11. Severability. If any provision of this Agreement, or any covenant,
obligation, or agreement contained in this Agreement 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 in this Agreement. That invalidity or unenforceability shall not affect any valid
and enforceable application of the provision, covenant, obligation, or agreement, 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 6.12. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State and for all purposes shall be governed by and construed in accordance
with the laws of the State.
Section 6.13. Lessee Primarilv Obligated. All parties to this Agreement hereby
acknowledge and agree that the Owner is executing this Agreement, the Special Assessment
Agreement, the Lessee and Owner Consent, and any and all other documents related to the Special
Assessments or the PACE financing (collectively, the PACE Documents) as an accommodation
to the Lessee, so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding
any other provision contained in this Agreement or the other PACE Documents, the Lessee is and
shall be primarily responsible for the performance of any and all obligations of the Owner or the
Lessee under the PACE Documents. If the Lessee fails to perform its obligations in the PACE
Documents, the Owner acknowledges and agrees that the Owner shall assume all of the Lessee's
rights and obligations under the PACE Documents, as expressly contained in the respective PACE
Documents.
[Remainder of Page Intentionally Left Blank]
33
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly
executed in their respective names, all as of the Effective Date.
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., as the ESID
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
OH15 DUBLIN LLC, as the Owner
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
Matthew Tucker, Vice President
[Signature Page to Energy Project Cooperative Agreement]
VIAQUEST, INC., as the Lessee
IC
Michael Bell, Chief Financial Officer
[Signature Page to Energy Project Cooperative Agreement]
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY, as the Finance
Authority
IC
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY OF DUBLIN, OHIO, as the City
-0
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY FISCAL OFFICER CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that the
moneys required to meet the obligations of the City during the year 2019 under the foregoing
Energy Project Cooperative Agreement ($0.00) have been lawfully appropriated by the City
Council of the City of Dublin, Ohio for such 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 Ohio Revised Code Sections 5705.41 and 5705.44.
Director of Finance
City of Dublin, Ohio
Dated: .2019
[City Fiscal Officer Certificate Energy Project Cooperative Agreement]
EXHIBIT A
As used in this Agreement, the following words have the following meanings:
Agreement'' means this Energy Project Cooperative Agreement, dated as of the Effective
Date, by and between the ESID, the Owner, the Lessee, the Finance Authority, and the City, as the
same may be amended, modified, or supplemented from time to time in accordance with its terms.
"Board" means the Board of Directors of the ESID.
"City" means the City of Dublin, Ohio.
"City Council" means the City Council of the City.
"Completion Date" means the latest date on which substantial completion of the Project,
in accordance with the Plans occurs, which date shall be established by the Completion Certificate
attached to this Agreement as Exhibit D.
"County" means Franklin County, Ohio.
"County Auditor" means the Auditor of the County.
"County Prosecutor" means the Prosecuting Attorney of the County.
"County Treasurer" means the Treasurer of the County.
"Delinquency Amounts" means any penalties or interest which may be due on or with
respect to any installment of the Special Assessments and which are not paid or payable as required
by law to any Person (other than the Finance Authority under this Agreement).
"Disbursement Request Form" means the form attached to this Agreement as Exhibit C
which form shall be submitted by the Lessee in order to receive disbursements from the Project
Account.
"ESID" means the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township,
Whitehall, Worthington Regional Energy Special Improvement District, Inc., doing business under
the registered trade name Columbus Regional Energy Special Improvement District, Inc., a
nonprofit corporation and energy special improvement district organized under the laws of the
State of Ohio.
"Finance Authority" means the Columbus -Franklin County Finance Authority, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State of Ohio, together with any Finance Authority Assignee.
A-1
"Governmental Authority" means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Lender" means any Person which has loaned money to the Owner to pay or refinance
the costs of acquiring, financing, refinancing, or improving the Property and which loan is secured
by a mortgage interest in the Property, or any permitted successors or assigns of such Person.
"Lessee" means ViaQuest, Inc., an Ohio corporation, and any permitted successors or
assigns.
"Lessee and Owner Consent" means, collectively, the Lessee Consent and the Owner
Consent, each dated as of the Effective Date by Lessee and Owner, and each recorded in the
records of the Franklin County Recorder with respect to the Property.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5200 Emerald Parkway
Columbus, Ohio 43017
Attention: City Manager
(b) As to the ESID: Columbus Regional Energy Special
Improvement District, Inc.
c/o Columbus -Franklin County Finance
Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy To: J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 S. Third Street
Columbus, Ohio 43215
(c) As to the Owner OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy To: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
A-2
(d) As to the Lessee
(e) As to the Finance
Authority
Attention: General Counsel
ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
Columbus -Franklin County
Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: President
"Ordinance Levying Assessments" means any resolution or ordinance passed, enacted, or
adopted by the City pursuant to Ohio Revised Code Section 727.25 with respect to levying special
assessments on real property within the ESID.
"Ordinance to Proceed" means any resolution or ordinance passed, enacted, or adopted by
the City pursuant to Ohio Revised Code Section 727.23 with respect to levying special assessments
on real property within the ESID.
"Owner" means OH15 Dublin LLC, a Delaware limited liability company, and any
permitted successors or assigns.
"Parries" means the ESID, the Owner, the Lessee, the Finance Authority, and the City.
"Party" means, individually, any one of the Parties.
"Person" or words importing persons mean firms, associations, partnerships (including
without limitation, general and limited partnerships), limited liability companies, joint ventures,
societies, estates, trusts, corporations, public or governmental bodies, political subdivisions, other
legal entities, and natural persons.
"Plan" means the Columbus Regional Energy Special Improvement District Program Plan
adopted by the City of Columbus, Ohio by its Resolution No. 0261X-2015 of November 23, 2015,
and any and all supplemental plans approved by the ESID and the City, including, without
limitation, the Supplemental Plan.
"Project" means the special energy improvement project described in the Supplemental
Plan with respect to the Property, for which Special Assessments are to be levied by the City, all
in accordance with the Supplemental Plan.
"Project Account" means the segregated account in the custody of the Finance Authority
for the benefit of the Lessee which contains the Project Advance, and out of which disbursements
may be made in accordance with Article IV of this Agreement.
A-3
"Project Advance" means the amount of immediately available funds to be transferred, set
over, and paid to and held in the Project Account established pursuant to Section 4.1 of this
Agreement for the benefit of the Lessee.
"Property" means the real property subject to the Plan.
"Repayment Schedule" means the schedule attached to and incorporated into this
Agreement as Exhibit B iwhich schedule establishes the dates and amounts for the repayment of
the Project Advance by the Special Assessments paid by the Owner and the Lessee.
"Required Insurance Coverage" means, collectively, the Required Property Insurance
Coverage and the Required Public Liability Insurance Coverage, each of which, in addition to the
requirements described in their respective definitions, (i) must provide for 10 days' notice to the
Finance Authority in the event of cancellation or nonrenewal and (ii) must name as an additional
insured (mortgagee/loss payee) the Finance Authority.
"Required Property Insurance Coverage" means at any time insurance coverage
evidenced maintained with generally recognized, responsible insurance companies qualified to do
business in the State in the amount of the then full replacement value of the Project and Property,
insuring the Project against loss or damage by fire, windstorm, tornado and hail and extended
coverage risks on a comprehensive all risk/special form insurance policy and containing loss
deductible provisions of not to exceed $10,000, which insurance coverage shall name the Finance
Authority as loss payee/mortgagee.
"Required Public Liability Insurance Coverage" means at any time commercial general
liability insurance against claims for personal injury, death or property damage suffered by others
upon, in or about any premises occupied by Owner, which insurance coverage shall name the
Finance Authority as an additional insured.
"Resolution of Necessity" means any resolution or ordinance passed, enacted, or adopted
by the City pursuant to Ohio Revised Code Section 727.12 with respect to levying special
assessments on real property within the ESID.
"Special AssessmentAct" means, collectively, Ohio Revised Code Section 727.01 et seq.,
Ohio Revised Code Section 1710.01 et seq., Ohio Revised Code Section 323.01 et seq., Ohio
Revised Code Section 319.01 et seq., Ohio Revised Code Section 5721.01 et seq., and related laws.
"Special Assessment Proceedings" means, collectively, Resolution No. [ ] of the City
Council adopted on [ ], 2019 approving the Petition, the Plan, and the Supplemental Plan,
Resolution No. [__] of the City Council declaring the necessity of the Project adopted on
[ ], 2019, Ordinance No. [ ], determining to proceed with the Project, adopted on
[ ], 2019, and Ordinance [ ], levying the Special Assessments, adopted on [,
2019, with respect to levying special assessments on the Property subject to the Petition.
"Special Assessments" means the special assessments levied pursuant to the Special
Assessment Act and the Special Assessment Proceedings by the City with respect to the Project, a
schedule of which is attached to and incorporated into the Plan.
A-4
"State" means the State of Ohio.
"Supplemental Plan" means the Supplement to Plan for 525 Metro Place North, Dublin,
Ohio Project, approved by the City Council on [ ], 2019 by its Resolution No. [_].
A-5
EXHIBIT B
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EXHIBIT C
DISBURSEMENT REQUEST FORM
STATEMENT NO. REQUESTING AND
AUTHORIZING DISBURSEMENT OF FUNDS PURSUANT
TO SECTION 4.2 OF THE ENERGY PROJECT
COOPERATIVE AGREEMENT DATED AS OF
2019.
Amount Requested: $
Pursuant to Section 4.2 of the Energy Project Cooperative Agreement dated as of
[ ], 2019 (the Agreement) among the ESID, the Owner, the Lessee, and the Finance
Authority, the undersigned authorized representative of ViaQuest, Inc., as the Lessee under the
Agreement, hereby requests the Finance Authority having custody of the Project Account, to pay
to the Lessee or the other person(s) listed on the disbursement schedule attached hereto as
Appendix I (the Disbursement Schedule), the respective amounts specified in the Disbursement
Schedule out of the moneys on deposit in the Project Account for the advances, payments and
expenditures made in connection with the costs of the Project described in the Disbursement
Schedule, all in accordance with Section 4.2 of the Agreement (capitalized words and terms not
otherwise defined herein having the meanings assigned to them in the Agreement).
In connection with this request and authorization (the Disbursement Request), the
undersigned hereby certifies that:
(i) each of the representations and warranties made by the Lessee in the
Agreement remains true and correct, in all material respects, as of the date of this
Disbursement Request and no Event of Default by the Lessee under the Agreement exists;
(ii) each item for which disbursement is requested by this Disbursement
Request is properly payable out of the Project Account in accordance with the terms and
conditions of the Agreement and, except as otherwise noted, none of those items has
formed the basis for any disbursement heretofore made from the Project Account;
(iii) to the extent any portion of the payment requested is for construction work,
the Lessee has received and herewith delivers to the Finance Authority, conditional waivers
of any mechanics' or other liens with respect to such work;
(iv) this Disbursement Request and all exhibits hereto, including the
Disbursement Schedule, shall be conclusive evidence of the facts and statements set forth
herein and shall constitute full warrant, protection and authority to the Finance Authority
for its actions taken pursuant hereto; and
(v) this Disbursement Request constitutes the approval of the Lessee of each
disbursement hereby requested and authorized.
C-1
Dated:
Approved in accordance with the Agreement:
Columbus -Franklin County Finance Authority,
as the Finance Authority:
Dated:
C-2
Authorized Representative of
Lessee
SCHEDULE 1 TO DISBURSEMENT REQUEST FORM
Payee Amount Purpose
C-3
EXHIBIT D
FORM OF COMPLETION CERTIFICATE
ViaQuest, Inc. (the Lessee) hereby certifies that the Project, as such term is defined in the
Energy Project Cooperative Agreement entered into by and between the Lessee, OH15 Dublin,
LLC, the Columbus Regional Energy Special Improvement District, Inc., the City of Dublin, Ohio
and the Columbus -Franklin County Finance Authority (the Finance Authority) dated as of
[ ], 2019 (the Agreement) has been completed at 525 Metro Place North, Dublin, Ohio
(the Property) in strict compliance with the requirements of the Agreement.
Note: Capitalized terms used but not defined in this Completion Certificate have the
meaning assigned to them in the Agreement to which a form of this Completion Certificate is
attached and of which it forms a part.
THE LESSEE HEREBY CERTIFIES:
(a) That the acquisition, construction, equipping, installation, and improvement of the
Project was substantially completed on
(b) That all other facilities necessary in connection with the Project have been acquired
or are otherwise available to the Lessee;
(c) That the acquisition, construction, equipping, installation, and improvement of the
Project and those other facilities have been accomplished in such amanner as to conform with all
applicable zoning, planning, building, environmental, and other similar governmental regulations;
(d) That except as provided in clause (e) below, all costs of that acquisition,
construction, equipping, installation, and improving then or theretofore due and payable have been
paid; and
(e) The amounts, if any, the Finance Authority shall retain in the Project Account for
the payment of costs not yet due or for liabilities that the Lessee is contesting or which otherwise
should be retained and the reasons such amounts should be retained.
[Balance of Page Intentionally Left Blank]
D-1
NOTICE: DO NOT SIGN THIS COMPLETION CERTIFICATE UNLESS YOU AGREE TO
EACH OF THE ABOVE STATEMENTS.
VIAQUEST, INC., as the Lessee
Michael Bell, Chief Financial Officer
D-2
EXHIBIT E
CLOSING COSTS DETAIL
Pursuant to Section 4.2 of the foregoing Energy Project Cooperative Agreement, the
Finance Authority shall disburse to the respective payee set forth below, the following closing
costs:
PAYEE
AMOUNT
REASON
Bricker & Eckler LLP
$7,500.00
Lender and ESID counsel fee
DiPerna Advisors
3,500.00
Financial advisor fee
Columbus -Franklin County Finance
Authority
3,500.00
Lender closing fee
Columbus Regional Energy Special
Improvement District
372.50
ESID closing fee
City of Dublin, Ohio
5,000.00
City of Dublin legal fee
The Huntington National Bank
1,000.00
Disbursing Agent closing fee
TOTAL
$20,872.50
E-1
EXHIBIT F
CONSENT OF MORTGAGEE
[See Attached]
F-1
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION OF ENERGY PROJECT
COOPERATIVE AGREEMENT
ASSIGNMENT AND ASSUMPTION
OF
ENERGY PROJECT COOPERATIVE AGREEMENT
[ ] (Assignor), in consideration of the sum of $[
in hand paid and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by Assignor's execution of this Assignment and Assumption of Energy Project
Cooperative Agreement (Assignment), assigns, transfers, sets over, and conveys to
[ ] (Assignee) all of Assignor's right, title, and interest in and to that
certain Energy Project Cooperative Agreement dated as of [ 1 2019 between the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., d/b/a Columbus Regional Energy Special
Improvement District, Inc., Assignor, the Columbus -Franklin County Finance Authority (the
Finance Authority), and the City of Dublin, Ohio (the City) (the Energy Project Cooperative
Agreement).
By executing this Assignment, Assignee accepts the assignment of, and assumes all of
Assignor's duties and obligations under, the Energy Project Cooperative Agreement. Assignee
further represents and warrants that it has taken title to the "Property," as that term is defined in
the Energy Project Cooperative Agreement, subject to the Special Assessment Agreement dated
as of even date with the Energy Project Cooperative Agreement between the Franklin County
Treasurer, the City, the ESID, the Finance Authority, OH15 Dublin LLC, and ViaQuest, Inc. (the
Special Assessment Agreement) and to the "Lessee Consent" and the "Owner Consent" each
dated [ 12019 by ViaQuest, Inc. and OH15 Dublin LLC, respectively, and each recorded
in the records of the Franklin County Recorder with respect to the Property. By executing this
Assignment, Assignee accepts the assignment of, and assumes all of Assignor's duties and
obligations under, the Special Assessment Agreement and the Lessee Consent and the Owner
Consent.
Assignor and Assignee acknowledge and agree that executed copies of this Assignment
shall be delivered to the City, the Finance Authority, the Owner, and the ESID, as each of those
terms are defined in the Energy Project Cooperative Agreement, all in accordance with Sections
3.4(a) and 6.7 of the Energy Project Cooperative Agreement
In witness of their intent to be bound by this Assignment, each of Assignor and Assignee
have executed this Assignment this day of , [ ], which
Assignment is effective this date. This Assignment may be executed in any number of
counterparts, which when taken together shall be deemed one agreement.
G-1
[Signature Pages Follow]
G-2
ASSIGNOR:
By:
Name:
Title:
G-3
ASSIGNEE:
By:
Name:
Title:
G-4
EXHIBIT H
FEDERAL LAW PROVISIONS SUMMARY
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5 (`Recovery Act" or
"ARRA) was enacted to preserve and create jobs and promote economic recovery, assist those
most impacted by the recession, provide investments needed to increase economic efficiency by
spurring technological advances in science and health, invest in transportation, environmental
protection, and other infrastructure that will provide long-term economic benefits, stabilize State
and local government budgets, in order to minimize and avoid reductions in essential services and
counterproductive State and local tax increases. Recipients shall use loan funds in a manner that
maximizes job creation and economic benefit.
Contracting Party shall cause each Energy Loan Loss Reserve Project Beneficiary comply with
all terms and conditions in the Recovery Act relating generally to governance, accountability,
transparency, data collection and resources as specified in Act itself and as set forth below.
None of the funds provided under this Agreement derived from the Recovery Act may be used by
any State or local government, or any private entity, for any casino or other gambling
establishment, aquarium, zoo, golf course, or swimming pool.
1. Timely and Accurate Reporting. Contracting Party shall cause each Energy Loan Loss
Reserve Project Beneficiary to comply with all reporting requirements outlined in Section
1512 ofARRA and such additional reporting guidance as may be issued from time to time.
Each Energy Loan Loss Reserve Project Beneficiary's reporting must be sufficient to
support the requirements of the Contracting Party to make timely and accurate reports to
the federal agency from which the Contracting Party receives ARRA funds. Each
Contracting Party's reports to the federal agency are due no later than ten (10) calendar
days after each calendar year in which Contracting Party receives assistance funded in
whole or in part by ARRA funds. Contracting Party's annual reporting requirements
include the amount of ARRA funds received; the amount of ARRA funds expended or
obligated; detailed list of all projects or activities for which the ARRA funds were
expended; an estimate of the number ofjobs created and the number ofjobs retained by
the project or activity; and detailed information concerning subcontracts or sub -loans
including the state Ohio. Information from such reports will be made available to the
public.
a. Separate Tracking and Reporting. Section 1512 of ARRA mandates special
reporting for expenditure ofARRA funds. ARRA funds maybe used in conjunction
with funds from other sources, including federal funds not provided under the
authority of ARRA and State funds, to complete the Project, but tracking and
reporting ofARRA funds must be separate from tracking and reporting of other
funds used for the Project. The Contracting Party cause each Energy Loan Loss
Reserve Project Beneficiary to ensure that the loan ofARRA funds is established
and maintained in its accounting system to accommodate tracking and reporting of
ARRA funds separate from other revenue streams.
H-1
b. Separate Accounts for ARRA Funds. Contracting Party shall deposit and maintain
funds provided under the authority of ARRA in separate accounts. No part of the
ARRA funds shall be commingled with any other funds or used for a purpose other
than that of making payments for costs allowable for ARRA projects.
c. Identification ofARRA Funds with `ARRA-"Prefix. If Contracting Party is subject
to the requirements ofthe Single AuditActAmendments of 1996 and OMB Circular
A-133, "Audits of States, Local Governments, and Non -Profit Organizations, "
Contracting Party shall separately identify the expenditures of funds provided
under the authority of ARRA on the Schedule of Expenditures of Federal Awards
(SEFA') and, if required, the Data Collection Form (SF -SAC). The separate
identification shall be accomplished by identifying expenditures of ARRA funds
separately on the SEFA and as separate rows under Item 9 of Part III on the SF -
SAC by CFDA number and by including the prefix "ARRA-" in identifying the name
of the federal program on the SEFA and as the first characters in Item 9d of Part
III on the SF -SAC.
d. Central Contractor Registration. During the term of this Agreement, Contracting
Party shall maintain a current registration in the Central Contractor Registration
(www.ccr.gov). A Dun and Bradstreet Universal Numbering System (DUNS)
Number (www.dnb.com) is one of the requirements for registration in the Central
Contractor Registration.
e. State of Ohio Reporting Form. Each Energy Loan Loss Reserve Project
Beneficiary shall complete and provide to Contracting Party the "OBM, Ohio
Energy Loan Loss Reserve Project Beneficiary and Sub -Recipient Spending Report
in Compliance with ARRA Sec. 1512. " The State of Ohio must report information
described in Section 1512 of ARRA using the reporting instructions and data
elements that are provided online at www.FederalReporting.gov and ensure that
any information that is pre -filled is corrected or updated as needed. Accordingly,
each Energy Loan Loss Reserve Project Beneficiary shall provide to Contracting
Party as promptly as possible and within the time required for the State to comply
with reporting requirements any information needed by the State to complete the
online reporting.
f. Monthly Reporting. The Energy Loan Loss Reserve Project Beneficiary shall
report its performance and spending under the Agreement monthly as provided in
the Agreement notwithstanding that the Contracting Party will report quarterly to
federal agencies. In order to comply with reporting deadlines to which the
Contracting Party may be subject, the Contracting Party reserves the right to
accelerate the deadline for reports required from each Energy Loan Loss Reserve
Project Beneficiary.
g. Jobs Created and Retained. The Contracting Party shall cause each Energy Loan
Loss Reserve Project Beneficiary to report the number ofjobs created and retained
directly by each Energy Loan Loss Reserve Project Beneficiary and by each of its
contractors as a result of the ARRA funding provided pursuant to this Agreement
as well as an estimate of jobs created or retained elsewhere as a result ofARRA
H-2
funding.
(I) Jobs or positions created" means those new positions created and filled, or previously
existing unfilledpositions that arefilled, as a resultofARRAfunding. "Jobs orpositionsretained "
means those previously existing filled positions that are retained as a result ofARRA funding. This
description may rely on job titles, broader labor categories, or the contractor's existing practice
for describing jobs as long as the terms used are widely understood and describe the general
nature of the work.
(2) For purposes of estimating the number of jobs created and jobs retained in the United
States and outlying areas, at a minimum, the estimate shall include any new positions created and
any existing filled positions that were retained to support or carry outARRA projects or activities
managed directly by the recipient, and if known, by subrecipients. The number shall be expressed
as 'full-time equivalent" (FTE), calculated cumulatively as all hours worked divided by the total
number of hours in a full-time schedule, as defined by the recipient. For instance, two full-time
employees and one part-time employee working half days would be reported as 2.5 FTE in each
calendar quarter.
(3) A job cannot be reported both as created and retained.
(4) Additional guidance will be provided for reporting jobs created and retained.
a. Additional or Modified ReportnuZRequirements. The Contracting Party may, from
time to time as it deems appropriate and necessary, communicate specific
instructions and requests to each Energy Loan Loss Reserve Project Beneficiary
concerning any additional reporting requirements related to the ARRA funds
received under this Agreement.
b. Information in Support ofARRA Reporting. Contracting Party may be required to
submit back-up documentation for expenditures of ARRA funds, including such
items as timecards and invoices. Each Energy Loan Loss Reserve Project
Beneficiary shall provide copies of back-up documentation at the request of
Contracting Party or USDOE Contracting Officer or designee.
2. Accessibility to Records and Project Sites.
a. Comptroller General of the United States Authority to Inspect. Pursuant to Section
902 ofARRA, the Comptroller General of the United States and his representatives
have the authority to:
(I) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary or any of its contractors or
H-3
subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
b. Inspector General Authority to Inspect. Pursuant to Section 1515(a) ofARRA, an
Inspector General or any representative of an Inspector General has the authority
to:
(1) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary, and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary, or any of its contractors or
subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
c. Duty to Incorporate in Contracts. To facilitate access to records and personnel by
the Comptroller General and/or an Inspector General as described in paragraphs
(a) and (b), the Contracting Party shall cause each Energy Loan Loss Reserve
Project Beneficiary to include verbatim in any agreement with a contractor, and
shall cause each of its contractors to include verbatim in any agreement with a
subcontractor, from which the Energy Loan Loss Reserve Project Beneficiary or a
contractor acquires any goods or services for the Project the language set forth in
paragraphs (a) and (b) of this Section 2.
3. Eaual Emplovment Opportunities.
a. Compliance with Federal Laws. In addition to the Contracting Party's equal
employment opportunity requirements set forth in the Agreement, the Contracting
Party shall cause each Energy Loan Loss Reserve Project Beneficiary to comply,
and each Energy Loan Loss Reserve Project Beneficiary shall obtain the agreement
of each of its contractors and any subcontractors to comply, with all of the
following federal laws pertaining to civil rights and anti -discrimination:
Title VI & Title VII of Civil Rights Act of 1964
Equal Pay Act of 1962
Age Discrimination in EmploymentAct of 1967
Title IX of Educational Amendments of 1972
Section 504 of the Rehabilitation Act of 1973
Age Discrimination Act of 1975
H-4
Title I& Title V ofAmericans with Disabilities Act of 1990
Fair Housing Act
Fair Credit Reporting Act
Equal Educational Opportunities Act
Uniform Relocation Act
Failure by the Contracting Party and each Energy Loan Loss Reserve Project Beneficiary to
comply with these laws shall constitute a breach of material obligation of the Contracting Party
and may result in termination of the Agreement.
b. Implementation Plan for Small and Disadvantaged Businesses. Each Energy Loan
Loss Reserve Project Beneficiary shall provide the Contracting Party an
implementation plan for training and hiring minority and disadvantaged workers.
Each Energy Loan Loss Reserve Project Beneficiary shall also demonstrate to the
Contracting Party that when contactors are being hired by the Energy Loan Loss
Reserve Project Beneficiary, if applicable, small disadvantaged business
enterprises are offered opportunities to bid on and receive contracted work on the
Project. Information about the Energy Loan Loss Reserve Project Beneficiary's
outreach to small and disadvantaged business enterprises shall be provided to the
Contracting Party when contracts are presented for review and approval in
accordance with Section 1 of this Appendix.
4. Job Postings. The Contracting Party shall post all jobs created by the Energy Loan Loss
Reserve Project Beneficiary resulting from the award of the contract and the use ofARRA
funds on www.ohiomeansiobs.com. The Contracting Party shall also cause each Energy
Loan Loss Reserve Project Beneficiary to require each of its contractors to post all jobs
created by the contractor resulting from the award of this contract and the use ofARRA
funds on www.ohiomeansiobs.com. "Jobs created" are those positions created and filled
or previously existing unfilled positions that are retained as a result ofARRA funding.
5. Protections for Individuals Reporting Compliance Issues (Whistleblower Protection).
a. Prohibition on Reprisals_ Pursuant to Section 1553 of ARRA, the Contracting
Party, each Energy Loan Loss Reserve Project Beneficiary, and each of its
contractors and any subcontractors are prohibited from discharging, demoting, or
otherwise discriminating against any employee of the Contracting Party,
contractor or subcontractor, as a reprisal for disclosing information that the
employee reasonably believes is evidence of
(1) gross mismanagement of the contract relating to funds for the Project;
(2) gross waste ofARRA funds;
(3) substantial and specific danger to public health or safety related to the
implementation or use ofARRA funds;
(4) an abuse of authority related to the implementation ofor use ofARRA funds;
or
H-5
(5) a violation of law, rule, or regulation related to the contract (including the
competition for or negotiation of the contract) relating to ARRA funds.
b. Agency Action: ARRA authorizes an appropriate inspector general to receive and
investigate all complaints alleging a violation as described in paragraph (a) of this
section. Not later than 30 days after receiving an inspector general report of an
alleged reprisal, the federal agency loaning funds for this Agreement is required to
make a determination about whether an employee has been subjected to a
prohibited reprisal. The federal agency must either issue an order denying relief
in whole or in part or take one or more of the following actions:
(1) order the employer to take affirmative action to abate the reprisal;
(2) order the employer to reinstate the person to the position that the person
held before the reprisal, together with compensation including back page,
compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if
the reprisal had not been taken;
(3) order the employer to pay the employee an amount equal to the aggregate
amount of all costs and expenses (including attorneys' fees and expert
witnesses' fees) that were reasonably incurred by the employee for or in
connection with bringing the complaint regarding the reprisal, as
determined by the head of a court of competent jurisdiction.
c. Non -enforceability of Certain Provisions Waiving Rights and Remedies or
Requiring Arbitration: Except as provided in a collective bargaining agreement,
the rights and remedies provided to aggrieved employees by ARRA Section 1553
may not be waived by any agreement, policy, form, or condition of employment,
including any predispute arbitration agreement. No predispute arbitration
agreement shall be valid or enforceable ifit requires arbitration ofa dispute arising
out of the circumstances for which employees are protected by Section 1553.
d. Requirement toPostNotice ofRights and Remedies: All employers receiving ARRA
funds, including the Contracting Party, each Energy Loan Loss Reserve Project
Beneficiary, its contractors and any subcontractors, shall post notice of employee
rights as described above in conspicuous locations with other required employee
rights information.
6. False ClaimsAct. Contracting Party shall promptly refer to the USDOE Inspector General
or any other appropriate inspector general any credible evidence that a principal,
employee, agent, contractor, Contracting Party, Energy Loan Loss Reserve Project
Beneficiary subcontractor or other person has submitted a false claim under the False
Claim Act or has committed a criminal or civil violation of laws pertaining to fraud,
conflict of interest, bribery, gratuity, or similar misconduct involving any Loan Funds.
Z Availabilitv of Funds. Funds appropriated under ARRA and obligated to this award are
available for reimbursement of costs pursuant to the SEP -ARRA program.
H-6
Publication. Information about this Agreement will be published on the Internet and linked to the
website www.recovery.gov, maintained by the federal Accountability and Transparency Board.
The Board may exclude posting contractual or other information on the website on a case-by-case
basis when necessary to protect national security or to protect information that is not subject to
disclosure under sections 552 and 552a oftitle 5, United States Code (the Freedom oflnformation
Act).
H-7
SPECIAL ASSESSMENT AGREEMENT
by and among
COUNTY TREASURER OF FRANKLIN COUNTY, OHIO
("Treasurer"),
And
CITY OF DUBLIN, OHIO
("City"),
And
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY
("Authority"),
And
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.
("District'),
And
OH15 DUBLIN LLC
("Owner"),
And
VIAQUEST, INC.
("Lessee")
Dated as of , 2019
SPECIAL ASSESSMENT AGREEMENT
THIS SPECIAL ASSESSMENT AGREEMENT (this Agreement) is made effective as
of 2019 (the Effective Date), by and among the County Treasurer of
Franklin County, Ohio (the Treasurer), the City of Dublin, Ohio (the City), the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., doing business under the registered trade name
Columbus Regional Energy Special Improvement District, Inc., (the District), the Columbus -
Franklin County Finance Authority (the Authority), OH15 Dublin LLC (the Owner), and
ViaQuest, Inc. (the Lessee).
BACKGROUND:
WHEREAS, the District was created under Ohio Revised Code Chapters 1702 and 1710
and established pursuantto Resolution No. 0261X-2015 ofthe Council ofthe City of Columbus,
Ohio approved on November 23, 2015; and
WHEREAS, the Owner and the Lessee have determined that it is in their best interests
to cause the acquisition and installation and subsequent operation of certain improvements,
including, but not limited to the acquisition, construction, installation, improvement, and
equipping of a solar photovoltaic project and energy efficiency improvements, including,
without limitation, LED lighting upgrades, exterior pole work, elevator modernization, and
related improvements (collectively, the Project) on the real property located within Franklin
County, Ohio (the County) and the City, and as more fully described in Exhibit A to this
Agreement (the Property); and
WHEREAS, pursuant to Resolution No. 36-18 ofthe Council ofthe City (the Council),
approved on August 13, 2018, the Property was added to the territory of the District; and
WHEREAS, the costs ofthe Project are being funded through an advance in the amount
of $169,873.50 (the Project Advance) to the Lessee pursuant to an Energy Project Cooperative
Agreement dated as of the Effective Date between the Authority, the District, the Owner, the
Lessee, and the City (the Energy Project Cooperative Agreement); and
WHEREAS, to secure the payment of the principal of, and any premium and unpaid
interest on the Project Advance used to finance the Project (the Project Costs), (i) the Owner
has signed and delivered to the Clerk of Council a Petition for Special Assessments for Special
Energy Improvement Projects and Affidavit (the Petition), for the acquisition, construction,
installation, equipping and improvement of the Project and evidencing the Owner's agreement
to the levy and collection of special assessments by the City (the Special Assessments) on the
Property, which are located within the District in amounts sufficient to pay the Project Costs,
and (ii) the City (a) has taken all the necessary actions required by Chapter 727 of the Ohio
Revised Code, including, without limitation, the passage ofthe assessing ordinance pursuant to
1
the requirements of Ohio Revised Code Section 727.25, for the levying of the Special
Assessments and has caused or will cause the Special Assessments to be certified to the County
Auditor of Franklin County, Ohio (the County Auditor) for collection by the Treasurer in semi-
annual installments, and (b) hereby has agreed to transfer to the Authority the payments of
Special Assessments received, which payments are to be transferred to the Authority to pay the
Project Costs; and
WHEREAS, the Owner agrees that its delivery of the Petition and the requests and
agreements made in the Petition are irrevocable and that the parties to this Agreement have
acted and will act in reliance on the agreements contained in the Petition; and
WHEREAS, pursuant to the Petition, the Special Assessments have been levied against
the Property as described in the Petition and pursuant to this Agreement the Owner and the
Lessee are willing to agree to make Special Assessment payments in accordance with the
Petition; and
WHEREAS, Chapters 323 and 5721 of the Ohio Revised Code set forth certain
parameters and timing requirements for the foreclosure of property on which taxes and
assessments, including the Special Assessments, are due and owing and remain unpaid; and
WHEREAS, upon the occurrence of an Event of Default pursuant to the Energy Project
Cooperative Agreement, it may be necessary for the District to foreclose on the lien of the
Special Assessments with respect to the Property as set forth in Section 1 of this Agreement;
and
WHEREAS, in consideration of the Project Advance, the Owner and the Lessee are
willing to consent to an expedited foreclosure process with respect to the lien of the Special
Assessments as soon as possible (as referenced in Section 1 hereof), the form of the consents
being attached hereto as Exhibit B-1 and Exhibit B-2 (collectively, the Lessee and Owner
Consent); and
WHEREAS, the Lessee and Owner Consent with respect to the foreclosure of the
Special Assessments shall be a covenant running with the Property and binding upon the Owner
and the Lessee and upon future owners and lessees of the Property until Project Costs are paid
in full; and
WHEREAS, based on the Lessee and Owner Consent and other considerations, at the
request of the District, upon the occurrence of an Event of Default under the Energy Project
Cooperative Agreement, the Treasurer and the City have agreed to foreclose the lien of the
Special Assessments as soon as possible as described herein; and
WHEREAS, if any assessments, including, without limitation, the Special Assessments,
payments in lieu of taxes, real property taxes, or other governmental charges levied on the
Property are not paid when due and thereafter remain delinquent, the Treasurer, pursuant to
2
Ohio Revised Code Sections 5721.30 through 5721.41 (the Delinquent Tax Lien Sale Act),
specifically Ohio Revised Code Section 5721.33, may, in his discretion, but is not required to,
negotiate with one or more persons the sale of any number of tax certificates (Tax Certificates)
which evidence the liens (the Tax Liens) of the State of Ohio (the State) and its applicable
taxing districts for such delinquent assessments, including Special Assessments, real property
taxes, payments in lieu of taxes, governmental charges, or penalties and interest on such
Property; and
WHEREAS, pursuant to the Delinquent Tax Lien Sale Act, the Treasurer, in his
discretion, may sell such Tax Certificates at a discount from the full amount of the general real
estate taxes, assessments, including the Special Assessments, penalties and interest that have
become delinquent; and
WHEREAS, if the Treasurer were to sell such Tax Certificates at a discount (other than
in accordance with the provisions of this Agreement), the proceeds of such sale representing
the delinquent Special Assessments might be insufficient to pay the Project Costs; and
WHEREAS, the Treasurer does not desire to take any action with respect to the
collection of the Special Assessments that might adversely affect the repayment of the Project
Advance without the consent of the District and the Authority; and
WHEREAS, the Treasurer has agreed to remit to the Authority, in the event of a default
under the Energy Project Cooperative Agreement, as set forth in this Agreement, amounts
collected by the Treasurer and relating to the Special Assessments, including without limitation
amounts collected by the Treasurer as a result of foreclosure of the lien of the Special
Assessments on the Property and including amounts received from a sale of Tax Certificates
pursuant to the Delinquent Tax Lien Sale Act;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, and desiring to be legally bound hereunder, the parties hereto covenant and
agree as follows:
Section 1. Special Assessments.
1.1 The Owner, prior to the execution and delivery of this Agreement, has
signed and delivered to the Clerk of Council the Petition for the acquisition, construction,
installation, equipping and improvement of the Project and evidencing the agreement of the
Owner to the levy and collection ofthe Special Assessments as security forthe Project Advance.
The Owner agrees that its delivery of the Petition and the requests and agreements made therein
are irrevocable and that the parties hereto have acted and will act in reliance on the agreements
contained in that Petition. The City has duly enacted Resolution No. [ ], Ordinance [ ],
and Ordinance [ ] (the Assessing Ordinance) to provide for the levy and collection of the
3
Special Assessments on the Property. The Clerk of Council certified (or caused to be certified)
the Assessing Ordinance to the County Auditor as set forth in the Petition.
1.2 The City shall cause the Special Assessments, as set forth in the
Assessment Schedule attached to the Petition, to be certified to the County Auditor on or before
the last date for the certification of special assessments to the County Auditor pursuant to the
requirements of Section 727.33 of the Ohio Revised Code.
1.3 In the event the Project Advance is prepaid or redeemed, in whole or in
part, the parties shall, in cooperation with the Owner or the Lessee, and to the extent permitted
by law, cause the aggregate lien of the Special Assessments to be no greater than the remaining
principal of and interest and premium, if any, on the Project Advance through maturity.
1.4 To the extent that the Owner or the Lessee prepays any of the required
payments pursuant to the Energy Project Cooperative Agreement, then the amounts of the
Special Assessments shall be reduced in accordance with the Assessment Schedule attached to
the Petition.
1.5 To secure payments made on the Project Advance, the City hereby
assigns to the Authority all of its rights, title to, and interest in the Special Assessments to be
levied with respect to the Project Costs. As long as the Project Advance shall be outstanding
and amounts shall be due and owing under the Energy Project Cooperative Agreement with
respect to the Project Advance, the City assigns to the Authority all of its right, title and interest
in and to, and grants to the Authority a security interest in, the Special Assessments received
by the City and in the City's related special assessment fund. The Authority, as assignee of the
City, is hereby authorized to take any and all such actions as assignee of and, to the extent
required by law, in the name of and for and on behalf of the City, to collect delinquent Special
Assessments levied by the City pursuant to law and to cause the lien securing the delinquent
Special Assessments to be enforced through prompt and timely foreclosure proceedings,
including, but not necessarily limited to, filing and prosecution of mandamus or other
appropriate proceedings to induce the County Prosecutor, the County Auditor, and the County
Treasurer, as necessary, to institute such prompt and timely foreclosure proceedings. The
proceeds of the enforcement of any such lien shall be deposited and used in accordance with
this Agreement and the Energy Project Cooperative Agreement. The Treasurer, the City, the
District, the Authority, the Owner, and the Lessee each hereby acknowledges, agrees with, and
consents to those assignments.
1.6 The City, upon receipt of any moneys received by the City as Special
Assessments, but in any event not later than 15 calendar days after the receipt of such moneys
and the corresponding final settlement from the County Auditor, shall deliver to the Authority
all such moneys received by the City as Special Assessments. The City's obligation to transfer
the Special Assessments to the Authority shall be absolute and unconditional, and the City shall
make such transfers without abatement, diminution, or deduction regardless of any cause or
4
circumstance whatsoever, including, without limitation, any defense, set-off, recoupment, or
counterclaim which the City may have or assert against the Authority, the Owner, the Lessee,
or any other person; provided, however, that the City's obligation to transfer special
assessments is limited to the Special Assessments actually received by the City from the County
Auditor. The Authority may from time to time provide written payment instructions to the City
for payment of Special Assessments by check, wire instructions, or other means.
1.7 Notwithstanding anything in this Agreement to the contrary, the
Treasurer's obligations under this Agreement are not and shall not be secured by an obligation
or pledge of any moneys raised by taxation. The Treasurer's obligations shall be limited to the
moneys levied, collected and received in respect of the Special Assessments and any County -
imposed collection fees, charges, or penalties. The Treasurer's obligations under this
Agreement do not and shall not represent or constitute a debt or pledge of the faith and credit
or taxing power of the County.
1.8 Notwithstanding anything in this Agreement to the contrary, the City's
obligations under this Agreement are not and shall not be secured by an obligation or pledge of
any moneys raised by taxation. The City's obligation under this Agreement shall be limited to
any moneys received from the County in respect of the Special Assessments and any County -
imposed collection fees, charges, or penalties. The City's obligations under this Agreement do
not and shall not represent or constitute a debt or pledge of the faith and credit or taxing power
of the City.
Section 2. Foreclosure Process.
2.1 The Treasurer, the City, the Authority, the Owner, and the Lessee each
acknowledge that the Special Assessments are to secure payments relating to the Project
Advance, including the Project Costs and other amounts as provided under the Energy Project
Cooperative Agreement. The Treasurer agrees that so long as the Project Advance is
outstanding and the Project Costs thereon, and other amounts under the Energy Project
Cooperative Agreement are secured, at least in part, by the revenues derived from the Special
Assessments, upon the Treasurer's receipt of written notice from the Authority or the District,
with a copy to the other of the Authority or the District and to the Owner, the Lessee, and the
City that an Event of Default (as defined under the Energy Project Cooperative Agreement) has
occurred and is continuing and which notice directs Treasurer to foreclose on the lien of the
Special Assessments, the Treasurer will, not later than 30 days from the date of the receipt of
such notice, file and diligently prosecute a foreclosure action against the Property, following
the procedures for lien foreclosures established in Ohio Revised Code §323.25 and related
sections. The foreclosure action shall be to collect all Special Assessments then due and owing
on the Property in accordance with the Petition. Without the prior written consent of the District
and the Authority, the Treasurer will not confirm the sale of the Property for an amount less
than 100% of the amount of the Special Assessments and other general real estate taxes,
payments in lieu of taxes, and assessments then due and owing with respect to the Property, as
5
shall be certified by the District to the Treasurer pursuant to the records of the Treasurer. All
fees and expenses of the Treasurer in collecting the Special Assessments are to be included and
paid for by the Owner and the Lessee.
2.2 The Treasurer hereby acknowledges that the City has assigned all of its
right, title, and interest in and to the Special Assessments to the Authority, and that the District
has assigned all of its right, title and interest in an to the Special Assessments to the Authority,
and the Treasurer hereby agrees that so long as the Project Advance is outstanding and the
Project Costs thereon and other amounts under the Energy Project Cooperative Agreement are
secured, at least in part, by the revenues derived from the Special Assessments, the Treasurer
will not sell or negotiate the sale of one or more Tax Certificates related to the Property for an
amount less than 100% of the amount levied and certified for collection without the prior
written consent of the District and the Authority.
2.3 The Treasurer hereby covenants and agrees that if any of the general real
estate taxes, payments in lieu of taxes, assessments, including the Special Assessments,
governmental charges, or penalties and interest on the Property are delinquent and the
Delinquent Tax Lien Sale Act would permit the Treasurer to negotiate the sale of Tax
Certificates with respect thereto, the Treasurer will, prior to giving any notice under the
Delinquent Tax Lien Sale Act of a sale of Tax Certificates with respect to the Property, give
written notice to the District and the Authority regarding the same and state therein whether the
Treasurer reasonably anticipates receiving no less than 100% of the general real estate taxes,
payments in lieu of taxes, and assessments, including the Special Assessments, penalties and
interest, originally levied and certified for collection plus other charges, including attorney's
fees, or whether the Treasurer reasonably expects to receive less than 100% of the general real
estate taxes, payments in lieu of taxes, and assessments, including the Special Assessments,
penalties and interest, levied and certified for collection plus other charges, including attorney's
fees, and in accordance with this Agreement is requesting the consent of the District and the
Authority for such a sale.
2.4 The Treasurer agrees, on behalf of the County, not to utilize the authority
contained in Ohio Revised Code Chapter 5722 to transfer any of the Property to the county land
reutilization corporation, to sell or convey any of the Property to any political subdivision under
the authority contained in Ohio Revised Code Chapter 5722, or to clear the liens and
encumbrances applicable to the Property under the authority contained in Ohio Revised Code
Chapter 5722 without the express written consent of the District and the Authority.
2.5 Nothing in this Agreement shall, or shall be construed to, prevent the
Treasurer from selling one or more Tax Certificates with respect to the Property to athird party
without the consent of the Authority and the District if the price received for the Tax Certificate
or Tax Certificates equals or exceeds 100% of the delinquent general real estate taxes,
assessments, including the Special Assessments, penalties and interest on the Property
outstanding against the Property at the time of such sale.
6
2.6 The District and the Authority each hereby agrees that upon written
notice from the Treasurer pursuant to Section 2.1 ofthis Agreement, it, within 30 days of receipt
of the Treasurer's notice, shall give a written response to the Treasurer indicating therein
whether it consents to the request for sale of a Tax Certificate or Tax Certificates.
2.7 No delay or failure of the District or the Authority to give a written
response shall be construed to be a consent to such request or to be a waiver of the right to give
such consent. No consent or refusal thereof by the District or the Authority in response to a
request by the Treasurer shall extend to or affect any subsequent request of the Treasurer or
shall impair the rights of the District or the Authority with respect any such subsequent request.
2.8 So long as the Project Costs are outstanding, the Treasurer hereby
covenants and agrees (a) to remit to the Authority, as appropriate and as provided for herein,
not more than 30 days from the date of collection by the Treasurer, all Special Assessments
collected from the Property, including amounts collected from Tax Certificates; and (b) to the
extent the Treasurer seeks and is appointed as receiver for the Property, as provided for in
Chapter 323 of the Revised Code, after payment of reasonable fees and expenses of the
Treasurer, all amounts collected by the Treasurer, as receiver for the Property and collected as
a result of the Special Assessments, shall be remitted to the District.
Section 3. Indemnification by Owner and Lessee
3.1 The Owner and the Lessee hereby release the District, the City, the
Treasurer, the Authority, and their respective officers, directors and employees (collectively.
the Indemnified Parties), from, agree that the Indemnified Parties shall not be liable for, and
agree to indemnify the Indemnified Parties against, any and all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses,_ Jincluding, without limitation, out-
of-pocket and incidental expenses and reasonable attorneys'fees and expenses imposed
upon, incurred b�Lor asserted against any of the Indemnified Parties arising or resulting from;
e a semis€: (i) the levy and collection of the Special Assessments; (ii) any loss or damage to
property or injury to or death of or loss by any person that may be occasioned by any cause
whatsoever pertaining to the acquisition, construction, installation, equipment, improvement
maintenance, operation and use of the Project; (iii) any breach or default on the part of the
Owner or the Lessee, as appropriate, in the performance of any covenant, obligation or
agreement of the Owner or the Lessee, as appropriate, under the Energy Project Cooperative
Agreement, or arising from any act or failure to act by the Owner or the Lessee, as appropriate,
or any of their respective agents, contractors, servants, employees or licensees; (iv) the failure
of the Owner or the Lessee, as appropriate, to comply with any requirement of this Agreement;
(v) the efforts of the City and the Treasurer to collect Special Assessments; (vi) any legal costs
or out-of-pocket costs incurred by the District specifically related to additional approvals or
actions that may be required by the District arising after the date of the Energy Project
Cooperative Agreement (and in the case of such legal costs or out-of-pocket costs, agrees to
pay such costs directly to the District); (vii) any claim, action or proceeding brought with
7
respect to any matter set forth in clause (i), (ii), (iii), (iv), (v) or (vi) above, provided, however,
that the Owner or the Lessee, as appropriate, shall not indemnify the Indemnified Parties as
provided above to the extent that any liability, claim, cost or expenses arises out of or results
from the gross negligence, willful misconduct or breach of this Agreement or the Energy Project
Cooperative Agreement of the Indemnified Parties.
3.2 The Owner and the Lessee agree to indemnify, to pay, and to hold each
of the Indemnified Parties harmless from and against all liabilities, and all reasonable costs and
expenses, including out-of-pocket expenses and attorneys' fees, arising out of any federal, state
or local environmental laws, regulations, or ordinances incurred by any of the Indemnified
Parties as a result of the existence on or release from the Project Site of Hazardous Materials,
which in any way result from any act of omission or commission of the Owner or the Lessee,
as appropriate, or any of their respective agents, employees, independent contractors, invitees,
licensees, successors, assignees, or tenants.
Section 4. Additional Agreements and Covenants.
4.1 The agreements of the parties hereafter with respect to the foreclosure
process shall be a covenant running with the Property and, so long as Project Costs are payable
from or secured, at least in part, by the revenues derived from the Special Assessments, such
covenant shall be binding upon the Property (except as released as provided in the Lessee and
Owner Consent), the Owner, the Lessee, and any future owner or lessee of all or any portion of
the Property. This Agreement, the Lessee and Owner Consent, and all other required
documents and agreements, shall be recorded with the Franklin County, Ohio Recorder's
Office, so that the agreements of the parties hereafter with respect to the foreclosure process
established pursuant to this Agreement is a covenant running with and is enforceable against
the Property.
4.2 If any provision of this Agreement shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable
any other provision hereof.
4.3 This Agreement shall inure to the benefit of each of the parties, and each
of their successors and assigns, all subject to the provisions of this Agreement. This Agreement
may be amended only by a written instrument of the parties, and any attempt to amend or
modify this Agreement without a written instrument signed by all of the parties to this
Agreement shall be null and void. Notices given hereunder shall be in writing and shall be
effective when actually received if delivered by hand or overnight courier, or three days after
being sent by registered or certified mail, postage prepaid, the certification receipt therefore
being deemed the date of such notice, and addressed to the parties as follows:
If to City: City of Dublin, Ohio
5200 Emerald Parkway
3
Dublin, Ohio 43017
Attention: City Manager
Ifto Treasurer: County Treasurer
Franklin County, Ohio
373 S. High Street, 17"' Floor
Columbus, Ohio 43215
Attention: Cheryl Brooks Sullivan
If to the Authority: Columbus -Franklin County Finance Authority
350 East First Street, Suite 120
Columbus, Ohio 43201
Attention: President
If to the District: Columbus Regional Energy Special Improvement District, Inc.
c/o Columbus -Franklin County Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy to: J. Caleb Bell
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
If to Owner: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy to: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: General Counsel
If to the Lessee: ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
9
4.4 (a) The Authority shall have the unrestricted right at any time or from
time to time, and without the consent from the Treasurer, the City, the District, the Owner, or
the Lessee, to assign all or any portion of its rights and obligations under this Agreement and
may sell or assign any and all liens received directly or indirectly from the City to any person
(each, an Authority Assignee), and the Owner and the Lessee agree that they shall execute, or
cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection
with this Agreement as the Authority shall deem necessary to effect the foregoing. Any
Authority Assignee shall be a party to this Agreement and shall have all of the rights and
obligations of the Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to the
extent that such rights and obligations have been assigned by the Authority pursuant to the
assignment documentation between the Authority and such Authority Assignee, and the
Authority shall be released from its obligations under this Agreement and under any and all
other guaranties, documents, instruments and agreements executed in connection with this
Agreement to a corresponding extent.
(b) The Authority shall have the unrestricted right at any time and from time to
time, and without the consent of or notice of the Treasurer, the City, the District, the Owner, or
the Lessee, to grant to one or more persons (each, a Participant) participating interests in the
Authority's obligation to make the Project Advances under the Energy Project Cooperative
Agreement or any or all ofthe loans held by the Authority under the Energy Project Cooperative
Agreement. In the event of any such grant by the Authority of a participating interest to a
Participant, whether or not upon notice to the Treasurer, the City, the District, the Owner, and
the Lessee, the Authority shall remain responsible for the performance of its obligations under
the Energy Project Cooperative Agreement and the Owner and the Lessee shall continue to deal
solely and directly with the Authority in connection with the Authority's rights and obligations
under the Energy Project Cooperative Agreement.
(c) The Authority may furnish any information concerning the Lessee in its
possession from time to time to prospective Authority Assignees and Participants.
4.5 If at anytime during the term of this Agreement the Lessee's lease of the
Property and the Project with the Owner (including as amended, extended, or substituted)
terminates, the Owner shall assume all of the Lessee's rights and obligations under this
Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
4.6 This Agreement shall be construed in accordance with the laws of the
State of Ohio.
4.7 This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
10
4.8 The Parties hereby acknowledge and agree that this Agreement does not
constitute a contract involving the expenditure of money by the County.
4.9 All parties to this Agreement hereby acknowledge and agree that the
Owner is executing this Agreement, the Lessee and Owner Consent, the Energy Project
Cooperative Agreement, and any and all other documents related to the Special Assessments or
the PACE financing (collectively, the PACE Documents) as an accommodation to the Lessee,
so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding any other
provision contained in this Agreement or the other PACE Documents, the Lessee is and shall
be primarily responsible for the performance of any and all obligations of the Owner and the
Lessee in the PACE Documents. If the Lessee fails to perform its obligations under the PACE
Documents, the Owner acknowledges and agrees that the Owner shall assume all of the
Lessee's rights and obligations in the PACE Documents, as expressly contained in the
respective PACE Documents.
(Signature Pages Immediately Follow)
11
IN WITNESS WHEREOF, each party to this Agreement has caused this Agreement to
be executed in its respective name and capacity by its respective duly authorized officers, all as
of the Effective Date.
"TREASURER"
COUNTY TREASURER OF FRANKLIN
COUNTY, OHIO
Treasurer
County of Franklin, Ohio
STATE OF OHIO )
SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named FRANKLIN COUNTY TREASURER, who acknowledged that he or she did
sign the foregoing instrument and the same is his or her free act and deed as such officer of
Franklin County.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-1
"CITY"
CITY OF DUBLIN, OHIO
Name:
Title:
STATE OF OHIO
SS:
COUNTY OF FRANKLIN
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named CITY OF DUBLIN, OHIO by its
who acknowledged that he or she did sign the foregoing instrument and that the same is his or
her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-2
"AUTHORITY"
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY
Name:
Title:
STATE OF OHIO
SS:
COUNTY OF FRANKLIN
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY by _
its who acknowledged that he or she did sign the
foregoing instrument and that the same is his or her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-3
"DISTRICT"
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC
C
Name:
Title:
STATE OF OHIO )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY
TOWNSHIP, WHITEHALL, WORTHINGTON REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., d/b/a COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC. by , its , who
acknowledged that such officer did sign the foregoing instrument and that the same is such
officer's free act and deed as such officer and of said district.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-4
"OWNER"
OH 15 Dublin LLC,
a Delaware limited liability company
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
STATE OF
SS:
COUNTY OF
C
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named OH 15 DUBLIN LLC Matthew Tucker, the Vice President of GCLP Business
Trust, the General Partner of Gladstone Commercial Limited Partnership, the Managing
Member of OH15 Dublin LLC, who acknowledged that he did sign the foregoing instrument
and that the same is his free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-5
"LESSEE"
VIAQUEST, INC.,
an Ohio corporation
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who
acknowledged that he did sign the foregoing instrument and that the same is his free act and
deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
This instrument prepared by:
Colin J. Kalvas
Bricker & Eckler LLP
100 South Third St.
Columbus, Ohio 43215
Notary Public
S-6
FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that
the City has established a special assessment fund, into which the Special Assessments (as that
term is defined in the foregoing Agreement) received by the City shall be deposited, free from
any previous encumbrances. The City shall use the moneys deposited in such special
assessment fund to meet its obligations under the foregoing Agreement. This Certificate is
given in compliance with Ohio Revised Code Sections 5705.41 and 5705.44.
Dated: 2019
Director of Finance
City of Dublin, Ohio
EXHIBIT A
The real property subject to this Agreement is located at the commonly used mailing
address 525 Metro Place North, Dublin, Ohio with Franklin County Auditor Parcel ID No. 273-
001343-00, and having the following legal description:
Situated in tee Of, of Duh. n, County of Frank in, State of Ohio, described as follows
PARCH -ori•.
Situated ntte grace ofChio,(so ury of F a I a I I a nc Cy..` Logo lla, ait(,b 21 lid real lc b'iigirl,
What St vey 2919 a rd berg a 6 Of t act, Iaticlh LL of Lot no.S of age Immliter".
whid is a SL criscrin to the vi lage of Dtdlin, Ohio and a plat of which Is of r7cc cin Plat Book
55, Pagae 8 ane 5 Reaudm's office, franhlin County, Ohio, and being bounded and more
Parties aro descrloee as follow.
Began ng at a so If In Ire Northerly rig it of way line of Metm Place South (60.0 feet in width),
Mat is lead ad Sptth 50° O ' 29' _asp 6091 fret from Mn Sc4hwe4erly mmcr of said Lot No.
5, a Suit insider comer of Resale Bof salt "Metrocertet';
Ther N 43 CO" fee'_to a coin[ arealme- nr,bt.
rI su2822
alone he arc of said urrve (Dela = 12° g 3:60 (crLJ, a cboN bearing
-
t' , p intef a
Vorth 11° /1 5a
and al n g feetsua point of fangenry;
andallgird
07 feet t
Thence South SI° 3C CO" East, 595.52 feet- a poiri;
Tbentt South East 7339 fe5f `o point6 the -Rt '; Thence
an I
to an anglenoir[Ir Baldrne; Thence
along da the ly ne East, J In sliide c
Ire.Bouch 36°42'35'b3:15
a, aly
lne NortM1 SS°E 1565[, :9.65 `ret Lc p'J-henmSouth
ndmin5 are East,
810 4fien:Faa Voim;
hM31151sttoa
Thence 9outlt JE' 21' 16" Wei, 998 feet to a point in the Northerly right of way line of Natro
Thereof
Place goul
Thence along sold right of way line, North 81°38'95"Wastes 165-9 taeC CoaPoint of mrvaWre
h1-090—$�6
f a curve to One I2
At air"
Theral noug O -.'d curve (Delta = 12 33 39 Radlus = 1160.0 feet) h'. d bearing
-/
distant -and <fcard 82 5 35"b t 7 a 1/ a[ lit of over re e
CZ 3)
Thence along me at c o a cogsm!he rig t(Site Lac 39 52G,Fal fell 11cb,a
0013145
chord bearing and distance of North /9° 14' Is cert ;86 77 feet to :he P ace of beginning; and
cvnteinirg 6. la acres, more or less.
A-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
A-2
EXHIBIT B-1
OWNER CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes and
states as follows:
The undersigned is the of OH15 Dublin LLC, a Delaware limited liability
company (the "Owner").
This Owner Consent, dated as of [ , 2019, is given by the Owner pursuant to the
Special Assessment Agreement dated as of , 2019 (the "Agreement') by and among
the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin, Ohio (the
"City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall,
Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus Regional
Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin County
Finance Authority (together with its permitted successors and assigns under the Agreement, the
"Authority"), the Owner, and Viaquest, Inc. (the "Lessee"). Terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property is
described in Exhibit 1 to this Owner Consent, and the Special Assessments are disclosed on Exhibit
2 to this Owner Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default" (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement. In
consideration of the Project Advance to finance the Project, the Owner hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
B-1-1
The Owner is the owner of the Property. The Owner covenants and agrees that so long as
the Project Advance remains outstanding, except as the covenant may be released by the District,
the City and the Authority, as applicable, in writing, the expedited foreclosure process established
pursuant to the Agreement shall be a covenant on and running with, and shall be binding upon, the
Property, the Owner and all future owners of the Property. Any release, modification or waiver of
the covenant running with the land by the District, the City or the Authority, as applicable, shall
be filed of record with the Franklin County, Ohio Recorder's Office. The Owner agrees that this
Owner Consent shall be recorded with the Franklin County, Ohio Recorder's Office and the Owner
covenants and agrees to cause such documents to be recorded and to take such reasonable steps as
are necessary, so that the expedited foreclosure process with respect to the lien of the Special
Assessments is a covenant on and running with the Property and is binding on the Owner and any
and all future owners of all or any portion of the Property.
The Special Assessments have been levied by the City and certified for direct collection in
semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Owner Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate and
collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments attached
to this Owner Consent as Exhibit 2. Unless earlier paid by the Owner or any successor in interest
of the Owner to the Property, the Special Assessments shall be levied, billed, due and payable, and
collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Owner Consent to the contrary notwithstanding, this Owner Consent shall
in no way be construed as a waiver by the Owner of its statutory right of redemption, including
the full applicable redemption period.
(Signature Page Immediately Follows)
B-1-2
Further affiant sayeth naught.
"OWNER"
OH15 DUBLIN LLC
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
IC
STATE OF )
SS:
COUNTY OF )
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named OH15 DUBLIN LLC by Matthew Tucker, the Vice President of GCLP Business
Trust, the General Partner of Gladstone Commercial Limited Partnership, the Managing Member
of OH15 Dublin LLC, who acknowledged that he did sign the foregoing instrument and that the
same is such officer's free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-1-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
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"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm CuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
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Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
EXHIBIT B-2
LESSEE CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes and
states as follows:
The undersigned is the of Viaquest, Inc., an Ohio corporation (the
"Lessee").
This Lessee Consent, dated as of [ , 2019, is given by the Lessee pursuant to the
Special Assessment Agreement dated as of [ ], 2019 (the "Agreement") by and among
the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin, Ohio (the
"City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall,
Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus Regional
Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin County
Finance Authority (together with its permitted successors and assigns under the Agreement, the
"Authority"), OH15 Dublin, LLC (the "Owner") and the Lessee. Terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property is
described in Exhibit 1 to this Lessee Consent, and the Special Assessments are disclosed on Exhibit
2 to this Lessee Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default" (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement. hi
consideration of the Project Advance to finance the Project, the Lessee hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
The Lessee is the Lessee of the Property. The Lessee covenants and agrees that so long as
the Project Advance remains outstanding, except as the covenant may be released by the District,
the City and the Authority, as applicable, in writing, the expedited foreclosure process established
pursuant to the Agreement shall be a covenant on and running with, and shall be binding upon, the
Property, the Lessee and all future Lessees of the Property. Any release, modification or waiver
B-2-1
of the covenant running with the land by the District, the City or the Authority, as applicable, shall
be filed of record with the Franklin County, Ohio Recorder's Office. The Lessee agrees that this
Lessee Consent shall be recorded with the Franklin County, Ohio Recorder's Office and the Lessee
covenants and agrees to cause such documents to be recorded and to take such reasonable steps as
are necessary, so that the expedited foreclosure process with respect to the lien of the Special
Assessments is a covenant on and running with the Property and is binding on the Lessee and any
and all future Lessees of all or any portion of the Property.
The Special Assessments have been levied by the City and certified for direct collection in
semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Lessee Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate and
collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments attached
to this Lessee Consent as Exhibit 2. Unless earlier paid by the Lessee or any successor in interest
of the Lessee to the Property, the Special Assessments shall be levied, billed, due and payable, and
collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Lessee Consent to the contrary notwithstanding, this Lessee Consent shall
in no way be construed as a waiver by the Lessee of its statutory right of redemption, including
the full applicable redemption period.
(Signature Page Immediately Follows)
B-2-2
Further affiant sayeth naught.
"LESSEE"
VIAQUEST, INC.
C
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who acknowledged
that he did sign the foregoing instrument and that the same is such officer's free act and deed as
such officer and of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-2-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-2-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
B-2-1-2
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm UuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1
I111"9
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Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1
SPECIAL ASSESSMENT AGREEMENT
by and among
COUNTY TREASURER OF FRANKLIN COUNTY, OHIO
("Treasurer"),
And
CITY OF DUBLIN, OHIO
("City"),
And
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY
("Authority"),
And
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.
("District'),
And
OH15 DUBLIN LLC
("Owner"),
And
VIAQUEST, INC.
("Lessee")
Dated as of , 2019
SPECIAL ASSESSMENT AGREEMENT
THIS SPECIAL ASSESSMENT AGREEMENT (this Agreement) is made effective as
of 2019 (the Effective Date), by and among the County Treasurer of
Franklin County, Ohio (the Treasurer), the City of Dublin, Ohio (the City), the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., doing business under the registered trade name
Columbus Regional Energy Special Improvement District, Inc., (the District), the Columbus -
Franklin County Finance Authority (the Authority), OH15 Dublin LLC (the Owner), and
ViaQuest, Inc. (the Lessee).
BACKGROUND:
WHEREAS, the District was created under Ohio Revised Code Chapters 1702 and 1710
and established pursuantto Resolution No. 0261X-2015 ofthe Council ofthe City of Columbus,
Ohio approved on November 23, 2015; and
WHEREAS, the Owner and the Lessee have determined that it is in their best interests
to cause the acquisition and installation and subsequent operation of certain improvements,
including, but not limited to the acquisition, construction, installation, improvement, and
equipping of a solar photovoltaic project and energy efficiency improvements, including,
without limitation, LED lighting upgrades, exterior pole work, elevator modernization, and
related improvements (collectively, the Project) on the real property located within Franklin
County, Ohio (the County) and the City, and as more fully described in Exhibit A to this
Agreement (the Property); and
WHEREAS, pursuant to Resolution No. 36-18 ofthe Council ofthe City (the Council),
approved on August 13, 2018, the Property was added to the territory of the District; and
WHEREAS, the costs ofthe Project are being funded through an advance in the amount
of $169,873.50 (the Project Advance) to the Lessee pursuant to an Energy Project Cooperative
Agreement dated as of the Effective Date between the Authority, the District, the Owner, the
Lessee, and the City (the Energy Project Cooperative Agreement); and
WHEREAS, to secure the payment of the principal of, and any premium and unpaid
interest on the Project Advance used to finance the Project (the Project Costs), (i) the Owner
has signed and delivered to the Clerk of Council a Petition for Special Assessments for Special
Energy Improvement Projects and Affidavit (the Petition), for the acquisition, construction,
installation, equipping and improvement of the Project and evidencing the Owner's agreement
to the levy and collection of special assessments by the City (the Special Assessments) on the
Property, which are located within the District in amounts sufficient to pay the Project Costs,
and (ii) the City (a) has taken all the necessary actions required by Chapter 727 of the Ohio
Revised Code, including, without limitation, the passage ofthe assessing ordinance pursuant to
1
the requirements of Ohio Revised Code Section 727.25, for the levying of the Special
Assessments and has caused or will cause the Special Assessments to be certified to the County
Auditor of Franklin County, Ohio (the County Auditor) for collection by the Treasurer in semi-
annual installments, and (b) hereby has agreed to transfer to the Authority the payments of
Special Assessments received, which payments are to be transferred to the Authority to pay the
Project Costs; and
WHEREAS, the Owner agrees that its delivery of the Petition and the requests and
agreements made in the Petition are irrevocable and that the parties to this Agreement have
acted and will act in reliance on the agreements contained in the Petition; and
WHEREAS, pursuant to the Petition, the Special Assessments have been levied against
the Property as described in the Petition and pursuant to this Agreement the Owner and the
Lessee are willing to agree to make Special Assessment payments in accordance with the
Petition; and
WHEREAS, Chapters 323 and 5721 of the Ohio Revised Code set forth certain
parameters and timing requirements for the foreclosure of property on which taxes and
assessments, including the Special Assessments, are due and owing and remain unpaid; and
WHEREAS, upon the occurrence of an Event of Default pursuant to the Energy Project
Cooperative Agreement, it may be necessary for the District to foreclose on the lien of the
Special Assessments with respect to the Property as set forth in Section 1 of this Agreement;
and
WHEREAS, in consideration of the Project Advance, the Owner and the Lessee are
willing to consent to an expedited foreclosure process with respect to the lien of the Special
Assessments as soon as possible (as referenced in Section 1 hereof), the form of the consents
being attached hereto as Exhibit B-1 and Exhibit B-2 (collectively, the Lessee and Owner
Consent); and
WHEREAS, the Lessee and Owner Consent with respect to the foreclosure of the
Special Assessments shall be a covenant running with the Property and binding upon the Owner
and the Lessee and upon future owners and lessees of the Property until Project Costs are paid
in full; and
WHEREAS, based on the Lessee and Owner Consent and other considerations, at the
request of the District, upon the occurrence of an Event of Default under the Energy Project
Cooperative Agreement, the Treasurer and the City have agreed to foreclose the lien of the
Special Assessments as soon as possible as described herein; and
WHEREAS, if any assessments, including, without limitation, the Special Assessments,
payments in lieu of taxes, real property taxes, or other governmental charges levied on the
Property are not paid when due and thereafter remain delinquent, the Treasurer, pursuant to
2
Ohio Revised Code Sections 5721.30 through 5721.41 (the Delinquent Tax Lien Sale Act),
specifically Ohio Revised Code Section 5721.33, may, in his discretion, but is not required to,
negotiate with one or more persons the sale of any number of tax certificates (Tax Certificates)
which evidence the liens (the Tax Liens) of the State of Ohio (the State) and its applicable
taxing districts for such delinquent assessments, including Special Assessments, real property
taxes, payments in lieu of taxes, governmental charges, or penalties and interest on such
Property; and
WHEREAS, pursuant to the Delinquent Tax Lien Sale Act, the Treasurer, in his
discretion, may sell such Tax Certificates at a discount from the full amount of the general real
estate taxes, assessments, including the Special Assessments, penalties and interest that have
become delinquent; and
WHEREAS, if the Treasurer were to sell such Tax Certificates at a discount (other than
in accordance with the provisions of this Agreement), the proceeds of such sale representing
the delinquent Special Assessments might be insufficient to pay the Project Costs; and
WHEREAS, the Treasurer does not desire to take any action with respect to the
collection of the Special Assessments that might adversely affect the repayment of the Project
Advance without the consent of the District and the Authority; and
WHEREAS, the Treasurer has agreed to remit to the Authority, in the event of a default
under the Energy Project Cooperative Agreement, as set forth in this Agreement, amounts
collected by the Treasurer and relating to the Special Assessments, including without limitation
amounts collected by the Treasurer as a result of foreclosure of the lien of the Special
Assessments on the Property and including amounts received from a sale of Tax Certificates
pursuant to the Delinquent Tax Lien Sale Act;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, and desiring to be legally bound hereunder, the parties hereto covenant and
agree as follows:
Section 1. Special Assessments.
1.1 The Owner, prior to the execution and delivery of this Agreement, has
signed and delivered to the Clerk of Council the Petition for the acquisition, construction,
installation, equipping and improvement of the Project and evidencing the agreement of the
Owner to the levy and collection ofthe Special Assessments as security forthe Project Advance.
The Owner agrees that its delivery of the Petition and the requests and agreements made therein
are irrevocable and that the parties hereto have acted and will act in reliance on the agreements
contained in that Petition. The City has duly enacted Resolution No. [ ], Ordinance [ ],
and Ordinance [ ] (the Assessing Ordinance) to provide for the levy and collection of the
3
Special Assessments on the Property. The Clerk of Council certified (or caused to be certified)
the Assessing Ordinance to the County Auditor as set forth in the Petition.
1.2 The City shall cause the Special Assessments, as set forth in the
Assessment Schedule attached to the Petition, to be certified to the County Auditor on or before
the last date for the certification of special assessments to the County Auditor pursuant to the
requirements of Section 727.33 of the Ohio Revised Code.
1.3 In the event the Project Advance is prepaid or redeemed, in whole or in
part, the parties shall, in cooperation with the Owner or the Lessee, and to the extent permitted
by law, cause the aggregate lien of the Special Assessments to be no greater than the remaining
principal of and interest and premium, if any, on the Project Advance through maturity.
1.4 To the extent that the Owner or the Lessee prepays any of the required
payments pursuant to the Energy Project Cooperative Agreement, then the amounts of the
Special Assessments shall be reduced in accordance with the Assessment Schedule attached to
the Petition.
1.5 To secure payments made on the Project Advance, the City hereby
assigns to the Authority all of its rights, title to, and interest in the Special Assessments to be
levied with respect to the Project Costs. As long as the Project Advance shall be outstanding
and amounts shall be due and owing under the Energy Project Cooperative Agreement with
respect to the Project Advance, the City assigns to the Authority all of its right, title and interest
in and to, and grants to the Authority a security interest in, the Special Assessments received
by the City and in the City's related special assessment fund. The Authority, as assignee of the
City, is hereby authorized to take any and all such actions as assignee of and, to the extent
required by law, in the name of and for and on behalf of the City, to collect delinquent Special
Assessments levied by the City pursuant to law and to cause the lien securing the delinquent
Special Assessments to be enforced through prompt and timely foreclosure proceedings,
including, but not necessarily limited to, filing and prosecution of mandamus or other
appropriate proceedings to induce the County Prosecutor, the County Auditor, and the County
Treasurer, as necessary, to institute such prompt and timely foreclosure proceedings. The
proceeds of the enforcement of any such lien shall be deposited and used in accordance with
this Agreement and the Energy Project Cooperative Agreement. The Treasurer, the City, the
District, the Authority, the Owner, and the Lessee each hereby acknowledges, agrees with, and
consents to those assignments.
1.6 The City, upon receipt of any moneys received by the City as Special
Assessments, but in any event not later than 15 calendar days after the receipt of such moneys
and the corresponding final settlement from the County Auditor, shall deliver to the Authority
all such moneys received by the City as Special Assessments. The City's obligation to transfer
the Special Assessments to the Authority shall be absolute and unconditional, and the City shall
make such transfers without abatement, diminution, or deduction regardless of any cause or
4
circumstance whatsoever, including, without limitation, any defense, set-off, recoupment, or
counterclaim which the City may have or assert against the Authority, the Owner, the Lessee,
or any other person; provided, however, that the City's obligation to transfer special
assessments is limited to the Special Assessments actually received by the City from the County
Auditor. The Authority may from time to time provide written payment instructions to the City
for payment of Special Assessments by check, wire instructions, or other means.
1.7 Notwithstanding anything in this Agreement to the contrary, the
Treasurer's obligations under this Agreement are not and shall not be secured by an obligation
or pledge of any moneys raised by taxation. The Treasurer's obligations shall be limited to the
moneys levied, collected and received in respect of the Special Assessments and any County -
imposed collection fees, charges, or penalties. The Treasurer's obligations under this
Agreement do not and shall not represent or constitute a debt or pledge of the faith and credit
or taxing power of the County.
1.8 Notwithstanding anything in this Agreement to the contrary, the City's
obligations under this Agreement are not and shall not be secured by an obligation or pledge of
any moneys raised by taxation. The City's obligation under this Agreement shall be limited to
any moneys received from the County in respect of the Special Assessments and any County -
imposed collection fees, charges, or penalties. The City's obligations under this Agreement do
not and shall not represent or constitute a debt or pledge of the faith and credit or taxing power
of the City.
Section 2. Foreclosure Process.
2.1 The Treasurer, the City, the Authority, the Owner, and the Lessee each
acknowledge that the Special Assessments are to secure payments relating to the Project
Advance, including the Project Costs and other amounts as provided under the Energy Project
Cooperative Agreement. The Treasurer agrees that so long as the Project Advance is
outstanding and the Project Costs thereon, and other amounts under the Energy Project
Cooperative Agreement are secured, at least in part, by the revenues derived from the Special
Assessments, upon the Treasurer's receipt of written notice from the Authority or the District,
with a copy to the other of the Authority or the District and to the Owner, the Lessee, and the
City that an Event of Default (as defined under the Energy Project Cooperative Agreement) has
occurred and is continuing and which notice directs Treasurer to foreclose on the lien of the
Special Assessments, the Treasurer will, not later than 30 days from the date of the receipt of
such notice, file and diligently prosecute a foreclosure action against the Property, following
the procedures for lien foreclosures established in Ohio Revised Code §323.25 and related
sections. The foreclosure action shall be to collect all Special Assessments then due and owing
on the Property in accordance with the Petition. Without the prior written consent of the District
and the Authority, the Treasurer will not confirm the sale of the Property for an amount less
than 100% of the amount of the Special Assessments and other general real estate taxes,
payments in lieu of taxes, and assessments then due and owing with respect to the Property, as
5
shall be certified by the District to the Treasurer pursuant to the records of the Treasurer. All
fees and expenses of the Treasurer in collecting the Special Assessments are to be included and
paid for by the Owner and the Lessee.
2.2 The Treasurer hereby acknowledges that the City has assigned all of its
right, title, and interest in and to the Special Assessments to the Authority, and that the District
has assigned all of its right, title and interest in an to the Special Assessments to the Authority,
and the Treasurer hereby agrees that so long as the Project Advance is outstanding and the
Project Costs thereon and other amounts under the Energy Project Cooperative Agreement are
secured, at least in part, by the revenues derived from the Special Assessments, the Treasurer
will not sell or negotiate the sale of one or more Tax Certificates related to the Property for an
amount less than 100% of the amount levied and certified for collection without the prior
written consent of the District and the Authority.
2.3 The Treasurer hereby covenants and agrees that if any of the general real
estate taxes, payments in lieu of taxes, assessments, including the Special Assessments,
governmental charges, or penalties and interest on the Property are delinquent and the
Delinquent Tax Lien Sale Act would permit the Treasurer to negotiate the sale of Tax
Certificates with respect thereto, the Treasurer will, prior to giving any notice under the
Delinquent Tax Lien Sale Act of a sale of Tax Certificates with respect to the Property, give
written notice to the District and the Authority regarding the same and state therein whether the
Treasurer reasonably anticipates receiving no less than 100% of the general real estate taxes,
payments in lieu of taxes, and assessments, including the Special Assessments, penalties and
interest, originally levied and certified for collection plus other charges, including attorney's
fees, or whether the Treasurer reasonably expects to receive less than 100% of the general real
estate taxes, payments in lieu of taxes, and assessments, including the Special Assessments,
penalties and interest, levied and certified for collection plus other charges, including attorney's
fees, and in accordance with this Agreement is requesting the consent of the District and the
Authority for such a sale.
2.4 The Treasurer agrees, on behalf of the County, not to utilize the authority
contained in Ohio Revised Code Chapter 5722 to transfer any of the Property to the county land
reutilization corporation, to sell or convey any of the Property to any political subdivision under
the authority contained in Ohio Revised Code Chapter 5722, or to clear the liens and
encumbrances applicable to the Property under the authority contained in Ohio Revised Code
Chapter 5722 without the express written consent of the District and the Authority.
2.5 Nothing in this Agreement shall, or shall be construed to, prevent the
Treasurer from selling one or more Tax Certificates with respect to the Property to athird party
without the consent of the Authority and the District if the price received for the Tax Certificate
or Tax Certificates equals or exceeds 100% of the delinquent general real estate taxes,
assessments, including the Special Assessments, penalties and interest on the Property
outstanding against the Property at the time of such sale.
6
2.6 The District and the Authority each hereby agrees that upon written
notice from the Treasurer pursuant to Section 2.1 ofthis Agreement, it, within 30 days of receipt
of the Treasurer's notice, shall give a written response to the Treasurer indicating therein
whether it consents to the request for sale of a Tax Certificate or Tax Certificates.
2.7 No delay or failure of the District or the Authority to give a written
response shall be construed to be a consent to such request or to be a waiver of the right to give
such consent. No consent or refusal thereof by the District or the Authority in response to a
request by the Treasurer shall extend to or affect any subsequent request of the Treasurer or
shall impair the rights of the District or the Authority with respect any such subsequent request.
2.8 So long as the Project Costs are outstanding, the Treasurer hereby
covenants and agrees (a) to remit to the Authority, as appropriate and as provided for herein,
not more than 30 days from the date of collection by the Treasurer, all Special Assessments
collected from the Property, including amounts collected from Tax Certificates; and (b) to the
extent the Treasurer seeks and is appointed as receiver for the Property, as provided for in
Chapter 323 of the Revised Code, after payment of reasonable fees and expenses of the
Treasurer, all amounts collected by the Treasurer, as receiver for the Property and collected as
a result of the Special Assessments, shall be remitted to the District.
Section 3. Indemnification by Owner and Lessee
3.1 The Owner and the Lessee hereby release the District, the City, the
Treasurer, the Authority, and their respective officers, directors and employees (collectively,
the Indemnified Parties), from, agree that the Indemnified Parties shall not be liable for, and
agree to indemnify the Indemnified Parties against, any and all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without limitation, out-of-
pocket and incidental expenses and reasonable attorneys' fees and expenses) imposed upon,
incurred by or asserted against any of the Indemnified Parties arising or resulting from: (i) the
levy and collection of the Special Assessments; (ii) any loss or damage to property or injury to
or death of or loss by any person that may be occasioned by any cause whatsoever pertaining
to the acquisition, construction, installation, equipment, improvement maintenance, operation
and use of the Project; (iii) any breach or default on the part of the Owner or the Lessee, as
appropriate, in the performance of any covenant, obligation or agreement of the Owner or the
Lessee, as appropriate, under the Energy Project Cooperative Agreement, or arising from any
act or failure to act by the Owner or the Lessee, as appropriate, or any of their respective agents,
contractors, servants, employees or licensees; (iv) the failure of the Owner or the Lessee, as
appropriate, to comply with any requirement of this Agreement; (v) the efforts of the City and
the Treasurer to collect Special Assessments; (vi) any legal costs or out-of-pocket costs incurred
by the District specifically related to additional approvals or actions that may be required by
the District arising after the date of the Energy Project Cooperative Agreement (and in the case
of such legal costs or out-of-pocket costs, agrees to pay such costs directly to the District); (vii)
any claim, action or proceeding brought with respect to any matter set forth in clause (i), (ii),
7
(iii), (iv), (v) or (vi) above, provided, however, that the Owner or the Lessee, as appropriate,
shall not indemnify the Indemnified Parties as provided above to the extent that any liability,
claim, cost or expenses arises out of or results from the gross negligence, willful misconduct or
breach of this Agreement or the Energy Project Cooperative Agreement of the Indemnified
Parties.
3.2 The Owner and the Lessee agree to indemnify, to pay, and to hold each
of the Indemnified Parties harmless from and against all liabilities, and all reasonable costs and
expenses, including out-of-pocket expenses and attorneys' fees, arising out of any federal, state
or local environmental laws, regulations, or ordinances incurred by any of the Indemnified
Parties as a result of the existence on or release from the Project Site of Hazardous Materials,
which in any way result from any act of omission or commission of the Owner or the Lessee,
as appropriate, or any of their respective agents, employees, independent contractors, invitees,
licensees, successors, assignees, or tenants.
Section 4. Additional Agreements and Covenants.
4.1 The agreements of the parties hereafter with respect to the foreclosure
process shall be a covenant running with the Property and, so long as Project Costs are payable
from or secured, at least in part, by the revenues derived from the Special Assessments, such
covenant shall be binding upon the Property (except as released as provided in the Lessee and
Owner Consent), the Owner, the Lessee, and any future owner or lessee of all or any portion of
the Property. This Agreement, the Lessee and Owner Consent, and all other required
documents and agreements, shall be recorded with the Franklin County, Ohio Recorder's
Office, so that the agreements of the parties hereafter with respect to the foreclosure process
established pursuant to this Agreement is a covenant running with and is enforceable against
the Property.
4.2 If any provision of this Agreement shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable
any other provision hereof.
4.3 This Agreement shall inure to the benefit of each of the parties, and each
of their successors and assigns, all subject to the provisions of this Agreement. This Agreement
may be amended only by a written instrument of the parties, and any attempt to amend or
modify this Agreement without a written instrument signed by all of the parties to this
Agreement shall be null and void. Notices given hereunder shall be in writing and shall be
effective when actually received if delivered by hand or overnight courier, or three days after
being sent by registered or certified mail, postage prepaid, the certification receipt therefore
being deemed the date of such notice, and addressed to the parties as follows:
If to City: City of Dublin, Ohio
5200 Emerald Parkway
3
Dublin, Ohio 43017
Attention: City Manager
Ifto Treasurer: County Treasurer
Franklin County, Ohio
373 S. High Street, 17"' Floor
Columbus, Ohio 43215
Attention: Cheryl Brooks Sullivan
If to the Authority: Columbus -Franklin County Finance Authority
350 East First Street, Suite 120
Columbus, Ohio 43201
Attention: President
If to the District: Columbus Regional Energy Special Improvement District, Inc.
c/o Columbus -Franklin County Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy to: J. Caleb Bell
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
If to Owner: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy to: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: General Counsel
If to the Lessee: ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
9
4.4 (a) The Authority shall have the unrestricted right at any time or from
time to time, and without the consent from the Treasurer, the City, the District, the Owner, or
the Lessee, to assign all or any portion of its rights and obligations under this Agreement and
may sell or assign any and all liens received directly or indirectly from the City to any person
(each, an Authority Assignee), and the Owner and the Lessee agree that they shall execute, or
cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection
with this Agreement as the Authority shall deem necessary to effect the foregoing. Any
Authority Assignee shall be a party to this Agreement and shall have all of the rights and
obligations of the Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to the
extent that such rights and obligations have been assigned by the Authority pursuant to the
assignment documentation between the Authority and such Authority Assignee, and the
Authority shall be released from its obligations under this Agreement and under any and all
other guaranties, documents, instruments and agreements executed in connection with this
Agreement to a corresponding extent.
(b) The Authority shall have the unrestricted right at any time and from time to
time, and without the consent of or notice of the Treasurer, the City, the District, the Owner, or
the Lessee, to grant to one or more persons (each, a Participant) participating interests in the
Authority's obligation to make the Project Advances under the Energy Project Cooperative
Agreement or any or all ofthe loans held by the Authority under the Energy Project Cooperative
Agreement. In the event of any such grant by the Authority of a participating interest to a
Participant, whether or not upon notice to the Treasurer, the City, the District, the Owner, and
the Lessee, the Authority shall remain responsible for the performance of its obligations under
the Energy Project Cooperative Agreement and the Owner and the Lessee shall continue to deal
solely and directly with the Authority in connection with the Authority's rights and obligations
under the Energy Project Cooperative Agreement.
(c) The Authority may furnish any information concerning the Lessee in its
possession from time to time to prospective Authority Assignees and Participants.
4.5 If at anytime during the term of this Agreement the Lessee's lease of the
Property and the Project with the Owner (including as amended, extended, or substituted)
terminates, the Owner shall assume all of the Lessee's rights and obligations under this
Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
4.6 This Agreement shall be construed in accordance with the laws of the
State of Ohio.
4.7 This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
10
4.8 The Parties hereby acknowledge and agree that this Agreement does not
constitute a contract involving the expenditure of money by the County.
4.9 All parties to this Agreement hereby acknowledge and agree that the
Owner is executing this Agreement, the Lessee and Owner Consent, the Energy Project
Cooperative Agreement, and any and all other documents related to the Special Assessments or
the PACE financing (collectively, the PACE Documents) as an accommodation to the Lessee,
so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding any other
provision contained in this Agreement or the other PACE Documents, the Lessee is and shall
be primarily responsible for the performance of any and all obligations of the Owner and the
Lessee in the PACE Documents. If the Lessee fails to perform its obligations under the PACE
Documents, the Owner acknowledges and agrees that the Owner shall assume all of the
Lessee's rights and obligations in the PACE Documents, as expressly contained in the
respective PACE Documents.
(Signature Pages Immediately Follow)
11
IN WITNESS WHEREOF, each party to this Agreement has caused this Agreement to
be executed in its respective name and capacity by its respective duly authorized officers, all as
of the Effective Date.
"TREASURER"
COUNTY TREASURER OF FRANKLIN
COUNTY, OHIO
Treasurer
County of Franklin, Ohio
STATE OF OHIO )
SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named FRANKLIN COUNTY TREASURER, who acknowledged that he or she did
sign the foregoing instrument and the same is his or her free act and deed as such officer of
Franklin County.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-1
"CITY"
CITY OF DUBLIN, OHIO
Name:
Title:
STATE OF OHIO
SS:
COUNTY OF FRANKLIN
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named CITY OF DUBLIN, OHIO by its
who acknowledged that he or she did sign the foregoing instrument and that the same is his or
her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-2
"AUTHORITY"
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY
Name:
Title:
STATE OF OHIO
SS:
COUNTY OF FRANKLIN
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY by _
its who acknowledged that he or she did sign the
foregoing instrument and that the same is his or her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-3
"DISTRICT"
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC
C
Name:
Title:
STATE OF OHIO )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY
TOWNSHIP, WHITEHALL, WORTHINGTON REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., d/b/a COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC. by , its , who
acknowledged that such officer did sign the foregoing instrument and that the same is such
officer's free act and deed as such officer and of said district.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-4
"OWNER"
OH 15 Dublin LLC,
a Delaware limited liability company
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
STATE OF
SS:
COUNTY OF
C
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named OH 15 DUBLIN LLC Matthew Tucker, the Vice President of GCLP Business
Trust, the General Partner of Gladstone Commercial Limited Partnership, the Managing
Member of OH15 Dublin LLC, who acknowledged that he did sign the foregoing instrument
and that the same is his free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-5
"LESSEE"
VIAQUEST, INC.,
an Ohio corporation
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who
acknowledged that he did sign the foregoing instrument and that the same is his free act and
deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
This instrument prepared by:
Colin J. Kalvas
Bricker & Eckler LLP
100 South Third St.
Columbus, Ohio 43215
Notary Public
S-6
FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that
the City has established a special assessment fund, into which the Special Assessments (as that
term is defined in the foregoing Agreement) received by the City shall be deposited, free from
any previous encumbrances. The City shall use the moneys deposited in such special
assessment fund to meet its obligations under the foregoing Agreement. This Certificate is
given in compliance with Ohio Revised Code Sections 5705.41 and 5705.44.
Dated: 2019
Director of Finance
City of Dublin, Ohio
EXHIBIT A
The real property subject to this Agreement is located at the commonly used mailing
address 525 Metro Place North, Dublin, Ohio with Franklin County Auditor Parcel ID No. 273-
001343-00, and having the following legal description:
Situated in tee Of, of Duh. n, County of Frank in, State of Ohio, described as follows
PARCH -ori•.
Situated ntte grace ofChio,(so ury of F a I a I I a nc Cy..` Logo lla, ait(,b 21 lid real lc b'iigirl,
What St vey 2919 a rd berg a 6 Of t act, Iaticlh LL of Lot no.S of age Immliter".
whid is a SL criscrin to the vi lage of Dtdlin, Ohio and a plat of which Is of r7cc cin Plat Book
55, Pagae 8 ane 5 Reaudm's office, franhlin County, Ohio, and being bounded and more
Parties aro descrloee as follow.
Began ng at a so If In Ire Northerly rig it of way line of Metm Place South (60.0 feet in width),
Mat is lead ad Sptth 50° O ' 29' _asp 6091 fret from Mn Sc4hwe4erly mmcr of said Lot No.
5, a Suit insider comer of Resale Bof salt "Metrocertet';
Ther N 43 CO" fee'_to a coin[ arealme- nr,bt.
rI su2822
alone he arc of said urrve (Dela = 12° g 3:60 (crLJ, a cboN bearing
-
t' , p intef a
Vorth 11° /1 5a
and al n g feetsua point of fangenry;
andallgird
07 feet t
Thence South SI° 3C CO" East, 595.52 feet- a poiri;
Tbentt South East 7339 fe5f `o point6 the -Rt '; Thence
an I
to an anglenoir[Ir Baldrne; Thence
along da the ly ne East, J In sliide c
Ire.Bouch 36°42'35'b3:15
a, aly
lne NortM1 SS°E 1565[, :9.65 `ret Lc p'J-henmSouth
ndmin5 are East,
810 4fien:Faa Voim;
hM31151sttoa
Thence 9outlt JE' 21' 16" Wei, 998 feet to a point in the Northerly right of way line of Natro
Thereof
Place goul
Thence along sold right of way line, North 81°38'95"Wastes 165-9 taeC CoaPoint of mrvaWre
h1-090—$�6
f a curve to One I2
At air"
Theral noug O -.'d curve (Delta = 12 33 39 Radlus = 1160.0 feet) h'. d bearing
-/
distant -and <fcard 82 5 35"b t 7 a 1/ a[ lit of over re e
CZ 3)
Thence along me at c o a cogsm!he rig t(Site Lac 39 52G,Fal fell 11cb,a
0013145
chord bearing and distance of North /9° 14' Is cert ;86 77 feet to :he P ace of beginning; and
cvnteinirg 6. la acres, more or less.
A-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
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Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
A-2
EXHIBIT B-1
OWNER CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes and
states as follows:
The undersigned is the of OH15 Dublin LLC, a Delaware limited liability
company (the "Owner").
This Owner Consent, dated as of [ , 2019, is given by the Owner pursuant to the
Special Assessment Agreement dated as of , 2019 (the "Agreement') by and among
the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin, Ohio (the
"City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall,
Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus Regional
Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin County
Finance Authority (together with its permitted successors and assigns under the Agreement, the
"Authority"), the Owner, and Viaquest, Inc. (the "Lessee"). Terms not otherwise defined herein
shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property is
described in Exhibit 1 to this Owner Consent, and the Special Assessments are disclosed on Exhibit
2 to this Owner Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default" (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement. In
consideration of the Project Advance to finance the Project, the Owner hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
B-1-1
The Owner is the owner of the Property. The Owner covenants and agrees that so long as
the Project Advance remains outstanding, except as the covenant may be released by the District,
the City and the Authority, as applicable, in writing, the expedited foreclosure process established
pursuant to the Agreement shall be a covenant on and running with, and shall be binding upon, the
Property, the Owner and all future owners of the Property. Any release, modification or waiver of
the covenant running with the land by the District, the City or the Authority, as applicable, shall
be filed of record with the Franklin County, Ohio Recorder's Office. The Owner agrees that this
Owner Consent shall be recorded with the Franklin County, Ohio Recorder's Office and the Owner
covenants and agrees to cause such documents to be recorded and to take such reasonable steps as
are necessary, so that the expedited foreclosure process with respect to the lien of the Special
Assessments is a covenant on and running with the Property and is binding on the Owner and any
and all future owners of all or any portion of the Property.
The Special Assessments have been levied by the City and certified for direct collection in
semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Owner Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate and
collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments attached
to this Owner Consent as Exhibit 2. Unless earlier paid by the Owner or any successor in interest
of the Owner to the Property, the Special Assessments shall be levied, billed, due and payable, and
collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Owner Consent to the contrary notwithstanding, this Owner Consent shall
in no way be construed as a waiver by the Owner of its statutory right of redemption, including
the full applicable redemption period.
(Signature Page Immediately Follows)
B-1-2
Further affiant sayeth naught.
"OWNER"
OH15 DUBLIN LLC
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
IC
STATE OF )
SS:
COUNTY OF )
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named OH15 DUBLIN LLC by Matthew Tucker, the Vice President of GCLP Business
Trust, the General Partner of Gladstone Commercial Limited Partnership, the Managing Member
of OH15 Dublin LLC, who acknowledged that he did sign the foregoing instrument and that the
same is such officer's free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-1-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm CuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
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Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
EXHIBIT B-2
LESSEE CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes and
states as follows:
The undersigned is the of Viaquest, Inc., an Ohio corporation (the
"Lessee").
This Lessee Consent, dated as of [ , 2019, is given by the Lessee pursuant to the
Special Assessment Agreement dated as of [ ], 2019 (the "Agreement") by and among
the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin, Ohio (the
"City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall,
Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus Regional
Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin County
Finance Authority (together with its permitted successors and assigns under the Agreement, the
"Authority"), OH15 Dublin, LLC (the "Owner") and the Lessee. Terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property is
described in Exhibit 1 to this Lessee Consent, and the Special Assessments are disclosed on Exhibit
2 to this Lessee Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default" (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement. hi
consideration of the Project Advance to finance the Project, the Lessee hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
The Lessee is the Lessee of the Property. The Lessee covenants and agrees that so long as
the Project Advance remains outstanding, except as the covenant may be released by the District,
the City and the Authority, as applicable, in writing, the expedited foreclosure process established
pursuant to the Agreement shall be a covenant on and running with, and shall be binding upon, the
Property, the Lessee and all future Lessees of the Property. Any release, modification or waiver
B-2-1
of the covenant running with the land by the District, the City or the Authority, as applicable, shall
be filed of record with the Franklin County, Ohio Recorder's Office. The Lessee agrees that this
Lessee Consent shall be recorded with the Franklin County, Ohio Recorder's Office and the Lessee
covenants and agrees to cause such documents to be recorded and to take such reasonable steps as
are necessary, so that the expedited foreclosure process with respect to the lien of the Special
Assessments is a covenant on and running with the Property and is binding on the Lessee and any
and all future Lessees of all or any portion of the Property.
The Special Assessments have been levied by the City and certified for direct collection in
semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Lessee Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate and
collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments attached
to this Lessee Consent as Exhibit 2. Unless earlier paid by the Lessee or any successor in interest
of the Lessee to the Property, the Special Assessments shall be levied, billed, due and payable, and
collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Lessee Consent to the contrary notwithstanding, this Lessee Consent shall
in no way be construed as a waiver by the Lessee of its statutory right of redemption, including
the full applicable redemption period.
(Signature Page Immediately Follows)
B-2-2
Further affiant sayeth naught.
"LESSEE"
VIAQUEST, INC.
C
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who acknowledged
that he did sign the foregoing instrument and that the same is such officer's free act and deed as
such officer and of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-2-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-2-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
B-2-1-2
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm UuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1
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Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1
IcityOffice of the City Manager
of Dublin 5200 Emerald Parkway • Dublin, OH 43017-1090 -Memo
Phone: 614-410-4400 • Fax: 614-410-4490
To: Members of Dublin City Council
From: Dana McDaniel, City Manager
Date: October 9, 2019
Initiated By: Colleen Gilger, Director of Economic Development
Jeremiah Gracia, Economic Development Administrator
Re: Resolutions & Ordinances for Property Assessed Clean Energy (PACE) Special
Improvement for 525 Metro Place North (OH15 Dublin LLC)
Background
The City of Dublin is focused on setting appropriate conditions to encourage investment and
economic development. City Council continues to support our strategies and tactics to ensure
Dublin's office space remains competitive in the market as supported by the Dublin Corporate Area
Plan. One particular tool the economic development team has brought to existing building owners'
attention is the use a favorable financing tool for major building energy efficiency improvements.
Financing for PACE eligible projects in Central Ohio is provided by the Columbus -Franklin County
Finance Authority (Finance Authority). The Finance Authority established the Columbus Regional
Special Improvement District that allows for additional properties within the City of Columbus, Ohio
and within any municipal corporation or township that is adjacent to any other municipal
corporation or township to opt -in to the District. Projects between $200,000 - $6,000,000 may be
financed through the Finance Authority's bond fund. Eligible uses of funds include LED lighting,
energy management and controls that includes, HVAC and boiler replacement, building envelope,
and other improvements that result in bottom line operation savings for building owners and
tenants.
In August 2018, the building ownership of 525 Metro Place North invested just over $900,000 in
PACE Financing for its energy efficiency improvement project for the 80,000 SF office building. The
scope of work for that project included indoor LED lighting upgrades, boiler replacement, cooling
tower replacement, and other temperature control upgrades.
This PACE project will invest another $165,000 in improvements to the building to upgrade the
elevators and outdoor lighting to LEDs. In order to satisfy this request, the City of Dublin must
pass a series of Resolutions on October 21, 2019 and Ordinances on November 4, 2019 Council
meetings. These Resolutions and Ordinances will allow building ownership to opt -in to the
Regional Special Improvement District. The City has no financial obligations with the establishment
of a Special Improvement District for this project. The City simply serves as a pass through entity
for the project financing.
Recommendation
Staff recommends Council passage of all related Resolutions and Ordinances October 21 and
November 4, 2019 Council meetings. Please contact Jeremiah Gracia with any questions.
RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO Form 6220S
Ordinance No. 60-19 Passed ,
AN ORDINANCE AUTHORIZING AND APPROVING AN
ENERGY PROJECT COOPERATIVE AGREEMENT BY AND
BETWEEN THE CITY OF DUBLIN, OHIO, THE COLUMBUS
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., OH15 DUBLIN LLC, VIAQUEST, INC., AND THE
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY, A
SPECIAL ASSESSMENT AGREEMENT BY AND BETWEEN
THE CITY OF DUBLIN, OHIO, THE COUNTY TREASURER
OF FRANKLIN COUNTY, OHIO, THE COLUMBUS
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., 525 METRO PLACE NORTH LLC, VIAQUEST, INC.,
AND THE COLUMBUS -FRANKLIN COUNTY FINANCE
AUTHORITY, AND RELATED AGREEMENTS, ALL OF
WHICH PROVIDE FOR THE FINANCING OF SPECIAL
ENERGY IMPROVEMENTS PROJECTS (525 METRO PLACE
NORTH, DUBLIN, OHIO PROJECT)
WHEREAS, OH15 Dublin LLC (the "Owner') has submitted its Petition for Special
Assessments for Special Energy Improvement Projects and Affidavit (the "Petition's i n
order to provide for the completion of a special energy improvement project on real
property owned by the Owner in the City of Dublin, Ohio (the "City'; and
WHEREAS, on October 21, 2019, this Council approved the Petition and added the
Owner's property subject to the Petition to the Columbus Regional Energy Special
Improvement District, Inc. (the "District'; and
WHEREAS, on October 21, 2019, this Council duly adopted a resolution declaring the
necessity of acquiring, constructing, and improving certain public improvements in the
City in cooperation with the District (the "Resolution of Necessity'; and
WHEREAS, on November 4, 2019, this Council passed Ordinance No. -19
determining to proceed with the Project (as defined in the Resolution of Necessity) and
adopted the estimated Special Assessments filed with the Clerk of the Council pursuant
to the Resolution of Necessity; and
WHEREAS, pursuant to Ordinance No. -19 passed on November 4, 2019, the
City has levied special assessments against the Property (as defined in the Resolution
of Necessity) to pay costs of the special energy improvement project (the "Special
Assessments');
WHEREAS, the City intends to enter into an Energy Project Cooperative Agreement
(the! "Energy Project Cooperative Agreement') with the District, OH 15 Dublin LLC,
ViaQuest, Inc., and the Columbus -Franklin County Finance Authority (the "Investor'
to provide for, among other things, (i) the making of the Project Advance (as defined
in the Energy Project Cooperative Agreement) to pay costs of the Project, (ii) the
disbursement of the Project Advance for the acquisition, construction, and
improvement of the Project and the transfer of the Special Assessments by the City to
the Investor to pay principal and interest and other costs relating to the Project
Advance; a n d
WHEREAS, to provide for the security for the Project Advance and for administration
of payments on the Project Advance and related matters, the City intends to enter into
the Special Assessment Agreement with the County Treasurer of Franklin County, Ohio,
the Investor, the District, and the Owner.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin, State of
Ohio of the elected members concurring that:
RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO Form 6220S
Ordinance No. Passed
Section 1. Each capitalized term or definition not otherwise defined in this Ordinance
or by reference to another document shall have the meaning assigned to it in the
Resolution of Necessity.
Section 2. This Council hereby approves the Energy Project Cooperative
Agreement, a copy of which is on file in the office of the Clerk of Council. The City
Manager shall sign and deliver, in the name and on behalf of the City, the Energy
Project Cooperative Agreement, in substantially the form as is now on file with the
Clerk of Council. The Energy Project Cooperative Agreement is approved, together
pp g
with any changes or amendments that are not inconsistent with this Ordinance and not
substantially adverse to the City and that are approved by the City Manager on behalf
of the City, all of which shall be conclusively evidenced by the signingof the Energy
9y
Project Cooperative Agreement or amendments to the Energy Project Cooperative
AgrE!ement.
Section 3. This Council hereby approves the Special Assessment Agreement a
g ,
copy of which is on file in the office of the Clerk of Council. The City Manager shall
sign and deliver, in the name and on behalf of the City, the Special Assessment
Agreement, in substantially the form as is now on file with the Clerk of Council. The
Special Assessment Agreement is approved, together with any changes or amendments
that are not inconsistent with this Ordinance and not substantially adverse to the City
and that are approved by the City Manager on behalf of the City, all of which shall be
conclusively evidenced by the signing of the Special Assessment Agreement or
9
amendments to the Special Assessment Agreement.
Section 4. The City is hereby authorized to enter into such other agreements that
are not inconsistent with the Resolution of Necessity and this Ordinance and that are
approved by the City Manager on behalf of the City, all of which shall be conclusively
evidenced by the signing of such agreements or any amendments to such agreements.
Section 5. This Council finds and determines that all formal actions of this Council
concerning and relating to the passage of this Ordinance were taken in an open
meeting of this Council, and that all deliberations of this Council and of any of its
committees that resulted in such formal action, were in meetings open to the public,
in compliance with all legal requirements including Ohio Revised Code Section 121.22.
Section 6. Under Section 4.04 of the Charter of the City, this Ordinance is an
Ordinance for improvements petitioned for by owners of the requisite majority (100%)
of the front footage or the area of the property benefited and to be assessed and shall
be in full force and effect immediately upon its passage.
[Signature Page Follows]
RECORD OF ORDINANCES
BARRETT BROTHERS - DAYTON, OHIO __ i Form 6220S
ENERGY PROJECT COOPERATIVE AGREEMENT
By and between
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.;
OH15 DUBLIN LLC;
VIAQUEST, INC.;
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY; and
CITY OF DUBLIN, OHIO
Dated as of 2019
BRICKER & ECKLER LLP
ENERGY PROJECT COOPERATIVE AGREEMENT
THIS ENERGY PROJECT COOPERATIVE AGREEMENT (the Agreement) is made
and entered into as of 2019 (the Effective Date), by and among the BEXLEY,
COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL,
WORTHINGTON REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., doing
business under the registered trade name COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., a nonprofit corporation and special improvement district
duly organized and validly existing under the laws of the State of Ohio (the State) (the ESID),
OH 15 DUBLIN LLC, a limited liability company duly organized and validly existing under the
laws of the State of Delaware and duly qualified to conduct business in the State (the Owner),
VIAQUEST, INC., a corporation duly organized and validly existing under the laws of the State
of Ohio (the Lessee), the COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State (the Finance Authority), and the CITY OF DUBLIN, OHIO, a municipal corporation duly
organized and validly existing under the constitution and laws of the State and its Charter (the
City) (the capitalized terms used in this Agreement and not defined in the preamble and recitals
have the meanings stated in Exhibit A to this Agreement):
A. The ESID was created under Ohio Revised Code Chapters 1702 and 1710 and
established pursuant to Resolution No. 0261X-2015 of the Council of the City of Columbus, Ohio
approved on November 23, 2015. Pursuant to the same action, the Columbus Regional Energy
Special Improvement District Program Plan (as amended and supplemented from time to time, the
Plan) was adopted as a plan for public improvements and public services under Ohio Revised
Code Section 1710.02(F).
B. The ESID is an energy special improvement district and nonprofit corporation duly
organized and validly existing under the laws of the State of Ohio to further the public purpose of
implementing special energy improvement projects pursuant to the authority in Ohio Revised Code
Chapter 1710 and Article VIII, Section 20 of the Ohio Constitution.
C. On [ ], by its Resolution No. _], the City Council of the City (the City
Council) approved the Petition for Special Assessments for Special Improvement Projects and
Affidavit (the Petition) submitted by the Owner to the City, together with the Supplement to Plan
for 525 Metro Place North, Dublin, Ohio Project (the Supplemental Plan), as a supplement to the
Plan.
D. Pursuant to the Plan, the ESID, among other services, shall assist property owners,
whether private or public, who own real property within participating political subdivisions to
obtain financing for special energy improvement projects.
E. In order to obtain financing for special energy improvement projects and to create
special assessment revenues available to pay and repay the costs of special energy improvement
projects, the Petition requested that the City Council levy Special Assessments against the Owner's
property as more fully described in the Supplemental Plan.
F. The ESID, the Owner, the Lessee, the Finance Authority, and the City (collectively
the Parties, and each, a Party) each have determined that the most efficient and effective way to
implement the financing, acquisition, construction, equipment, improvement, and installation of
energy special improvement projects and to further the public purposes set forth above is through
this Agreement, pursuant to the Act and on the terms set forth in this Agreement, with (i) the
Finance Authority providing the Project Advance to finance the costs of the special energy
improvement projects described in the Supplemental Plan, (ii) the ESID and the Lessee
cooperating to acquire, construct, equip, improve, and install special energy improvement projects,
(iii) the Owner and the Lessee agreeing to make Special Assessment payments in an aggregate
amount that will provide revenues sufficient to pay or repay the permitted costs of the special
energy improvement projects, (iv) the City agreeing to assign and transfer all Special Assessment
payments actually received by the City to the Finance Authority to repay the Project Advance; and
(v) the ESID agreeing to assign, transfer, and set over to the Finance Authority any of its right,
title, or interest in and to the Special Assessments which it may have by operation of law, this
Agreement, or otherwise; provided that a portion of the Special Assessments may be retained by,
or payable to, the City or the ESID, all pursuant to and in accordance with this Agreement.
G. The Parties each have full right and lawful authority to enter into this Agreement
and to perform and observe its provisions on their respective parts to be performed and observed,
and have determined to enter into this Agreement to set forth their respective rights, duties,
responsibilities, obligations, and contributions with respect to the implementation of special energy
improvement projects within the ESID.
NOW, THEREFORE, in consideration of the promises and the mutual representations,
warranties, covenants, and agreements contained in this Agreement, the Parties agree as follows;
provided, that any obligation of the ESID created by or arising out of this Agreement never shall
constitute a general obligation, bonded indebtedness, or a pledge of the general credit of the ESID,
or give rise to any pecuniary liability of the ESID, but any such obligation shall be payable solely
from the Special Assessments actually received by the ESID, if any; and provided, further, that
any obligation of the City created by or arising out of this Agreement never shall constitute a
general obligation, bonded indebtedness, or a pledge of the general credit of the City, or give rise
to any pecuniary liability of the City, but any such obligation shall be payable solely from the
Special Assessments actually received by the City, if any:
ARTICLE L DEFINITIONS
Section 1.1. Use of Defined Terms. In addition to the words and terms defined
elsewhere in this Agreement or by reference to another document, words and terms used in this
Agreement shall have the meanings set forth in Exhibit A to this Agreement unless the context or
use clearly indicates another meaning or intent. Definitions shall apply equally to both the singular
and plural forms of any of the words and terms. Words of any gender include the correlative words
of the other gender, unless the sense indicates otherwise.
Section 1.2. Interpretation. Any reference in this Agreement to the ESID, the ESID
Board, the Owner, the Lessee, the City, the City Council, the Finance Authority, or the Board of
Directors of the Finance Authority, or to any member or officer of any of the foregoing, includes
2
entities or officials succeeding to their respective 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 the Act, or to a
section, provision or chapter of the Ohio Revised Code or any other legislation or to any statute of
the United States of America, includes that section, provision, or chapter as amended, modified,
revised, supplemented, or superseded from time to time; provided, however, that no amendment,
modification, revision, supplement, or superseding section, provision, or chapter shall be
applicable solely by reason of this provision if it constitutes in any way an impairment of the rights
or obligations of the Parties under this Agreement.
Section 1.3. 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 or intent of
any of this Agreement's Articles, Sections, subsections, paragraphs, subparagraphs or clauses.
ARTICLE II: COOPERATIVE ARRANGEMENTS; ASSIGNMENT OF SPECIAL
ASSESSMENTS
Section 2.1. Agreement Between the City, the ESID, and the Finance Authority. The
Owner, the Lessee and the ESID have requested the assistance of the Finance Authority and the
City in the financing of special energy improvement projects within the ESID. For the reasons set
forth in this Agreement's Recitals which Recitals are incorporated into this Agreement by this
reference as a statement of the public purposes of this Agreement and the intended arrangements
among the Parties the City and the ESID have requested the assistance and cooperation of the
Finance Authority in the collection and payment of Special Assessments in accordance with this
Agreement. The Parties intend this Agreement to be, and it shall be, an agreement among the
Parties to cooperate in the financing, acquisition, construction, equipping, improvement, and
installation of "special energy improvement projects," pursuant to Ohio Revised Code Chapter
1710, and as that term is defined in Ohio Revised Code Section 1710.01(1). The Parties intend this
Agreement's provisions to be, and they shall be construed as, agreements to take effective
cooperative action and to safeguard the Parties' interests.
Upon the considerations stated above and upon and subject to the terms and conditions of
this Agreement, the Finance Authority, on behalf of the Parties, shall make the Project Advance
available to the Lessee to pay the costs of the Project. The City and the ESID shall assign, transfer,
set over, and pay the Special Assessments actually received by the City or the ESID, respectively,
to the Finance Authority, to pay the costs of the Project at the times and in the manner provided in
this Agreement; provided, however, that the City, the ESID, and the Finance Authority intend that
the City shall receive all Special Assessments from the County Treasurer and shall transfer, set
over, and pay all Special Assessments received from the County Treasurer directly to the Finance
Authority. The City, the ESID, and the Finance Authority further intend and agree that the Finance
Authority shall pay to the ESID, out of the Special Assessments received by the Finance Authority,
a semi-annual fee of $60.94 for the ESID's administrative expenses; provided, however, that if the
amount of Special Assessments received by the Finance Authority in any year are insufficient to
pay the principal of, and interest on the Project Advance due in that year and the semi-annual fee
of $60.94 due to the ESID, the Special Assessments received shall first be applied to the payment
3
of interest on the Project Advance, then to the repayment of the principal of the Project Advance,
and then to the payment of the semi-annual fee due to the ESID.
Notwithstanding anything in this Agreement to the contrary, any obligations of the City
under this Agreement, including the obligation to transfer the Special Assessments received by the
City to the Finance Authority, shall be a special obligation of the City and shall be required to be
made only from Special Assessments actually received by or on behalf of the City, if any. The
City's obligations under this Agreement are not and shall not be secured by an obligation or pledge
of any moneys raised by taxation. The City's obligations under this Agreement do not and shall
not represent or constitute a debt or pledge of the City's faith and credit or taxing power, and the
ESID, the Owner, the Lessee, and the Finance Authority do not have and shall not have any right
to have taxes levied by the City for the transfer of the Special Assessments.
Section 2.2. Special Assessments: Citv Transfer of Special Assessments.
(a) The Special Assessment Proceedings. The City has duly enacted the Special
Assessment Proceedings.
Pursuant to Ohio Revised Code Section 727.33, the City has certified the Special
Assessments to the County Auditor for collection, and the Parties agree that the
County Auditor shall collect the unpaid Special Assessments with and in the same
manner as other real property taxes and pay the amount collected to the City. The
Parties intend that the County Auditor and the County Treasurer shall have the duty
to collect the Special Assessments through enforcement proceedings in accordance
with applicable law.
(b) Collection of Delinquent Special Assessments. Subject to the City having received
written notice of any Special Assessment delinquency, the ESID and the Finance
Authority are hereby authorized to take any and all actions as assignees of and, to
the extent required by law, in the name of, for, and on behalf of, the City to collect
delinquent Special Assessments levied by the City pursuant to the Special
Assessment Act and the Special Assessment Proceedings and to cause the lien
securing the delinquent Special Assessments to be enforced through prompt and
timely foreclosure proceedings, including, but not necessarily limited to, filing and
prosecution of mandamus or other appropriate proceedings to induce the County
Prosecutor, the County Auditor, and the County Treasurer, as necessary, to institute
such prompt and timely foreclosure proceedings. The proceeds of the enforcement
of any such lien shall be deposited and used in accordance with this Agreement.
(c) Prepayment of Special Assessments. The Parties agree that the Special
Assessments assessed against the Property and payable to the City pursuant to the
Special Assessment Act and the Special Assessment Proceedings may be prepaid
to the Finance Authority by the Owner or the Lessee in accordance with Section
4.7 of this Agreement. Except as set forth in this Section 2.2(c) and Section 4.7 of
this Agreement, the Owner or the Lessee shall not prepay any Special Assessments.
Notwithstanding the foregoing, if the Owner or the Lessee attempts to cause a
prepayment of the Special Assessments by paying to the County Treasurer any
4
amount as afull or partial prepayment of Special Assessments, and if the City shall
have knowledge of the same, the City immediately shall notify the Finance
Authority, and, unless provided the express written consent of the Finance
Authority, the City shall not cause any reduction in the amount of Special
Assessments. Except as specifically provided in this Agreement to the contrary, no
other action pursuant to any provision of this Agreement shall abate in any way the
payment of the Special Assessments by the owners or lessees of property or the
transfer of the Special Assessments by the City to the Finance Authority.
(d) Reduction of Special Assessments. The Parties agree that the Special Assessments
may be subject to reduction, but only upon the express written consent or
instruction of the Finance Authority. If the Owner or the Lessee causes the Special
Assessments to be prepaid in accordance with Sections 2.2(c) and 4.7 of this
Agreement, the Finance Authority shall revise the Special Assessments to be
collected such that, following such reduction, the amount of Special Assessments
remaining to be paid shall be equal to the amounts necessary to pay, as and when
due, the remaining outstanding principal of the Project Advance, together with
interest at the annual rate of 5.75%, a $60.94 semi-annual administrative fee to the
ESID, and a County Auditor collection fee on each annual installment of the Special
Assessments in an amount to be calculated, charged, and collected by the County
Auditor pursuant to Ohio Revised Code Section 727.36, which fee is in addition to
the amount of the Special Assessments and other related interest, fees, and
penalties. Upon the City's receipt of the Finance Authority's express written
consent or instruction, the City shall certify to the County Auditor, prior to the last
date in the then -current tax year on which municipal corporations may certify
special assessments to the County Auditor, a reduction in the amount of Special
Assessments to be collected. The Parties agree that the Finance Authority may
certify any reduction required by this Section 2.2(d) to the County Auditor directly
after requesting and receiving the City's consent to certify the reduction on the
City's behalf. Notwithstanding anything in this Agreement to the contrary, the City
shall not cause any reduction in the amount of Special Assessments without the
prior written consent or instruction of the Finance Authority.
(e) Assignment of Special Assessments. The City agrees that it shall establish its funds
for the collection of the Special Assessments as separate funds maintained on the
City's books and records and to be held in the custody of a bank with which the
City maintains a depository relationship. The City hereby assigns to the Finance
Authority all of its right, title and interest in and to: (i) the Special Assessments and
any Delinquency Amounts received by the City under this Agreement, and (ii) the
City's special assessment funds established for the Project; provided, however,
such assignment shall not relate to, and the Finance Authority shall have no right,
title or interest in any interest earnings which may accrue to the City in respect of
the Special Assessments and any Delinquency Amounts while those Special
Assessments and any Delinquency Amounts are in the City's custody. The City
further shall transfer, set over, and pay the Special Assessments and any
Delinquency Amounts to the Finance Authority in accordance with this Agreement.
The ESID acknowledges and consents to the City's assignment of the Special
5
Assessments to the Finance Authority. The Parties agree that each of the City, the
ESID, and the Finance Authority, as assignee of the Special Assessments and any
Delinquency Amounts, is authorized to take any and all actions, whether at law, or
in equity, to collect delinquent Special Assessments, levied by the City pursuant to
law and to cause the lien securing any delinquent Special Assessments to be
enforced through prompt and timely foreclosure proceedings, including, but not
necessarily limited to, filing and prosecution of mandamus or other appropriate
proceedings to induce the County Prosecutor, the County Auditor, and the County
Treasurer, as necessary, to institute such prompt and timely foreclosure
proceedings. All Parties agree to provide notice to the other Parties within a
reasonable period of time following any actions filed to enforce the lien securing
any delinquent Special Assessments if such notice is not provided through such
action.
(f) Transfer of Special Assessments. The parties anticipate that semi-annual
installments of the Special Assessments and any Delinquency Amounts will be paid
to the City by the County Auditor and the County Treasurer in accordance with
Ohio Revised Code Chapters 319, 321, 323, and 727, which, without limiting the
generality of the foregoing, contemplates that the County Auditor and County
Treasurer will pay the Special Assessments and any Delinquency Amounts to the
City on or before May 1 and November 1 of each year. Immediately upon receipt
of any moneys received by the City as Special Assessments and any Delinquency
Amounts, but in any event not later than thirty (30) calendar days after the receipt
of such moneys and the corresponding final settlement from the County Auditor,
the City shall deliver to the Finance Authority all such moneys received by the City
as Special Assessments and any Delinquency Amounts. The Finance Authority
may from time to time provide written payment instructions to the City for payment
of Special Assessments and any Delinquency Amounts to the Finance Authority or
its trustee or other designee by check, wire instructions, or other means. If at any
time during the term of this Agreement the County Auditor agrees, on behalf of the
City, to disburse the Special Assessments and any Delinquency Amounts directly
to the Finance Authority or its trustee or other designee pursuant to instructions or
procedures agreed upon by the County Auditor and the Finance Authority, then,
upon each transfer of an installment of the Special Assessments and any
Delinquency Amounts from the County Auditor to the Finance Authority or its
trustee or other designee, the City shall be deemed to have satisfied all of its
obligations under this Agreement to transfer that installment of the Special
Assessments or any Delinquency Amounts to the Finance Authority.
(g) Repayment of Project Advance. The Finance Authority shall credit, on the dates
shown on the Repayment Schedule (which is attached to and incorporated into this
Agreement as Exhibit B), Special Assessments in the amounts shown on the
Repayment Schedule to the payment of accrued interest on the Project Advance
and to the repayment of the portion of the principal of the Project Advance
scheduled to be repaid on such date. The Finance Authority, on the dates shown
on the Repayment Schedule, further shall pay to the ESID, after the payment of
accrued interest on the Project Advance and the repayment of the portion of
6
principal of the Project Advance scheduled to be repaid on such date, a semi-annual
fee of $60.94 or such lesser amount as may be available from the Special
Assessments on the applicable date after the payment of accrued interest on the
Project Advance and the repayment of the portion of the principal of the Project
Advance scheduled to be repaid on such date. The Parties acknowledge and agree
that the County Auditor may calculate, charge, and collect a fee on each annual
installment of the Special Assessments pursuant to Ohio Revised Code Section
727.36, which fee is in addition to the amount of the Special Assessments and other
related interest, fees, and penalties, and that such fee shall be paid to the County
Auditor with the Special Assessments, and that the County Auditor will retain such
fee.
Section 2.3. Obligations Unconditional; Place of Pavments. The City's obligation to
transfer the Special Assessments and any Delinquency Amounts to the Finance Authority under
Section 2.2 of this Agreement shall be absolute and unconditional, and the City shall make such
transfers without abatement, diminution, or deduction regardless of any cause or circumstance
whatsoever, including, without limitation, any defense, set-off, recoupment, or counterclaim which
the City may have or assert against the Finance Authority, the ESID, the Owner or the Lessee;
provided, however, that the City's obligation to transfer the Special Assessments and any
Delinquency Amounts is limited to the Special Assessments and any Delinquency Amounts
actually received by or on behalf of the City, and nothing in this Agreement shall be construed to
obligate the City to transfer or pledge, and the City shall not transfer or pledge any special
assessments not related to the ESID.
Section 2.4. Appropriation by the City; No Further Obligations. Upon the Parties'
execution of this Agreement, all of the Special Assessments received or to be received by the City
shall be deemed to have been appropriated to pay the City's obligation under this Agreement to
pay to the Finance Authority all Special Assessments received by the City. During the years in
which this Agreement is in effect, the City shall take such further actions as may be necessary or
desirable in order to appropriate the transfer of the Special Assessments actually received by the
City in such amounts and at such times as will be sufficient to enable the City to satisfy its
obligation under this Agreement to pay to the Finance Authority all Special Assessments received
by the City; provided that the City shall not be responsible for the costs and expenses of any
collection or enforcement actions, except to the extent of any Special Assessments actually
received by the City; and provided further that nothing in this paragraph shall be construed as a
waiver of the City's right to be indemnified pursuant to Section 6.4 of this Agreement or pursuant
to the Special Assessment Agreement. The City shall have no obligation, legally, morally or
otherwise, to use or apply to the payment of the Special Assessments any funds or revenues from
any source other than the moneys received by the City as Special Assessments.
Section 2.5. Securitv for Advanced Funds. To secure the transfer of the Special
Assessments by the City to the Finance Authority, and in accordance with the Special Assessment
Act and the Special Assessment Proceedings, the ESID hereby assigns, transfers, sets over, and
shall pay all of its right, title, and interest in and to the Special Assessments related to the ESID
actually received by or on behalf of the City to the Finance Authority. The Owner, the Lessee, and
the City agree and consent to that assignment.
7
ARTICLE III: REPRESENTATIONS, WARRANTIES, AND AGREEMENTS
Section 3.1. The City's Representations and Warranties. The City represents and
warrants that:
(a) It is a municipal corporation, duly organized, and validly existing under the
Constitution and applicable laws of the State.
(b) 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 City's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the City and does not and will
not conflict with or result in a default under any agreement or instrument to which
the City is a party or by which it is bound.
(c) It, by proper action, has duly authorized, executed, and delivered this Agreement,
and the City has taken all steps necessary to establish this Agreement and the City's
covenants and agreements within this Agreement, as valid and binding obligations
of the City, enforceable in accordance with their terms.
(d) To its knowledge, there is no litigation pending or threatened against or by the City
in which an unfavorable ruling or decision would materially adversely affect the
City's ability to carry out its obligations under this Agreement.
(e) The assignment contained in Section 2.2(e) is a valid and binding obligation of the
City with respect to the Special Assessments received by the City under this
Agreement.
Section 3.2. The ESID's Representations and Warranties. The ESID represents and
warrants that:
(a) It is a nonprofit corporation and special improvement district, duly organized, and
validly existing under the Constitution and applicable laws of the State.
(b) It is not in violation of or in conflict with any provisions of the laws of the State or
of the United States of America applicable to the ESID that 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 ESID's
knowledge, that execution, delivery and performance does not and will not violate
or conflict with any provision of law applicable to the ESID and does not and will
not conflict with or result in a default under any agreement or instrument to which
the ESID is a party or by which it is bound.
(d) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and the ESID has taken and all steps necessary to establish this Agreement and the
ESID's covenants and agreements within this Agreement as valid and binding
obligations of the ESID, enforceable in accordance with their terms.
(e) There is no litigation pending, or to its knowledge threatened, against or by the
ESID in which an unfavorable ruling or decision would materially adversely affect
the ESID's ability to carry out its obligations under this Agreement.
(f) The assignment contained in Section 2.5 is a valid and binding obligation of the
ESID with respect to the ESID's right, title and interest in the Special Assessments
under this Agreement.
Section 3.3. The Lessee's Representations and Warranties. The Lessee represents and
warrants that:
(a) It is a corporation duly organized, validly existing and in full force and effect under
the laws of the State of Ohio. It has all requisite power to conduct its business as
presently conducted and to own, or hold under lease, its assets and properties, and,
is duly qualified to do business in all other jurisdictions in which it is required to
be qualified, except where failure to be so qualified does not have amaterial adverse
effect on it, and will remain so qualified and in full force and effect during the
period during which Special Assessments shall be assessed, due, and payable.
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Lessee shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) Except for any financing of the Property and the lien related thereto that the Lessee
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
9
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(f) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(g) Since the date of the most recent financial statements of the Lessee provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Lessee, nor has the Lessee mortgaged, pledged or granted a security
interest in or encumbered its interest in the Property since such date, except as
otherwise disclosed to the Finance Authority in writing, and the financial
statements which have been delivered to the Finance Authority prior to the date of
this Agreement are true, correct, and current in all material respects and fairly
represent the respective financial conditions of the subjects of the financial
statements as of the respective dates of the financial statements.
(h) The Lessee has good and marketable leasehold interest in the Property, subject only
to existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Lessee to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(i) The Project complies in all material respects with all applicable zoning, planning,
building, environmental and other regulations of each Governmental Authority
having jurisdiction of the Project, and all necessary permits, licenses, consents and
permissions necessary for the Project have been or will be obtained.
(j) The plans and specifications for the Project are satisfactory to the Lessee, have been
reviewed and approved by the general contractor for the Project, the tenants under
any leases which require approval of the plans and specifications, the purchasers
under any sales contracts which require approval of the plans and specifications,
any architects for the Project, and, to the extent required by applicable law or any
effective restrictive covenant, by all Governmental Authorities and the
beneficiaries of any such covenants; all construction of the Project, if any, already
performed on the Property has been performed on the Property in accordance with
such approved plans and specifications and the restrictive covenants applicable to
the plans and specifications; there are no structural defects in the Project or
violations of any requirement of any Governmental Authorities with respect to the
Project; the planned use of the Project complies with applicable zoning ordinances,
regulations, and restrictive covenants affecting the Property as well as all
environmental, ecological, landmark and other applicable laws and regulations; and
all requirements for such use have been satisfied.
10
(k) The Lessee has or has caused the Owner to have the Required Insurance Coverage
and will maintain or will cause the Owner to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) Each Disbursement Request Form presented to the Finance Authority by the
Lessee, and the receipt of the funds requested by the Disbursement Request Form,
shall constitute an affirmation that the representations and warranties contained in
this Agreement remain true and correct as of the date of the Disbursement Request
Form and the receipt of the funds requested by the Disbursement Request Form.
(m) Each of the Property and the Project are, and at all times during the term of this
Agreement, while any principal of or interest on the Project Advance remain
outstanding, and while any Special Assessments remain to be paid, used solely for
the commercial purposes disclosed by the Lessee to the Finance Authority in
writing.
(n) The Project and the plans and specifications for the Project have been developed
pursuant to an energy audit prepared by P1ugSmart which energy audit
demonstrates that the Project is expected to generate $6,426.00 in annual utility
savings and $3,993.00 in annual O & M savings.
(o) Each of the components of the Project is a qualified "special energy improvement
project" pursuant to the definition of that term in Ohio Revised Code Section
1710.01(I).
(p) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Lessee shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(q) The Lessee 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 Lessee that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(r) The Lessee is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Lessee's liabilities
11
exceeds the value of the Lessee's assets or that the Lessee is generally unable to
pay its debts as and when due.
(s) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(t) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Lessee
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.4. The Lessee's Additional Agreements. The Lessee agrees that:
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Lessee shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent.
(b) To the extent obligated to do so, it shall pay when due all taxes, assessments, service
payments in lieu of taxes, levies, claims and charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with respect to the
Property, all utility and other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Property and all assessments and charges lawfully
made by any governmental body for public improvements that may be secured by
a lien on any portion of the Property. The Lessee shall furnish the Finance
Authority, upon reasonable request, with proof of payment of any taxes,
governmental charges, utility charges, insurance premiums or other charges
required to be paid by the Lessee under this Agreement. The Parties acknowledge
and agree that the foregoing obligation is in addition to the Lessee's obligation to
pay the Special Assessment.
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(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.5. The Owner's Representations and Warranties. The Owner represents and
warrants that:
(a) It is a limited liability company duly organized, validly existing and in full force
and effect under the laws of the State of Delaware. It has all requisite power to
conduct its business as presently conducted and to own, or hold under lease, its
assets and properties, and, is duly qualified to do business in all other jurisdictions
in which it is required to be qualified, except where failure to be so qualified does
not have a material adverse effect on it, and will remain so qualified and in full
force and effect during the period during which Special Assessments shall be
assessed, due, and payable.
13
(b) It, by proper action, duly has authorized, executed, and delivered this Agreement,
and it has taken all steps necessary to establish this Agreement and its covenants
and agreements within this Agreement as valid and binding obligations,
enforceable in accordance with their terms.
(c) There are no actions, suits or proceedings pending or, to its knowledge, threatened
against or affecting it, the Property, or the Project that, if adversely determined,
would individually or in the aggregate materially impair its ability to perform any
of its obligations under this Agreement, or materially adversely affect its financial
condition (an Action), and during the term of this Agreement, the Owner shall
promptly notify the Finance Authority of any Action commenced or to its
knowledge threatened against it.
(d) It is not in default under this Agreement, and no condition, the continuance in
existence of which would constitute a default under this Agreement exists. It is not
in default in the payment of any Special Assessments or under any agreement or
instrument related to the Special Assessments which has not been waived or
allowed.
(e) The Owner has good and marketable interest in the Property, subject only to
existing liens, pledges, encumbrances, charges or other restrictions of record
previously disclosed by the Owner to the Finance Authority in writing, liens for
taxes not yet due and payable, and minor liens of an immaterial nature.
(f) Except for any financing of the Property and the lien related thereto that the Owner
has previously disclosed in writing, it has made no contract or arrangement of any
kind, other than this Agreement, which has given rise to, or the performance of
which by the other party thereto would give rise to, a lien or claim of lien on the
Project, except inchoate statutory liens in favor of suppliers, contractors, architects,
subcontractors, laborers or materialmen performing work or services or supplying
materials in connection with the acquiring, constructing, equipping, installing, and
improving of the Project.
(g) No representation or warranty made by it contained in this Agreement, and no
statement contained in any certificate, schedule, list, financial statement or other
instrument furnished to the Finance Authority or the ESID by it or on its behalf
contained, as of the date thereof, any untrue statement of a material fact, or omits
to state a material fact necessary to make the statements contained herein or therein
not misleading.
(h) Since the date of the most recent financial statements of the Owner provided to the
Finance Authority, there has been no material adverse change in the financial
condition of the Owner, nor has the Owner mortgaged, pledged or granted a security
interest in or encumbered the Property since such date, except as otherwise
disclosed to the Finance Authority in writing, and the financial statements which
have been delivered to the Finance Authority prior to the date of this Agreement
are true, correct, and current in all material respects and fairly represent the
14
respective financial conditions of the subjects of the financial statements as of the
respective dates of the financial statements.
(i) At all times during the term of this Agreement, while any principal of or interest on
the Project Advance remains outstanding, and while any Special Assessments
remain to be paid, the Owner shall comply in all respects with the Special
Assessment Act and the Special Assessment Proceedings and shall take any and all
action necessary to remain in compliance with the Special Assessment Act and the
Special Assessment Proceedings.
(j) The Owner 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 Owner that would
impair its ability to carry out its obligations contained in this Agreement and the
Special Assessment Agreement.
(k) The Owner has or has caused the Lessee to have the Required Insurance Coverage
and will maintain or will cause the Lessee to maintain the Required Insurance
Coverage at all times during the term of this Agreement, while any principal of or
interest on the Project Advance remains outstanding, and while any Special
Assessments remain to be paid. Any return of insurance premium or dividends
based upon the Required Insurance Coverage shall be due and payable solely to the
Owner, the Lessee, or the Owner's Lender, as appropriate, pursuant to any
agreements between the Owner and its Lender, unless such premium shall have
been paid by the Finance Authority, in accordance with the distribution priority
specified in Section 4.3.
(1) The Owner is not insolvent and shall not be rendered insolvent by the
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement, "insolvent" shall mean that the value of the Owner's liabilities
exceeds the value of the Owner's assets or that the Owner is generally unable to
pay its debts as and when due.
(m) There is no condemnation or eminent domain proceedings pending or to its
knowledge threatened against all or any portion of the Property or otherwise
affecting or relating to the Project.
(n) No fraud, error, omission, misrepresentation, negligence, or similar occurrence
with respect to the Property or the Project has taken place on the part of the Owner
or any other person or entity, including, without limitation, any appraiser, title
company, closing or settlement agent, realtor, builder, or developer or any other
party involved in the Property or Project that would materially impair the rights of
the Finance Authority in the Property or Project or that would violate applicable
law.
Section 3.6. The Owner's Additional Agreements. The Owner agrees that:
15
(a) It shall not transfer or convey any right, title, or interest, in or to the Property and
the Project, except after giving prompt notice of any such transfer or conveyance
to the Finance Authority; provided, however, that the foregoing restrictions shall
not apply to the grant or conveyance of any leasehold interests, mortgage interest,
or lien interest, except as may be otherwise provided in this Agreement. Before or
simultaneous with any such transfer or conveyance, the Owner shall (i) execute,
cause the transferee or purchaser to execute, and deliver to the Finance Authority,
the City, and the ESID a fully executed "Assignment and Assumption of Energy
Project Cooperative Agreement" in the form attached to and incorporated into this
Agreement as Exhibit G; and (ii) execute, cause the transferee or purchaser to
execute, and deliver to the Finance Authority, an assignment of all construction
contracts related to the Project. The Parties acknowledge and agree that the
Assignment and Assumption of Energy Project Cooperative Agreement includes
the assignment and assumption of the Special Assessment Agreement and the
Owner Consent.
(b) It shall pay when due all taxes, assessments, service payments in lieu of taxes,
levies, claims and charges of any kind whatsoever that may at any time be lawfully
assessed or levied against or with respect to the Property, all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Property and all assessments and charges lawfully made by any governmental body
for public improvements that may be secured by a lien on any portion of the
Property. The Owner shall furnish the Finance Authority, upon reasonable request,
with proof of payment of any taxes, governmental charges, utility charges,
insurance premiums or other charges required to be paid by the Owner under this
Agreement. The Parties acknowledge and agree that the foregoing obligation is in
addition to the Owner's obligation to pay the Special Assessment.
(c) It shall not, without the prior written consent of the Finance Authority, cause or
agree to the imposition of any special assessments, other than the Special
Assessments, on the Property for the purpose of paying the costs of "special energy
improvement projects," as that term is defined in Ohio Revised Code Section
1710.0 1(1), as amended and in effect at the time.
(d) It shall promptly pay and discharge all claims for labor performed and material and
services furnished in connection with the acquisition, construction, equipping,
installation, and improvement of the Project.
(e) It promptly shall notify the Finance Authority of any material damage or
destruction to the Project.
(f) Upon the reasonable request of the Finance Authority, it shall take any actions and
execute any further certificates, instruments, agreements, or documents as shall be
reasonably necessary in connection with the performance of this Agreement and
with the transactions, obligations, and undertakings contained in this Agreement.
16
(g) It does not and will not engage in operations that involve the generation,
manufacture, refining, transportation, treatment, storage or handling of hazardous
materials or hazardous wastes, as defined in applicable state law, or any other
federal, state or local environmental laws or regulations, and neither the Property
nor any other of its premises has been so used previously, in each case, except as
previously disclosed in writing to the Finance Authority. There are no underground
storage tanks located on the Property. There is no past or present non-compliance
with environmental laws, or with permits issued pursuant thereto, in connection
with the Property, which has not been fully remediated in accordance with
environmental laws. There is no environmental remediation required (or
anticipated to be required) with respect to the Property. The Lessee does not know
of, and has not received, any written or oral notice or other communication from
any person (including but not limited to a governmental entity) relating to
hazardous substances or remediation of hazardous substances, of possible liability
of any person pursuant to any environmental law, other environmental conditions
in connection with the Property, or any actual or potential administrative or judicial
proceedings in connection with the foregoing.
Section 3.7. Federal Law Requirements. The ESID and the Lessee acknowledge and
agree that pursuant to the Additional Reserve Agreement (the Additional Reserve Agreement)
between the Finance Authority and the Director of Development Services of the State of Ohio
(DSA), DSA has provided additional reserves (the Additional Reserves) for the Project Advance.
The ESID and the Lessee further acknowledge and agree that the Additional Reserves constitute
federal funds provided under an award to DSA from the U.S. Department of Energy under the
Catalog of Federal Domestic Assistance Number 81.041, and that the Finance Authority is
authorized under Title 10 of the Code of Federal Regulations Part 420 to use the Additional
Reserves as loan loss reserves under such terms and conditions as DSA may determine. The ESID
and the Lessee further acknowledge and agree that the Additional Reserve Agreement sets such
terms and conditions, and that this Agreement is to be interpreted consistent with such Additional
Reserve Agreement, provided that the Additional Reserve Agreement shall control in the case of
any conflict with this Agreement.
In accordance with Article 2, Section D of the Additional Reserve Agreement, the Lessee
shall provide to the ESID and the Finance Authority, when and as requested by the ESID and the
Finance Authority, any and all information the ESID and the Finance Authority shall determine is
necessary to complete reporting required by (i) the State Energy Program (SEP) of the American
Recovery and Reinvestment Act of 2009 (the ARRA) and (ii) the Additional Reserve Agreement.
Without limiting the generality of the preceding sentence, Lessee hereby agrees to provide the
following information:
(a) During the installation of the Project, monthly financial information and progress
reports, which shall cover expenditures, goals accomplished, milestones met, and
any performance deficiencies or delays during the immediately preceding month;
(b) Following the completion of the installation of the Project, a project completion
report, containing a written notification that the Project has been completed,
documentation reflecting the Lessee's closeout inventory of real and personal
17
property partially or wholly acquired by the Project Advance and a statement of
economic impact, including job creation and retention data;
(c) During and following the completion of the installation of the Project, for all years
during which any principal or interest is outstanding on the Project Advance,
annual, cumulative, to -date values on the following metrics: (1) verification of SEP -
ARRA reporting, (2) annual energy consumption from the completed Project, and
(3) any other information that may be requested by DSA; and
(d) During and following the completion of the installation of the Project, information
related to the economic impacts of the Project, including, without limitation,
increased production, competitiveness, community impact, and job creation and
retention, which includes installation hours, new jobs directly created, and jobs
retained at the site.
The Lessee shall preserve all financial and accounting records pertaining to this Agreement
during this Agreement's term, and for any further period that may be required by the Internal
Revenue Code of 1986, as amended. During such retention period, DSA or the Finance Authority,
upon reasonable notice, shall have the right to audit the records to the extent authorized and
permitted by law. The Lessee may retain all records in original or electronic form, provided that
for electronic records, an off-site duplicate record is preserved.
During the term of this Agreement, the Lessee shall comply with all applicable provisions
of the SEP -ARRA and the attendant federal regulations, including, without limitation ARRA
Section 1605 (Buy American / Federal Acquisition Regulations, or FAR) Clauses 52.225-21,
52.225-22, and 52.225-24; ARRA Section 1512 (Reporting Requirements), including FAR Clause
52.204-11; ARRA Section 1553 (Whistleblower Protection), including FAR Clause 52.203-15;
and ARRA Sections 902, 1514, and 1515 (General Accountability Office and Inspector General
Audits and Access to Records), including FAR Clauses 52.212-5, 52.214-26, and 52.215-2. A
summary of such provisions are attached to this Agreement as Exhibit H.
ARTICLE IV: PROJECT ADVANCE; CONSTRUCTION OF PROJECT; REPAYMENT
Section 4.1. Project Advance. The Finance Authority has made available to the Lessee
the Project Advance in the amount of $169,873.50. The Finance Authority shall hold the Project
Advance in a segregated account established in the custody of the Finance Authority, which
account shall be referred to as the Project Account. Subject to the terms and conditions of this
Agreement, the Finance Authority, upon the direction of the Lessee, shall disburse amounts on
deposit in the Project Account to the Lessee or to such parties as may be named by the Lessee in
order to pay the costs of the Project.
If the Project Advance is insufficient to pay the costs of the Project pursuant to this
Agreement, the Lessee, nevertheless, shall complete the acquisition, construction, equipping,
installation, and improvement of the Project, and the Lessee shall pay all such additional costs of
the Project from its own funds. The Lessee shall not be entitled to reimbursement for any such
18
additional costs of the Project, nor shall it be entitled to any abatement, diminution, or
postponement of the Special Assessments or an increase in the amount of the Special Assessments.
Section 4.2. Disbursements. In order to cause disbursement of amounts on deposit in
the Project Account to pay or reimburse the costs of the Project, the Lessee shall submit to the
Finance Authority Disbursement Request Forms (a form of which is attached to this Agreement
as Exhibit C), which Disbursement Request Forms each shall, in part, setforththe reimbursements
or payments requested. The Finance Authority shall make disbursement only for cost of the Project
incurred prior to the date of the Disbursement Request Form. Costs of the Project cannot be pre -
funded. In addition, the following are conditions to disbursement of amounts on deposit in the
Project Account:
(a) With each Disbursement Request Form:
(i) The Lessee shall deliver to the Finance Authority a notarized AIA
Application for Payment Form (G702);
(ii) The Lessee shall deliver to the Finance Authority a notarized AIA
Continuation Sheet (G703) with a budget for the Project, including a
balance for each budget item, and how the disbursement being requested
will be applied across the entire budget for the Project;
(iii) The Lessee shall deliver to the Finance Authority copies of all related
receipts and invoices;
(iv) The Lessee shall deliver to the Finance Authority, as necessary, information
detailing any other sources of funds spent to pay any portion of the costs
shown on any related receipts and invoices such that all costs shown on
related receipts and invoices, including costs not eligible to be paid from the
Project Advance, shall be accounted for either as costs being paid by a
disbursement of a portion of the Project Advance or costs being paid by
other sources;
(v) The Lessee shall deliver to the Finance Authority evidence of insurance
coverage of all contractors and sub -contractors performing work at the
Property with respect to the disbursement being requested;
(vi) The Lessee shall deliver to the Finance Authority notarized partial lien
waivers for the disbursement being requested;
(vii) The Lessee shall deliver to the Finance Authority, as necessary, direction as
to whom each amount requested shall be paid and bank information for
wiring the amounts requested for disbursement.
(b) With the first Disbursement Request Form submitted, in addition to the documents
required under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority copies of all construction
permits required for the construction of the Project;
(ii) The Lessee shall deliver to the Finance Authority copies of all agreements
with all contractors and subcontractors performing work or furnishing
materials for the Project;
19
(iii) The Lessee shall deliver to the Finance Authority a construction schedule
completed by the general contractor for the Project, which includes an
anticipated date of completion of the Project; and
(iv) The Lessee shall deliver to the Finance Authority copies of all current
policies of the Required Insurance Coverage;
(v) The construction plans and specifications shall have been approved in all
respects by the Finance Authority in its sole discretion;
(vi) The Lessee shall deliver to the Finance Authority the written consent of its
existing mortgage lender to the levying, assessment, and collection of the
Special Assessments, in the form attached to this Agreement as Exhibit F;
(vii) The Finance Authority shall receive the executed Special Assessment
Agreement and Lessee and Owner Consent and evidence that the same has
been recorded in the records of the County Recorder with respect to the
Property;
(viii) The Owner, the Lessee and the ESID shall provide to the Finance Authority
original executed copies of this Agreement and any related certificates.
(c) With the final Disbursement Request Form, in addition to the documents required
under Section 4.2(a):
(i) The Lessee shall deliver to the Finance Authority the executed certificate in
the form attached as Exhibit D to this Agreement; and
(ii) The Lessee shall deliver to the Finance Authority copies of all completion
inspections and closed permits with respect to the Project.
Upon its receipt of each completed Disbursement Request Form, the Finance Authority
shall approve all or a portion of the payment or reimbursements requested to be disbursed from
the Project Account. To the extent the Finance Authority approves the payment or reimbursements
requested to be disbursed from the Project Account, the Finance Authority shall pay the Lessee or
such other parties as are indicated on the Disbursement Request Form the amounts described on
such Disbursement Request Form which have been approved by the Finance Authority.
Additionally, the Finance Authority shall disburse closing costs related to the financing
described in this Agreement in an amount not to exceed $20,872.50, as detailed in Exhibit E to
this Agreement to the parties set forth on Exhibit E to this Agreement. Without limiting the
generality of the foregoing, disbursements made pursuant to this paragraph may be for fees to the
Finance Authority, fees to the ESID, legal fees, advisory fees, fees to the City, and other closing
costs or contingencies.
Section 4.3. Casualties and Takings. The Owner and the Lessee shall promptly notify
the Finance Authority if the Project is damaged or destroyed by fire, casualty, injury or any other
cause (each such occurrence, a Casualty). Upon the occurrence of such Casualty, the Owner's
Lender, if any, may elect, in its sole discretion and judgment, to restore the Property and the Project
or to terminate the construction of the Project, and in either case, to direct the application of the
insurance proceeds pursuant to the terms of Owner's Lender's agreement with the Owner,
provided that if the insurance proceeds are not used to restore the Property and the Project,
insurance proceeds will be distributed first to Owner's Lender pursuant to its agreements with the
20
Owner, and next to the Finance Authority for repayment of the outstanding balance of the Special
Assessments and any related fees, and any excess proceeds will be paid to the Owner or the Lessee,
as appropriate.
Upon the occurrence of a Casualty, if no Person is a Lender at the time of such Casualty,
the insurance proceeds shall be applied to pay the costs of the restoration of the Project or to the
repayment of the outstanding balance of the Special Assessments, and in which case the Finance
Authority shall remain obligated to make disbursements of up to the total amount of the Project
Advance in accordance with this Agreement.
In the event restoration of the Project or the Property is pursued, the Lessee shall
immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, said insurance proceeds are
insufficient to complete the restoration, the Lessee shall deposit with the Finance Authority such
amounts as are necessary, in the Finance Authority's reasonable judgment, to complete the
restoration in accordance with the plans and specifications.
In the event any part of the Property or the Project shall be taken for public purposes by
condemnation as a result of any action or proceeding in eminent domain, or shall be transferred in
lieu of condemnation to any authority entitled to exercise the power of eminent domain (a Taking),
the Owner's Lender, if any, may elect, in its sole discretion and judgment, not to restore the
Property or the Project or to restore the Property or the Project, and in either case, to direct the
application of the proceeds of the Taking pursuant to the terms of its agreements with the Owner.
If the Lender determines not to restore the Property or the Project and release funds related thereto
to the Owner, the Finance Authority's obligation to make disbursements under this Agreement
shall be terminated. If the Lender determines to restore the Property and the Project, the Lessee
shall immediately proceed with the restoration of the Project in accordance with the plans and
specifications. If, in the Finance Authority's reasonable judgment, the Taking proceeds available
to the Lessee and the Finance Authority are insufficient to complete the restoration, the Lessee
shall deposit with the Finance Authority such amounts as are necessary, in the Finance Authority's
reasonable judgment, to complete the restoration in accordance with the plans and specifications.
In the event that no Person is a Lender at the time of such Taking, the Finance Authority's
obligation to make disbursements under this Agreement shall be terminated unless the Property
and the Project can be replaced and restored in a manner which will enable the Project to be
functionally and economically utilized and occupied as originally intended. If the Property and
the Project can be so restored, the Lessee shall immediately proceed with the restoration of the
Project in accordance with the plans and specifications, and the Finance Authority shall release the
funds for such purpose. If, in the Finance Authority's reasonable judgment, the Taking proceeds
available to the Lessee and the Finance Authority are insufficient to complete the restoration, the
Lessee hall deposit with the Finance Authority such amounts as are necessary, in the Finance
Authority's reasonable judgment, to complete the restoration in accordance with the plans and
specifications.
Section 4.4. Eligible Costs. The costs of the Project which are eligible for payment or
reimbursement pursuant to this Agreement include the following:
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(a) costs incurred directly or indirectly for or in connection with the acquisition,
construction, equipping, installation, and improvement of the Project, including
without limitation, costs incurred in respect of the Project for preliminary planning
and studies; architectural, legal, engineering, surveying, accounting, consulting,
supervisory and other services; labor, services and materials; and recording of
documents and title work;
(b) financial, legal, recording, title, accounting, and printing and engraving fees,
charges and expenses, and all other fees, charges and expenses incurred in
connection with the financing described in this Agreement;
(c) premiums attributable to any surety and payment and performance bonds and
insurance required to be taken out and maintained until the date on which each
Project is final and complete;
(d) taxes, assessments and other governmental charges in respect of the Project that
may become due and payable until the date on which each Project is final and
complete;
(e) costs, including, without limitation, attorney's fees, incurred directly or indirectly
in seeking to enforce any remedy against any contractor or subcontractor in respect
of any actual or claimed default under any contract relating to the Project; and
(f) any other incidental or necessary costs, expenses, fees and charges properly
chargeable to the cost of the acquisition, construction, equipment, installation, and
improvement of the Project.
Section 4.5. Completion of Project: Inspection. The Lessee (a) in accordance with the
approved plans and specifications for the Project, which plans and specifications shall not be
materially revised without the prior written approval of the Finance Authority, which approval
shall not be unreasonably withheld, shall acquire, construct, equip, install, and improve the Project
with Project Advance with all commercially reasonable dispatch, (b) subject to its right to contest
any disputed work, shall pay when due all fees, costs and expenses incurred or payable by the
Lessee in connection with that acquisition, construction, equipment, installation, and improvement
from funds made available therefor in accordance with this Agreement or otherwise, and (c) shall
ask, demand, sue for, levy, recover and receive all those sums of money, debts and other demands
whatsoever which may be due, owing and payable to the Lessee under the terms of any contract,
order, receipt, writing or instruction in connection with the acquisition, construction, equipment,
installation, and improvement of the Project, and shall utilize commercially reasonable efforts to
enforce the provisions of any contract, agreement, obligation, bond or other performance security
with respect thereto. It is understood that the Project is to be owned by the Lessee and any contracts
made by the Lessee with respect to the Project or any work to be done by the Lessee on or with
respect to the Project are made or done by the Lessee on its own behalf and not as agent or
contractor for the ESID.
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During the period of construction, acquisition, equipping, installation, and improvement of
the Project, the ESID and the Finance Authority, and their respective agents, subject to reasonable
security and safety regulations, and upon reasonable prior notice, shall have the right, during
normal business hours, to inspect the Project. The ESID and the Finance Authority and their
respective agents shall utilize commercially reasonable efforts to minimize interference with the
tenants of the Property during any such inspection.
The Finance Authority reserves the right to denythe request for aProject Advance pursuant
to Article IV of this Agreement if such inspection reveals that construction is not proceeding with
reasonable dispatch. If, in the Finance Authority's opinion, after thirty (30) days' written notice to
the Lessee, the construction is not proceeding with reasonable dispatch, the Finance Authority may
(i) request that the Lessee remove and replace the general contractor with a general contractor
acceptable to the Finance Authority, the failure of which by the Lessee shall be a default under
this Agreement, (ii) utilize funds to continue construction of the Project and such funds shall be
considered Project Advances, or (iii) deny any Project Advance until such time as the construction
resumes proceeding with reasonable dispatch.
The Lessee shall notify the ESID, the City, the Owner, and the Finance Authority of the
Completion Date by a certificate in the form attached as Exhibit D to this Agreement, signed by
the Lessee stating: (a) the date on which the acquisition, construction, equipping, installation, and
improvement of the Project was substantially completed by the general contractor for the Project
in accordance with the construction contract, and the Lessee has no unresolved complaints
regarding the work; (b) that the Project has been completed in all material respects in accordance
with the plans and specifications, permits, and budget for the Project approved by the Finance
Authority; (c) that the Lessee has complied, and will continue to comply with all applicable
statutes, regulations, and ordinances in connection with the Property and the construction of the
Project; (d) that the Lessee has a leasehold interest in the Property; (e) that the general contractor
for the project has not offered the Lessee any payment, refund, or any commission in return for
completing Project; and (f) that all funds provided to the Lessee by the Finance Authority for the
Project have been used in accordance with this Agreement. The certificate shall be delivered as
promptly as practicable after the Completion Date.
Section 4.6. Repavment. The Parties acknowledge that pursuant to this Agreement, the
Project Advance is expected to be repaid by the Special Assessments. The Parties agree that the
Special Assessments have been levied and certified to the County Auditor in the amounts
necessary to amortize the Project Advance, together with interest at the annual rate of 5.75%, and
a $60.94 semi-annual administrative fee to the ESID over 20 semi-annual payments to be collected
beginning approximately on January 31, 2021 and continuing through approximately July 31,
2030. The Parties further acknowledge that in addition to the amount of the Special Assessments
and other related interest, fees, and penalties, the County Auditor may charge and collect a County
Auditor collection fee on each annual installment of the Special Assessments in an amount to be
calculated, charged, and collected by the County Auditor pursuant to Ohio Revised Code Section
727.36. Interest shall accrue on the entire amount of the Project Advance from the Effective Date;
provided, however, that a portion of the Project Advance may be used to pay interest accruing and
due and payable on the Project Advance prior to the date on which the first installment of the
Special Assessments is paid to the Finance Authority by the City. The Owner and the Lessee agree
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to pay, as and when due, all Special Assessments with respect to its Property. Notwithstanding
anything in this Section 4.6 or this Agreement to the contrary, the Parties acknowledge and agree
that, pursuant to the laws of the State, the Special Assessments to be collected by the County
Treasurer which as of the relevant date are not yet due and payable never shall be accelerated, and
the lien of the Special Assessments never shall exceed the amount of Special Assessments which,
as of the relevant date, are due and payable but remain unpaid.
Section 4.7. Prepayment. At any time after the Effective Date, the Owner or the Lessee
may prepay any portion of the principal of the Project Advance to the Finance Authority by paying,
in immediately available funds, 103% of the principal amount of the Project Advance to be
prepaid, together with all accrued and unpaid interest on the Project Advance to the date of
prepayment.
Immediately upon any prepayment pursuant to this Section 4.7, the Finance Authority shall
notify the City of the prepayment, and the Lessee, the Finance Authority, and the City shall
cooperate to reduce the amount of Special Assessments to be collected by the County Auditor
pursuant to Section 2.2(d) of this Agreement.
Section 4.8. Payment of Fees and Expenses. If an Event of Default on the part of the
Owner orthe Lessee should occur under this Agreement such thatthe ESID, the Finance Authority,
or the City should incur expenses, including but not limited to attorneys' fees, in connection with
the enforcement of this Agreement or the collection of sums due under this Agreement, the Owner
or the Lessee, as applicable, shall reimburse the ESID, the Finance Authority, and the City, as
applicable, for any reasonable out-of-pocket expenses so incurred upon demand. If any such
expenses are not so reimbursed, the amount of such expenses, together with interest on such
amount from the date of demand for payment at an annual rate equal to the lesser of 10% or the
maximum rate allowable by law shall constitute indebtedness under this Agreement, and the ESID,
the Finance Authority, and the City, as applicable, shall be entitled to seek the recovery of those
expenses in such action except as limited by law or by judicial order or decision entered in such
proceedings.
Section 4.9. Further Assurances. Upon the request of the Finance Authority, the Owner
and the Lessee shall take any actions and execute any further documents as the Finance Authority
deems necessary or appropriate to carry out the purposes of this Agreement.
ARTICLE V: EVENTS OF DEFAULT AND REMEDIES
Section 5.1. Events of Default. If any of the following shall occur, such occurrence shall
be an Event of Default under this Agreement:
(a) Any installment of the Special Assessments shall not have been paid when due,
after taking into account all applicable extensions;
(b) The City shall fail to appropriate in any fiscal year the Special Assessments payable
to the Finance Authority pursuant to this Agreement in such fiscal year, or shall fail
to transfer, or cause the transfer of, any of the Special Assessments to the Finance
Authority within the time specified in this Agreement;
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(c) Any Party is in material breach of its representations or warranties under this
Agreement; provided, however, that upon the material breach of a Party's
representations or warranties under this Agreement, such Party shall have the right
to cure such breach within 5 days of the receipt of notice, and, if so cured, such
breach shall not constitute an Event of Default;
(d) The ESID, the Owner, the Lessee, or the City shall fail to observe and perform any
other agreement, term, or condition contained in this Agreement, and the
continuation of such failure for a period of 30 days after written notice of such
failure shall have been given to the ESID, the Owner, the Lessee, or the City, as
applicable, by any other Party to this Agreement, or for such longer period to which
the notifying Party may agree in writing; provided, however, that if the failure is
other than the payment of money, and is of such nature that it can be corrected but
not within the applicable period, that failure shall not constitute an Event of Default
so long as the ESID, the Owner, the Lessee, or the City, as applicable, institutes
curative action within the applicable period and diligently pursues that action to
completion;
(e) The Owner or the Lessee abandons its Property or the Project;
(f) The Owner or the Lessee commits waste upon its Property or the Project;
(g) An event occurs that materially and adversely affects the Lessee's ability to pay or
perform its obligations under this Agreement;
(h) The Owner or the Lessee becomes bankrupt or insolvent or files or has filed against
it (and such action is not stayed or dismissed within 90 days) a petition in
bankruptcy or for reorganization or arrangement or other relief under the
bankruptcy laws or any similar state law or makes a general assignment for the
benefit of creditors; or
(i) Any workmanship or materials constituting a portion of the Project or incorporated
into the Project shall be materially defective and shall not be corrected within 30
days after notice.
The declaration of an Event of Default above, and the exercise of remedies upon any such
declaration, shall be subject to any applicable limitations of federal bankruptcy law affecting or
precluding that declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Promptly upon any non -defaulting Party becoming aware that an Event of Default has
occurred, such Party shall deliver notice of such Event of Default to each other Party under this
Agreement in accordance with the notice procedures described in Section 6.5 of this Agreement.
Section 5.2. Remedies on Default. Whenever an Event of Default shall have happened
and be subsisting, any one or more of the following remedial steps may be taken:
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(a) Upon an Event of Default described in Section 5.l(a) only, the Finance Authority
shall be entitled to receive any Delinquency Amounts actually received by the City.
(b) The ESID, the Finance Authority, and the City, together or separately, may pursue
all remedies now or later existing at law or in equity to collect all amounts due and
to become due under this Agreement or to enforce the performance and observance
of any other obligation or agreement of any of the Parties, as applicable, under this
Agreement, including enforcement under Ohio Revised Code Chapter 2731 of
duties resulting from an office, trust, or station upon the ESID or the City, provided
that, Parties may only pursue such remedies against the Party responsible for the
particular Event of Default in question; provided, however, that the ESID, the
Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Owner, the Lessee, or the Project except to collect
or remedy any outstanding damages or liability which shall have arisen due to the
occurrence of an Event of Default.
(c) Any Party may pursue any other remedy which it may have, whether at law, in
equity, or otherwise, provided that, Parties may only pursue such remedies against
the Party responsible for the particular Event of Default in question; provided,
however, that the ESID, the Finance Authority, and the City may not take any other
action or exercise any remedy against the Property, the Project, or the Lessee except
to collect or remedy any outstanding damages or liability which shall have arisen
due to the occurrence of an Event of Default.
Notwithstanding the foregoing, each of the ESID and the City shall not be obligated to take
any step which in its opinion will or might cause it to expend time or money or otherwise incur
liability unless and until a satisfactory indemnity bond has been furnished to it at no cost or
expense.
Section 5.3. Foreclosure. Pursuant to Section 2.1 of the Special Assessment Agreement
by and among the County Treasurer, the City, the ESID, the Finance Authority, the Lessee, and
the Owner and dated as of the Effective Date (the Special Assessment Agreement), the County
Treasurer has agreed not to confirm the sale of the Property for an amount less than 100% of the
amount of the Special Assessments and other general real estate taxes, payments in lieu of taxes,
and assessments then due and owing with respect to the Property, as shall be certified by the ESID
to the County Treasurer pursuant to the records of the County Treasurer without the consent of the
ESID and the Finance Authority. The ESID hereby agrees that in the event it is asked to provide
its consent in accordance with Section 2.1 of the Special Assessment Agreement, it will notify the
Finance Authority of such request, and it will not provide its consent pursuant to Section 2.1 of
the Special Assessment Agreement without the Finance Authority's prior written direction.
Section 5.4. No Remedv Exclusive. No remedy conferred upon or reserved to the Parties
by this Agreement is intended to be exclusive of any other available remedy or remedies, but each
and every such remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, or now or later existing at law, in equity or by statute; provided, however,
that the ESID, the Finance Authority, and the City may not take any other action or exercise any
remedy against the Property, the Project, the Owner, or the Lessee except to collect or remedy any
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outstanding damages or liability which shall have arisen due to the occurrence of an Event of
Default. No delay or omission to exercise any right or power accruing upon any default shall
impair that right or power nor shall be construed to be a waiver, but any such right and power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle the
Parties to exercise any remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than any notice required by law or for which express provision is made in this
Agreement.
Section 5.5. No Waiver. No failure by a Party to insist upon the strict performance by
the other Parties of any provision of this Agreement shall constitute a waiver of such Party's right
to strict performance; and no express waiver shall be deemed to apply to any other existing or
subsequent right to remedy the failure by the Parties to observe or comply with any provision of
this Agreement.
Section 5.6. Notice of Default. Any Party to this Agreement shall notify every other
Party to this Agreement immediately if it becomes aware of the occurrence of any Event of Default
or of any fact, condition or event which, with the giving of notice or passage of time or both, would
become an Event of Default.
ARTICLE VI: MISCELLANEOUS
Section 6.1. Waivers. The Owner and the Lessee each acknowledges that the process
for the imposition of special assessments provides the owner of property subject to such special
assessments with certain rights, including rights to: receive notices of proceedings; object to the
imposition of the special assessments; claim damages; participate in hearings; take appeals from
proceedings imposing special assessments; participate in and prosecute court proceedings, as well
as other rights under law, including but not limited to those provided for or specified in the United
States Constitution, the Ohio Constitution, Ohio Revised Code Chapter 727, the Charter of the
City and the ordinances in effect in the City (collectively, Assessment Rights). The Owner and
the Lessee each irrevocably waives all Assessment Rights as to the Project and consents to the
imposition of the Special Assessments as to the Project immediately or at such time as the ESID
determines to be appropriate, and the Owner and the Lessee each expressly requests the entities
involved with the special assessment process to promptly proceed with the imposition of the
Special Assessments upon its Property as to its Energy Project. The Owner and the Lessee each
further waives in connection with the Project: any and all questions as to the constitutionality of
the laws under which the Project will be constructed and the Special Assessments imposed upon
the Property; the jurisdiction of the Council of the City acting thereunder; and the right to file a
claim for damages as provided in Ohio Revised Code Section 727.18 and any similar provision of
the Charter of the City or the ordinances in effect within the City.
Section 6.2. Term of Agreement. This Agreement shall be and remain in full force and
effect from the Effective Date until the payment in full of the entire aggregate amount of the
Special Assessments shall have been made to the Finance Authority and the obligations (if any) of
each Party under Section 6.4 shall have been fully satisfied, or such time as the Parties shall agree
in writing to terminate this Agreement. Any attempted termination of this Agreement prior to the
payment in full of the entire aggregate amount of the Special Assessments which is not in writing
and signed by each of the Parties to this Agreement shall be null and void.
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Section 6.3. Litigation Notice. Each Party shall give all other Parties prompt notice of
any action, suit, or proceeding by or against the notifying Party, at law or in equity, or before any
governmental instrumentality or agency, of which the notifying Party has notice and which, if
adversely determined would impair materially the right or ability of the Parties to perform its
obligations under this Agreement. The notifying Party's prompt notice shall be accompanied by
its written statement setting forth the details of the action, suit, or proceeding and any responsive
actions with respect to the action, suit, or proceeding taken or proposed to be taken by the Party.
Section 6.4. Indemnification. The Owner and the Lessee shall indemnify and hold
harmless the ESID, the Finance Authority, and the City (including any member, officer, director,
or employee thereof) (collectively, the Indemnified Parties) against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) imposed upon, incurred by or asserted against
an Indemnified Party arising or resulting from (i) the levy and collection of the Special
Assessments, (ii) the financing, acquisition, construction, installation, operation, use or
maintenance of the Project, (iii) any act, failure to act or misrepresentation by the Owner or the
Lessee, as applicable, in connection with, or in the performance of any obligation on their
respective parts to be performed under this Agreement or related to the Special Assessments
resulting in material actual damages, or (iv) (a) a past, present or future violation or alleged
violation of any environmental laws in connection with the Property by any person or other source,
whether related or unrelated to the Owner or the Lessee, as applicable, (b) any presence of any
hazardous, toxic or harmful substances, materials, wastes, pollutants or contaminants defined as
such in or regulated under any environmental law (Materials of Environmental Concern) in, on,
within, above, under, near, affecting or emanating from the Property, (c) the failure to timely
perform any investigation, inspection, site monitoring, containment, clean—up, removal, response,
corrective action, mitigation, restoration or other remedial work of any kind or nature because of,
or in connection with, the current or future presence, suspected presence, Release (as defined
below) or threatened Release in or about the air, soil, ground water, surface water or soil vapor at,
on, about, under or within all or any portion of the Property of any Materials of Environmental
Concern, including any action to comply with any applicable environmental laws or directives of
any governmental authority with regard to any environmental laws, (d) any past, present or future
activity by any person or other source, whether related or unrelated to the Owner or the Lessee, as
applicable, in connection with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or transportation to or from
the Property of any Materials of Environmental Concern at any time located in, under, on, above
or affecting the Property, (e) any past, present or future actual generation, treatment, use, storage,
transportation, manufacture, refinement, handling, production, removal, remediation, disposal,
presence or migration of Materials of Environmental Concern on, about, under or within all or any
portion of the Property (a Release) (whether intentional or unintentional, direct or indirect,
foreseeable or unforeseeable) to, from, on, within, in, under, near or affecting the Property by any
person or other source, whether related or unrelated to the Owner or the Lessee, as applicable, (f)
the imposition, recording or filing or the threatened imposition, recording or filing of any lien on
the Property with regard to, or as a result of, any Materials of Environmental Concern or pursuant
to any environmental law, or (g) any misrepresentation or failure to perform any obligations related
to environmental matters in any way pursuant to any documents related to the Special
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Assessments; provided, however, that the Owner or the Lessee, as appropriate, shall not indemnify
the Indemnified Parties as provided above to the extent that any liability, claim, cost, or expense
arises out of or results from the gross negligence, willful misconduct, or breach of this Agreement
or any of the other PACE Documents (as defined in Section 6.13 below) by the Indemnified
Parties.
In the event any action or proceeding is brought against any Indemnified Party by reason
of any such claim, such Indemnified Party will promptly give written notice thereof to the Owner
and the Lessee. The Owner or the Lessee, as applicable, shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume at its own expense the defense of such claim,
suit, action or proceeding, in which event such defense shall be conducted by counsel chosen by
the Owner or the Lessee, as applicable; but if the Owner or the Lessee, as applicable, shall elect
not to assume such defense, it shall reimburse such Indemnified Party for the reasonable fees and
expenses of any counsel retained by such Indemnified Party. If at any time the Indemnified Party
becomes dissatisfied, in its reasonable discretion, with the selection of counsel by the Lessee, a
new mutually agreeable counsel shall be retained at the expense of the Owner or the Lessee, as
applicable. Each Indemnified Party agrees that the Owner or the Lessee, as applicable, shall have
the sole right to compromise, settle or conclude any claim, suit, action or proceeding against any
of the Indemnified Parties. Notwithstanding the foregoing, each Indemnified Party shall have the
right to employ counsel in any such action at their own expense; and provided further that such
Indemnified Party shall have the right to employ counsel in any such action and the fees and
expenses of such counsel shall be at the expense of the Owner or the Lessee, as applicable„ if: (i)
the employment of counsel by such Indemnified Party has been authorized by the Owner or the
Lessee, as applicable, (ii) there reasonably appears that there is a conflict of interest between the
Owner or the Lessee, as applicable, and the Indemnified Party in the conduct of the defense of
such action (in which case the Owner or the Lessee, as applicable, shall not have the right to direct
the defense of such action on behalf of the Indemnified Party) or (iii) the Owner or the Lessee, as
applicable, shall not in fact have employed counsel to assume the defense of such action. The
Owner and the Lessee shall also indemnify the Indemnified Parties from and against all costs and
expenses, including reasonable attorneys' fees, lawfully incurred in enforcing any obligations of
the Lessee under this Agreement; provided, however, that the Owner or the Lessee, as appropriate,
shall not indemnify the Indemnified Parties as provided above to the extent that any liability, claim,
cost, or expense arises out of or results from the negligence, willful misconduct, or breach of this
Agreement or any of the other PACE Documents (defined in Section 6.13 below) by the
Indemnified Parties. The obligations of the Owner and the Lessee under this Section shall survive
the termination of this Agreement and shall be in addition to any other rights, including without
limitation, rights to indemnity which any Indemnified Party may have at law, in equity, by contract
or otherwise.
None of the Finance Authority, the City, or the ESID shall have any liability to the Owner,
to the Lessee, or to any other Person on account of (i) the Lessee engaging a contractor from the
list of contractors submitted by the ESID or the Finance Authority to the Lessee, (ii) the services
performed by the contractor, or (iii) any neglect or failure on the part of the contractor to perform
or properly perform its services. None of the Finance Authority, the City, the Owner, or the ESID
assumes any obligation to the Owner, the Lessee, or any other Person concerning contractors, the
quality of construction of the Project or the absence of defects from the construction of the Project.
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The making of a Project Advance by the Finance Authority shall not constitute the Finance
Authority's approval or acceptance of the construction theretofore completed. The Finance
Authority's inspection and approval of the budget, the construction work, the improvements, or
the workmanship and materials used in the improvements, shall impose no liability of any kind on
the Finance Authority, the sole obligation of the Finance Authority as the result of such inspection
and approval being to make the Project Advances if, and to the extent, required by this
Agreement. Any disbursement made by the Finance Authority without the Finance Authority
having received each of the items to which it is entitled under this Agreement shall not constitute
breach or modification of this Agreement, nor shall any written amendment to this Agreement be
required as a result.
Section 6.5. Notices. All notices, certificates, requests or other communications under
this Agreement shall be in writing and shall be deemed to be sufficiently given when mailed by
registered or certified mail, postage prepaid, and addressed to the appropriate Notice Address. The
Parties, by notice given under this Agreement to the others, may designate any further or different
addresses to which subsequent notices, certificates, requests or other communications shall be sent.
Each of the Parties agree to provide the other Parties to this Agreement notice of any litigation of
which it has actual knowledge that may adversely affect its ability to carry out its obligations under
this Agreement.
Section 6.6. Extent of Covenants: No Personal Liability. All covenants, obligations, and
agreements of the ESID and the City contained in this Agreement shall be effective to the extent
authorized and permitted by applicable law. No 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 ESID, the Board, the Owner, the Lessee, the City, the City Council, the Finance
Authority, or the Board of Directors of the Finance Authority in other than his or her official
capacity; and none of the members of the Board, the City Council, or the Board of Directors of the
Finance Authority, nor any official of the ESID, the Owner, the Lessee the City, or the Finance
Authority executing this Agreement shall be liable personally on this Agreement or be subject to
any personal liability or accountability by reason of the covenants, obligations, or agreements of
the ESID, the Owner, the Lessee, the City, or the Finance Authority contained in this Agreement.
Section 6.7. Binding Effect: Assignment: Estoppel Certificates. This Agreement shall
inure to the benefit of and shall be binding in accordance with its terms upon the Parties. Except
as specifically provided below, this Agreement shall not be assigned by the any of the Parties
except as may be necessary to enforce or secure payment of the Special Assessments.
Notwithstanding anything in this Agreement to the contrary, the Lessee freely may transfer
its leasehold interest in the Property and the Project or any portion of the Property and the Project
from time to time and may assign this Agreement to an arm's-length, good faith purchaser of the
Property but only after notice of such assignment is given to the Finance Authority, and only upon
(i) the execution and delivery to the City, the Finance Authority, the ESID, and the Owner of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
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Lessee and Owner Consent. Following any assignment by the Lessee as described above, all
obligations of the Lessee contained in this Agreement, the Special Assessment Agreement, and the
Lessee and Owner Consent shall be obligations of the assignee, and the assigning Lessee shall be
released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Owner freely may transfer
its interest in the Property and the Project or any portion of the Property and the Project from time
to time and may assign this Agreement to an arm's-length, good faith purchaser of the Property
but only after notice of such assignment is given to the Finance Authority, and only upon (i) the
execution and delivery to the City, the Finance Authority, the ESID, and the Lessee of an
"Assignment and Assumption of Energy Project Cooperative Agreement" in the form attached to
and incorporated into this Agreement as Exhibit G; and (ii) the execution and delivery to the
Finance Authority of an assignment of all construction contracts for the Project. The Parties
acknowledge and agree that the Assignment and Assumption of Energy Project Cooperative
Agreement includes the assignment and assumption of the Special Assessment Agreement and the
Lessee and Owner Consent. Following any assignment by the Owner as described above, all
obligations of the Owner contained in this Agreement, the Special Assessment Agreement, and
the Lessee and Owner Consent shall be obligations of the assignee, and the assigning Owner shall
be released of its obligations to a corresponding extent.
Notwithstanding anything in this Agreement to the contrary, the Finance Authority shall
have the unrestricted right at any time or from time to time, and without the consent from the
Owner or the Lessee, to assign all or any portion of its rights and obligations under this Agreement,
and may sell or assign any and all liens received directly or indirectly from the City to any Person
(each, a Finance Authority Assignee), and the Owner and the Lessee agree that they shall execute,
or cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection with
this Agreement as the Finance Authority shall deem necessary to effect the foregoing so long as
such amendment does not materially adversely impact the Owner or the Lessee's rights and
obligations under this Agreement. Any Finance Authority Assignee shall be a party to this
Agreement and shall have all of the rights and obligations of the Finance Authority under this
Agreement (and under any and all other guaranties, documents, instruments and agreements
executed in connection with this Agreement) to the extent that such rights and obligations have
been assigned by the Finance Authority pursuant to the assignment documentation between the
Finance Authority and such Finance Authority Assignee, and the Finance Authority shall be
released from its obligations under this Agreement and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement to a
corresponding extent. If, at any time, the Finance Authority assigns any of the rights and
obligations of the Finance Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to a Finance
Authority Assignee, the Finance Authority shall give prompt notice of such assignment to the other
Parties.
In addition, the Finance Authority shall have the unrestricted right at any time and from
time to time, and without the consent of or notice of the Owner or the Lessee, to grant to one or
more Persons (each, a Participant) participating interests in Finance Authority's obligation to
31
make Project Advances under this Agreement or to any or all of the loans held by Finance
Authority under this Agreement. In the event of any such grant by the Finance Authority of a
participating interest to a Participant, whether or not upon notice to the Owner or the Lessee, the
Finance Authority shall remain responsible for the performance of its obligations under this
Agreement, and the Lessee shall continue to deal solely and directly with the Finance Authority in
connection with the Finance Authority's rights and obligations under this Agreement. The Owner
and the Lessee agree that the Finance Authority may furnish any public information concerning
the Owner and the Lessee in its possession from time to time to prospective Finance Authority
Assignees and Participants.
This Agreement may be enforced only by the Parties, their permitted assignees, and others,
who may, by law, stand in their respective places.
Any Party shall at any time and from time to time, upon not less than 30 days' prior written
notice by the other party, execute, acknowledge and deliver to such party a statement in writing
certifying that: (i) this Agreement is unmodified and in full force and effect (or, if there has been
any modification of this Agreement, that the same is in full force and effect as modified and stating
the modification or modifications); (ii) to the best of such Party's actual knowledge (without any
duty of inquiry) there are no continuing Events of Default (or, if there is a continuing Event of
Default, stating the nature and extent of such Event of Default); (iii) that, to the best of such Party's
actual knowledge (without any duty of inquiry) there are no outstanding damages or liability
arising from an Event of Default (or, if there is any outstanding damages or liability, stating the
nature and extent of such damages or liability); (iv) if such certificate is being delivered by the
Owner or the Lessee, the dates to which the Special Assessments have been paid; and (v) if such
certificate is being delivered by the Finance Authority, the dates to which the Special Assessments
have been paid to the Finance Authority. It is expressly understood and agreed that any such
certificate delivered pursuant to this Section 6.7 may be relied upon by any prospective assignee
of the Owner or the Lessee or any prospective Finance Authority Assignee.
Section 6.8. Termination of Lease. If at any time during the term of this Agreement the
Lessee's lease of the Property and the Project with the Owner (including as amended, extended,
or substituted) terminates, the Owner shall assume all of the Lessee's rights and obligations under
this Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
Section 6.9. Amendments and Supplements. Except as otherwise expressly provided in
this Agreement, this Agreement may not be amended, changed, modified, altered or terminated
except by unanimous written agreement signed by each of the Parties materially affected by such
proposed amendment, change, modification, alteration, or termination. For purposes of this
Section, a materially affected Party is a Party with respect to which a material right or obligation
under this Agreement is proposed to be amended, changed, modified, altered, or terminated. Any
attempt to amend, change, modify, alter, or terminate this Agreement except by unanimous written
agreement signed by all of the materially affected Parties or as otherwise provided in this
Agreement shall be void.
Section 6.10. Execution Counterparts. This Agreement maybe executed in counterpart
and in any number of counterparts, each of which shall be regarded as an original and all of which
together shall constitute but one and the same instrument.
32
Section 6.11. Severability. If any provision of this Agreement, or any covenant,
obligation, or agreement contained in this Agreement 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 in this Agreement. That invalidity or unenforceability shall not affect any valid
and enforceable application of the provision, covenant, obligation, or agreement, 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 6.12. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State and for all purposes shall be governed by and construed in accordance
with the laws of the State.
Section 6.13. Lessee Primarilv Obligated. All parties to this Agreement hereby
acknowledge and agree that the Owner is executing this Agreement, the Special Assessment
Agreement, the Lessee and Owner Consent, and any and all other documents related to the Special
Assessments or the PACE financing (collectively, the PACE Documents) as an accommodation
to the Lessee, so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding
any other provision contained in this Agreement or the other PACE Documents, the Lessee is and
shall be primarily responsible for the performance of any and all obligations of the Owner or the
Lessee under the PACE Documents. If the Lessee fails to perform its obligations in the PACE
Documents, the Owner acknowledges and agrees that the Owner shall assume all of the Lessee's
rights and obligations under the PACE Documents, as expressly contained in the respective PACE
Documents.
[Remainder of Page Intentionally Left Blank]
33
IN WITNESS WHEREOF, the Parties have each caused this Agreement to be duly
executed in their respective names, all as of the Effective Date.
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., as the ESID
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
OH15 DUBLIN LLC, as the Owner
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
Matthew Tucker, Vice President
[Signature Page to Energy Project Cooperative Agreement]
VIAQUEST, INC., as the Lessee
IC
Michael Bell, Chief Financial Officer
[Signature Page to Energy Project Cooperative Agreement]
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY, as the Finance
Authority
IC
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY OF DUBLIN, OHIO, as the City
-0
Name:
Title:
[Signature Page to Energy Project Cooperative Agreement]
CITY FISCAL OFFICER CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that the
moneys required to meet the obligations of the City during the year 2019 under the foregoing
Energy Project Cooperative Agreement ($0.00) have been lawfully appropriated by the City
Council of the City of Dublin, Ohio for such 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 Ohio Revised Code Sections 5705.41 and 5705.44.
Director of Finance
City of Dublin, Ohio
Dated: .2019
[City Fiscal Officer Certificate Energy Project Cooperative Agreement]
EXHIBIT A
As used in this Agreement, the following words have the following meanings:
Agreement'' means this Energy Project Cooperative Agreement, dated as of the Effective
Date, by and between the ESID, the Owner, the Lessee, the Finance Authority, and the City, as the
same may be amended, modified, or supplemented from time to time in accordance with its terms.
"Board" means the Board of Directors of the ESID.
"City" means the City of Dublin, Ohio.
"City Council" means the City Council of the City.
"Completion Date" means the latest date on which substantial completion of the Project,
in accordance with the Plans occurs, which date shall be established by the Completion Certificate
attached to this Agreement as Exhibit D.
"County" means Franklin County, Ohio.
"County Auditor" means the Auditor of the County.
"County Prosecutor" means the Prosecuting Attorney of the County.
"County Treasurer" means the Treasurer of the County.
"Delinquency Amounts" means any penalties or interest which may be due on or with
respect to any installment of the Special Assessments and which are not paid or payable as required
by law to any Person (other than the Finance Authority under this Agreement).
"Disbursement Request Form" means the form attached to this Agreement as Exhibit C
which form shall be submitted by the Lessee in order to receive disbursements from the Project
Account.
"ESID" means the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township,
Whitehall, Worthington Regional Energy Special Improvement District, Inc., doing business under
the registered trade name Columbus Regional Energy Special Improvement District, Inc., a
nonprofit corporation and energy special improvement district organized under the laws of the
State of Ohio.
"Finance Authority" means the Columbus -Franklin County Finance Authority, a port
authority and body corporate and politic duly organized and validly existing under the laws of the
State of Ohio, together with any Finance Authority Assignee.
A-1
"Governmental Authority" means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Lender" means any Person which has loaned money to the Owner to pay or refinance
the costs of acquiring, financing, refinancing, or improving the Property and which loan is secured
by a mortgage interest in the Property, or any permitted successors or assigns of such Person.
"Lessee" means ViaQuest, Inc., an Ohio corporation, and any permitted successors or
assigns.
"Lessee and Owner Consent" means, collectively, the Lessee Consent and the Owner
Consent, each dated as of the Effective Date by Lessee and Owner, and each recorded in the
records of the Franklin County Recorder with respect to the Property.
"Notice Address" means:
(a) As to the City:
City of Dublin, Ohio
5200 Emerald Parkway
Columbus, Ohio 43017
Attention: City Manager
(b) As to the ESID: Columbus Regional Energy Special
Improvement District, Inc.
c/o Columbus -Franklin County Finance
Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy To: J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 S. Third Street
Columbus, Ohio 43215
(c) As to the Owner OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy To: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
A-2
(d) As to the Lessee
(e) As to the Finance
Authority
Attention: General Counsel
ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
Columbus -Franklin County
Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: President
"Ordinance Levying Assessments" means any resolution or ordinance passed, enacted, or
adopted by the City pursuant to Ohio Revised Code Section 727.25 with respect to levying special
assessments on real property within the ESID.
"Ordinance to Proceed" means any resolution or ordinance passed, enacted, or adopted by
the City pursuant to Ohio Revised Code Section 727.23 with respect to levying special assessments
on real property within the ESID.
"Owner" means OH15 Dublin LLC, a Delaware limited liability company, and any
permitted successors or assigns.
"Parries" means the ESID, the Owner, the Lessee, the Finance Authority, and the City.
"Party" means, individually, any one of the Parties.
"Person" or words importing persons mean firms, associations, partnerships (including
without limitation, general and limited partnerships), limited liability companies, joint ventures,
societies, estates, trusts, corporations, public or governmental bodies, political subdivisions, other
legal entities, and natural persons.
"Plan" means the Columbus Regional Energy Special Improvement District Program Plan
adopted by the City of Columbus, Ohio by its Resolution No. 0261X-2015 of November 23, 2015,
and any and all supplemental plans approved by the ESID and the City, including, without
limitation, the Supplemental Plan.
"Project" means the special energy improvement project described in the Supplemental
Plan with respect to the Property, for which Special Assessments are to be levied by the City, all
in accordance with the Supplemental Plan.
"Project Account" means the segregated account in the custody of the Finance Authority
for the benefit of the Lessee which contains the Project Advance, and out of which disbursements
may be made in accordance with Article IV of this Agreement.
A-3
"Project Advance" means the amount of immediately available funds to be transferred, set
over, and paid to and held in the Project Account established pursuant to Section 4.1 of this
Agreement for the benefit of the Lessee.
"Property" means the real property subject to the Plan.
"Repayment Schedule" means the schedule attached to and incorporated into this
Agreement as Exhibit B iwhich schedule establishes the dates and amounts for the repayment of
the Project Advance by the Special Assessments paid by the Owner and the Lessee.
"Required Insurance Coverage" means, collectively, the Required Property Insurance
Coverage and the Required Public Liability Insurance Coverage, each of which, in addition to the
requirements described in their respective definitions, (i) must provide for 10 days' notice to the
Finance Authority in the event of cancellation or nonrenewal and (ii) must name as an additional
insured (mortgagee/loss payee) the Finance Authority.
"Required Property Insurance Coverage" means at any time insurance coverage
evidenced maintained with generally recognized, responsible insurance companies qualified to do
business in the State in the amount of the then full replacement value of the Project and Property,
insuring the Project against loss or damage by fire, windstorm, tornado and hail and extended
coverage risks on a comprehensive all risk/special form insurance policy and containing loss
deductible provisions of not to exceed $10,000, which insurance coverage shall name the Finance
Authority as loss payee/mortgagee.
"Required Public Liability Insurance Coverage" means at any time commercial general
liability insurance against claims for personal injury, death or property damage suffered by others
upon, in or about any premises occupied by Owner, which insurance coverage shall name the
Finance Authority as an additional insured.
"Resolution of Necessity" means any resolution or ordinance passed, enacted, or adopted
by the City pursuant to Ohio Revised Code Section 727.12 with respect to levying special
assessments on real property within the ESID.
"Special AssessmentAct" means, collectively, Ohio Revised Code Section 727.01 et seq.,
Ohio Revised Code Section 1710.01 et seq., Ohio Revised Code Section 323.01 et seq., Ohio
Revised Code Section 319.01 et seq., Ohio Revised Code Section 5721.01 et seq., and related laws.
"Special Assessment Proceedings" means, collectively, Resolution No. [ ] of the City
Council adopted on [ ], 2019 approving the Petition, the Plan, and the Supplemental Plan,
Resolution No. [__] of the City Council declaring the necessity of the Project adopted on
[ ], 2019, Ordinance No. [ ], determining to proceed with the Project, adopted on
[ ], 2019, and Ordinance [ ], levying the Special Assessments, adopted on [,
2019, with respect to levying special assessments on the Property subject to the Petition.
"Special Assessments" means the special assessments levied pursuant to the Special
Assessment Act and the Special Assessment Proceedings by the City with respect to the Project, a
schedule of which is attached to and incorporated into the Plan.
A-4
"State" means the State of Ohio.
"Supplemental Plan" means the Supplement to Plan for 525 Metro Place North, Dublin,
Ohio Project, approved by the City Council on [ ], 2019 by its Resolution No. [_].
A-5
EXHIBIT B
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EXHIBIT C
DISBURSEMENT REQUEST FORM
STATEMENT NO. REQUESTING AND
AUTHORIZING DISBURSEMENT OF FUNDS PURSUANT
TO SECTION 4.2 OF THE ENERGY PROJECT
COOPERATIVE AGREEMENT DATED AS OF
2019.
Amount Requested: $
Pursuant to Section 4.2 of the Energy Project Cooperative Agreement dated as of
[ ], 2019 (the Agreement) among the ESID, the Owner, the Lessee, and the Finance
Authority, the undersigned authorized representative of ViaQuest, Inc., as the Lessee under the
Agreement, hereby requests the Finance Authority having custody of the Project Account, to pay
to the Lessee or the other person(s) listed on the disbursement schedule attached hereto as
Appendix I (the Disbursement Schedule), the respective amounts specified in the Disbursement
Schedule out of the moneys on deposit in the Project Account for the advances, payments and
expenditures made in connection with the costs of the Project described in the Disbursement
Schedule, all in accordance with Section 4.2 of the Agreement (capitalized words and terms not
otherwise defined herein having the meanings assigned to them in the Agreement).
In connection with this request and authorization (the Disbursement Request), the
undersigned hereby certifies that:
(i) each of the representations and warranties made by the Lessee in the
Agreement remains true and correct, in all material respects, as of the date of this
Disbursement Request and no Event of Default by the Lessee under the Agreement exists;
(ii) each item for which disbursement is requested by this Disbursement
Request is properly payable out of the Project Account in accordance with the terms and
conditions of the Agreement and, except as otherwise noted, none of those items has
formed the basis for any disbursement heretofore made from the Project Account;
(iii) to the extent any portion of the payment requested is for construction work,
the Lessee has received and herewith delivers to the Finance Authority, conditional waivers
of any mechanics' or other liens with respect to such work;
(iv) this Disbursement Request and all exhibits hereto, including the
Disbursement Schedule, shall be conclusive evidence of the facts and statements set forth
herein and shall constitute full warrant, protection and authority to the Finance Authority
for its actions taken pursuant hereto; and
(v) this Disbursement Request constitutes the approval of the Lessee of each
disbursement hereby requested and authorized.
C-1
Dated:
Approved in accordance with the Agreement:
Columbus -Franklin County Finance Authority,
as the Finance Authority:
Dated:
C-2
Authorized Representative of
Lessee
SCHEDULE 1 TO DISBURSEMENT REQUEST FORM
Payee Amount Purpose
C-3
EXHIBIT D
FORM OF COMPLETION CERTIFICATE
ViaQuest, Inc. (the Lessee) hereby certifies that the Project, as such term is defined in the
Energy Project Cooperative Agreement entered into by and between the Lessee, OH15 Dublin,
LLC, the Columbus Regional Energy Special Improvement District, Inc., the City of Dublin, Ohio
and the Columbus -Franklin County Finance Authority (the Finance Authority) dated as of
[ ], 2019 (the Agreement) has been completed at 525 Metro Place North, Dublin, Ohio
(the Property) in strict compliance with the requirements of the Agreement.
Note: Capitalized terms used but not defined in this Completion Certificate have the
meaning assigned to them in the Agreement to which a form of this Completion Certificate is
attached and of which it forms a part.
THE LESSEE HEREBY CERTIFIES:
(a) That the acquisition, construction, equipping, installation, and improvement of the
Project was substantially completed on
(b) That all other facilities necessary in connection with the Project have been acquired
or are otherwise available to the Lessee;
(c) That the acquisition, construction, equipping, installation, and improvement of the
Project and those other facilities have been accomplished in such amanner as to conform with all
applicable zoning, planning, building, environmental, and other similar governmental regulations;
(d) That except as provided in clause (e) below, all costs of that acquisition,
construction, equipping, installation, and improving then or theretofore due and payable have been
paid; and
(e) The amounts, if any, the Finance Authority shall retain in the Project Account for
the payment of costs not yet due or for liabilities that the Lessee is contesting or which otherwise
should be retained and the reasons such amounts should be retained.
[Balance of Page Intentionally Left Blank]
D-1
NOTICE: DO NOT SIGN THIS COMPLETION CERTIFICATE UNLESS YOU AGREE TO
EACH OF THE ABOVE STATEMENTS.
VIAQUEST, INC., as the Lessee
Michael Bell, Chief Financial Officer
D-2
EXHIBIT E
CLOSING COSTS DETAIL
Pursuant to Section 4.2 of the foregoing Energy Project Cooperative Agreement, the
Finance Authority shall disburse to the respective payee set forth below, the following closing
costs:
PAYEE
AMOUNT
REASON
Bricker & Eckler LLP
$7,500.00
Lender and ESID counsel fee
DiPerna Advisors
3,500.00
Financial advisor fee
Columbus -Franklin County Finance
Authority
3,500.00
Lender closing fee
Columbus Regional Energy Special
Improvement District
372.50
ESID closing fee
City of Dublin, Ohio
5,000.00
City of Dublin legal fee
The Huntington National Bank
1,000.00
Disbursing Agent closing fee
TOTAL
$20,872.50
E-1
EXHIBIT F
CONSENT OF MORTGAGEE
[See Attached]
F-1
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION OF ENERGY PROJECT
COOPERATIVE AGREEMENT
ASSIGNMENT AND ASSUMPTION
OF
ENERGY PROJECT COOPERATIVE AGREEMENT
[ ] (Assignor), in consideration of the sum of $[
in hand paid and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by Assignor's execution of this Assignment and Assumption of Energy Project
Cooperative Agreement (Assignment), assigns, transfers, sets over, and conveys to
[ ] (Assignee) all of Assignor's right, title, and interest in and to that
certain Energy Project Cooperative Agreement dated as of [ 1 2019 between the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., d/b/a Columbus Regional Energy Special
Improvement District, Inc., Assignor, the Columbus -Franklin County Finance Authority (the
Finance Authority), and the City of Dublin, Ohio (the City) (the Energy Project Cooperative
Agreement).
By executing this Assignment, Assignee accepts the assignment of, and assumes all of
Assignor's duties and obligations under, the Energy Project Cooperative Agreement. Assignee
further represents and warrants that it has taken title to the "Property," as that term is defined in
the Energy Project Cooperative Agreement, subject to the Special Assessment Agreement dated
as of even date with the Energy Project Cooperative Agreement between the Franklin County
Treasurer, the City, the ESID, the Finance Authority, OH15 Dublin LLC, and ViaQuest, Inc. (the
Special Assessment Agreement) and to the "Lessee Consent" and the "Owner Consent" each
dated [ 12019 by ViaQuest, Inc. and OH15 Dublin LLC, respectively, and each recorded
in the records of the Franklin County Recorder with respect to the Property. By executing this
Assignment, Assignee accepts the assignment of, and assumes all of Assignor's duties and
obligations under, the Special Assessment Agreement and the Lessee Consent and the Owner
Consent.
Assignor and Assignee acknowledge and agree that executed copies of this Assignment
shall be delivered to the City, the Finance Authority, the Owner, and the ESID, as each of those
terms are defined in the Energy Project Cooperative Agreement, all in accordance with Sections
3.4(a) and 6.7 of the Energy Project Cooperative Agreement
In witness of their intent to be bound by this Assignment, each of Assignor and Assignee
have executed this Assignment this day of , [ ], which
Assignment is effective this date. This Assignment may be executed in any number of
counterparts, which when taken together shall be deemed one agreement.
G-1
[Signature Pages Follow]
G-2
ASSIGNOR:
By:
Name:
Title:
G-3
ASSIGNEE:
By:
Name:
Title:
G-4
EXHIBIT H
FEDERAL LAW PROVISIONS SUMMARY
The American Recovery and Reinvestment Act of 2009, Pub. L. 111-5 (`Recovery Act" or
"ARRA) was enacted to preserve and create jobs and promote economic recovery, assist those
most impacted by the recession, provide investments needed to increase economic efficiency by
spurring technological advances in science and health, invest in transportation, environmental
protection, and other infrastructure that will provide long-term economic benefits, stabilize State
and local government budgets, in order to minimize and avoid reductions in essential services and
counterproductive State and local tax increases. Recipients shall use loan funds in a manner that
maximizes job creation and economic benefit.
Contracting Party shall cause each Energy Loan Loss Reserve Project Beneficiary comply with
all terms and conditions in the Recovery Act relating generally to governance, accountability,
transparency, data collection and resources as specified in Act itself and as set forth below.
None of the funds provided under this Agreement derived from the Recovery Act may be used by
any State or local government, or any private entity, for any casino or other gambling
establishment, aquarium, zoo, golf course, or swimming pool.
1. Timely and Accurate Reporting. Contracting Party shall cause each Energy Loan Loss
Reserve Project Beneficiary to comply with all reporting requirements outlined in Section
1512 ofARRA and such additional reporting guidance as may be issued from time to time.
Each Energy Loan Loss Reserve Project Beneficiary's reporting must be sufficient to
support the requirements of the Contracting Party to make timely and accurate reports to
the federal agency from which the Contracting Party receives ARRA funds. Each
Contracting Party's reports to the federal agency are due no later than ten (10) calendar
days after each calendar year in which Contracting Party receives assistance funded in
whole or in part by ARRA funds. Contracting Party's annual reporting requirements
include the amount of ARRA funds received; the amount of ARRA funds expended or
obligated; detailed list of all projects or activities for which the ARRA funds were
expended; an estimate of the number of jobs created and the number of jobs retained by
the project or activity; and detailed information concerning subcontracts or sub -loans
including the state Ohio. Information from such reports will be made available to the
public.
a. Separate Tracking and Reporting. Section 1512 of ARRA mandates special
reporting for expenditure ofARRA funds. ARRA funds maybe used in conjunction
with funds from other sources, including federal funds not provided under the
authority of ARRA and State funds, to complete the Project, but tracking and
reporting ofARRA funds must be separate from tracking and reporting of other
funds used for the Project. The Contracting Party cause each Energy Loan Loss
Reserve Project Beneficiary to ensure that the loan ofARRA funds is established
and maintained in its accounting system to accommodate tracking and reporting of
ARRA funds separate from other revenue streams.
H-1
b. Separate Accounts for ARRA Funds. Contracting Party shall deposit and maintain
funds provided under the authority of ARRA in separate accounts. No part of the
ARRA funds shall be commingled with any other funds or used for a purpose other
than that of making payments for costs allowable for ARRA projects.
c. Identification ofARRA Funds with `ARRA-"Prefix. If Contracting Party is subject
to the requirements ofthe Single AuditActAmendments of 1996 and OMB Circular
A-133, "Audits of States, Local Governments, and Non -Profit Organizations, "
Contracting Party shall separately identify the expenditures of funds provided
under the authority of ARRA on the Schedule of Expenditures of Federal Awards
(SEFA') and, if required, the Data Collection Form (SF -SAC). The separate
identification shall be accomplished by identifying expenditures of ARRA funds
separately on the SEFA and as separate rows under Item 9 of Part III on the SF -
SAC by CFDA number and by including the prefix "ARRA-" in identifying the name
of the federal program on the SEFA and as the first characters in Item 9d of Part
III on the SF -SAC.
d. Central Contractor Registration. During the term of this Agreement, Contracting
Party shall maintain a current registration in the Central Contractor Registration
(www.ccr.gov). A Dun and Bradstreet Universal Numbering System (DUNS)
Number (www.dnb.com) is one of the requirements for registration in the Central
Contractor Registration.
e. State of Ohio Reporting Form. Each Energy Loan Loss Reserve Project
Beneficiary shall complete and provide to Contracting Party the "OBM, Ohio
Energy Loan Loss Reserve Project Beneficiary and Sub -Recipient Spending Report
in Compliance with ARRA Sec. 1512. " The State of Ohio must report information
described in Section 1512 of ARRA using the reporting instructions and data
elements that are provided online at www.FederalReporting.gov and ensure that
any information that is pre -filled is corrected or updated as needed. Accordingly,
each Energy Loan Loss Reserve Project Beneficiary shall provide to Contracting
Party as promptly as possible and within the time required for the State to comply
with reporting requirements any information needed by the State to complete the
online reporting.
f. Monthly Reporting. The Energy Loan Loss Reserve Project Beneficiary shall
report its performance and spending under the Agreement monthly as provided in
the Agreement notwithstanding that the Contracting Party will report quarterly to
federal agencies. In order to comply with reporting deadlines to which the
Contracting Party may be subject, the Contracting Party reserves the right to
accelerate the deadline for reports required from each Energy Loan Loss Reserve
Project Beneficiary.
g. Jobs Created and Retained. The Contracting Party shall cause each Energy Loan
Loss Reserve Project Beneficiary to report the number ofjobs created and retained
directly by each Energy Loan Loss Reserve Project Beneficiary and by each of its
contractors as a result of the ARRA funding provided pursuant to this Agreement
as well as an estimate of jobs created or retained elsewhere as a result ofARRA
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funding.
(I) Jobs or positions created" means those new positions created and filled, or previously
existing unfilledpositions that arefilled, as a resultofARRAfunding. "Jobs orpositionsretained "
means those previously existing filled positions that are retained as a result ofARRA funding. This
description may rely on job titles, broader labor categories, or the contractor's existing practice
for describing jobs as long as the terms used are widely understood and describe the general
nature of the work.
(2) For purposes of estimating the number of jobs created and jobs retained in the United
States and outlying areas, at a minimum, the estimate shall include any new positions created and
any existing filled positions that were retained to support or carry outARRA projects or activities
managed directly by the recipient, and if known, by subrecipients. The number shall be expressed
as 'full-time equivalent" (FTE), calculated cumulatively as all hours worked divided by the total
number of hours in a full-time schedule, as defined by the recipient. For instance, two full-time
employees and one part-time employee working half days would be reported as 2.5 FTE in each
calendar quarter.
(3) A job cannot be reported both as created and retained.
(4) Additional guidance will be provided for reporting jobs created and retained.
a. Additional or Modified ReportnuZRequirements. The Contracting Party may, from
time to time as it deems appropriate and necessary, communicate specific
instructions and requests to each Energy Loan Loss Reserve Project Beneficiary
concerning any additional reporting requirements related to the ARRA funds
received under this Agreement.
b. Information in Support ofARRA Reporting. Contracting Party may be required to
submit back-up documentation for expenditures of ARRA funds, including such
items as timecards and invoices. Each Energy Loan Loss Reserve Project
Beneficiary shall provide copies of back-up documentation at the request of
Contracting Party or USDOE Contracting Officer or designee.
2. Accessibility to Records and Project Sites.
a. Comptroller General of the United States Authority to Inspect. Pursuant to Section
902 ofARRA, the Comptroller General of the United States and his representatives
have the authority to:
(I) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary or any of its contractors or
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subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
b. Inspector General Authority to Inspect. Pursuant to Section 1515(a) ofARRA, an
Inspector General or any representative of an Inspector General has the authority
to:
(1) Examine any records of the Contracting Party, each Energy Loan Loss
Reserve Project Beneficiary, and any contractor and subcontractors of the
Contracting Party or Energy Loan Loss Reserve Project Beneficiary that
directly pertain to, and involve transactions relating to, the contract or
subcontract, or of any State or local agency administering such contract;
and
(2) Interview any officer or employee of the Contracting Party, each Energy
Loan Loss Reserve Project Beneficiary, or any of its contractors or
subcontractors, or of any State or local government agency administering
the contract, regarding such transactions; and
(3) Designate a time and place to examine those records and interview those
officers and employees described above.
c. Duty to Incorporate in Contracts. To facilitate access to records and personnel by
the Comptroller General and/or an Inspector General as described in paragraphs
(a) and (b), the Contracting Party shall cause each Energy Loan Loss Reserve
Project Beneficiary to include verbatim in any agreement with a contractor, and
shall cause each of its contractors to include verbatim in any agreement with a
subcontractor, from which the Energy Loan Loss Reserve Project Beneficiary or a
contractor acquires any goods or services for the Project the language set forth in
paragraphs (a) and (b) of this Section 2.
3. Eaual Emplovment Opportunities.
a. Compliance with Federal Laws. In addition to the Contracting Party's equal
employment opportunity requirements set forth in the Agreement, the Contracting
Party shall cause each Energy Loan Loss Reserve Project Beneficiary to comply,
and each Energy Loan Loss Reserve Project Beneficiary shall obtain the agreement
of each of its contractors and any subcontractors to comply, with all of the
following federal laws pertaining to civil rights and anti -discrimination:
Title VI & Title VII of Civil Rights Act of 1964
Equal Pay Act of 1962
Age Discrimination in EmploymentAct of 1967
Title IX of Educational Amendments of 1972
Section 504 of the Rehabilitation Act of 1973
Age Discrimination Act of 1975
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Title I& Title V ofAmericans with Disabilities Act of 1990
Fair Housing Act
Fair Credit Reporting Act
Equal Educational Opportunities Act
Uniform Relocation Act
Failure by the Contracting Party and each Energy Loan Loss Reserve Project Beneficiary to
comply with these laws shall constitute a breach of material obligation of the Contracting Party
and may result in termination of the Agreement.
b. Implementation Plan for Small and Disadvantaged Businesses. Each Energy Loan
Loss Reserve Project Beneficiary shall provide the Contracting Party an
implementation plan for training and hiring minority and disadvantaged workers.
Each Energy Loan Loss Reserve Project Beneficiary shall also demonstrate to the
Contracting Party that when contactors are being hired by the Energy Loan Loss
Reserve Project Beneficiary, if applicable, small disadvantaged business
enterprises are offered opportunities to bid on and receive contracted work on the
Project. Information about the Energy Loan Loss Reserve Project Beneficiary's
outreach to small and disadvantaged business enterprises shall be provided to the
Contracting Party when contracts are presented for review and approval in
accordance with Section 1 of this Appendix.
4. Job Postings. The Contracting Party shall post all jobs created by the Energy Loan Loss
Reserve Project Beneficiary resulting from the award of the contract and the use ofARRA
funds on www.ohiomeansiobs.com. The Contracting Party shall also cause each Energy
Loan Loss Reserve Project Beneficiary to require each of its contractors to post all jobs
created by the contractor resulting from the award of this contract and the use ofARRA
funds on www.ohiomeansiobs.com. "Jobs created" are those positions created and filled
or previously existing unfilled positions that are retained as a result ofARRA funding.
5. Protections for Individuals Reporting Compliance Issues (Whistleblower Protection).
a. Prohibition on Reprisals_ Pursuant to Section 1553 of ARRA, the Contracting
Party, each Energy Loan Loss Reserve Project Beneficiary, and each of its
contractors and any subcontractors are prohibited from discharging, demoting, or
otherwise discriminating against any employee of the Contracting Party,
contractor or subcontractor, as a reprisal for disclosing information that the
employee reasonably believes is evidence of
(1) gross mismanagement of the contract relating to funds for the Project;
(2) gross waste ofARRA funds;
(3) substantial and specific danger to public health or safety related to the
implementation or use ofARRA funds;
(4) an abuse of authority related to the implementation ofor use ofARRA funds;
or
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(5) a violation of law, rule, or regulation related to the contract (including the
competition for or negotiation of the contract) relating to ARRA funds.
b. Agency Action: ARRA authorizes an appropriate inspector general to receive and
investigate all complaints alleging a violation as described in paragraph (a) of this
section. Not later than 30 days after receiving an inspector general report of an
alleged reprisal, the federal agency loaning funds for this Agreement is required to
make a determination about whether an employee has been subjected to a
prohibited reprisal. The federal agency must either issue an order denying relief
in whole or in part or take one or more of the following actions:
(1) order the employer to take affirmative action to abate the reprisal;
(2) order the employer to reinstate the person to the position that the person
held before the reprisal, together with compensation including back page,
compensatory damages, employment benefits, and other terms and
conditions of employment that would apply to the person in that position if
the reprisal had not been taken;
(3) order the employer to pay the employee an amount equal to the aggregate
amount of all costs and expenses (including attorneys' fees and expert
witnesses' fees) that were reasonably incurred by the employee for or in
connection with bringing the complaint regarding the reprisal, as
determined by the head of a court of competent jurisdiction.
c. Non -enforceability of Certain Provisions Waiving Rights and Remedies or
Requiring Arbitration: Except as provided in a collective bargaining agreement,
the rights and remedies provided to aggrieved employees by ARRA Section 1553
may not be waived by any agreement, policy, form, or condition of employment,
including any predispute arbitration agreement. No predispute arbitration
agreement shall be valid or enforceable ifit requires arbitration ofa dispute arising
out of the circumstances for which employees are protected by Section 1553.
d. Requirement toPostNotice ofRights and Remedies: All employers receiving ARRA
funds, including the Contracting Party, each Energy Loan Loss Reserve Project
Beneficiary, its contractors and any subcontractors, shall post notice of employee
rights as described above in conspicuous locations with other required employee
rights information.
6. False ClaimsAct. Contracting Party shall promptly refer to the USDOE Inspector General
or any other appropriate inspector general any credible evidence that a principal,
employee, agent, contractor, Contracting Party, Energy Loan Loss Reserve Project
Beneficiary subcontractor or other person has submitted a false claim under the False
Claim Act or has committed a criminal or civil violation of laws pertaining to fraud,
conflict of interest, bribery, gratuity, or similar misconduct involving any Loan Funds.
7. Availability of Funds. Funds appropriated under ARRA and obligated to this award are
available for reimbursement of costs pursuant to the SEP -ARRA program.
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Publication. Information about this Agreement will be published on the Internet and linked to the
website www.recovery.gov, maintained by the federal Accountability and Transparency Board.
The Board may exclude posting contractual or other information on the website on a case-by-case
basis when necessary to protect national security or to protect information that is not subject to
disclosure under sections 552 and 552a oftitle 5, United States Code (the Freedom oflnformation
Act).
H-7
SPECIAL ASSESSMENT AGREEMENT
by and among
COUNTY TREASURER OF FRANKLIN COUNTY, OHIO
("Treasurer"),
And
CITY OF DUBLIN, OHIO
("City"),
And
COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY
("Authority"),
And
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT, INC.
("District'),
And
OH15 DUBLIN LLC
("Owner"),
And
VIAQUEST, INC.
("Lessee")
Dated as of , 2019
SPECIAL ASSESSMENT AGREEMENT
THIS SPECIAL ASSESSMENT AGREEMENT (this Agreement) is made effective
as of 2019 (the Effective Date), by and among the County Treasurer of
Franklin County, Ohio (the Treasurer), the City of Dublin, Ohio (the City), the Bexley,
Columbus, Dublin, Grove City, Hilliard, Perry Township, Whitehall, Worthington Regional
Energy Special Improvement District, Inc., doing business under the registered trade name
Columbus Regional Energy Special Improvement District, Inc., (the District), the Columbus -
Franklin County Finance Authority (the Authority), OH15 Dublin LLC (the Owner), and
ViaQuest, Inc. (the Lessee).
BACKGROUND:
WHEREAS, the District was created under Ohio Revised Code Chapters 1702 and
1710 and established pursuant to Resolution No. 0261X-2015 of the Council of the City of
Columbus, Ohio approved on November 23, 2015; and
WHEREAS, the Owner and the Lessee have determined that it is in their best interests
to cause the acquisition and installation and subsequent operation of certain improvements,
including, but not limited to the acquisition, construction, installation, improvement, and
equipping of a solar photovoltaic project and energy efficiency improvements, including,
without limitation, LED lighting upgrades, exterior pole work, elevator modernization, and
related improvements (collectively, the Project) on the real property located within Franklin
County, Ohio (the County) and the City, and as more fully described in Exhibit A to this
Agreement (the Property); and
WHEREAS, pursuant to Resolution No. 36-18 of the Council of the City (the
Council), approved on August 13, 2018, the Property was added to the territory of the
District; and
WHEREAS, the costs of the Project are being funded through an advance in the
amount of $169,873.50 (the Project Advance) to the Lessee pursuant to an Energy Project
Cooperative Agreement dated as of the Effective Date between the Authority, the District, the
Owner, the Lessee, and the City (the Energy Project Cooperative Agreement); and
WHEREAS, to secure the payment of the principal of, and any premium and unpaid
interest on the Project Advance used to finance the Project (the Project Costs), (i) the Owner
has signed and delivered to the Clerk of Council a Petition for Special Assessments for
Special Energy Improvement Projects and Affidavit (the Petition), for the acquisition,
construction, installation, equipping and improvement of the Project and evidencing the
Owner's agreement to the levy and collection of special assessments by the City (the Special
Assessments) on the Property, which are located within the District in amounts sufficient to
pay the Project Costs, and (ii) the City (a) has taken all the necessary actions required by
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Chapter 727 of the Ohio Revised Code, including, without limitation, the passage of the
assessing ordinance pursuant to the requirements of Ohio Revised Code Section 727.25, for
the levying of the Special Assessments and has caused or will cause the Special Assessments
to be certified to the County Auditor of Franklin County, Ohio (the County Auditor) for
collection by the Treasurer in semi-annual installments, and (b) hereby has agreed to transfer
to the Authority the payments of Special Assessments received, which payments are to be
transferred to the Authority to pay the Project Costs; and
WHEREAS, the Owner agrees that its delivery of the Petition and the requests and
agreements made in the Petition are irrevocable and that the parties to this Agreement have
acted and will act in reliance on the agreements contained in the Petition; and
WHEREAS, pursuant to the Petition, the Special Assessments have been levied
against the Property as described in the Petition and pursuant to this Agreement the Owner
and the Lessee are willing to agree to make Special Assessment payments in accordance with
the Petition; and
WHEREAS, Chapters 323 and 5721 of the Ohio Revised Code set forth certain
parameters and timing requirements for the foreclosure of property on which taxes and
assessments, including the Special Assessments, are due and owing and remain unpaid; and
WHEREAS, upon the occurrence of an Event of Default pursuant to the Energy
Project Cooperative Agreement, it may be necessary for the District to foreclose on the lien of
the Special Assessments with respect to the Property as set forth in Section 1 of this
Agreement; and
WHEREAS, in consideration of the Project Advance, the Owner and the Lessee are
willing to consent to an expedited foreclosure process with respect to the lien of the Special
Assessments as soon as possible (as referenced in Section 1 hereof), the form of the consents
being attached hereto as Exhibit B-1 and Exhibit B-2 (collectively, the Lessee and Owner
Consent); and
WHEREAS, the Lessee and Owner Consent with respect to the foreclosure of the
Special Assessments shall be a covenant running with the Property and binding upon the
Owner and the Lessee and upon future owners and lessees of the Property until Project Costs
are paid in full; and
WHEREAS, based on the Lessee and Owner Consent and other considerations, at the
request of the District, upon the occurrence of an Event of Default under the Energy Project
Cooperative Agreement, the Treasurer and the City have agreed to foreclose the lien of the
Special Assessments as soon as possible as described herein; and
WHEREAS, if any assessments, including, without limitation, the Special
Assessments, payments in lieu of taxes, real property taxes, or other governmental charges
2
levied on the Property are not paid when due and thereafter remain delinquent, the Treasurer,
pursuant to Ohio Revised Code Sections 5721.30 through 5721.41 (the Delinquent Tax Lien
Sale Act), specifically Ohio Revised Code Section 5721.33, may, in his discretion, but is not
required to, negotiate with one or more persons the sale of any number of tax certificates (Tax
Certificates) which evidence the liens (the Tax Liens) of the State of Ohio (the State) and its
applicable taxing districts for such delinquent assessments, including Special Assessments,
real property taxes, payments in lieu of taxes, governmental charges, or penalties and interest
on such Property; and
WHEREAS, pursuant to the Delinquent Tax Lien Sale Act, the Treasurer, in his
discretion, may sell such Tax Certificates at a discount from the full amount of the general
real estate taxes, assessments, including the Special Assessments, penalties and interest that
have become delinquent; and
WHEREAS, if the Treasurer were to sell such Tax Certificates at a discount (other
than in accordance with the provisions of this Agreement), the proceeds of such sale
representing the delinquent Special Assessments might be insufficient to pay the Project
Costs; and
WHEREAS, the Treasurer does not desire to take any action with respect to the
collection of the Special Assessments that might adversely affect the repayment of the Project
Advance without the consent of the District and the Authority; and
WHEREAS, the Treasurer has agreed to remit to the Authority, in the event of a
default under the Energy Project Cooperative Agreement, as set forth in this Agreement,
amounts collected by the Treasurer and relating to the Special Assessments, including without
limitation amounts collected by the Treasurer as a result of foreclosure of the lien of the
Special Assessments on the Property and including amounts received from a sale of Tax
Certificates pursuant to the Delinquent Tax Lien Sale Act;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, and desiring to be legally bound hereunder, the parties hereto covenant and
agree as follows:
Section 1. Special Assessments.
1.1 The Owner, prior to the execution and delivery of this Agreement, has
signed and delivered to the Clerk of Council the Petition for the acquisition, construction,
installation, equipping and improvement of the Project and evidencing the agreement of the
Owner to the levy and collection of the Special Assessments as security for the Project
Advance. The Owner agrees that its delivery of the Petition and the requests and agreements
made therein are irrevocable and that the parties hereto have acted and will act in reliance on
3
the agreements contained in that Petition. The City has duly enacted Resolution No. [—],
Ordinance [ ], and Ordinance [ ] (the Assessing Ordinance) to provide for the levy and
collection of the Special Assessments on the Property. The Clerk of Council certified (or
caused to be certified) the Assessing Ordinance to the County Auditor as set forth in the
Petition.
1.2 The City shall cause the Special Assessments, as set forth in the
Assessment Schedule attached to the Petition, to be certified to the County Auditor on or
before the last date for the certification of special assessments to the County Auditor pursuant
to the requirements of Section 727.33 of the Ohio Revised Code.
1.3 In the event the Project Advance is prepaid or redeemed, in whole or in
part, the parties shall, in cooperation with the Owner or the Lessee, and to the extent permitted
by law, cause the aggregate lien of the Special Assessments to be no greater than the
remaining principal of and interest and premium, if any, on the Project Advance through
maturity.
1.4 To the extent that the Owner or the Lessee prepays any of the required
payments pursuant to the Energy Project Cooperative Agreement, then the amounts of the
Special Assessments shall be reduced in accordance with the Assessment Schedule attached
to the Petition.
1.5 To secure payments made on the Project Advance, the City hereby
assigns to the Authority all of its rights, title to, and interest in the Special Assessments to be
levied with respect to the Project Costs. As long as the Project Advance shall be outstanding
and amounts shall be due and owing under the Energy Project Cooperative Agreement with
respect to the Project Advance, the City assigns to the Authority all of its right, title and
interest in and to, and grants to the Authority a security interest in, the Special Assessments
received by the City and in the City's related special assessment fund. The Authority, as
assignee of the City, is hereby authorized to take any and all such actions as assignee of and,
to the extent required by law, in the name of and for and on behalf of the City, to collect
delinquent Special Assessments levied by the City pursuant to law and to cause the lien
securing the delinquent Special Assessments to be enforced through prompt and timely
foreclosure proceedings, including, but not necessarily limited to, filing and prosecution of
mandamus or other appropriate proceedings to induce the County Prosecutor, the County
Auditor, and the County Treasurer, as necessary, to institute such prompt and timely
foreclosure proceedings. The proceeds of the enforcement of any such lien shall be deposited
and used in accordance with this Agreement and the Energy Project Cooperative Agreement.
The Treasurer, the City, the District, the Authority, the Owner, and the Lessee each hereby
acknowledges, agrees with, and consents to those assignments.
1.6 The City, upon receipt of any moneys received by the City as Special
Assessments, but in any event not later than 15 calendar days after the receipt of such moneys
4
and the corresponding final settlement from the County Auditor, shall deliver to the Authority
all such moneys received by the City as Special Assessments. The City's obligation to
transfer the Special Assessments to the Authority shall be absolute and unconditional, and the
City shall make such transfers without abatement, diminution, or deduction regardless of any
cause or circumstance whatsoever, including, without limitation, any defense, set-off,
recoupment, or counterclaim which the City may have or assert against the Authority, the
Owner, the Lessee, or any other person; provided, however, that the City's obligation to
transfer special assessments is limited to the Special Assessments actually received by the
City from the County Auditor. The Authority may from time to time provide written payment
instructions to the City for payment of Special Assessments by check, wire instructions, or
other means.
1.7 Notwithstanding anything in this Agreement to the contrary, the
Treasurer's obligations under this Agreement are not and shall not be secured by an obligation
or pledge of any moneys raised by taxation. The Treasurer's obligations shall be limited to
the moneys levied, collected and received in respect of the Special Assessments and any
County -imposed collection fees, charges, or penalties. The Treasurer's obligations under this
Agreement do not and shall not represent or constitute a debt or pledge of the faith and credit
or taxing power of the County.
1.8 Notwithstanding anything in this Agreement to the contrary, the City's
obligations under this Agreement are not and shall not be secured by an obligation or pledge
of any moneys raised by taxation. The City's obligation under this Agreement shall be limited
to any moneys received from the County in respect of the Special Assessments and any
County -imposed collection fees, charges, or penalties. The City's obligations under this
Agreement do not and shall not represent or constitute a debt or pledge of the faith and credit
or taxing power of the City.
Section 2. Foreclosure Process.
2.1 The Treasurer, the City, the Authority, the Owner, and the Lessee each
acknowledge that the Special Assessments are to secure payments relating to the Project
Advance, including the Project Costs and other amounts as provided under the Energy Project
Cooperative Agreement. The Treasurer agrees that so long as the Project Advance is
outstanding and the Project Costs thereon, and other amounts under the Energy Project
Cooperative Agreement are secured, at least in part, by the revenues derived from the Special
Assessments, upon the Treasurer's receipt of written notice from the Authority or the District,
with a copy to the other of the Authority or the District and to the Owner, the Lessee, and the
City that an Event of Default (as defined under the Energy Project Cooperative Agreement)
has occurred and is continuing and which notice directs Treasurer to foreclose on the lien of
the Special Assessments, the Treasurer will, not later than 30 days from the date of the receipt
of such notice, file and diligently prosecute a foreclosure action against the Property,
following the procedures for lien foreclosures established in Ohio Revised Code §323.25 and
5
related sections. The foreclosure action shall be to collect all Special Assessments then due
and owing on the Property in accordance with the Petition. Without the prior written consent
of the District and the Authority, the Treasurer will not confirm the sale of the Property for an
amount less than 100% of the amount of the Special Assessments and other general real estate
taxes, payments in lieu of taxes, and assessments then due and owing with respect to the
Property, as shall be certified by the District to the Treasurer pursuant to the records of the
Treasurer. All fees and expenses of the Treasurer in collecting the Special Assessments are to
be included and paid for by the Owner and the Lessee.
2.2 The Treasurer hereby acknowledges that the City has assigned all of its
right, title, and interest in and to the Special Assessments to the Authority, and that the
District has assigned all of its right, title and interest in an to the Special Assessments to the
Authority, and the Treasurer hereby agrees that so long as the Project Advance is outstanding
and the Project Costs thereon and other amounts under the Energy Project Cooperative
Agreement are secured, at least in part, by the revenues derived from the Special
Assessments, the Treasurer will not sell or negotiate the sale of one or more Tax Certificates
related to the Property for an amount less than 100% of the amount levied and certified for
collection without the prior written consent of the District and the Authority.
2.3 The Treasurer hereby covenants and agrees that if any of the general
real estate taxes, payments in lieu of taxes, assessments, including the Special Assessments,
governmental charges, or penalties and interest on the Property are delinquent and the
Delinquent Tax Lien Sale Act would permit the Treasurer to negotiate the sale of Tax
Certificates with respect thereto, the Treasurer will, prior to giving any notice under the
Delinquent Tax Lien Sale Act of a sale of Tax Certificates with respect to the Property, give
written notice to the District and the Authority regarding the same and state therein whether
the Treasurer reasonably anticipates receiving no less than 100% of the general real estate
taxes, payments in lieu of taxes, and assessments, including the Special Assessments,
penalties and interest, originally levied and certified for collection plus other charges,
including attorney's fees, or whether the Treasurer reasonably expects to receive less than
100% of the general real estate taxes, payments in lieu of taxes, and assessments, including
the Special Assessments, penalties and interest, levied and certified for collection plus other
charges, including attorney's fees, and in accordance with this Agreement is requesting the
consent of the District and the Authority for such a sale.
2.4 The Treasurer agrees, on behalf of the County, not to utilize the
authority contained in Ohio Revised Code Chapter 5722 to transfer any of the Property to the
county land reutilization corporation, to sell or convey any of the Property to any political
subdivision under the authority contained in Ohio Revised Code Chapter 5722, or to clear the
liens and encumbrances applicable to the Property under the authority contained in Ohio
Revised Code Chapter 5722 without the express written consent of the District and the
Authority.
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2.5 Nothing in this Agreement shall, or shall be construed to, prevent the
Treasurer from selling one or more Tax Certificates with respect to the Property to a third
party without the consent of the Authority and the District if the price received for the Tax
Certificate or Tax Certificates equals or exceeds 100% of the delinquent general real estate
taxes, assessments, including the Special Assessments, penalties and interest on the Property
outstanding against the Property at the time of such sale.
2.6 The District and the Authority each hereby agrees that upon written
notice from the Treasurer pursuant to Section 2.1 of this Agreement, it, within 30 days of
receipt of the Treasurer's notice, shall give a written response to the Treasurer indicating
therein whether it consents to the request for sale of a Tax Certificate or Tax Certificates.
2.7 No delay or failure of the District or the Authority to give a written
response shall be construed to be a consent to such request or to be a waiver of the right to
give such consent. No consent or refusal thereof by the District or the Authority in response
to a request by the Treasurer shall extend to or affect any subsequent request of the Treasurer
or shall impair the rights of the District or the Authority with respect any such subsequent
request.
2.8 So long as the Project Costs are outstanding, the Treasurer hereby
covenants and agrees (a) to remit to the Authority, as appropriate and as provided for herein,
not more than 30 days from the date of collection by the Treasurer, all Special Assessments
collected from the Property, including amounts collected from Tax Certificates; and (b) to the
extent the Treasurer seeks and is appointed as receiver for the Property, as provided for in
Chapter 323 of the Revised Code, after payment of reasonable fees and expenses of the
Treasurer, all amounts collected by the Treasurer, as receiver for the Property and collected as
a result of the Special Assessments, shall be remitted to the District.
Section 3. Indemnification by Owner and Lessee
3.1 The Owner and the Lessee hereby release the District, the City, the
Treasurer, the Authority, and their respective officers, directors and employees (the
Indemnified Parties), from, agree that the Indemnified Parties shall not be liable for, and
indemnify the Indemnified Parties against, all liabilities, claims, costs and expenses, including
out-of-pocket and incidental expenses and legal fees, imposed upon, incurred or asserted
against Indemnified Parties, on account of. (i) the levy and collection of the Special
Assessments; (ii) any loss or damage to property or injury to or death of or loss by any person
that may be occasioned by any cause whatsoever pertaining to the acquisition, construction,
installation, equipment, improvement maintenance, operation and use of the Project; (iii) any
breach or default on the part of the Owner or the Lessee, as appropriate, in the performance of
any covenant, obligation or agreement of the Owner or the Lessee, as appropriate, under the
Energy Project Cooperative Agreement, or arising from any act or failure to act by the Owner
or the Lessee, as appropriate, or any of their respective agents, contractors, servants,
7
employees or licensees; (iv) the failure of the Owner or the Lessee, as appropriate, to comply
with any requirement of this Agreement; (v) the efforts of the City and the Treasurer to collect
Special Assessments; (vi) any legal costs or out-of-pocket costs incurred by the District
specifically related to additional approvals or actions that may be required by the District
arising after the date of the Energy Project Cooperative Agreement (and in the case of such
legal costs or out-of-pocket costs, agrees to pay such costs directly to the District); (vii) any
claim, action or proceeding brought with respect to any matter set forth in clause (i), (ii), (iii),
(iv), (v) or (vi) above, provided, however, that the Owner or the Lessee, as appropriate, shall
not indemnify the Indemnified Parties as provided above to the extent that any liability, claim,
cost or expenses arises out of or results from the gross negligence, willful misconduct or
breach of this Agreement or the Energy Project Cooperative Agreement of the Indemnified
Parties.
3.2 The Owner and the Lessee agree to indemnify, to pay, and to hold each
of the Indemnified Parties harmless from and against all liabilities, and all reasonable costs
and expenses, including out-of-pocket expenses and attorneys' fees, arising out of any federal,
state or local environmental laws, regulations, or ordinances incurred by any of the
Indemnified Parties as a result of the existence on or release from the Project Site of
Hazardous Materials, which in any way result from any act of omission or commission of the
Owner or the Lessee, as appropriate, or any of their respective agents, employees,
independent contractors, invitees, licensees, successors, assignees, or tenants.
Section 4. Additional Aereements and Covenants.
4.1 The agreements of the parties hereafter with respect to the foreclosure
process shall be a covenant running with the Property and, so long as Project Costs are
payable from or secured, at least in part, by the revenues derived from the Special
Assessments, such covenant shall be binding upon the Property (except as released as
provided in the Lessee and Owner Consent), the Owner, the Lessee, and any future owner or
lessee of all or any portion of the Property. This Agreement, the Lessee and Owner Consent,
and all other required documents and agreements, shall be recorded with the Franklin County,
Ohio Recorder's Office, so that the agreements of the parties hereafter with respect to the
foreclosure process established pursuant to this Agreement is a covenant running with and is
enforceable against the Property.
4.2 If any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
4.3 This Agreement shall inure to the benefit of each of the parties, and
each of their successors and assigns, all subject to the provisions of this Agreement. This
Agreement may be amended only by a written instrument of the parties, and any attempt to
amend or modify this Agreement without a written instrument signed by all of the parties to
3
this Agreement shall be null and void. Notices given hereunder shall be in writing and shall
be effective when actually received if delivered by hand or overnight courier, or three days
after being sent by registered or certified mail, postage prepaid, the certification receipt
therefore being deemed the date of such notice, and addressed to the parties as follows:
If to City: City of Dublin, Ohio
5200 Emerald Parkway
Dublin, Ohio 43017
Attention: City Manager
Ifto Treasurer: County Treasurer
Franklin County, Ohio
373 S. High Street, 17"' Floor
Columbus, Ohio 43215
Attention: Cheryl Brooks Sullivan
If to the Authority: Columbus -Franklin County Finance Authority
350 East First Street, Suite 120
Columbus, Ohio 43201
Attention: President
If to the District: Columbus Regional Energy Special Improvement District, Inc.
c/o Columbus -Franklin County Finance Authority
350 E. First Avenue, Suite 120
Columbus, Ohio 43201
Attention: Jeremy Druhot
With a Copy to: J. Caleb Bell
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
If to Owner: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
Attention: Asset Manager
With a Copy to: OH 15 Dublin LLC
c/o Gladstone Commercial
1521 Westbranch Drive
McLean, Virginia 22102
9
Attention: General Counsel
If to the Lessee: ViaQuest, Inc.
525 Metro Place North, Suite 300
Dublin, Ohio 43017
4.4 (a) The Authority shall have the unrestricted right at any time or from
time to time, and without the consent from the Treasurer, the City, the District, the Owner, or
the Lessee, to assign all or any portion of its rights and obligations under this Agreement and
may sell or assign any and all liens received directly or indirectly from the City to any person
(each, an Authority Assignee), and the Owner and the Lessee agree that they shall execute,
or cause to be executed, such documents, including without limitation, amendments to this
Agreement and to any other documents, instruments and agreements executed in connection
with this Agreement as the Authority shall deem necessary to effect the foregoing. Any
Authority Assignee shall be a party to this Agreement and shall have all of the rights and
obligations of the Authority under this Agreement (and under any and all other guaranties,
documents, instruments and agreements executed in connection with this Agreement) to the
extent that such rights and obligations have been assigned by the Authority pursuant to the
assignment documentation between the Authority and such Authority Assignee, and the
Authority shall be released from its obligations under this Agreement and under any and all
other guaranties, documents, instruments and agreements executed in connection with this
Agreement to a corresponding extent.
(b) The Authority shall have the unrestricted right at any time and from time to
time, and without the consent of or notice of the Treasurer, the City, the District, the Owner,
or the Lessee, to grant to one or more persons (each, a Participant) participating interests in
the Authority's obligation to make the Project Advances under the Energy Project
Cooperative Agreement or any or all of the loans held by the Authority under the Energy
Project Cooperative Agreement. In the event of any such grant by the Authority of a
participating interest to a Participant, whether or not upon notice to the Treasurer, the City,
the District, the Owner, and the Lessee, the Authority shall remain responsible for the
performance of its obligations under the Energy Project Cooperative Agreement and the
Owner and the Lessee shall continue to deal solely and directly with the Authority in
connection with the Authority's rights and obligations under the Energy Project Cooperative
Agreement.
(c) The Authority may furnish any information concerning the Lessee in its
possession from time to time to prospective Authority Assignees and Participants.
4.5 If at any time during the term of this Agreement the Lessee's lease of
the Property and the Project with the Owner (including as amended, extended, or substituted)
terminates, the Owner shall assume all of the Lessee's rights and obligations under this
Agreement, and each reference to the "Lessee" in this Agreement shall refer to the Owner.
10
4.6 This Agreement shall be construed in accordance with the laws of the
State of Ohio.
4.7 This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
4.8 The Parties hereby acknowledge and agree that this Agreement does
not constitute a contract involving the expenditure of money by the County.
4.9 All parties to this Agreement hereby acknowledge and agree that the
Owner is executing this Agreement, the Lessee and Owner Consent, the Energy Project
Cooperative Agreement, and any and all other documents related to the Special Assessments
or the PACE financing (collectively, the PACE Documents) as an accommodation to the
Lessee, so that the Lessee may obtain financing for the Lessee's Project. Notwithstanding any
other provision contained in this Agreement or the other PACE Documents, the Lessee is and
shall be primarily responsible for the performance of any and all obligations of the Owner and
the Lessee in the PACE Documents. If the Lessee fails to perform its obligations under the
PACE Documents, the Owner acknowledges and agrees that the Owner shall assume all of the
Lessee's rights and obligations in the PACE Documents, as expressly contained in the
respective PACE Documents.
(Signature Pages Immediately Follow)
11
IN WITNESS WHEREOF, each party to this Agreement has caused this Agreement to
be executed in its respective name and capacity by its respective duly authorized officers, all
as of the Effective Date.
"TREASURER"
COUNTY TREASURER OF FRANKLIN
COUNTY, OHIO
Treasurer
County of Franklin, Ohio
STATE OF OHIO )
SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named FRANKLIN COUNTY TREASURER, who acknowledged that he or she
did sign the foregoing instrument and the same is his or her free act and deed as such officer
of Franklin County.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-1
"CITY"
CITY OF DUBLIN, OHIO
Name:
Title:
STATE OF OHIO )
SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named CITY OF DUBLIN, OHIO by its
who acknowledged that he or she did sign the foregoing instrument and that the same is his or
her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-2
"AUTHORITY"
COLUMBUS -FRANKLIN COUNTY
FINANCE AUTHORITY
Name:
Title:
STATE OF OHIO )
SS:
COUNTY OF FRANKLIN )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named COLUMBUS -FRANKLIN COUNTY FINANCE AUTHORITY by _
its who acknowledged that he or she did sign the
foregoing instrument and that the same is his or her free act and deed as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-3
"DISTRICT"
BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD,
PERRY TOWNSHIP, WHITEHALL, WORTHINGTON
REGIONAL ENERGY SPECIAL IMPROVEMENT DISTRICT,
INC., D/B/A:
COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC
C
Name:
Title:
STATE OF OHIO )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named BEXLEY, COLUMBUS, DUBLIN, GROVE CITY, HILLIARD, PERRY
TOWNSHIP, WHITEHALL, WORTHINGTON REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC., d/b/a COLUMBUS REGIONAL ENERGY SPECIAL
IMPROVEMENT DISTRICT, INC. by , its , who
acknowledged that such officer did sign the foregoing instrument and that the same is such
officer's free act and deed as such officer and of said district.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-4
"OWNER"
OH 15 Dublin LLC,
a Delaware limited liability company
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
STATE OF
SS:
COUNTY OF
C
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named OH15 DUBLIN LLC Matthew Tucker, the Vice President of GCLP
Business Trust, the General Partner of Gladstone Commercial Limited Partnership, the
Managing Member of OH 15 Dublin LLC, who acknowledged that he did sign the foregoing
instrument and that the same is his free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
Notary Public
S-5
"LESSEE"
VIAQUEST, INC.,
an Ohio corporation
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared
the above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who
acknowledged that he did sign the foregoing instrument and that the same is his free act and
deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
[SEAL]
This instrument prepared by:
Colin J. Kalvas
Bricker & Eckler LLP
100 South Third St.
Columbus, Ohio 43215
Notary Public
S-6
FISCAL OFFICER'S CERTIFICATE
The undersigned, Director of Finance of the City of Dublin, Ohio, hereby certifies that
the City has established a special assessment fund, into which the Special Assessments (as
that term is defined in the foregoing Agreement) received by the City shall be deposited, free
from any previous encumbrances. The City shall use the moneys deposited in such special
assessment fund to meet its obligations under the foregoing Agreement. This Certificate is
given in compliance with Ohio Revised Code Sections 5705.41 and 5705.44.
Dated: 2019
Director of Finance
City of Dublin, Ohio
EXHIBIT A
The real property subject to this Agreement is located at the commonly used mailing
address 525 Metro Place North, Dublin, Ohio with Franklin County Auditor Parcel ID No.
273-001343-00, and having the following legal description:
Situated in lee CIC( of Dub"o, County of FranWln, State of Ohio, described as follows
PARCH -%F
Situated I I tl E Staff Df Chig, (son no/ of F a car a nc Cy..` Orbit, air(,- or lid real it b'iigirl
Mlleary, St ety 2919 a to be rg a 6 0 t act,iaticlh LIofLot Naf cof age immliter".
whitlr is a SL cuscrin to the vi lege of Dtblin, Ohio and a plat of which Is of r7cc cin Plat Book
55, Pages 8 ane 5 Re sner's Office, Hat County, Ohio, and being bounded authors
Parties aro descrluee as follow.
Beglnr ng at a so nt In tre Northerly rig it of way line of Metm Place South (60.0 feet in width),
Mat is lead ad Sdtth 50° O ' 29' _asp 6091 feet from the Sc4hwe4erly mmcr of said Lot No.
5, a Suit insider miner of serene Bof salt "Metrocertet';
ThalN 43 CO" fee'_to a coin[ front me- nr,bt.
aloneogarc of said urrve(Dela=12°t'0e", Rat es=3:60 (eeL),acboN bearing
el he rI ounce g -
andel 11° /1 5a feetIDapoint of fangenry;
andallc
07 feet t
Thence South SI° 3C CO" East, 595.02 feet- e point,
irdof"')C
Tbentt South East 7339 fe5f `o point the Scwnerly Recent Thence
ani ne,
loan angle call Ir said rne; Thence
Ire. Bouch 36° 42' 35' East, 6 e c
along the ly ne
d Soua, :15
lne NortM1 SS°E 1565[, :9.6g `cet Lc p'J-henmSouth
i age b3 East,
ndmin3 area,
4fir:Faa
81°36' 45'aY, 339 feet toe Vum;
Thence JE' 21' 16" Wei, 998 feet to a point in the Northerly right of way line of Natro
Place gaunt,
Ther clung sold right of way line, North 81°38'95"Wastes 165b9 taeC Coagains of mrvaWre
clu
h1-090—$�6
f a curve to One I2
ALeir"
Theirl noog the -.'d curve (Delta 12 33 39 Radlus 1160.0 feet) h'.)rd bearing
-/
and d t - flon182 5 35"b t 7 a 1/ a[ lit of over re e
CZ 3)
Thence along me al c o a coursem!he rig t(Site Lac 39 52G,Fal 211cb,a
0013145
chord bearing and distance of North /9° 14' Is ceor .66.92 feet to :he P ace of beginning; and
cvntainirg 6.013 acres, more or less.
A-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
A-2
EXHIBIT B-1
OWNER CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes
and states as follows:
The undersigned is the of OH15 Dublin LLC, a Delaware limited liability
company (the "Owner").
This Owner Consent, dated as of [ ], 2019, is given by the Owner pursuant to
the Special Assessment Agreement dated as of [ ], 2019 (the "Agreement') by and
among the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin,
Ohio (the "City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township,
Whitehall, Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus
Regional Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin
County Finance Authority (together with its permitted successors and assigns under the
Agreement, the "Authority"), the Owner, and Viaquest, Inc. (the "Lessee"). Terms not otherwise
defined herein shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property
is described in Exhibit 1 to this Owner Consent, and the Special Assessments are disclosed on
Exhibit 2 to this Owner Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default' (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement.
In consideration of the Project Advance to finance the Project, the Owner hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
B-1-1
The Owner is the owner of the Property. The Owner covenants and agrees that so long as
the Project Advance remains outstanding, except as the covenant may be released by the District,
the City and the Authority, as applicable, in writing, the expedited foreclosure process
established pursuant to the Agreement shall be a covenant on and running with, and shall be
binding upon, the Property, the Owner and all future owners of the Property. Any release,
modification or waiver of the covenant running with the land by the District, the City or the
Authority, as applicable, shall be filed of record with the Franklin County, Ohio Recorder's
Office. The Owner agrees that this Owner Consent shall be recorded with the Franklin County,
Ohio Recorder's Office and the Owner covenants and agrees to cause such documents to be
recorded and to take such reasonable steps as are necessary, so that the expedited foreclosure
process with respect to the lien of the Special Assessments is a covenant on and running with the
Property and is binding on the Owner and any and all future owners of all or any portion of the
Property.
The Special Assessments have been levied by the City and certified for direct collection
in semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Owner Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate
and collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments
attached to this Owner Consent as Exhibit 2. Unless earlier paid by the Owner or any successor
in interest of the Owner to the Property, the Special Assessments shall be levied, billed, due and
payable, and collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Owner Consent to the contrary notwithstanding, this Owner Consent
shall in no way be construed as a waiver by the Owner of its statutory right of redemption,
including the full applicable redemption period.
(Signature Page Immediately Follows)
B-1-2
Further affiant sayeth naught.
"OWNER"
OH15 DUBLIN LLC
By: Gladstone Commercial Limited Partnership
Its: Managing Member
By: GCLP Business Trust II
Its: General Partner
IC
STATE OF )
SS:
COUNTY OF )
Matthew Tucker, Vice President
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named OH15 DUBLIN LLC by Matthew Tucker, the Vice President of GCLP Business
Trust, the General Partner of Gladstone Commercial Limited Partnership, the Managing Member
of OH15 Dublin LLC, who acknowledged that he did sign the foregoing instrument and that the
same is such officer's free act and deed as such officer and of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-1-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm CuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
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Pursuant to Ohio Revised Code Chapter 323, the Borrower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-1-2-1
EXHIBIT B-2
LESSEE CONSENT
(Affidavit of Facts Relating to Title Made Pursuant to O.R.C. §5301.252)
The undersigned, having been duly cautioned and sworn, deposes
and states as follows:
The undersigned is the of Viaquest, Inc., an Ohio corporation (the
"Lessee").
This Lessee Consent, dated as of [ ], 2019, is given by the Lessee pursuant to
the Special Assessment Agreement dated as of [ ], 2019 (the "Agreement) by and
among the County Treasurer of Franklin County, Ohio (the "Treasurer"), the City of Dublin,
Ohio (the "City"), the Bexley, Columbus, Dublin, Grove City, Hilliard, Perry Township,
Whitehall, Worthington Regional Energy Special Improvement District, Inc., d/b/a the Columbus
Regional Energy Special Improvement District, Inc., (the "District'), the Columbus -Franklin
County Finance Authority (together with its permitted successors and assigns under the
Agreement, the "Authority"), OH15 Dublin, LLC (the "Owner") and the Lessee. Terms not
otherwise defined herein shall have the meaning ascribed to such terms in the Agreement.
The Agreement provides for an expedited foreclosure process with respect to certain
Special Assessments which have been levied on the Property by the City in order to pay the costs
of special energy improvement projects under Ohio Revised Code Chapter 1710. The Property
is described in Exhibit 1 to this Lessee Consent, and the Special Assessments are disclosed on
Exhibit 2 to this Lessee Consent.
The Agreement further provides that if an event of default occurs and is continuing with
respect to a required semi-annual payment of Special Assessments or an "Event of Default' (as
that term is defined in the Energy Project Cooperative Agreement, as appropriate) under the
Energy Project Cooperative Agreement occurs and is continuing, the Treasurer will pursue an
expedited foreclosure of the lien of the Special Assessments, all as provided in the Agreement.
In consideration of the Project Advance to finance the Project, the Lessee hereby consents to the
expedited foreclosure process with respect to the lien of the Special Assessments then due and
owing with respect to the Property, as provided in the Agreement.
The Lessee is the Lessee of the Property. The Lessee covenants and agrees that so long
as the Project Advance remains outstanding, except as the covenant may be released by the
District, the City and the Authority, as applicable, in writing, the expedited foreclosure process
established pursuant to the Agreement shall be a covenant on and running with, and shall be
binding upon, the Property, the Lessee and all future Lessees of the Property. Any release,
B-2-1
modification or waiver of the covenant running with the land by the District, the City or the
Authority, as applicable, shall be filed of record with the Franklin County, Ohio Recorder's
Office. The Lessee agrees that this Lessee Consent shall be recorded with the Franklin County,
Ohio Recorder's Office and the Lessee covenants and agrees to cause such documents to be
recorded and to take such reasonable steps as are necessary, so that the expedited foreclosure
process with respect to the lien of the Special Assessments is a covenant on and running with the
Property and is binding on the Lessee and any and all future Lessees of all or any portion of the
Property.
The Special Assessments have been levied by the City and certified for direct collection
in semi-annual installments due on January 31 and July 31 of each of the years disclosed in the
schedule of Special Assessments attached to this Lessee Consent as Exhibit 2. The Special
Assessments will be certified to the County Auditor for placement on the tax list and duplicate
and collection with and in the same manner as real property taxes as special assessments binding
against the Property in each of the years disclosed in the schedule of Special Assessments
attached to this Lessee Consent as Exhibit 2. Unless earlier paid by the Lessee or any successor
in interest of the Lessee to the Property, the Special Assessments shall be levied, billed, due and
payable, and collected in each of the years in each of the amounts disclosed on Exhibit 2.
Anything in this Lessee Consent to the contrary notwithstanding, this Lessee Consent
shall in no way be construed as a waiver by the Lessee of its statutory right of redemption,
including the full applicable redemption period.
(Signature Page Immediately Follows)
B-2-2
Further affiant sayeth naught.
"LESSEE"
VIAQUEST, INC.
C
Michael Bell, Chief Financial Officer
STATE OF )
SS:
COUNTY OF )
BEFORE ME, a Notary Public in and for said County and State, personally appeared the
above named VIAQUEST, INC. by Michael Bell, its Chief Financial Officer, who acknowledged
that he did sign the foregoing instrument and that the same is such officer's free act and deed as
such officer and of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this
day of 12019.
This instrument was prepared by:
J. Caleb Bell, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Notary Public
B-2-3
EXHIBIT 1
Situated in the City of Dublin, County of Frothing State of Ohio, desalbed as follows:
PARCELONE
Situated In Me State of Ohio, County of Franklin and City of Dublin, and being located in Virginia
Military Swey, 2419 and beim a 6 0 P arer -irtdeJ, LI of Lot Aa.S OF are incproorr
Win 7h la C the VI age Of Da blin. Ohio asd a plat of which is Of mm'G In Plat Poor
5 les 8 a is c, R ado's Office, Fral County, Or.., ant )afro bounded and more
Portia aN cashcar]as follows:
door rr ng at o so OF In OF Northerly right of way line of fade ris=e South (60.0 fed[ in width),
that is lure ed Sectil 50' OT 29" Fast; 60.91 fee from the So tinsoesrerly corner of said Lot No.
5, a Soft acatery comer of Rerpi ye W of sale, "Metroreter ,
Thence Pont 35' 43 CO" Cast, 78 27 fee': to a Orion of nrvai ure in it2 nc'nt.
Thence alone try arc of said surve ;Dela = 17' 17 09", Rae us = 3- 60 feet): a chord bearing
and distance of 'do Fin do° 21 3c Eos'_, 39.5} feetID a pour of fangenry;
Thence Nbd[ 3" 9C CO" East, 515.07 feettO e point;
Trial South 31� 381, East, ]3352 feet `o a point la the Scutn ly line -< Reserl 5; Thence
along so d Southerly Ire. South 36° 42' 35' East, ;8.86 rcol IC an angle point if sold rne, Thence
ndminn sin ic frid4.,.aerly l ne North SS° L 15 East, 19.60'net Lc p'J-henm5euth
810 36 Is la[ 34 fintlonp'i
t�AC�t- �"P�'
The 'vudrJh 211Vicar,'408 feet tO a print it the Knit!�crly'ight ylnecfNano
Place South;
Thence unto sold richt Of call line, North 81038'45" Wes, 165.84 feet a a point of Curvature
Id -090-$56
f a curve to Ufa last,
A(A-- cgr"
d fear rig
Therni no 10 u - if _ rve (Delta = 121 33' 39 R 1180.01 L h. ea
and d t e of 8/ 5 5 west, 25817 feet[ it of revere e
�� 73�
Thence along th .at 9't( -LO Pelt 39 5Or,Pena 2 1' Of,
¢
00l34J
chord earring are, datriwo o'VForin/4'14'If L`Ject,;86. 77 feet to :fp p ace of be.inri rig: sed
containing 5.013 aces, To -e or ICs
B-2-1-1
'HNCELW/O '.
I( E H kW TH end subject W(1) certain perpetual, non-exclusive, ecproal eazenchi a of
Ights cC toyfc.- forhooP, of ingessandagrees, for Me purposes of constructing, having, color;
t t %
on I taon9cn d' 'S c'cbd3a ctl Y a-ft t crM
f, "I
t RLprioaf Doric ofE dv fc, Ingrets atE9 IC Uriveody, ,
,vecul n do toord d. Prudertialt suonce Companv ofa d
lkI
cr
fleincory 4s 3/91 D 9 64 d
a4
] iC I e, it recorded in Deed Book, Vol. 3799, Pric CSO Re, rriRUnite, Firnkilic
�l
"lois
Bc4 r teetari.1conLrdirg'romMetin-Nal
Nor91t'JL t N f Mct t d o sen t f
kts,by
y
dmP3r-1I,vf
d td m ee t V eaten 9c ror1741, a
pre nd egress recorded In Deed Book VoL 3291, L.dc >`a ve..er tiers
deet efermmru'.'oi n and
j, Q
Records.
Office. Fafklln CocM1y Recortls.
� �
naat Nozn cmx=
COmrcrlYkroc:f as:525 Metro pram North, Dublin, OH 93017
B-2-1-2
1MM1111111E1
SCHEDULE OF SPECIAL ASSESSMENTS
Wtl.N NOmOt NNteN NOW &NOW TNYw M swMmm UuMmOg
PqM ua Ixlaxm slx NOW i« MhMFf ]UMMIM wnu
Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1
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Pursuant to Ohio Revised Code Chapter 323, the Boarower Payment Dates identified above
are subject to adjustment by the Franklin County Auditor under certain conditions.
Pursuant to Ohio Revised Code Section 727.36, the Franklin County Auditor may charge and
collect afee in addition to the amounts listed in the above schedule.
B-2-2-1